2021 (10) TMI 288 - HC - Indian Laws

Appeal Dismissed: Lack of Proof Upholds Acquittal under Section 138 of NI Act

The High Court dismissed the appeal against the acquittal of the accused under Section 138 of the NI Act. The court found discrepancies in the ... Dishonor of Cheque - acquittal of the accused - rebuttal of presumption - legally enforceable debt or not - failure to prove the cheque - HELD THAT:- There is no evidence as to when the vehicle was exactly seized, what was the condition of the vehicle and to whom it was sold, whether it was sold by auction or by any mutual agreement is not at all forthcoming. Hence, it appears that the complainant has managed the things amongst themselves and disposed of the vehicle. Complainant in the complaint nowhere asserted regarding seizure of the vehicle though PW. 1 claims that he has intimated the sale to accused No. 1 orally. The said contention cannot be accepted as the company is dealing with the matter and it is not accepted that company deals orally - it appears that the complainant has managed the things amongst themselves and disposed of the vehicle. Complainant in the complaint nowhere asserted regarding seizure of the vehicle though PW. 1 claims that he has intimated the sale to accused No. 1 orally. The said contention cannot be accepted as the company is dealing with the matter and it is not accepted that company deals orally. It is evident that the cheque dated 19.12.2013 is obtained by the complainant at the time of execution of the agreement Ex. P6 itself and it is a post dated cheque - The evidence on record disclose Ex. P1 when compared with Ex. P6, establish that it is the post dated cheque issued at the time of execution of Ex. P1. Even that apart, account statement itself discloses that no proper account is maintained and PW. 1 does not know anything about this. There is no evidence as to when exactly the vehicle was seized and admittedly no notice was issued to the complainant and after seizure, the hypothecation agreement came to an end and again the complainant wanted to proceed against the accused. However, when the vehicle was sold is also not forthcoming. Hence, it is evident that the documents produced by the complainant are not at all maintained in proper way and they have failed to establish legally enforceable debt to the tune of ₹ 3,60,000/- as referred in Ex. P1. Merely admission of signature of Ex. P1 does not assist the prosecution in proving the guilt of the accused. Though the presumption is in favour of the complainant, the evidence and cross examination of PW. 1 and the documents itself disclose that the presumption stands rebutted. No material evidence is placed by he prosecution in this regard. The learned magistrate has considered all these aspects in proper perspective and arrived at a just decision. Hence, the judgment of the trial Court does not call for any interference and it is sustainable under law. The Court places its appreciation on the record of the assistance rendered by the amicus curiae - Appeal dismissed. Issues:Appeal against acquittal under Section 138 of NI Act, 1881.Analysis:1. The appellant/complainant filed an appeal against the judgment of acquittal by the trial court. The accused had availed financial assistance for a vehicle purchase but defaulted on repayments. The complainant alleged that a cheque issued by the accused bounced, leading to the complaint. The trial court acquitted the accused due to failure in proving the cheque was issued towards a legally enforceable debt.2. The appellant argued that the trial court's judgment was erroneous, emphasizing the failure to appreciate facts and evidence properly. The appellant contended that the trial court wrongly observed post-dated cheques were issued at the agreement's execution. The appellant sought interference, citing the trial court's misapplication of legal principles and failure to consider statutory presumptions under the NI Act.3. The amicus curiae supported the trial court's decision, highlighting the complainant's lack of proper accounts and failure to establish a legally enforceable debt. The amicus curiae argued that the trial court's acquittal did not warrant interference, given the considerations made regarding the loan agreement and debt repayment issues.4. The main issue for consideration was whether the trial court's acquittal was legally sustainable. The court examined discrepancies in the complainant's assertions regarding the loan amount, agreement value, and lack of proper documentation. The court noted the absence of clear accounts and explanations regarding the loan, sale of the vehicle, and seizure procedures.5. The court found discrepancies in the complainant's evidence, including inconsistencies in the loan amount and agreement value. The court observed that the complainant failed to provide sufficient evidence to establish a legally enforceable debt. The court highlighted issues with the power of attorney, lack of certified documents, and questionable authority of the complainant's representative.6. The court referenced a clause in the agreement indicating post-dated cheques were obtained, which affected the legal enforceability of the debt. The court cited a Supreme Court decision regarding post-dated cheques and their implications on liability. The court concluded that the complainant's documents were not maintained properly and failed to prove the accused's guilt beyond reasonable doubt.7. The court dismissed the appeal, affirming the trial court's decision. The court acknowledged the assistance of the amicus curiae and found no grounds for interference. The court emphasized the unique circumstances of the case and distinguished it from previous decisions cited by the appellant. The court upheld the trial court's judgment as legally sound and sustainable.