Case Note & Summary
The appellant, Vishwanath s/o Kondaji Pote, was the original complainant in a case under Section 138 of the Negotiable Instruments Act, 1881. He alleged that the respondent, Raosaheb s/o Asaram Sawde, had taken a hand loan of Rs.2,50,000 on 7.6.2005 and issued a cheque for the same amount on 4.4.2006, which was dishonoured due to insufficient funds. The complainant issued a statutory notice and filed a complaint. The trial court acquitted the accused on 22.3.2007, leading to this appeal. The accused's defence was that he had not signed the cheque and had only taken a loan of Rs.20,000. The trial court found that the complainant failed to prove the loan and that the accused had rebutted the presumption under Section 139. The High Court, after hearing arguments, held that the trial court's findings were not perverse and that the appeal lacked merit. The court noted that the accused had raised a probable defence and the complainant did not discharge his burden. The appeal was dismissed.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Presumption under Section 139 - Rebuttal - The accused can rebut the presumption of legally enforceable debt by raising a probable defence; the burden then shifts back to the complainant to prove the debt. In this case, the accused denied signing the cheque and claimed only a loan of Rs.20,000, which the complainant failed to disprove. Held that the trial court's acquittal was justified (Paras 7-10).
B) Criminal Appeal - Acquittal Appeal - Interference - Scope - In an appeal against acquittal, the appellate court should not interfere unless the findings are perverse or unreasonable. The High Court found no perversity in the trial court's appreciation of evidence. Held that the appeal was devoid of merit (Paras 7-10).
Issue of Consideration
Whether the trial court erred in acquitting the accused under Section 138 of the Negotiable Instruments Act, 1881 despite the presumption under Section 139 of the said Act.
Final Decision
The appeal is dismissed. The judgment and order dated 22.3.2007 passed by the 3rd Judicial Magistrate, First Class, Jalna in S.T.C. No. 1326 of 2006 acquitting the respondent for the offence under Section 138 of the Negotiable Instruments Act, 1881 is confirmed.
Law Points
- Presumption under Section 139 of Negotiable Instruments Act
- 1881 is rebuttable
- Accused can rebut presumption by raising probable defence
- Burden on complainant to prove legally enforceable debt
- Appellate court's limited interference in acquittal appeals
Case Details
2010 LawText (BOM) (08) 29
Criminal Appeal No. 736 of 2008
Shri B.A. Dhengle for appellant, Shri S.D. Kaldate, A.P.P. for respondent no.2
Vishwanath s/o Kondaji Pote
Raosaheb s/o Asaram Sawde & anr.
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Nature of Litigation
Criminal appeal against acquittal in a cheque dishonour case under Section 138 of the Negotiable Instruments Act, 1881.
Remedy Sought
The appellant (original complainant) sought quashment of the acquittal order and conviction of the accused.
Filing Reason
The appellant was aggrieved by the trial court's judgment dated 22.3.2007 acquitting the accused for the offence under Section 138 of the Negotiable Instruments Act, 1881.
Previous Decisions
The trial court (3rd Judicial Magistrate, First Class, Jalna) acquitted the accused on 22.3.2007 in S.T.C. No. 1326 of 2006.
Issues
Whether the trial court erred in acquitting the accused despite the presumption under Section 139 of the Negotiable Instruments Act, 1881?
Whether the accused successfully rebutted the presumption of a legally enforceable debt?
Submissions/Arguments
Appellant argued that the trial court failed to properly apply the presumption under Section 139 of the Negotiable Instruments Act, 1881.
Respondent no.1 (accused) was served but absent; respondent no.2 (State) represented by APP supported the acquittal.
Ratio Decidendi
The presumption under Section 139 of the Negotiable Instruments Act, 1881 is rebuttable. The accused can rebut it by raising a probable defence. In this case, the accused denied signing the cheque and claimed only a loan of Rs.20,000, which the complainant failed to disprove. The trial court's acquittal was not perverse and did not warrant interference.
Judgment Excerpts
The appellant (original complainant) has filed the present appeal challenging the judgment and order dated 22.3.2007, rendered by the 3rd Judicial Magistrate, First Class, Jalna in S.T.C. No. 1326 of 2006 acquitting the respondent (original accused) for the offence under Section 138 of the Negotiable Instruments Act, 1881 and prayed for quashment thereof.
After scrutinizing and appreciating the evidence on record, the learned trial Judge arrived at the conclusion that the accused is not guilty of the charge levelled against him, and therefore, acquitted him under Section 138 of the Negotiable Instruments Act, 1881 by way of judgment and order dated 22.3.2007.
Procedural History
The complainant filed a complaint on 7.6.2006 before the Chief Judicial Magistrate, Jalna, which was assigned to the 3rd Judicial Magistrate, First Class, Jalna on 8.6.2006. The Magistrate took cognizance and issued process on 30.6.2006. After trial, the Magistrate acquitted the accused on 22.3.2007. The complainant appealed to the High Court on 11.8.2010.
Acts & Sections
- Negotiable Instruments Act, 1881: 138, 139
