2024 (10) TMI 137 - HC - Indian Laws

Accused's expert signature verification defeats cheque dishonour case under Sections 118 and 139 NI Act

Atul Pundhir Versus M/s. The Delhi Group & Anr.

Delhi HC dismissed a petition challenging acquittal in a dishonour of cheque case. The accused denied issuing the cheque and successfully raised probable ... Dishonour of Cheque - acquittal of accused - rebuttal of presumptions - case of petitioner is that the finding of acquittal ought to be reversed as the same is only based on conjectures, and not cogent evidence - HELD THAT:- It is trite law that a Court while considering the challenge to an order of acquittal, in exercise of jurisdiction under Section 378 of the CrPC, is empowered to reconsider the evidence on record and reach its own conclusions, however, it is to be kept in mind that there is a double presumption of innocence in favour of the accused. High Court ought to only interfere with the finding of acquittal if it finds that the appreciation of evidence is perverse. It is also well settled that once the execution of the cheque is admitted, the presumption under Section 118 of the NI Act that the cheque in question was drawn for consideration and the presumption under Section 139 of the NI Act that the holder of the cheque/ respondent received the cheque in discharge of a legally enforceable debt or liability are raised against the accused. On a perusal of the record, it is seen that right from the time of the framing of notice, the statement under Section 313 of the CrPC, and during the course of the trial, Respondent No. 2 denied issuing the cheque and his signatures on the cheque. It is seen that in order to buttress his claim, an application was moved by Respondent No. 2 seeking expert opinion for verification of the signature of Respondent No. 2 and comparison with those appearing on the impugned cheques. It is seen further that the application was allowed, and the original cheques were sent to CFSL for comparison with the admitted signature of Respondent No. 2 on account opening form, vakalatnama, and bail bond. It is pertinent to note that the presumptions under Section 118 and 139 of the NI Act are not absolute, and may be controverted by the accused. In doing so, the accused ought to raise only a probable defence on a preponderance of probabilities to show that there existed no debt in the manner so pleaded by the complainant in his complaint/ demand notice or the evidence. Once the accused successfully raises a probable defence to the satisfaction of the Court, his burden is discharged, and the presumption ‘disappears.’ The burden then shifts upon the complainant, who then has to prove the existence of such debt as a matter of fact. It is pertinent to note that in terms of the dictum of the Hon’ble Apex Court in RAJESH JAIN VERSUS AJAY SINGH [2023 (10) TMI 418 - SUPREME COURT], once Respondent No. 2 was able to raise a probable defence by either leading direct or circumstantial evidence to show that there existed no debt/liability in the manner as pleaded in the complaint/ demand notice/ affidavit-evidence, the presumption raised against him disappeared. It was then for the petitioner to prove as a matter of fact that there in fact existed a debt/liability. Much emphasis has been placed by the petitioner on the fact that the learned Trial Court erred in observing that a sum of ₹5,00,000/- had already been repaid vide debit entry dated 04.03.2010 when the same was debited and not credited to the petitioner’s account. Upon a perusal of the impugned judgment, it is apparent that the learned Trial Court had merely made an observation that the petitioner had made an endeavor to prove the transfer of ₹5,00,000/- and the same was repaid vide debit entry dated 04.03.2010. It was further noted that apart from the said sum, no proof was led to establish that apart from ₹5,00,000/- there was any other advancement, albeit as per the petitioner’s own stand the loan was advanced through bank transfer. The rationale behind the order of acquittal in the present case was not based on the observation whether the sum of ₹5,00,000/- was repaid or not but the fact that the petitioner had failed to prove that there existed any debt/liability on date, or show the mode and manner of the advancement of loan, or lead any evidence/documentary proof so as to establish how the sum of ₹48,00,000/- was advanced - the petitioner having failed to lead evidence to show the existence of the debt/liability, his contentions that the learned Trial Court erred in observing that ₹5,00,000 was credited, or that the presumptions under Section 118 and 139 of the NI Act were in his favour, do not bolster the case of the petitioner. This Court finds no such perversity in the impugned judgment so as to merit an interference in the finding of acquittal. Consequently, this Court finds no reason to entertain the present petition - The present leave petition is accordingly dismissed. Issues Involved:1. Legally enforceable debt under Section 138 of the Negotiable Instruments Act, 1881.2. Rebuttal of presumptions under Sections 118(a) and 139 of the NI Act.3. Validity and reliability of the FSL report regarding the signatures on the cheques.4. Petitioner's failure to prove the advancement of the loan and existence of debt/liability.Issue-wise Detailed Analysis:1. Legally enforceable debt under Section 138 of the Negotiable Instruments Act, 1881:The petitioner alleged that he had advanced a friendly loan of Rs. 48,00,000/- to Respondent No. 2 and accused Vishnu Partap Singh on behalf of Respondent No. 1, and issued two post-dated cheques of Rs. 24,00,000/- each, which were dishonored due to 'Insufficient Funds.' The respondents were acquitted by the Trial Court, which noted that the petitioner failed to prove that the cheques were issued in discharge of a legally enforceable debt as on the date of the cheques. The Trial Court emphasized that the petitioner could not establish that Respondent No. 2 had drawn the cheques in favor of the petitioner, thus failing to satisfy the ingredients of Section 138 of the NI Act.2. Rebuttal of presumptions under Sections 118(a) and 139 of the NI Act:The petitioner argued that the presumptions under Sections 118(a) and 139 of the NI Act stood against the respondents and in favor of the petitioner, asserting that the onus was not on him to show his source of income to establish his financial capacity to lend the money. However, the Trial Court found that Respondent No. 2 successfully rebutted these presumptions by raising a probable defense on a preponderance of probabilities, demonstrating that there existed no debt in the manner pleaded by the petitioner. The Court noted that once the accused raises a probable defense, the burden shifts to the complainant to prove the existence of such debt as a matter of fact.3. Validity and reliability of the FSL report regarding the signatures on the cheques:Respondent No. 2 denied issuing the cheques and his signatures on them, seeking expert opinion for verification. The FSL report, which was placed on record in terms of Section 293 of the CrPC, supported Respondent No. 2's claim that he was not the signatory to the cheques. The Trial Court observed that the petitioner did not challenge the findings of the expert, and the report substantiated the defense that Respondent No. 2 had not signed the cheques. The Court noted that the petitioner failed to provide any corroborating evidence to counter the FSL report.4. Petitioner's failure to prove the advancement of the loan and existence of debt/liability:The Trial Court noted that the petitioner failed to prove the advancement of the loan of Rs. 48,00,000/-, as there was no documentary proof or witness testimony to support the claim. The Court highlighted that for such a substantial amount, it was unnatural that it would be advanced without any documentary evidence. Additionally, the petitioner could not show his financial capacity or the mode and manner of the loan advancement. The Court also observed that the petitioner failed to prove any specific amount on date or the mode of advancing the loan to Respondent No. 2. The petitioner's emphasis on the repayment of Rs. 5,00,000/- was noted, but the Court found that the rationale behind the acquittal was based on the failure to prove the existence of debt/liability, not solely on the repayment issue.Conclusion:The High Court reiterated the principles regarding the powers of the appellate court while dealing with an order of acquittal, emphasizing the double presumption of innocence in favor of the accused. It found no perversity in the Trial Court's appreciation of evidence and upheld the acquittal, dismissing the petitioner's leave to appeal. The Court concluded that the petitioner failed to prove the existence of a legally enforceable debt or liability, and the respondents successfully rebutted the presumptions under the NI Act. Consequently, the petition was dismissed.