2023 (12) TMI 896 - HC - Indian Laws

Dishonour of Cheque - existence of debt/liability or not - rebuttal of presumption - it is argued that the cheques in question were stolen by the appellant and even signatures over the same are forged - HELD THAT - In order to rebut the presumption, it was incumbent upon the accused to bring on record such facts and circumstances, upon consideration of which, the Court may either believe that consideration and debt did not exist or their non-existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that they did not exist. As already stated, nothing has been brought on record to rebut the presumption by the respondent No. 1. There is absolutely nothing in the evidence of respondent No. 1 to infer, even remotely, that neither the amount in question was lent by the appellant nor had she issued any cheques in discharge of the said debt. The reason for which respondent No. 1 is said to have borrowed the amount from the appellant viz. ailment of her husband (blood cancer) and the training of her daughter as an Air Hostess, she could have adduced some evidence in order to bolster the said aspect, which she did not. Respondent No. 1 also could have relied on the presumption of fact, for instance, those mentioned in section 114 of the Indian Evidence Act to rebut the presumptions under section 118 and 139 of the N.I. Act. The statutory notice, complaint and evidence of the respective parties, if juxtaposed, would unerringly point out the fact that the respondent No. 1 did borrow an amount of Rs. 3,00,000/- from the appellant and issued cheques in question in discharge of a debt. Defences as raised by respondent No. 1 are unacceptable and unbelievable. Respondent No. 1 had failed to discharge the said onus. A bare look at Section 269-SS of the Income Tax Act would reveal that the said bar is applicable to a person who accepts deposit by way of cash and not to a person who makes or offers any money to the payee and, therefore, even if the said bar is made applicable to the present case, the same shall apply to respondent No. 1 who had accepted the amount of Rs. 3,00,000/- from the appellant by way of cash for which punishment is contemplated under Section 271 of the Income Tax Act - It is thus clear that no person should accept any loan or deposit of a sum of Rs. 20,000/- or more otherwise than by an account payee cheque or account payee bank draft. The provision does not say that a person cannot advance more than Rs. 20,000/in cash to another person. Restriction on cash advances was, in fact, on the taker and not on the person who makes an advance. The penalty for taking such advance or deposit in contravention of provisions of Section 269-SS was to be suffered by the taker who accepts the advance. The learned Magistrate had rendered the judgment in most cryptic and perfunctory manner, in the sense, neither the facts have been clearly stated nor the evidence has been properly discussed. The learned Magistrate has also misinterpreted and misread the legal position as envisaged not only under sections 138 and 139 of the N.I. Act but also the provisions of Section 269-SS of the Income Tax Act. The learned Magistrate has failed to appreciate vital admissions in the cross-examination of the appellant as well as D.W.2 Moulik Shah in it s correct perspective which have been elicited at the time of recording evidence - the findings arrived at by the Court below are patently illegal and perverse and, therefore, need to be set aside. Appeal allowed.

Issues Involved:
1. Legality of the acquittal under Section 138 of the Negotiable Instruments Act.
2. Evaluation of evidence and cross-examination findings.
3. Applicability of Section 269-SS of the Income Tax Act.
4. Rebuttal of statutory presumptions under Sections 118 and 139 of the N.I. Act.
5. Procedural errors and misinterpretation by the trial court.

Summary:

Issue 1: Legality of the acquittal under Section 138 of the N.I. Act
The appeal challenges the acquittal of the respondent by the Metropolitan Magistrate for an offence under Section 138 of the Negotiable Instruments Act, 1881. The appellant had advanced a friendly loan of Rs. 3,00,000/- to the respondent, who issued four cheques as repayment. These cheques were dishonoured due to insufficient funds, leading to the filing of a complaint by the appellant.

Issue 2: Evaluation of evidence and cross-examination findings
The appellant provided evidence that the cheques were issued in discharge of a debt. The respondent claimed the cheques were stolen and signatures forged, but failed to lodge any police report or inform the bank to stop payment. Cross-examination revealed that the appellant and respondent were close friends, and the appellant lent the money in cash. The respondent's defence was not substantiated, and the appellant's case was reinforced through cross-examination.

Issue 3: Applicability of Section 269-SS of the Income Tax Act
The trial court erroneously applied Section 269-SS of the Income Tax Act, which restricts the acceptance of loans above Rs. 20,000/- in cash. However, this provision applies to the person accepting the loan, not the one giving it. The penalty under Section 271D is for the taker of the loan, not the giver. The trial court's reliance on this provision was misplaced, leading to a grave error in judgment.

Issue 4: Rebuttal of statutory presumptions under Sections 118 and 139 of the N.I. Act
The respondent failed to rebut the statutory presumptions under Sections 118 and 139 of the N.I. Act, which presume the existence of a legally enforceable debt or liability. The evidence provided by the respondent was insufficient to counter these presumptions. The Supreme Court's judgment in M/s Kumar Exports Vs. M/s. Sharma Carpets was cited, explaining that the burden of proof shifts back to the complainant only if the accused successfully rebuts the presumptions.

Issue 5: Procedural errors and misinterpretation by the trial court
The trial court's judgment was found to be cryptic and perfunctory, with a failure to properly state facts or discuss evidence. The court misinterpreted legal provisions and overlooked vital admissions in the cross-examination. The findings were deemed illegal and perverse, necessitating a reversal of the judgment.

Conclusion:
The appeal was allowed, the acquittal was quashed, and the respondent was convicted under Section 138 of the N.I. Act. The respondent was sentenced to one year of simple imprisonment and a fine of Rs. 5,00,000/-, with a default sentence of four months' imprisonment. The fine, upon recovery, would be paid to the appellant. The case was remitted to the Metropolitan Magistrate for further proceedings in accordance with the law.

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