Case Note & Summary
The petitioner, Avinash Lokhande, was the original accused in a complaint under Section 138 of the Negotiable Instruments Act, 1881, filed by the respondent, a cooperative society. The respondent alleged that the petitioner had taken a loan and issued a cheque for Rs.2,57,295/- which was dishonoured due to insufficient funds. After notice, the petitioner replied but did not pay, leading to the complaint. The trial court issued process and after trial, convicted the petitioner. The petitioner filed a criminal writ petition challenging the conviction. The main legal issue was whether the conviction could be sustained when the complainant failed to examine its witness and the accused rebutted the presumption of debt. The petitioner argued that the cheque was a blank cheque taken at the time of loan and misused, and that the respondent did not prove the loan. The respondent contended that the presumption under Section 139 applied. The High Court analyzed the evidence and found that the complainant's witness (the authorized representative) was not examined despite opportunity, and the accused had cross-examined the complainant's other witness and led his own evidence. The court held that the presumption under Section 139 is rebuttable and the accused had rebutted it by showing that the complainant failed to prove the loan. The court also noted that an adverse inference should be drawn against the complainant for non-examination of its witness. Consequently, the court allowed the writ petition, set aside the conviction, and acquitted the petitioner.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Legally Enforceable Debt - The complainant must prove the existence of a legally enforceable debt or liability; mere issuance of cheque and its dishonour is not sufficient. The presumption under Section 139 is rebuttable and the accused can lead evidence to show that the cheque was not issued for a debt or liability. (Paras 6-8) B) Evidence Act - Adverse Inference - Non-examination of Witness - Section 114(g) - When a party fails to examine a material witness, an adverse inference may be drawn against that party. In this case, the complainant did not examine its witness despite opportunity, leading to the inference that the evidence would have been unfavorable. (Para 7) C) Criminal Procedure Code - Revision - Section 397 - Scope - The revisional court can interfere if the trial court's order is perverse or based on no evidence. Here, the trial court's order rejecting the application for expert opinion was not perverse, but the conviction was set aside due to lack of evidence. (Para 8)
Issue of Consideration
Whether the conviction under Section 138 of the Negotiable Instruments Act, 1881 can be sustained when the complainant fails to examine its witness and the accused rebuts the presumption of legally enforceable debt or liability.
Final Decision
The High Court allowed the criminal writ petition, set aside the conviction and sentence, and acquitted the petitioner of the offence under Section 138 of the Negotiable Instruments Act, 1881.
Law Points
- Presumption under Section 139 of Negotiable Instruments Act is rebuttable
- Non-examination of complainant's witness leads to adverse inference
- Burden of proof shifts after initial presumption
- Requirement of legally enforceable debt or liability
