Case Note & Summary
The applicant, Rais Ahmad Mohammad Kasmi Siddiqui, filed a criminal revision application before the Bombay High Court, Aurangabad Bench, challenging the concurrent findings of acquittal of respondent Nos. 2 to 4 (Abdul Baari Ghulam Hyder, Washim Abdul Baari Hashmi, and Kaleem Abdul Baari Hashmi) in RCC No. 328/1997 by the Judicial Magistrate First Class, Udgir, and in Criminal Appeal No. 22/2012 by the appellate court. The applicant was the original complainant in a case under Section 138 of the Negotiable Instruments Act, 1881. He alleged that the accused had borrowed a loan of Rs. 1,50,000 from him and issued a cheque dated 15.04.1997 for the same amount, which was dishonoured upon presentation. The accused denied the loan and claimed that the cheque was given as security in a business transaction for purchase of cotton seeds. The trial court acquitted the accused, holding that the complainant failed to prove the existence of a legally enforceable debt. The appellate court confirmed the acquittal. The applicant then filed the present revision. The High Court examined the evidence and found that the complainant had not produced any documentary evidence such as a receipt or promissory note to support the loan. The accused had raised a probable defence that the cheque was given as security, and the presumption under Section 139 of the NI Act was rebutted. The High Court held that the concurrent findings of fact were not perverse and did not warrant interference in revisional jurisdiction. The revision was dismissed.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Presumption under Section 139 - Rebuttal - The complainant alleged that the accused issued a cheque for repayment of a loan, which was dishonoured. The accused denied the debt and claimed the cheque was given as security for a business transaction. The trial court and appellate court acquitted the accused, holding that the complainant failed to prove the existence of a legally enforceable debt. The High Court upheld the acquittal, finding no perversity in the concurrent findings. Held that the presumption under Section 139 is rebuttable and the accused had discharged his burden by raising a probable defence. (Paras 1-10) B) Criminal Procedure Code - Revision - Scope - Section 397 - Interference with Acquittal - The revisional court cannot act as an appellate court and can interfere only if the findings are perverse or there is a miscarriage of justice. The High Court found that the courts below had properly appreciated the evidence and the concurrent findings of fact were not perverse. Held that no interference was warranted. (Paras 11-13)
Issue of Consideration
Whether the concurrent findings of acquittal of the accused for offence under Section 138 of the Negotiable Instruments Act, 1881 were perverse or erroneous, warranting interference in revisional jurisdiction.
Final Decision
The High Court dismissed the criminal revision application, upholding the concurrent findings of acquittal of the accused.
Law Points
- Presumption under Section 139 of NI Act is rebuttable
- burden shifts to accused to prove defence on preponderance of probabilities
- concurrent findings of fact not interfered with unless perverse
