2015 (6) TMI 1277 - HC - Indian Laws

Cheque dishonour conviction upheld under Section 138 after accused fails to dispute signature or respond to notice

The Madras HC dismissed a criminal revision petition challenging conviction under Section 138 of the Negotiable Instruments Act for cheque dishonour. The ... Dishonour of Cheque - burden to prove past transaction between the accused/revision petitioner and the complainant/first respondent - complainant did not produce any material evidence to show the supply of goods to the accused/petitioner - whether the transaction between the parties has been proved or not? - HELD THAT:- This piece of deposition of the complainant would go to show that the complainant categorically denied the suggestion that there was no business transaction between the parties from 2005 and that the complainant firm was established in the year 2005. However, according to the counsel for the first respondent/complainant, the sentence was split in to two by employing a full stop, instead of comma. As regards the contention of the counsel for the accused/petitioner that the cheque was presented after four months and therefore it vitiates the complaint, such argument has to be rejected for the simple reason that if the cheque was not valid or the validity of the cheque expired, the bank would not have entertained the cheque and it would have returned the cheque by specifically mentioning the reason for return of the cheque. However, in the present case, the cheque was entertained and processed by the bankers and it was dishonoured for the reason that 'the account was closed'. This would only indicate that the cheque in question was issued by the accused from an account which is no longer in existence and it was valid as on the date of it's presentation. It is true that under Section 138 of the Negotiable Instruments Act, for the purpose of drawing a presumption as contemplated under Section 118 read with Section 138 of the said Act, the burden lies on the complainant to prove the guilt of the accused. In the present case, to substantiate the complaint, as mentioned above, the complainant has produced ledger book which has entries relating to the transaction. The accused also did not dispute the signature in the cheque by sending a reply to the statutory notice sent by the complainant. In such circumstances, it has to be held that the complainant has discharged their initial burden and it is the accused who did not disprove the complaint given by the complainant. The judgment of conviction and sentence rendered by the courts below needs no interference - The Criminal Revision Case is dismissed. Issues:1. Private complaint under Section 138 of The Negotiable Instruments Act filed against the accused for dishonored cheque.2. Dispute regarding past transactions and validity of cheque issuance date.3. Burden of proof on complainant and accused under Section 138 of the Negotiable Instruments Act.4. Discrepancy in deposition and interpretation of transaction timeline.5. Validity of cheque presentation delay and its impact on the complaint.Analysis:1. The first respondent filed a complaint under Section 138 of The Negotiable Instruments Act against the accused for dishonoring a cheque issued for the purchase of yarn. The accused failed to pay despite a statutory notice, leading to a conviction by the trial court and subsequent dismissal of appeal by the Appellate Court.2. The accused argued that the complainant failed to prove past transactions and raised concerns about the validity of the cheque issuance date, delay in presentation, and lack of proper ledger entries. The defense contended that the complaint was vitiated due to these discrepancies.3. Citing the Supreme Court decision in John K. Abraham v. Simon C. Abraham, the accused asserted that the burden lies on the complainant to prove the transaction and the accused's liability. The complainant's failure to provide evidence such as income tax returns was highlighted by the defense.4. The complainant countered by presenting deposition evidence indicating past transactions and disputing the accused's claims. The complainant's ledger accounts and testimony were relied upon to establish the transaction, while the accused's failure to dispute the cheque's signature and respond to the statutory notice was emphasized.5. The court analyzed the deposition, noting a discrepancy in the interpretation of the transaction timeline. The validity of the cheque presentation delay was addressed, with the court concluding that the bank's acceptance indicated the cheque's validity at the time of presentation.In conclusion, the court dismissed the Criminal Revision Case, upholding the conviction and sentence imposed on the accused. The complainant was deemed to have discharged their burden of proof, while the accused's failure to rebut the complaint led to the dismissal of their arguments. The trial court was directed to secure the accused's presence to serve the remaining sentence.