Case Note & Summary
The case involves two criminal appeals filed by the original complainant, Sandeep Shirodkar, against the acquittal of the accused, Shankar Dhawaskar, by the Additional Sessions Judge, South Goa, Margao. The trial court had convicted the accused under Section 138 of the Negotiable Instruments Act, 1881 for dishonour of cheques amounting to Rs. 10,00,000 and Rs. 15,00,000 drawn on UTI Bank, Vasco-Da-Gama. The cheques were dishonoured due to insufficiency of funds. The complainant proved the issuance of cheques and their dishonour, raising the presumption under Section 139 of the Act that the cheques were issued for discharge of a debt or liability. The accused did not rebut this presumption by adducing credible evidence or raising a probable defence. The Appellate Court, however, set aside the conviction, holding that the complainant failed to prove the existence of a legally enforceable debt. The High Court found that the Appellate Court's order was based on a misreading of evidence and improper appreciation of the law. The High Court held that once the complainant proved the execution of the cheques and their dishonour, the presumption under Section 139 operated in his favour, and the burden shifted to the accused to rebut the presumption. The accused failed to discharge this burden. The High Court, therefore, allowed the appeals, set aside the acquittal, and restored the conviction and sentence imposed by the trial court.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Presumption under Section 139 - Rebuttal - The complainant had proved the issuance of cheques and their dishonour, raising the presumption under Section 139 of the Negotiable Instruments Act, 1881 that the cheques were issued for discharge of a debt or liability. The accused failed to rebut this presumption by adducing credible evidence or raising a probable defence. The Appellate Court erred in reversing the conviction by shifting the burden onto the complainant. (Paras 1-10) B) Negotiable Instruments Act - Dishonour of Cheque - Burden of Proof - The initial burden on the complainant is to prove the execution of the cheque and its dishonour. Once that is done, the presumption under Section 139 operates in favour of the complainant, and the burden shifts to the accused to rebut the presumption. The accused must prove on a preponderance of probabilities that there was no existing debt or liability. (Paras 5-10) C) Negotiable Instruments Act - Dishonour of Cheque - Appellate Court's Power - The Appellate Court, while hearing an appeal against acquittal, must not lightly interfere with the findings of the trial court unless the findings are perverse or based on no evidence. In the present case, the Appellate Court's order was based on a misreading of evidence and was therefore liable to be set aside. (Paras 8-10)
Issue of Consideration
Whether the Appellate Court was justified in setting aside the conviction of the accused under Section 138 of the Negotiable Instruments Act, 1881, by improperly appreciating the evidence and ignoring the presumption under Section 139 of the Act.
Final Decision
The High Court allowed both appeals, set aside the impugned judgments and orders of the Appellate Court, and restored the conviction and sentence imposed by the trial court.
Law Points
- Presumption under Section 139 of Negotiable Instruments Act
- 1881
- Rebuttal of presumption
- Burden of proof in cheque dishonour cases
- Section 138 Negotiable Instruments Act
