2021 (11) TMI 983 - HC - Indian Laws

High Court affirms conviction for dishonored cheque under Section 138 NI Act, petitioner's defense insufficient.

The High Court upheld the conviction and sentence under Section 138 of the Negotiable Instruments Act, where the petitioner was found guilty of issuing a ... Dishonor of Cheque - insufficiency of funds - blank cheque misused by complainant - Discharge of lawful liability - section 138 of NI Act - HELD THAT:- This Court finds no force in the submission of learned counsel representing the petitioner that Courts below have failed to appreciate the evidence in its right perspective, rather this Court is convinced and satisfied that complainant successfully proved on record that he advanced friendly loan of ₹ 6,00,000/- to the accused, who with a view to discharge her lawful liability, issued cheque Ex.CW1/B, amounting to ₹ 6,00,000/-, but same was dishonoured on account of insufficient funds in the bank account of the accused. Interestingly, in the case at hand, there is no denial, if any, on the part of the accused with regard to issuance of cheque, rather she has categorically stated that she had borrowed sum of ₹ 1,00,000/- only and in lieu thereof, had given blank cheque to the complainant, which was subsequently misused by the complainant. Accused in her statement recorded under Section 313 Cr.P.C., nowhere denied the factum with regard to issuance of cheque, but claimed that same was issued as a security. Since, there is no dispute with regard to issuance of cheque in question as well as signatures thereupon of the accused, there is presumption under Sections 118 and 139 of the Act that cheque was issued by the accused towards discharge of her lawful liability. No doubt, aforesaid presumption is rebuttal, but for that purpose, accused was under obligation to raise probable defence, which could be either raised by leading positive evidence or by referring to the material adduced on record by the complainant - in the instant case, accused has not been able to raise any probable defence, rather she has simply stated that she had handed over blank cheque. Once, she has admitted factum with regard to borrowing sum of ₹ 1,00,000/-, it is not understood that where was the occasion for her to issue blank cheque, as has been claimed by her. Entire evidence led on record by the respective parties, clearly indicates that accused had issued cheque Ex.CW1/B to the complainant towards discharge of her lawful liability. Though, accused claimed before the court below that she had repaid the amount and has no liability towards the complainant, but to that effect no cogent and convincing evidence ever came to be led on record - Leaving everything aside, factum with regard to issuance of cheque and signature thereupon stands duly admitted by the accused and as such, there is presumption in favour of the complainant that he had received cheque in question issued towards lawful liability. In the present case, this Court is unable to find any error of law as well as fact, if any, committed by the courts below while passing impugned judgments, and as such, there is no occasion, whatsoever, to exercise the revisional power. This Court sees no valid reason to interfere with the well reasoned finding recorded by the courts below, which otherwise, appear to be based upon proper appreciation of evidence available on record and as such, same are upheld - the present revision petition is dismissed. Issues Involved:1. Validity of the conviction and sentence under Section 138 of the Negotiable Instruments Act.2. Compliance with procedural requirements under Section 138 of the Act.3. Presumption under Sections 118 and 139 of the Negotiable Instruments Act.4. Rebuttal of presumption by the accused.5. Jurisdiction and scope of revisional powers under Section 397 of Cr.P.C.Detailed Analysis:1. Validity of the Conviction and Sentence under Section 138 of the Negotiable Instruments Act:The petitioner was convicted under Section 138 of the Negotiable Instruments Act for issuing a cheque that was dishonored due to insufficient funds. The trial court sentenced her to one year of simple imprisonment and ordered her to pay compensation of Rs. 10,00,000/-. The conviction and sentence were affirmed by the Sessions Judge, Shimla. The High Court found no reason to interfere with these judgments, as they were based on correct appreciation of evidence.2. Compliance with Procedural Requirements under Section 138 of the Act:The complainant issued a legal notice to the accused after the cheque was dishonored, demanding payment within the stipulated time. The accused failed to comply, leading to the filing of the complaint under Section 138. The High Court confirmed that the complainant followed all necessary steps as provided under Section 138, including issuing a legal notice and filing the complaint in a timely manner.3. Presumption under Sections 118 and 139 of the Negotiable Instruments Act:The High Court emphasized the statutory presumption under Sections 118 and 139 that the cheque was issued for the discharge of a lawful debt or liability. The accused admitted to issuing the cheque and her signatures on it, which triggered this presumption. The court referenced the Supreme Court's ruling in Bir Singh vs. Mukesh Kumar, which stated that the presumption under Section 139 is a presumption of law and the onus is on the accused to rebut it.4. Rebuttal of Presumption by the Accused:The accused claimed that the cheque was issued as a security for a loan of Rs. 1,00,000/- and was misused by the complainant. However, she failed to provide cogent evidence to support this claim. The court noted that mere denial or rebuttal by the accused was insufficient; she needed to prove by cogent evidence that there was no debt or liability. The High Court found that the accused's defense was not credible and she failed to rebut the presumption under Section 139.5. Jurisdiction and Scope of Revisional Powers under Section 397 of Cr.P.C.:The High Court reiterated its limited jurisdiction under Section 397 of Cr.P.C. to re-appreciate evidence, especially given the concurrent findings of fact and law by the lower courts. The court referenced the Supreme Court's ruling in State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri, which clarified that revisional power is supervisory and not equivalent to appellate power. The High Court found no glaring error or miscarriage of justice in the lower courts' judgments and thus upheld them.Conclusion:The High Court dismissed the revision petition, affirming the conviction and sentence under Section 138 of the Negotiable Instruments Act. The petitioner was directed to surrender before the trial court to serve her sentence. The court found that the judgments of the lower courts were based on proper appreciation of evidence and there was no material irregularity warranting interference.