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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Avneesh Jhingan, J.
Smt. Sunita Devi - Appellant
Versus
Harinder Singh & Anr. – Respondents
CRM-A-63 of 2021 (O&M)
Decided On : 31-05-2022
Acquittal - Negotiable Instruments Act - The court dismissed the application for leave to file appeal against the acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881, based on the lack of legally enforceable debt or liability, tampering with the cheque, and the complainant's failure to provide sufficient evidence.
Fact of the Case:
The complainant alleged that the accused, engaged in share broker business, issued a cheque that was returned due to insufficient funds. The accused claimed there was no legally enforceable debt or liability and that the complainant had misused the cheque.
Finding of the Court:
The trial court acquitted the accused based on the lack of evidence regarding the amount of money invested, the date of investment, and the complainant's inability to withstand cross-examination. The court found the defence of misuse of the cheque and tampering with the cheque to be probable, and concluded that no legal or factual error was made.
Issues: The issues revolved around the enforceability of debt or liability, the authenticity of the cheque, and the sufficiency of evidence provided by the complainant.
Ratio Decidendi: The court's decision was influenced by the lack of evidence supporting the complainant's claim of debt or liability, the presence of tampering with the cheque, and the complainant's failure to provide sufficient evidence.
Final Decision: The application for leave to file appeal was dismissed, and the pending application, if any, was rendered infructuous.
JUDGMENT
Avneesh Jhingan, J. (Oral) - This is an application under Section 378(4) Cr.P.C. for grant of leave to appeal against the acquittal of Harinder Singh in complaint Case No.COMA-723-2016 under Section 138 of Negotiable Instruments Act, 1881 (for short 'the Act').
2. As per the case set up by the complainant, the respondent was engaged in share broker business in the name and style of ''Two Sparrow". Investment was made through him, on his assurance to give maximum profit. In discharge of lability a cheque was issued, on presentation the cheque was returned with remarks "funds insufficient". After serving a legal notice, the complaint was filed.
3. The accused took a defence that there was no legally enforceable debt or liability. The complainant had misused the cheque taken from the trading office. There was tampering on the cheque as word 'fifty' was not legible.
4. The trial Court considered that the complainant had not mentioned the amount of money invested and the date of investment, either in the complaint or in the affidavit. During cross examination, the complainant faultered when asked for as to how the amount invested was available with her. She replied that the money belonged to her and to the public. Trial Court further noted that word 'fifty' was not legible on the cheque. Accused was acquitted.
5. Learned counsel for the applicant submits that the trial Court erred in acquitting the accused as neither the signature on the cheque nor the fact that the cheque was returned due to ''insufficient funds'' was disputed.
6. The complainant had not even pleaded in the complaint or in the affidavit that the cheque was issued in discharge of liability or debt. She could not withstand the cross-examination and faultered. The defence taken by the respondent of misuse of cheque picked from a trading office was substantiated by the fact that there was tampering with the cheque as word 'fifty' was not legible. The defence taken was probable, in absence of discharge of onus by complainant, no case is made out of any legal or factual error. The conclusion arrived at by the trial Court being plausible conclusion, no interference is called for.
The application for leave to file appeal is dismissed.
Since the main case has been decided, the pending application, if any is rendered infructuous.
The court emphasized the importance of providing sufficient evidence to support claims of debt or liability, and considered the presence of tampering with the cheque as a probable defence.
The rebuttable presumption under Section 139 of the Negotiable Instruments Act and the burden of proof on the complainant to establish the issuance of the cheque for the discharge of debt.
The presumption under Sections 118 and 139 of the Negotiable Instruments Act, 1881 is rebuttable, and the onus is on the complainant to prove the debt on the principle of probabilities and prepondera....
The presumptions under Sections 118 and 139 of the Negotiable Instruments Act are in favor of the holder of the cheque, but they are rebuttable. The onus of rebuttal on the respondent is not as heavy....
The court emphasized the importance of clean hands doctrine and the burden of proof in establishing a legally enforceable debt under the Negotiable Instruments Act.
The filling of contents of a cheque by the complainant amounts to alterations of the cheque, and the need for cogent and convincing evidence to prove the existence of a legally enforceable debt.
The main legal point established in the judgment is the presumption under Section 139 of the NI Act, the burden of proof on the accused to rebut the presumption, and the requirement for the accused t....
The presumption of consideration for issuing a cheque is rebuttable, and the burden of proof required for rebutting the presumption is not as high as that required of the prosecution.
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