Case Note & Summary
The case pertains to a criminal revision application filed by the accused challenging his conviction under Section 138 of the Negotiable Instruments Act, 1881. The complainant alleged that the accused borrowed Rs.2,50,000 from her and issued a cheque dated 17.09.2004 drawn on Akola Janta Commercial Co-operative Bank Ltd. The cheque was dishonoured due to stop payment instructions. The complainant issued a legal notice on 23.09.2004, but the accused failed to pay. The trial court convicted the accused and sentenced him to one year rigorous imprisonment and a fine of Rs.4,60,000. The appellate court confirmed the conviction. In revision, the accused argued that the loan was repaid in cash and the cheque was misused. The High Court held that the presumption under Section 139 of the NI Act that the cheque was issued for a legally enforceable debt was not rebutted by the accused. The defence of cash repayment was not supported by any evidence. The court found no illegality or perversity in the concurrent findings and dismissed the revision application.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Presumption under Section 139 - Rebuttal - The accused failed to rebut the presumption that the cheque was issued for discharge of a legally enforceable debt or liability. The defence of loan being repaid in cash was not supported by evidence. The conviction and sentence were upheld. (Paras 1-10)
B) Negotiable Instruments Act - Dishonour of Cheque - Stop Payment - Section 138 - The dishonour of cheque due to stop payment instructions amounts to an offence under Section 138 if the cheque was issued for discharge of a legally enforceable debt. The accused's defence that he stopped payment because the loan was already repaid was not proved. (Paras 3-8)
Issue of Consideration
Whether the accused successfully rebutted the presumption under Section 139 of the Negotiable Instruments Act, 1881 that the cheque was issued for discharge of a legally enforceable debt or liability.
Final Decision
The High Court dismissed the criminal revision application and upheld the conviction and sentence of the accused under Section 138 of the Negotiable Instruments Act, 1881.
Law Points
- Presumption under Section 139 of Negotiable Instruments Act
- 1881
- Rebuttal of presumption
- Standard of proof for rebuttal
- Dishonour of cheque due to stop payment
- Validity of notice under Section 138
Case Details
2023 LawText (BOM) (04) 135
Criminal Revision Application (REVN) No.33 of 2020
Mr A. R. Deshpande for applicant, Mr A. R. Chutke APP for non-applicant No.1, Mr R. P. Joshi for non-applicant No.2
Shri Govind Banhomal Chawla
State of Maharashtra and Sau. Sunita Ramesh Khanchandani
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Criminal revision application against conviction under Section 138 of the Negotiable Instruments Act, 1881
Remedy Sought
The applicant/accused sought to set aside the judgment and order of conviction and sentence passed by the trial court and confirmed by the appellate court.
Filing Reason
The accused was convicted for dishonour of cheque due to stop payment, and he challenged the concurrent findings of the courts below.
Previous Decisions
The trial court convicted the accused on 04.08.2018 and sentenced him to one year rigorous imprisonment and fine of Rs.4,60,000. The appellate court dismissed the appeal on 05.02.2020.
Issues
Whether the accused successfully rebutted the presumption under Section 139 of the Negotiable Instruments Act, 1881 that the cheque was issued for discharge of a legally enforceable debt or liability.
Submissions/Arguments
The applicant/accused argued that the loan was repaid in cash and the cheque was misused by the complainant.
The complainant contended that the accused failed to repay the loan and the cheque was issued towards the debt.
Ratio Decidendi
The presumption under Section 139 of the Negotiable Instruments Act, 1881 that a cheque was issued for discharge of a legally enforceable debt is rebuttable, but the accused must adduce credible evidence to rebut it. In this case, the accused failed to prove that the loan was repaid in cash, and the defence was not supported by any evidence. Therefore, the presumption stood, and the conviction was upheld.
Judgment Excerpts
The facts relevant for deciding this application may be stated as follows:
The applicant is the original accused. The non-applicant No.2 is the complainant.
The accused was in a need of money for his business purpose.
The accused, instead of making payment, issued a cheque bearing No. 524459 to her drawn on his account maintained with the Akola Janta Commercial Co-operative Bank Ltd., Branch Gorakshan Road, Akola on 17.09.2004.
The bank informed her that the cheque could not be encashed because the drawer had stopped the payment.
Procedural History
The complainant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881. The trial court convicted the accused on 04.08.2018. The accused appealed to the Sessions Court, which dismissed the appeal on 05.02.2020. The accused then filed the present criminal revision application before the High Court.
Acts & Sections
- Negotiable Instruments Act, 1881: 138, 139
