Indian Kanoon - Search engine for Indian Law

6. Mrs. R.D. Raskar, learned Counsel appearing on behalf of the appellant, submitted that when the trial Court had returned positive findings in favour of the appellant on the question of the appellant having advanced hand loan to the respondent, in respect of repayment of which the cheque in question had been issued, a grave error had been committed by the trial Court in acquitting the respondent. It was submitted that while the appellant had placed on record documentary and oral evidence in support of her case, the respondent had failed to enter the witness box and she had not examined a single witness in support of her defence. In such a situation, the trial Court was not justified in holding that the appellant had failed to prove that she had deposited the cheque in question and that the same had been dishonoured. It was pointed out that a perusal of the cheque at Exhibit-21 showed that there was a stamp of the concerned bank, proving that the cheque had been indeed deposited. It was further submitted that when the appellant had stated in her complaint and also in her oral evidence before the Court that the cheque had been dishonoured, it was for the respondent to bring some evidence on record to dispute the same, particularly when presumptions under Sections 118 and 139 of the aforesaid Act operated against her. It was further submitted that the trial Court was not justified in placing reliance on Section 146 of the aforesaid Act to hold that the appellant had failed to prove dishonour of cheque because the said provision indicated 4 080818 apeal 360.17 judg..odt only one of the many ways in which proof of dishonour could be placed on record. On this basis, it was submitted that when the trial Court itself had held in favour of the appellant on the merits of her claim, the complaint could not have been rejected and that the respondent ought to have been convicted for offence punishable under Section 138 of the said Act.

7. Per contra, Shri R.R. Vyas, learned Counsel appearing on behalf of the respondent, submitted that since the present case concerned criminal liability alleged against the respondent, the burden of proof was entirely on the appellant to prove the basic facts of deposit and dishonour of cheque, in order to claim that an offence under Section 138 of the said Act had been committed by the respondent. Reference was made to Sections 101 to 104 of the Indian Evidence Act, 1872, to emphasize that the burden of proof was absolutely on the appellant to prove the said facts pertaining to dishonour of cheque and that in the absence of cogent evidence to prove the same, no error could be found with the impugned judgment and order passed by the trial Court. It was submitted that Section 138 read with Section 142 of the said Act required that all the conditions specified under the said provisions were to be satisfied for cognizance of offence under Section 138 of the Act to be taken by the Court. It was submitted that in the present case, admittedly, the cheque in question had been deposited twice. Although cheque (Exhibit-21) did bear a stamp of the bank, there was no date to indicate as to when it was deposited. The memo purportedly issued by the bank for return of cheque did not bear official mark of the bank and therefore, it did not satisfy the requirement of Section 146 of the aforesaid Act. It was submitted that even if it was accepted that Section 146 of the Act provided only one of the modes in which dishonour of cheque could be proved, the appellant in the present case ought to have placed on record evidence in the form of examination of the bank officer or any other such evidence to prove that the cheque was indeed dishonoured. It was submitted 5 080818 apeal 360.17 judg..odt that when this fundamental fact was not proved in the present case, there was no question of presumptions operating against the respondent. Since there was lack of evidence to show dishonour of cheque, there was no way in which it could be ascertained as to whether the statutory notice issued by the appellant was within the limitation provided under Section 138 of the said Act and therefore, the Court could not have taken cognizance of the offence under Section 142 of the said Act. On this basis, it was submitted that the trial Court had correctly rejected the complaint of the appellant and acquitted the respondent.

8. Heard learned Counsel for the parties. In the present case, if the findings of the trial Court that the appellant had failed to prove dishonour of cheque and that the complaint could not be said to have been filed within limitation, are found to be erroneous, then the impugned order acquitting the respondent will have to be reversed. Since the trial Court found that the issue of legal debt or liability was proved by the respondent, the only question that arises in the present case is, as to whether it could be said that there was sufficient evidence to prove dishonour of cheque to conclude that the respondent had committed offence under Section 138 of the said Act. There can be no doubt about the proposition that it was for the appellant prove the fact of dishonour of cheque so as to prove the guilt of the respondent.

11. But, there cannot be any doubt about the fact that Section 146 of the said Act provides for one of the modes of proving dishonour of cheques and it certainly cannot be the only mode of proving the same. In the present case, the memo purportedly issued by the bank showing dishonour of cheque, admittedly does not bear official mark of the bank. It was for this reason, that the said document was not exhibited during evidence. Thus, the mode specified in Section 146 of the said Act was not satisfied in the present case and consequently no presumption arose about dishonour of cheque in question. In such a situation, the appellant claims that the dishonour of cheque was proved because a statutory notice was issued by her to the respondent. It was pointed out that specific pleadings were made in the complaint filed before the Court stating dishonour of the said cheque and that when the respondent had failed to adduce any evidence in support of her defence, the statements made by the appellant in this statutory notice and the complaint were enough to prove dishonour of the cheque. It was submitted that when there was no denial on the part of the respondent about deposit and dishonour of the cheque in question, the trial Court could not have held that the appellant had failed to prove the fact of dishonour of the cheque. It was further contended that when the findings were rendered on the question of discharge of legal debt and it was found by the trial 7 080818 apeal 360.17 judg..odt Court that the appellant had indeed advanced hand loan for the amount stated in the cheque to the respondent, there was no reason why the trial Court could have held that the fact of dishonour of cheque was not proved by the appellant.