2021 (11) TMI 937 - HC - Indian Laws

Conviction upheld in bounced cheque case under Section 138 of NI Act. Accused's defense insufficient to rebut presumption.

K.O. Dhanya Kumar Versus T.S. Rangaswamy

The High Court upheld the conviction and order passed by the lower courts in a case involving a challenge to a judgment under Section 138 of the ... Dishonor of Cheque - insufficiency of funds - legal notice came to be issued and the notice was not claimed by the accused - rebuttal of presumption - admissibility of evidences - section 118 of NI Act - HELD THAT:- It is an undisputed fact that cheque belongs to the accused and it bears his signature. This fact is undisputed fact. Though there is an endorsement by the banker that there are material alterations in the cheque that is not substantiated as name was written in English and other figures are in Kannada language. There is no bar under law that cheque should be written in particular language and even if it is written in different languages it is admissible in evidence under Section 118 of NI Act. Apart from that Ex. P15 is a material document which is the petition filed by the petitioner for insolvency and there in paragraph No. 5, the petitioner who is the revision petitioner herein has specifically admitted issuance of cheque to respondent No. 1 there in, who is the respondent herein being the complainant. Hence, issuance of cheque is undisputed. Now the only defence raised is cheque is issued towards legally enforceable debt to the tune of ₹ 50,000/-. But to substantiate this contention the revision petitioner has not entered in to witness box. He has not even bothered to reply to the legal notice issued to him and failed to claim it - Admittedly the Insolvency proceedings filed by the revision petitioner/accused is already dismissed and under these circumstances, he does not have any other remedy but to pay the cheque amount or to face the consequences. Learned counsel for the revision petitioner contends that matter may be remanded to the trial Court to enable the revision petitioner to lead his defence evidence as per his defence. But when an opportunity was given to the revision petitioner before the trial Court, he did not availed that opportunity and even such defence was not raised before the appellate Court also. No other grounds are forthcoming to remand the matter. Considering the facts that cheque has been admitted the presumption in favour of the complainant is required to be drawn which is mandatory under Section 139 of NI Act. The accused has failed to rebut the said presumption. Both the Courts below have appreciated the oral and documentary evidence in detail and hence, the judgment of conviction and order passed by both the Courts below cannot be said to be erroneous, arbitrary or illegal so as to call for any interference by this Court - Petition dismissed. Issues:Challenge to judgment and order of conviction under Section 138 of NI Act.Analysis:1. The revision petitioner/accused challenged the judgment and order of conviction passed by the III Additional Senior Civil Judge and JMFC, Davanagere, and confirmed by the I Additional District and Sessions Judge, Davanagere, convicting the accused under Section 138 of the Negotiable Instruments Act (NI Act) and imposing a sentence of Rs. 6,000/- with compensation of Rs. 5,30,000/-.2. The complainant alleged that the accused, a paddy merchant, borrowed Rs. 4,00,000/- and issued a cheque dated 20.02.2007, which bounced due to insufficient funds. The accused denied the accusation but did not provide any defense evidence, leading to his conviction by the trial court and the dismissal of his appeal by the sessions judge.3. The counsel for the revision petitioner argued that the judgment was illegal, arbitrary, and contrary to the evidence, disputing the liability and alleging material alteration in the cheque. However, the courts found the issuance of the cheque admitted by the accused, who failed to rebut the presumption under Section 139 of the NI Act.4. The defense raised a new argument regarding the cheque being issued for Rs. 50,000/-, but the accused did not substantiate this claim by entering the witness box or replying to legal notices. The insolvency proceedings filed by the accused were dismissed, leaving him with the obligation to pay the cheque amount or face consequences.5. The revision petitioner's request for remand to lead defense evidence was denied as he had previously failed to avail such opportunities and did not raise this defense before the appellate court. The courts concluded that the judgment of conviction was not erroneous, arbitrary, or illegal, considering the evidence and the accused's conduct.6. Ultimately, the High Court rejected the revision petition, upholding the conviction and order passed by the lower courts, emphasizing the undisputed issuance of the cheque by the accused and his failure to provide a valid defense or rebut the presumption in favor of the complainant under the NI Act.This detailed analysis covers the issues involved in the legal judgment, highlighting the arguments presented by both parties and the court's reasoning behind rejecting the revision petition.