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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
KALYAN RAI SURANA, J.
Naren Gogoi S/o Late Gunaram Gogoi – Petitioner
Versus
Prem Upadhayay S/o Shri Raj Kumar Upadhyay – Respondent
Crl. Pet. No. 730 of 2019
Decided On : 09-09-2022
NI Act - Dishonour of Cheque - Section 138 - Summary of Acts and Sections: NI Act, 1881 - Section 138, Section 139, Section 360, Section 357 - The court discussed the evidence and upheld the conviction of the petitioner under section 138 of the NI Act for dishonour of cheques, emphasizing the presumption against the drawer of the cheque and the dishonour of cheques due to closure of the account. The court also rejected the petitioner's plea regarding lost cheques and lack of liability, and refused to grant the benefit of section 360 Cr.P.C. or Probation of Offenders Act, 1958.
Fact of the Case:
The respondent had given a sum of Rs.7.00 lakh to the petitioner on the promise of repayment, but the cheques issued by the petitioner were dishonoured, leading to a complaint under section 138 of the NI Act. The trial court convicted the petitioner, and the appellate court affirmed the judgment.
Finding of the Court:
The court found that the evidence proved the offence against the petitioner, rejected the petitioner's contentions, and upheld the conviction and sentence imposed by the trial court.
Issues: The issues included the dishonour of cheques, liability of the petitioner, admissibility of evidence, and the applicability of section 360 Cr.P.C. and Probation of Offenders Act, 1958.
Ratio Decidendi: The court emphasized the presumption against the drawer of the cheque, the dishonour of cheques due to closure of the account, and the petitioner's failure to rebut the presumption. The court also held that the petitioner's plea regarding lost cheques and lack of liability was not acceptable.
Final Decision: The petition was dismissed, and the conviction and sentence of the petitioner under section 138 of the NI Act were upheld.
ORDER :
1. Heard Mr. S. Islam, learned counsel for the petitioner and Mr. S. Nawaz, learned counsel for the respondent.
2. By filing this application under section 482 Cr.P.C. the petitioner, who has been convicted in a proceeding initiated under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “NI Act”) which was affirmed by the learned lower appellate Court has assailed the judgment and order dated 16.05.2019, passed by the learned Sessions Judge, Tinsukia in Crl. Appeal No. 5(1)/2018, thereby affirming the judgment dated 20.01.2018, passed by the learned Addl. Chief Judicial Magistrate, Tinsukia in N.I. Case No. 34/2012 and sentenced to undergo rigorous imprisonment for a period of one year and also to pay a fine of Rs.10,00,000/- (Rupees ten lakh only) under section 357 Cr.P.C.
3. The parties herein are referred to as per their array in this criminal petition to avoid any confusion. The respondent is the complainant before the learned trial Court and the petitioner is the accused in the complaint case.
4. In brief, the case of the respondent in the complaint was that on the request of the petitioner, the respondent had given a sum of Rs.7.00 lakh in cash by way of agreement dated 29.03.2011, on promise to repay the amount by 15th May, 2011. As a part payment, the petitioner gave a cheque bearing no. 098868 dated 16.05.2011 drawn on Indusind Bank for a sum of Rs.1.00 lakh, which was dishonoured, in respect of which a complaint case was then instituted and was then being tried in the Court of Addl. Chief Judicial Magistrate, Tinsukia (“Addl. CJM, Tinsukia” for short). On 17.07.2012, it was agreed that the previous complaint would be withdrawn on payment of the previous cheque amount as well as the balance payable amount of Rs.6.00 lakh. Thereafter, for payment of debt, the petitioner had handed over six cheques of Rs.1.00 lakh each, bearing nos. 098866, 098867, 098869, 098870, 098871, and 098872, all drawn on Indusind Bank. All the said 6 (six) cheques were deposited for collection on 17.07.2012, but as per return memo dated 18.07.2012, all the six cheques were dishonoured as account was closed by the petitioner. Demand notice dated 30.07.2012, was sent by registered post to the petitioner through advocate, which was served as per the returned acknowledgement card. But as payment was not made, the complaint case was filed.
5. On contest being made by the petitioner, the respondent had submitted his evidence-on-affidavit, and proved 16 exhibits, viz. agreement dated 29.03.2011 with signatures [Ext. Nos. 1 to 1(iv)]; cheques and signatures of petitioner [Ext. Nos. 2, 2(i), 4, 4(i), 6, 6(i), 8, 8(i), 10, 10(i), and 12, 12(i)]; cheque dishonour memos (Ext. Nos. 3, 5, 7, 9, 11 and 13); advocate’s demand notice, signature, registration slip and acknowledgement card [Ext. Nos. 14, 14(i), 15 and 16]. The respondent- complainant had examined 3 witnesses including himself, who were all cross-examined and discharged. Thereafter, on 18.11.2016, the petitioner was examined under section 313 Cr.P.C. The petitioner had then examined himself as DW-1 and he was also cross examined and discharged. The petitioner had exhibited FIR dated 02.06.2011 (Ext.A) and letter dated 03.06.2011 to bank (Ext.B).
6. The learned trial Court, i.e. the Court of Addl. C.J.M. Tinsukia after discussing the statement in the complaint, and on examining the evidence on record, formulated the following point of determination “whether the accused Sri Naren Gogoi issued cheque nos. 098866, 098867, 098869, 098870, 098871, and 098872 for Rs.1,00,000/- each against the remaining liability of Rs.6,00,000/- against the agreement dated 29.03.2011 to the complainant in discharge of his legally enforceable debt and the same were dishonoured by the banker of the accused person on being presented for encashment due to account closed of the accused person and that the accused failed to pay the cheque amount when demanded through legal notice and thereby c
Presumption against the drawer of the cheque, dishonour of cheques due to closure of the account, and the petitioner's failure to rebut the presumption.
The dishonour of cheques and the existence of a legally enforceable debt must be proved, and the presumption under section 139 of the NI Act can only be rebutted with strong evidence.
The presumption of liability under Section 139 of the N.I. Act is mandatory, and the burden to rebut this presumption lies with the accused, who must provide credible evidence to support any claims o....
Point of Law : There is no reasons to make any interference in the Judgments and Orders passed by the learned Trial Courts.
The main legal point established in the judgment is the importance of the presumption under Section 139 of the Negotiable Instruments Act and the burden of proof on the accused to rebut this presumpt....
The crucial consideration is whether at the time of presentation of the cheque for encashment, there was a legally enforceable debt or liability due to the complainant from the accused. The nomenclat....
A cheque must represent a legally enforceable debt at maturity; part payments prior to presentation defeat claims under Section 138 of the NI Act.
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