2015 (6) TMI 1276 - HC - Indian Laws

Criminal revision dismissed in dishonour of cheque case under Section 138 - delayed complaint indicates afterthought

V. Mohan Versus M. Sherifa

HC dismissed criminal revision in dishonour of cheque case under Section 138 Negotiable Instruments Act. Petitioner/accused claimed cheque was stolen but ... Dishonour of CHeque - Income Tax Return filed by the respondent/complainant contains the amount due from the petitioner/accused was only Rs. 12,72,000/-, whereas, the cheque was for Rs. 16,72,000/- - ingenuine claim of respondent - HELD THAT:- The alleged cheque alleged to have been given by the accused to the complainant is dated 18.10.2002 and when it was presented for collection on 07.02.2003,it got dishonoured, for which, a statutory notice was issued to the accused on 15.02.2003, after which, since, the accused has not come forward to pay the amount, the complaint for the offence under Section 138 of the Negotiable Instruments Act was given by the complainant in the year 2003, whereas, a complaint-Ex. D.4 was lodged by the petitioner/accused only in the year 2004 i.e., on 15.03.2004 alleging that the cheque was stolen by the complainant i.e., nearly one year after the issuance of the statutory notice dated 15.02.2003. If the cheque was really stolen by the complainant as alleged by the accused, it is not known as to what prevented the accused from giving the complaint immediately after the incident and what is the purpose of giving the complaint belatedly, that too, nearly one year after the issuance of the statutory notice and this would clearly go to show that the complaint given by the petitioner/accused is only an afterthought and this discrepancy in respect of the very averment regarding the theft of cheque has been rightly pointed out by the Courts below. Apart from that, the small discrepancy with regard to the amount found in the Income Tax Return filed by the complainant cannot be a reason to say that the complainant's claim is not a genuine one, especially, when there is a clear consensus between the parties regarding the amount, for which, the cheque was given and therefore, on merits, the Appellate Court has rightly held that the accused is found guilty for the offence under Section 138 of Negotiable Instruments Act and convicted and sentenced him to undergo the imprisonment and also directed thim to pay compensation. There are no reason to interfere with the reasoned judgment passed by the Appellate Court, dated 18.11.2008 - This Criminal Revision Case is dismissed. Issues:1. Correctness of the judgment dated 18.11.2008 in a criminal revision case.2. Partnership dissolution dispute leading to a complaint under Section 138 of the Negotiable Instruments Act.3. Delay in proceedings and absence of representation for the petitioner.4. Allegations of coercion in obtaining a cheque and discrepancies in the case.Analysis:1. The criminal revision case was filed by the accused challenging the judgment confirming his conviction under Section 138 of the Negotiable Instruments Act. The accused was sentenced to imprisonment and ordered to pay compensation, which was later reduced on appeal. The accused's counsel repeatedly sought adjournments, leading to delays in the proceedings.2. The dispute arose from a partnership dissolution where the complainant alleged the accused owed him a significant sum. The accused issued a cheque, which bounced due to insufficient funds, leading to a legal complaint. The accused raised concerns about coercion in obtaining the cheque and discrepancies in the complainant's Income Tax Return regarding the amount owed.3. The court noted the prolonged adjournments requested by the accused's counsel and cited principles from a Supreme Court judgment regarding the court's discretion in adjourning matters. Despite the absence of the accused's representation, the court proceeded to hear the case on its merits due to the extended delays.4. The complainant argued that the cheque was issued towards the liability owed, invoking the presumption under Section 139 of the Negotiable Instruments Act. The accused's defense of coercion in obtaining the cheque was countered by the complainant's assertion of consensus between the parties regarding the amount owed. The court found the delayed complaint by the accused regarding the alleged theft of the cheque to be an afterthought and upheld the conviction and sentence imposed by the Appellate Court.In conclusion, the court dismissed the criminal revision case, upholding the conviction and directing the Trial Court to issue a warrant for the accused's presence to complete the sentence and pay the compensation. The judgment emphasized the importance of timely and substantive legal proceedings and rejected the accused's contentions regarding coercion and discrepancies in the case.