Digest

Cheque Bounce Cases Digest

Acquittal of accused

Leave to appeal – Ld. Trial Court dismissed the complaint as Rs.3 lakhs paid to respondent/accused for getting job in the Department of Railway which is a Government Department as it was for illegal activities and it cannot be called as legally enforceable liability -- No infirmity or irregularity in the impugned order whereby trial Court has acquitted the respondent -- Leave to appeal rejected.

(P&H HC) Decided on: 15.11.2022

Leave to appeal -- Rs. 5 lac payment in cash -- Financial capacity of the appellant to pay Rs.5 lakhs was doubtful, the entire payment was made in cash, Section 269 SS of Income Tax Act prohibits acceptance of deposit/loan in cash in excess of Rs.20,000/, different pen was used to sign and fill columns of cheque and no document was executed at the time of alleged payment of Rs.5 lakhs in cash – Trial court acquitted the accused -- Leave to appeal rejected.

(P&H HC) Decided on: 11.11.2022

Cheque bounce case – Conviction of accused -- Compromise at revisional stage – Matter can be compromised at the stage of pendency of revisional proceedings before the High Court -- Conviction and sentence of the accused can be set aside -- Petition allowed, petitioner is acquitted of the charge levelled against him.

(P&H HC) Decided on: 09.06.2020

Leave to appeal -- Signatures on the cheque is not denied, yet the complainant has failed to prove any friendly relationship with the accused -- No acknowledgement has been placed on record nor in the income tax returns Mark `A’ and Mark `B’, there is any reference of loan when it is an admitted fact that the wife of attorney (complainant) had been into the business of Hire Purchase and Investment for the last 20 years -- It is permissible for the accused to point out contradictions/deficiencies in the evidence led by the prosecution and that it is not necessary for the accused to lead evidence in defence to rebut the presumption -- No ground to grant leave to appeal.

(P&H HC) Decided on: 11.02.2020

Financial capacity – During cross-examination, when financial capacity to pay Rs.6 lakhs to the accused was questioned, there was no satisfactory reply given by the complainant -- Evidence on record, thus, is a probable defence on behalf of the accused, which shifted the burden on the complainant to prove his financial capacity and other facts – Order acquitting the accused by Trial Court, upheld.

(SC) Decided on: 09.04.2019

Financial capacity – It was incumbent on the complainant to have explained his financial capacity -- Court cannot insist on a person to lead negative evidence -- Order acquitting the accused by Trial Court, upheld.

(SC) Decided on: 09.04.2019

Jurisdiction of Appellate Court -- Ordinarily, the Appellate Court will not be upsetting the judgment of acquittal, if the view taken by Trial Court is one of the possible views of matter and unless the Appellate Court arrives at a clear finding that the judgment of the Trial Court is perverse, i.e., not supported by evidence on record or contrary to what is regarded as normal or reasonable; or is wholly unsustainable in law -- Such general restrictions are essentially to remind the Appellate Court that an accused is presumed to be innocent unless proved guilty beyond reasonable doubt and a judgment of acquittal further strengthens such presumption in favour of the accused -- Same rule with same rigour cannot be applied in a matter relating to the offence u/s 138 of the NI Act, particularly where a presumption is drawn that the holder has received the cheque for the discharge, wholly or in part, of any debt or liability -- Appellate Court is certainly entitled to examine the evidence on record in order to find if preponderance indeed leans in favour of the accused.

(SC) Decided on: 15.03.2019

Security cheque presented before agreed date – Held, at the time of presentation of cheque before bank, there was no legally enforcement debtor liability – Complainant had received certain amounts, which has not been mentioned in his complainant and what is balance – Offence u/s 138 is not made out.

(P&H HC) Decided on: 25.01.2019

Complainant is not aware about the business of the accused for which the alleged loan was advanced -- Complainant further testified that the amount in question was obtained from friends and relatives in order to give it to the accused for his business -- No source of income has been proved by the complainant -- DW1, Tax Assistant from Income Tax Office has proved the income tax return of the complainant, which do not contain the amount advanced as loan to the accused – Finding that cheque in question was not issued towards any debt or legal liability is based on correct appraisal of the evidence and a possible view had been adopted – Appeal dismissed.

(P&H HC) Decided on: 09.01.2019

DDR of lost cheque -- Nothing on record that amount was demanded back from accused -- No document to prove that complainant is doing joint business with accused – Accused produced DDR regarding loss of cheque – Trial Court acquitted the accused.

(P&H HC) Decided on: 19.12.2018

No document for advance of loan case -- Complainant has not mentioned any date, month, year as to when the loan was advanced to the accused -- No receipt or security document was got executed while lending huge amounts to the accused -- Otherwise also, there are no particulars, that at which place, in whose presence the loan was advanced and what was the mode of giving the amount, whether by cheque or by cash nor there is anything that the amount was withdrawn from the bank or it was lying with the complainant at his home -- When the first complaint regarding dishonour of the cheque is already pending in the Court, then complainant will not lend such a huge amount again to the same accused -- Accused acquitted.

(P&H HC) Decided on: 01.11.2018

Rebuttal of Presumption – Cheque has not been issued by the accused nor it was from his account -- Document Expert, has been examined to show that cheque- Ex.C2 was not signed by the accused -- No expert, in rebuttal, has been examined by the complainant --- Accused-respondent has been rightly acquitted.

(P&H HC) Decided on: 25.09.2018

Cheque amount more than liability – All the documents of the complainant pertain to alleged transactions, remaining amount of receipts comes to Rs.1,73,179/- only -- Cheque amount of Rs.2,36,290/- -- Complainant has given legal notice to pay an amount of Rs.2,36,290/- qua which there was no liability outstanding against the accused – Accused rightly acquitted.

(P&H HC) Decided on: 19.09.2018

Rebuttal of presumption -- Cheque was dishonoured with the remarks 'no such account' on 09.02.2010 -- When there was no account at the time of issuance of cheque, then where is the question of issuing cheque by the accused to the complainant -- Defence raised by the accused is probable one, which is supported and corroborated by defence evidence and presumption has duly been rebutted.

(P&H HC) Decided on: 10.09.2018

Vague description of loan -- Complainant has failed to explain in his complaint and the legal notice as to when and for what purpose, the amount of Rs.70,000/- was taken by the accused, specially when in the complaint neither any date, month, year nor the purpose is mentioned – Trial Court acquitted the accused.

(P&H HC) Decided on: 10.08.2018

No existing legal liability -- Accused has led sufficient evidence to prove that he is a sole proprietor of the firm M/s Pardeep Kumar and he had issued the cheque to the firm, namely, M/s Ganpati Fabrics, which is proprietorship concern of the son of the applicant – Held, trial Court has rightly held that neither the complainant has pleaded in his complaint that the accused has issued the cheque in discharge of his liability of third person with the proprietor of concern `Textile' nor there is any evidence, in support thereof -- It has come in the statement of the complainant himself that M/s Ganpati Fabrics is the proprietorship firm of his son and that the accused concern was having business dealing with the concern M/s Ganpati Fabrics -- Therefore, the version given by the accused is more probable that he has no existing legal liability towards the complainant-`Textile' – Acquittal of the accused is just and proper.

(P&H HC) Decided on : 21.09.2017

No document for advancement of loan -- Friendly loan of Rs. 20 lacs – -- Complainant has not mentioned in his complaint as to for what purpose, he had advanced such a substantial amount as loan to the accused. -- While appearing in the witness box applicant has deposed that the loan was advanced to the respondent in the presence of her father-in-law but she has not examined this witness in support of her claim. -- No other witness has been examined by her regarding the loan transaction. Applicant has also not produced on record any receipt or pronote for grant of loan to the accused. Therefore, the act and conduct of the applicant is highly improbable, as no sane person is expected to advance such a substantial amount as loan to any other person without any documentation or even receipt or acknowledgement. -- Complainant has also failed to mention the date, month and year of advancement of loan or issuance of cheque in question by the accused in her favour either in her pleadings or in her evidence. – Complainant has also not produced any document which may show her income/expenditure/ account of business income or the income tax return, which may draw an inference that she is financially well placed. -- She has not given any detail as to what business or profession she is carrying. -- Only contention, which the complainant has raised is that she has advanced a loan of Rs.20 lakhs to the accused as she had sold an industrial shed at Panchkula, but neither such sale deed nor any other relevant document has been produced on record by the complainant, which can substantiate the plea that the amount of Rs.20 lakhs was collected by her after the sale of the said industrial unit situated in Panchkula. When no evidence to connect the respondent-accused with the alleged offence is available on record, no case is made out for interference in the impugned judgment of acquittal.

(P&H HC) Decided on : 20.09.2017

Civil liability to pay -- Claim of the plaintiff was not based on dishonour of the cheques -- It was based on the basis of transaction of supply of poultry feed to the company and the bills raised therefore -- Merely, because defendant has been acquitted in criminal proceeding that does not mean that the claim of the plaintiff in civil proceedings ipso facto stand disproved.

(P&H HC) Decided on: 26.07.2017

Compromise at revisional stage – Revision is allowed on the basis of the compromise – Judgment of conviction and order of sentence of the appellate court as well as the trial Court set aside -- Petitioner is acquitted of the charge on the basis of compromise.

(P&H HC) Decided on: 29.03.2017

Capacity to advance loan -- No particulars have been given as to on which date, month or year the money was given on which this liability arose -- No security document was taken -- There was no document to show this transaction – Accused had not denied issuance of cheque, but has set up a defence that the cheque was issued to someone else as security -- Presumption has been rebutted by the accused – No ground to grant leave to file appeal.

(P&H HC) Decided on: 24.03.2017

Capacity to advance loan -- No date has been mentioned as to when the loan was given to the accused -- There is no document on record to show these loan transactions -- There is nothing in the complaints as to when the loan was demanded back by the complainants from the accused -- There are no particulars of liability of any type in the complaints – On the other hand, the accused has raised probable defence – No ground is made out for grant of leave to appeal.

(P&H HC) Decided on: 20.03.2017

Complaint through attorney -- Complainant himself has not appeared in the witness box and his attorney appeared -- Ld. trial Court held that power of attorney holder can depose and verify on oath on behalf of the complainant if he had witnessed the transaction or had knowledge regarding the transaction between the complainant and the accused -- Attorney himself admitted in his cross-examination that “It is correct that I have no personal knowledge about the present case” -- No date, month or year of the transaction had been mentioned by the complainant -- No document on record to show the transaction between the parties -- Accused has been rightly acquitted by the learned trial Court -- Judgment passed by the learned trial Court is correct as per evidence and law and does not require any interference.

(P&H HC) Decided on: 14.03.2017

Capacity to advance loan -- Friendly loan amounting to Rs.11,30,000/- to the accused – However, there is no evidence that the complainant had the capacity to advance Rs.11,30,000/- or that amount allegedly given on loan to the respondent is shown in the Income Tax Return – Respondent-accused stated that the appellant had misused the cheque which he gave to his (appellant) brother, this fact is duly proved by the statement of independent witness -- Except self serving statement of the appellant there is no material evidence on record to prove the factum of advancement of loan – Ld. Trial Court acquitted the respondent -- Even if a second view on appreciation of evidence is possible, the Court will not interfere in the acquittal of the accused -- In the cases of acquittal, there is double presumption in his favour; first the presumption of innocence, and secondly the accused having secured an acquittal, the Court will not interfere until it is shown conclusively that the inference of guilt is irresistible.

(P&H HC) Decided on: 03.03.2017

No document for advancement of loan -- Court below after appreciating the evidence held that the accused was neither relative nor close friend -- It looks unnatural that the amount has been paid without any interest without getting any document executed like receipt etc. -- No security document has been taken by the complainant while advancing the loan of Rs.1,12,000/- -- Otherwise also, it also looks unnatural that on the same date the accused will issue three cheques instead of one for paying Rs.1,12,000/- -- Complainant while appearing as CW-1 in cross-examination has stated that he had paid a sum of Rs.75,000/- as loan -- In the complaint, no date and month had been mentioned when the amount was paid -- No document on record to show the loan transaction -- Accused has been rightly acquitted.

(P&H HC) Decided on: 03.03.2017

Source of money -- Death of complainant – Evidence of complainant’s wife -- Not a single document to show loan transaction -- Complainant had died during the pendency of the proceedings and his wife appeared as CW-1 but she was not knowing anything about the loan transaction nor it had taken place in her presence -- Cheque was not given by the accused in her presence to complainant (since deceased) -- Nothing on record to show the source of income -- Signatures on the cheque are in blue ink whereas the amount, date and body of the cheque had been filled with black ink -- Presumption u/s 139 of the NI Act has been duly rebutted -- Nothing to prove the loan transaction – No ground to grant leave to file appeal.

(P&H HC) Decided on: 03.03.2017

Cheque book issued to another firm -- Cheque was returned back unpaid with the remarks “account closed” – Even if it is taken that the cheque had been drawn by the accused, it was not drawn from the account of the accused -- One of the necessary ingredients under Section 138 of the NI Act is missing -- No ground to grant leave to file appeal – Application dismissed.

(P&H HC) Decided on: 02.03.2017

Cheque signed by non-account holder – Offence u/s 420 IPC -- Held, one of the necessary ingredients under Section 138 of the NI Act is missing – Offence u/s 138 of NI Act is not made out – Neither the complaint has been filed u/s 420 IPC nor there is any averment in the complaint proving the ingredient of Section 420 IPC – No ground to grant leave to file appeal.

(P&H HC) Decided on: 02.03.2017

No document for advance -- No document on record to show that the accused had either signed on any document after taking the advanced amount -- Accused was employee of the complainant and he left the job in March 2012, but cheque is of March 2013 i.e. after one year -- Defence taken by the accused that he was the employee and the blank cheques had been taken at the time of joining the complainant-firm is probable one -- Presumption u/s 139 of the NI Act has been duly rebutted -- No merit in the criminal miscellaneous application filed under Section 378 (4) Cr.P.C. seeking leave to file appeal, the same is dismissed.

(P&H HC) Decided on: 02.03.2017

Legally enforceable debt -- Except self-serving statement of the appellant there is no material evidence on record to prove the factum of legally enforceable debt of the respondent towards appellant – No oral or documentary evidence to prove the advancement of loan – In the cases of acquittal, there is double presumption in accused’s favour; first the presumption of innocence, and secondly the accused having secured an acquittal, the Court will not interfere until it is shown conclusively that the inference of guilt is irresistible – Keeping in view the above, the finding of acquittal recorded by the trial court cannot be said to be perverse or contrary to the material on record.

(P&H HC) Decided on: 01.03.2017

Capacity to advance loan -- Loan/Cheque of Rs.18 lacs – Complainant himself was under debt -- Accused has placed on record account statement of the complainant, which shows that the complainant was not having that much sufficient amount in his account to advance it to the accused – Cheque belongs to the cheque book issued in the year 2007 whereas, another cheque book was issued to the accused on 06.03.2010 and the Court held that why the accused would issue cheque in the year 2011 from the old cheque book -- There is difference of handwriting in the body of the cheque and signatures -- Keeping in view the above evidence, Ld. trial Court held defence by the accused is probable – Accused acquitted.

(P&H HC) Decided on: 21.02.2017

No document for advancement of loan -- Loan/Cheque of Rs.18 lacs – No date, month and year has been mentioned in the complaint as to when the loan was given -- If the amount was given for the business purposes, then it looks unnatural that there were no terms and conditions to pay the interest -- Furthermore, no receipt or security document has been obtained at the time of advancing such a huge amount -- No particulars of loan transactions have been mentioned by stating that at which place and in whose presence this amount was given -- Furthermore, there is also no particular as to when the loan was demanded back -- Accused is entitled to acquittal.

(P&H HC) Decided on: 21.02.2017

Cheque by son – In complaint no liability against accused – No evidence on record to show that accused ever stood surety or given in writing any undertaking to repay the loan of his father – Branch Manager admitted that no loan was taken by the accused – Cheque in question issued by the accused is not for the discharge of any legally enforceable debt against the State – No ground to grant leave to appeal against the order of acquittal.

(P&H HC) Decided on: 17.02.2017

No document for advancement of loan -- Cheque amounting to Rs.5 lacs -- No date, month or years has been mentioned in the complaint as to when the loan was given -- Neither the place where the loan was given nor any fact has been mentioned as to in whose presence, the loan was given -- Even no security document has been taken from the accused at the time of granting loan nor receipt was taken -- No document of any type has been placed on record to show the loan transaction and withdrawal of huge amount from any bank etc. -- Presumption u/s 139 of the Negotiable Instruments Act has been rebutted -- No ground to grant leave to the applicant to file an appeal.

(P&H HC) Decided on: 01.06.2016

Post dated cheques – Stipulation in the sale deed itself shows that if the post dated cheques are not encashed in time then without the intervention of the Court, the sale deed shall be deemed to be cancelled – Thereafter compromise arrived between the parties to the effect that the post dated cheques were to be returned by the complainant to the accused, which apparently he did not return -- It was also mentioned in the sale deed that in case cheques are not encashed by the seller, he shall be entitled to 28% of the developed land – Held, post dated cheques, issued at the time of sale deed, were not for discharge of legal debt or liability -- As such, offence u/s 138 of N.I. Act is not made out.

(P&H HC) Decided on: 27.04.2016

Rebuttal of presumption -- In the reply to legal notice, the accused has specifically mentioned that he had borrowed an amount of Rs.10,000/- from complainant and not Rs.4 lacs and the cheque was handed over to the complainant as security cheque – Nothing in the complaint or in the evidence as to on which date and in which month and year, what amount was given to the accused as loan -- It was necessary, specifically, when the accused is alleging that he has taken loan of Rs.10,000/- only -- One pen has been used for signing the cheque, other pen has been used for putting the date on the cheque and third pen has been used for filling the amount in words as well as in figure -- No cogent evidence on the record to show as to why a huge amount of Rs.4 lacs was given without getting any receipt or getting executed any security document i.e. pronote etc. from the accused -- Nothing on the record to show that from where Rs.4 lacs was withdrawn and paid to the accused – Presumption u/s 139 stand rebutted – Order of acquittal passed by the Ld. Trial Court upheld.

(P&H HC) Decided on: 30.03.2016

No document for advancement of loan -- Nothing on record to show that the applicant had advanced the amount in question to the respondent/accused -- Neither any receipt nor any authenticated document has been placed on record to substantiate his claim -- No document on record to show the legal liability of the respondent towards the applicant -- Allegations of the applicant appears to be vague -- In the circumstances, the finding of acquittal recorded by the trial Court cannot be said to be perverse or contrary to the material on record -- Even if a second view on appreciation of evidence is possible, the Court will not interfere in the acquittal of the accused.

(P&H HC) Decided on: 26.11.2015

Two views -- Wherever two views are possible, the view which goes in favour of the acquittal, deserves to be adopted by the Courts.

(P&H HC) Decided on: 16.11.2015

Capacity to advance loan -- No particulars were given as to when and how much amount has been given, no dates, months and years have been mentioned in the complaint -- When the complainant came into witness box, he took totally different stand by stating that the amount has been given to the accused by way of cheque of Rs.3 lacs – In statement of accounts no such entry regarding the withdrawal of sum of Rs.3 lacs by way of cheque has been specifically pointed out by the complainant -- Complainant also failed to prove source of such a huge amount -- Statement of complainant is contradictory to the version given in the complaint -- Complainant is working as commission agent, he has not produced on record his account books to show entry regarding advancement of loan to the accused -- Rather, in cross-examination, he has stated that he has not reflected the said amount in books of account -- Presumption under Section 139 of the Negotiable Instruments Act has been duly rebutted by the accused – Trial Court acquitted the accused -- No ground is made out to grant permission for leave to appeal.

(P&H HC) Decided on: 03.11.2015

Capacity to advance loan -- When the loan was given, it was not shown in the income tax return nor in any other document -- Furthermore, the complainant was not even having the mobile number or any other number of the accused to show that he has friendly relations with the accused and it creates doubt -- Moreover, no security document has been taken at the time of lending the loan -- No source of huge amount of Rs.3,50,000/- has been disclosed by the complainant -- It looks doubtful that complainant will lend such an huge amount of Rs.3,50,000/- without getting executed any document -- No document is there regarding advancement of any other earlier loan -- Presumption u/s 139 of the N.I. Act has been rebutted.

(P&H HC) Decided on: 03.11.2015

Two views -- Wherever two views are possible, the view which goes in favour of the acquittal, deserves to be adopted by the Courts.

(P&H HC) Decided on: 05.10.2015

No document for advancement of loan -- Cheque not supported by pronote or receipt – Nothing on record to show that the applicant/complainant had advanced the amount in question to the respondent -- No date, month or year was mentioned that when the accused borrowed the money -- It is highly improbable that applicant advanced an amount of Rs.2,40,000/- to the accused without any receipt or pronote -- There is no document on record to show the legal liability of the respondent towards the applicant -- Allegations of the applicant appears to be vague -- In the circumstances, the finding of acquittal recorded by the trial Court cannot be said to be perverse or contrary to the material on record.

(P&H HC) Decided on: 28.09.2015

Second view -- If a second view on appreciation of evidence is possible, the Court will not interfere in the acquittal of the accused -- In the cases of acquittal, there is double presumption in his favour; first the presumption of innocence, and secondly the accused having secured an acquittal, the Court will not interfere until it is shown conclusively that the inference of guilt is irresistible. C. Antony’s case 2002(4) RCR (Criminal) 750 relied.

(P&H HC) Decided on: 28.09.2015

No document to substantiate claim -- Transaction pertains to the year 2002, however the cheque in question is dated 15.09.2008 – A complaint was also made to the police station with regard to non-return of cheque after clearance of debt -- Once the accused himself moved a complaint against the applicant/ complainant then the story of issuance of cheque is not sustainable -- Neither any receipt nor any authenticated document has been placed on record to substantiate the claim of the applicant – Finding of acquittal recorded by the trial Court cannot be said to be perverse or contrary to the material on record -- Leave to appeal stands declined.

(P&H HC) Decided on: 27.08.2015

No document for advancement of loan -- Nothing on record to show that the applicant/ complainant had advanced the amount in question to the respondent /accused from his bank account or from any other source -- Neither any receipt nor any authenticated document has been placed on record to substantiate his claim -- It is highly improbable that he advanced an amount of Rs.3,86,000/- to the respondent without any receipt or pronote -- Moreover, the date, name and amount filled on the cheque does not tally with the specimen writing of the respondent -- Loan in the year 2000, however, the cheque in question pertains to the year 2008, therefore, the allegations of the applicant appears to be vague and barred by time -- Finding of acquittal recorded by the trial Court cannot be said to be perverse or contrary to the material on record -- Even if a second view on appreciation of evidence is possible, the Court will not interfere in the acquittal of the accused – Leave to appeal declined.

(P&H HC) Decided on: 24.08.2015

No document for advancement of loan -- Loan of 32 lacs without any receipt or pronote – Nothing on record to show that the applicant had advanced the amount in question to the respondent from his bank account or from any other source -- In the absence of any document that the applicant had the alleged amount with him, it is highly improbable that he advanced an amount of Rs.32 lacs to the respondent without any receipt or pronote -- Finding of acquittal recorded by the trial Court cannot be said to be perverse or contrary to the material on record – Leave to appeal stands declined.

(P&H HC) Decided on: 17.08.2015

Denial of signature – Expert evidence -- Once the accused did not accept his signatures on the cheque, complainant did not make any effort to get the signature of the accused proved by examining any handwriting and fingerprint expert, it can be safely concluded that the learned trial court committed no error of law, while passing the acquittal order.