CAUSE TITLE:
Parveen Mehta Vs Vishal Joshi
DATE OF ORDER:
16 May, 2022
JUDGE(S):
The Honourable Mr. Justice Avneesh Jhingan
PARTIES:
Appellant(s): Parveen Mehta
Respondent(s): Vishal Joshi
SUBJECT
The application filed for grant of leave to appeal against the judgment, acquitting respondent-Vishal Joshi.
IMPORTANT PROVISIONS
The Negotiable Instruments Act, 1881
Section 138: Cheque dishonour due to insufficient funds in the account, etc.
Section 139: Unless proven otherwise, the holder of a cheque is presumed to have received a cheque of the sort described in section 138 for the discharge, in whole or in part, of any debt or other responsibility.
OVERVIEW
- The appellant issued a cheque in the amount of Rs.85,000/-. The check was returned with the words "insufficient funds" written on it. The complaint was filed under Section 138 of the NI Act after a legal notice was served.
- The appellant claimed that the security check had been misused.
- The Trial Court found that the respondent was able to disprove the presumptions, and that the appellant had failed to discharge the onus of proving that the cheque was issued in payment of a debt or other duty, and acquitted the respondent.
ISSUES RAISED
- Whether the respondent’s undisputed signatures on the check were sufficient for conviction under Section 138 of the Act?
ARGUMENTS ADVANCED BY THE APPELLANT
- It was submitted that there was no doubt that the respondent signed the check, according to the submission. In the procedures under Section 138 of the Act, the complainant's financial capability was not to be evaluated.
ARGUMENTS ADVANCED BY THE RESPONDENT
- The respondent claimed that the security check had been misused. The appellant was given a loan of Rs.5,000/-, which was repaid, but the check was not returned. The security cheque was submitted in the bank with an amount of Rs.85,000/- filled in. The respondent relied on the testimony of an officer from the Income Tax Department as well as the appellant's Income Tax Returns to sustain his defence
JUDGEMENT ANALYSIS
- The arguments advanced by the appellant did not strengthen the case for granting leave to appeal. The Trial Court had not evaluated the petitioner's financial ability to repay the loan. The respondent's testimony was used to establish the defense's claim that the security check was used fraudulently and that the borrowed amount was Rs.5,000/-, which was repaid.
- Citing the Supreme Court's decisions in Vijay v. Laxman and others [2013 (2) JT 562] and Dashrath Rupsingh Rathod v. State of Maharashtra and others, [Criminal Appeal No. 2287 of 2009], the Court held that the appellant failed to discharge the onus placed on him by the respondent's successful rejection of the presumptions that the cheque was issued for the payment of a debt or other liability.
CONCLUSION
- The respondent's undisputed signatures on the check were insufficient for conviction under Section 138 of the Act. The fact that the cheque was issued for the cancellation of a debt or other duty was one of the requirements for success under Section 138 of the Act. The respondent was successful in rebutting the presumptions presented against him under Section 139 of the Act, and the appellant failed to meet his burden of proof. The Trial Court's point of view was reasonable.
- There was no basis for granting leave to appeal because the impugned ruling contained no legal or factual errors, let alone perversity.
- The application was dismissed.
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