Case Note & Summary
The appeal arises out of the judgment of acquittal passed by the learned Senior Civil Judge and JMFC, Sagar dated 26.08.2011 in C.C.No.124/2010 wherein the Trial Court acquitted the accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881. The appellant was the complainant and the respondent was the accused before the Trial Court. The complainant filed a complaint under Section 200 of Code of Criminal Procedure against the accused for the offence punishable under Section 138 of N.I. Act. It was alleged by the complainant that the accused had borrowed a sum of Rs.20,000/- for his domestic purpose on 11.09.2004. Thereafter, on several occasions, the complainant demanded the accused to repay the amount. But the accused did not repay the same. The accused issued a cheque bearing No.618152 dated 08.11.2004 for repayment of the amount borrowed from the complainant. The complainant presented the cheque for encashment through his banker, but the cheque was returned dishonoured with an endorsement 'funds insufficient'. The complainant issued a legal notice dated 18.11.2004 to the accused demanding payment of the cheque amount. The accused received the notice but did not pay the amount. Hence, the complainant filed the complaint. The Trial Court, after trial, acquitted the accused on the ground that the complainant failed to prove the debt. The High Court, in appeal, held that the presumption under Section 139 of the N.I. Act operates in favour of the complainant and the accused failed to rebut it by leading evidence. The High Court set aside the acquittal and convicted the accused for the offence under Section 138 of the N.I. Act, sentencing him to pay a fine of Rs.25,000/- with default sentence.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Presumption under Section 139 - Rebuttal - The complainant alleged that the accused borrowed Rs.20,000/- and issued a cheque which was dishonoured. The Trial Court acquitted the accused on the ground that the complainant failed to prove the debt. The High Court held that the presumption under Section 139 N.I. Act operates in favour of the complainant and the accused failed to rebut it by leading evidence. The acquittal was set aside and the accused was convicted. (Paras 1-10) B) Negotiable Instruments Act - Section 138 - Ingredients - The cheque was issued for repayment of a loan, presented within validity, and dishonoured due to insufficient funds. The statutory notice was issued and not complied with. All ingredients of Section 138 were satisfied. (Paras 3-5) C) Criminal Procedure Code - Section 378(4) - Appeal against acquittal - The High Court, in an appeal against acquittal, can re-appreciate evidence and interfere if the findings are perverse or not based on evidence. Here, the Trial Court's finding that the complainant failed to prove the debt was contrary to the presumption under Section 139 N.I. Act. (Paras 1, 10)
Issue of Consideration
Whether the Trial Court was justified in acquitting the accused for the offence under Section 138 of the Negotiable Instruments Act, 1881, despite the presumption under Section 139 of the Act and the evidence led by the complainant.
Final Decision
The appeal is allowed. The judgment of acquittal dated 26.08.2011 passed by the Senior Civil Judge and JMFC, Sagar in C.C.No.124/2010 is set aside. The accused is convicted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and sentenced to pay a fine of Rs.25,000/-. In default of payment of fine, the accused shall undergo simple imprisonment for a period of six months.
Law Points
- Presumption under Section 139 of Negotiable Instruments Act
- 1881
- Rebuttal of presumption
- Standard of proof in cheque dishonour cases
- Section 138 N.I. Act
- Section 118 N.I. Act
