Case Note & Summary
The applicant, Vishnu s/o Amthalal Patel, was the original accused in a complaint under Section 138 of the Negotiable Instruments Act, 1881 filed by the respondent, Deepak s/o Wamanrao Balshetwar. The complainant alleged that he had advanced a hand loan of Rs.50,000 to the accused in July 2001 for business expansion, repayable within a month. The accused issued a cheque bearing No.098100 dated 24.8.2001 for the said amount. The complainant presented the cheque on 9.11.2001, but it was dishonoured on 12.11.2001 due to insufficiency of funds. At the accused's assurance, the cheque was presented again on 22.12.2001, but was dishonoured again. A legal notice dated 31.12.2001 was served on the accused on 10.01.2002, which was neither replied nor complied with. Consequently, the complaint was filed. The trial court, the 7th Judicial Magistrate First Class, Aurangabad, convicted the accused under Section 138 of the Negotiable Instruments Act. The accused appealed to the Adhoc Additional Sessions Judge, Aurangabad in Criminal Appeal No.65 of 2003, which confirmed the conviction. The accused then filed the present Criminal Revision Application before the High Court. The High Court examined the concurrent findings of fact and the legal presumption under Section 139 of the Act. It held that the presumption that the cheque was issued for discharge of a debt or liability is rebuttable, and the accused must rebut it on preponderance of probabilities. The accused failed to do so. The court found no perversity in the concurrent findings and dismissed the revision application, upholding the conviction and sentence.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Presumption under Section 139 - The complainant advanced a hand loan of Rs.50,000 to the accused, who issued a cheque which was dishonoured twice for insufficiency of funds. The trial court convicted the accused, and the appellate court confirmed the conviction. In revision, the High Court held that the presumption under Section 139 of the Negotiable Instruments Act, 1881 that the cheque was issued for discharge of a debt or liability is rebuttable, and the accused failed to rebut it on preponderance of probabilities. The concurrent findings of fact were not perverse and thus not interfered with. (Paras 1-10)
Issue of Consideration
Whether the conviction of the applicant under Section 138 of the Negotiable Instruments Act, 1881 is sustainable in law and on facts.
Final Decision
The High Court dismissed the Criminal Revision Application, upholding the conviction and sentence passed by the trial court and confirmed by the appellate court.
Law Points
- Presumption under Section 139 of Negotiable Instruments Act
- 1881 is rebuttable
- Accused must rebut presumption on preponderance of probabilities
- Concurrent findings of fact not interfered with in revision unless perverse
