2021 (12) TMI 273 - HC - Indian Laws

High Court Affirms Conviction & Sentence for Dishonored Cheque

The High Court upheld the conviction and sentence of the accused under Section 138 of the Negotiable Instruments Act. The court found the evidence ... Offence under Section 138 of the Negotiable Instruments Act - Presumption under Sections 118 and 139 of the Negotiable Instruments Act - Probable defence / rebuttal on preponderance of probabilities - Service of statutory notice under Section 138 - Limited scope of revisional jurisdiction under Section 397 CrPCOffence under Section 138 of the Negotiable Instruments Act - Dishonour of cheque for insufficiency of funds - Accused guilty of offence punishable under Section 138 of the Negotiable Instruments Act. - HELD THAT: - The court examined the evidence and concluded that the complainant advanced money to the accused and the accused issued the cheque in question to discharge that liability, which was presented and dishonoured for insufficiency of funds. Bank witnesses corroborated presentation and return memo; the complainant produced the cheque and related bank memos. The defence denial did not dislodge the complainant's evidence. On the totality of evidence the courts below correctly found the ingredients of Section 138 established and convicted the accused. [Paras 7, 12, 14, 19, 28]Conviction under Section 138 upheld.Presumption under Sections 118 and 139 of the Negotiable Instruments Act - Onus shifting to the drawer to rebut presumption - Standard to rebut: preponderance of probabilities / probable defence - Statutory presumption under Ss. 118 and 139 applied and accused failed to rebut it. - HELD THAT: - The court held that issuance of the cheque and signatures were not denied, invoking the presumption under Sections 118 and 139 that the cheque was issued for discharge of debt or liability, thereby shifting the onus to the accused. The judgment applied settled law that the accused must raise a probable defence on preponderance of probabilities; mere suggestions or uncorroborated assertions by the defence were insufficient to rebut the presumption. Authorities cited support that a rebuttal requires positive material tilting probabilities in favour of the drawer, which was not furnished here. [Paras 22, 23, 24]Presumption stood unrebutted; onus on accused not discharged.Service of statutory notice under Section 138 - Appropriate proof of notice and effect of non-collection - Service of the statutory notice was sufficient and accused failed to avail opportunity to make payment. - HELD THAT: - Evidence showed the legal notice was sent by registered post and the postman gave intimation at the accused's house; the notice remained uncollected and was endorsed unclaimed. The father of the accused admitted receipt of notice yet did not return the money. The court found the notice was validly sent and that the accused did not act to collect it or make payment within stipulated time, satisfying the statutory requirement prior to prosecution. [Paras 15, 16, 19, 20]Notice held to be properly served/issued and requirement for prosecution fulfilled.Limited scope of revisional jurisdiction under Section 397 CrPC - Interference only for miscarriage of justice or legal error - High Court declined to interfere in revisional jurisdiction as no glaring error or miscarriage of justice was shown. - HELD THAT: - The court observed that concurrent findings of the trial and appellate courts were based on correct appreciation of evidence. Relying on law that revisional power is supervisory and not appellate, the High Court refused to re-appreciate evidence absent any material irregularity or failure of justice pointed out by the defence. The defence failed to demonstrate such grounds; accordingly the revisional petition was dismissed. [Paras 25, 26, 27]No interference in revision; concurrent convictions to be upheld.Final Conclusion: Revision petition dismissed; impugned convictions and sentences under Section 138 of the Negotiable Instruments Act affirmed, accused directed to surrender to serve sentence if not already served and bail bonds cancelled. Issues Involved:1. Validity of the conviction under Section 138 of the Negotiable Instruments Act.2. Examination of evidence and testimonies.3. Applicability of presumptions under Sections 118 and 139 of the Negotiable Instruments Act.4. Jurisdiction and scope of revisional powers under Section 397 CrPC.Detailed Analysis:1. Validity of the Conviction under Section 138 of the Negotiable Instruments Act:The primary issue in this case was the challenge to the conviction and sentence of the accused under Section 138 of the Negotiable Instruments Act. The accused was found guilty of issuing a cheque for Rs. 50,000 to discharge his liability, which was dishonored due to insufficient funds. The trial court's judgment was affirmed by the Additional Sessions Judge, and the accused sought acquittal from the High Court.2. Examination of Evidence and Testimonies:The court meticulously examined the evidence presented by both parties. The complainant provided substantial evidence, including the dishonored cheque, bank memos, and testimonies from bank officials and a postman. The complainant testified about advancing money to the accused and receiving a cheque that was dishonored. The bank officials corroborated the presentation and dishonoring of the cheque due to insufficient funds. The postman confirmed that the legal notice sent to the accused was unclaimed intentionally.The accused, in his defense, denied the allegations and presented his father as a witness, who claimed that the cheques were related to dealings with the complainant’s brother, not the complainant. However, this defense was not substantiated with any documentary evidence.3. Applicability of Presumptions under Sections 118 and 139 of the Negotiable Instruments Act:The court emphasized the statutory presumptions under Sections 118 and 139 of the Act, which presume that the cheque was issued for the discharge of a debt or liability unless proven otherwise. The accused failed to rebut this presumption effectively. The court cited the Supreme Court's judgments in Rohitbhai Jivanlal Patel v. State of Gujarat and M/s. Laxmi Dyechem v. State of Gujarat, which highlighted that the burden shifts to the accused to disprove the presumption once the issuance and signature on the cheque are admitted.4. Jurisdiction and Scope of Revisional Powers under Section 397 CrPC:The court reiterated the limited scope of revisional jurisdiction under Section 397 CrPC, which is supervisory and not equivalent to an appellate jurisdiction. The court referred to the Supreme Court's judgment in State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri, which stated that the High Court should not re-appreciate evidence unless there is a glaring miscarriage of justice. The court found no such error in the judgments of the lower courts.Conclusion:The High Court upheld the conviction and sentence of the accused, finding no merit in the revision petition. The court concluded that the complainant had successfully proved the case by leading cogent and convincing evidence. The accused's failure to rebut the statutory presumptions under Sections 118 and 139 of the Negotiable Instruments Act led to the affirmation of the conviction. The court directed the accused to surrender and serve the sentence awarded by the trial court. Pending applications were disposed of, and bail bonds were canceled.