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Recovery Procedure in Cheque Bounce Cases
by: Adv. Kishan Dutt Kalaskar 2021-08-05 08:29:16
by: Adv. Kishan Dutt Kalaskar 2021-08-05 08:29:16
by: Adv. Kishan Dutt Kalaskar 2021-07-26 11:08:00
by: Adv. Latha Anand 2021-07-20 13:54:02
by: Adv. Kishan Dutt Kalaskar 2021-07-05 12:35:50
by: Admin 2021-06-30 07:33:33
by: Adv. Latha Anand 2021-06-21 13:17:46
Recovery Procedure in Cheque Bounce Cases
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Rafale Deal And All About The Controversy
By: Admin
Date:05 November 2020
Dishonour of Cheques
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Views:272
Likes:1Supreme Court of India
Case No. - 728 /2015
Facts of the Case
This appeal arose out of judgment given by the high court of Karnataka order dated 22/07/2011 of criminal revision through which the court quashed the judgment given by the two subordinate courts and acquitted the respondent.
The origin of this litigation can be traced, from the case where an appeal under section 138 of the negotiable instruments act, 1881 before then magistrate at Bangalore. After the trial, it was held that the defendant was guilty and sentenced her to pay a fine of Rs. 5,55,000/- and in default of payment of the pending amount and as well as undergo imprisonment for a term of five months.
This order was further challenged in the appeal made in the fast track court but, the same was also dismissed by the court. Therefore, the defendant preferred a criminal revision before the high court based on the judgment given by both the subordinate courts, as a criminal revision petition. Under this case, the defendant is the distributor of films, the above two parties had a business relationship under which the defendant provided movies to the complainant for screening at his theatre. In May 2006, the defendant took a loan of Rs. Five lakhs from the complainant. The defendant had promised to return the loan after the release of the movie.
However, as a result, the defendant failed to return the loan amount on the decided date. On continuous request by the complainant, the defendant paid rupees five lakhs. The complainant deposited the cheque on the very same day through his bank, however, the bank returned the cheque on 18/01/2007 along with the remarks of the bank to stop payment. Therefore, after this incident, the complainant issued a legal notice to the defendant. Even after the notice was served the defendant did not pay nor responded to the court in the said matter. Under this case, she is the only lender to distribute films which is controlled and managed by her husband. She has denied taking a loan from the complainant as claimed by him. According to the defendant, she never visited the place of the complainant and never borrowed the money also. The defendant claimed that the films had some differences with the complainant in the year 2006, over the release of the film. The defendant’s husband had denied to release the film in the complainant’s theatre, stating that when the other Kannada movie was released, a sensitive matter could be raised. The alleged cheque was given to the complainant in the year 1999 as a security amount against the loan, at that time. After the defendant paid the loan, the complainant did not return the cheque stating that the cheque was lost. The defendant alleged that due to the ill will of the complainant, he used the old cheque to take revenge against the defendant’s firm.
Thus, the trial court found the defendant guilty under section 188 of Negotiable Instruments Act and ordered her to pay a fine of Rs.5,55,000/- in default of the payment that was due and she was also sentenced to simple imprisonment for five months. The first appellant court found that even though the defendant disputed with regards to the said transactions, they never fought with respect to the signature that was on the cheque. The judge of the fast track court found out that there was no evidence to prove that the cheque was issued in the year 1999. The judge also noted that there was no suggestion put forward to the defendant for the loan taken in 1999 or given to him in the form of security. Further, the court relied upon the presumptions that were laid down in favour of the complainant under section 139 of the act and the defendant had failed to rebut the statement or the presumption. The court also rejected the claim that was given by the defendant that they were not in Bangalore on the alleged date when the loan was given to them. They had produced few hotel bills for the dates that was mentioned during the proceedings and they do not offer any proof with respect to their presence in Bangalore. According to the proof’s given by the defendant the court concluded that the defendant’s side did not have any weight under this case.
The High Court in this appeal reversed the order made by the fast track court and the session’s court. The court found that in this case the complainant did not give any proof that the offence was done under section 138 of the negotiable instruments act.
Therefore, the party has preferred the appeal before the apex court.
Issues of the Case
Judgment
Thus, under this present case, since the cheque along with the signature of the defendant was accepted by the accused respondent, the terms and conditions of section 139 would apply in this matter. The burden of proving the act was on the appellant under this and to prove the liability. However, it was noted that the cheque was dishonoured because the payment was put on hold by the bank and not for any other reason that was laid down by the appellant. This also implied that the accused or the defendant also had the knowledge cheque being submitted to the bank. Therefore, it was seen that the story that was given by the defendant or the respondent was unworthy in all aspects and evidence was also not given to the court to support the same.
The apex court further added that the high court mainly relied on the date that was printed in the evidence. Thus, in light of the evidence laid down by the partied in this matter it cannot be concluded that the cheque was issued in the year 1999. The defendant or the respondent did not bring any evidence to prove the debt that had taken place in the year 1999 between them or to disapprove the loan borrowed in the year 2006.
Thus, the court held that the high court committed a mistake by laying the burden of proof on the complainant under this case. According to Section 139, the burden of proof was on the respondent who had failed to discharge the same. Therefore, the court finds merit in this case.
The Supreme Court of India, quashed the order laid down by the high court in this regard and allowed the appeal for further hearing, and afterwards, convicted the respondent for an offence under Section 138 of the act and sentenced her to pay a fine of Rs. 5, 55,000/- as well as sentenced her simple imprisonment of five months and the judgment given by the fast track court had been reestablished by the supreme court judge.
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