2010 (2) TMI 1287 - HC - Indian Laws

Summary

Issues Involved:
1. Whether the accused was liable for the offence u/s 138 of the Negotiable Instruments Act.
2. Whether the statutory presumptions u/s 118 and 139 of the Negotiable Instruments Act were correctly applied.
3. Whether the trial court's judgment of acquittal was justified based on the evidence presented.

Summary:

Issue 1: Liability u/s 138 of the Negotiable Instruments Act
The complainant advanced a hand-loan of Rs. 50,000 to the accused, who issued a cheque dated 22.4.2002 to discharge the debt. The cheque was dishonoured due to "funds insufficient," and despite a demand notice, the accused failed to pay. The trial court acquitted the accused, but the High Court found that all five ingredients for the offence u/s 138, as laid down by the Supreme Court in Kusum Ingots v. Pannar, were satisfied. The cheque was drawn for a legally enforceable debt, presented within its validity, dishonoured due to insufficient funds, and the accused failed to pay within 30 days of receiving the notice.

Issue 2: Application of Statutory Presumptions u/s 118 and 139
The High Court emphasized that the trial court should have started with the statutory presumption that the cheque was issued for consideration and for the discharge of debt or liability. The accused did not provide satisfactory evidence to rebut this presumption. The trial court's failure to properly consider these presumptions and the relevant provisions of the Evidence Act led to a miscarriage of justice.

Issue 3: Justification of Trial Court's Judgment
The High Court criticized the trial court for framing an all-inclusive point for determination and overlooking the statutory presumptions. The trial court's conclusion that the complainant's family was involved in illegal money-lending was unsupported by evidence. The accused's application during the proceedings, expressing willingness to settle the matter by paying Rs. 40,000, further indicated liability. The High Court found that the trial court's view was not based on legal and admissible evidence and thus needed to be interfered with.

Conclusion:
The High Court set aside the trial court's judgment of acquittal, holding the accused guilty u/s 138 of the Negotiable Instruments Act. The accused was sentenced to simple imprisonment until the rising of the court and a fine of Rs. 60,000, payable within two months, to be paid as compensation to the complainant. The appeal was disposed of accordingly.