Case Note & Summary
The appeal was filed by the complainant, Smt. G. Suma, challenging the judgment of acquittal dated 29.01.2011 passed by the Presiding Officer, Fast Track Court-II, Tumkur, in Crl.A.No.100/2010, whereby the respondent/accused, Sri K.G. Raju, was acquitted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (NI Act), reversing the conviction and sentence dated 03.08.2010 passed by the Prl. Civil Judge & JMFC, Kunigal, in C.C.No.12/2006. The complainant alleged that the accused borrowed a hand loan of Rs.50,000 for his financial assistance and issued a cheque dated 15.11.2005 drawn on State Bank of Mysore, Kunigal Branch, in favour of the complainant. The cheque was presented for encashment but was returned dishonoured with the endorsement 'funds insufficient'. The complainant issued a legal notice dated 28.11.2005, which was received by the accused, but he failed to pay the amount within the statutory period, leading to the filing of the complaint. The trial court convicted the accused and sentenced him to pay a fine of Rs.60,000, in default simple imprisonment for six months. On appeal, the appellate court acquitted the accused, holding that the complainant failed to prove the existence of a legally enforceable debt. The High Court framed the issue of whether the appellate court was justified in reversing the conviction. The complainant argued that the appellate court erred in ignoring the presumption under Section 139 of the NI Act and improperly shifted the burden of proof. The accused contended that the loan was not proved and the cheque was not issued for any debt. The High Court analyzed the evidence and found that the complainant had proved the issuance of the cheque, its dishonour, and the service of notice. The presumption under Section 139 of the NI Act that the cheque was issued for discharge of a debt or liability was not rebutted by the accused, who merely denied the transaction without leading any evidence. The appellate court's reasoning that the complainant failed to prove the debt was perverse and contrary to law. The High Court allowed the appeal, set aside the acquittal, and restored the conviction and sentence imposed by the trial court.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Presumption under Section 139 - The complainant alleged that the accused borrowed Rs.50,000 and issued a cheque which was dishonoured. The trial court convicted the accused, but the appellate court acquitted. The High Court held that the appellate court erred in holding that the complainant failed to prove the existence of a legally enforceable debt, ignoring the presumption under Section 139 that the cheque was issued for discharge of a debt or liability. The accused failed to rebut the presumption by raising a probable defence. (Paras 3-10) B) Criminal Procedure Code - Appeal against acquittal - Section 378(4) - Interference with acquittal - The High Court reiterated that in an appeal against acquittal, the appellate court can interfere if the findings are perverse or based on no evidence. Here, the appellate court's reasoning was unsustainable as it placed an initial burden on the complainant to prove the debt beyond the presumption. (Paras 2, 10) C) Evidence - Burden of proof - Rebuttal of presumption - The accused merely denied the transaction but did not lead any evidence to show that the cheque was not issued for a debt. The presumption under Section 139 remains unless rebutted by the accused. The appellate court's approach was contrary to law. (Paras 5-9)
Issue of Consideration
Whether the appellate court was justified in reversing the conviction under Section 138 of the Negotiable Instruments Act, 1881, by improperly shifting the burden of proof and ignoring the presumption under Section 139 of the Act.
Final Decision
Appeal allowed. The judgment of acquittal dated 29.01.2011 passed in Crl.A.No.100/2010 by the Presiding Officer, Fast Track Court-II, Tumkur, is set aside. The judgment of conviction and order of sentence dated 03.08.2010 passed in C.C.No.12/2006 by the Prl. Civil Judge & JMFC, Kunigal, is restored.
Law Points
- Presumption under Section 139 of Negotiable Instruments Act
- 1881
- Rebuttal of presumption
- Standard of proof in criminal appeals against acquittal under Section 378 CrPC
