Case Note & Summary
The appellant, M. Nagappa, filed a criminal appeal under Section 378(4) of the Code of Criminal Procedure, 1973, against the judgment and order of acquittal dated 05.07.2011 passed by the Prl. Sr. CJ and CJM, Davanagere in C.C. No. 1575/2009, whereby the respondent-accused, Mohamad Aslam Savanur, was acquitted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (N.I. Act). The appellant sought to set aside the acquittal and convict the accused. The brief facts are that the appellant-complainant and the respondent-accused were known to each other. The accused borrowed a sum of Rs. 1,00,000 from the complainant and issued a cheque dated 15.06.2009 drawn on State Bank of India, Davanagere, towards repayment. When the complainant presented the cheque for encashment, it was dishonoured with an endorsement 'funds insufficient'. The complainant issued a legal notice to the accused, but the accused failed to pay the amount, leading to the filing of the complaint. The trial court acquitted the accused on the ground that the complainant failed to prove the existence of a legally enforceable debt. The High Court, after re-appreciating the evidence, held that the trial court's findings were perverse and contrary to the evidence. The presumption under Section 139 of the N.I. Act operates in favour of the complainant, and the accused failed to rebut the same. The accused did not examine any witness or produce any documentary evidence to support his defence. The High Court allowed the appeal, set aside the acquittal, and convicted the accused under Section 138 of the N.I. Act, sentencing him to pay a fine of Rs. 1,25,000, with a default sentence of simple imprisonment for six months.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Presumption under Section 139 - Rebuttal - The trial court acquitted the accused on the ground that the complainant failed to prove the existence of a legally enforceable debt. The High Court held that the presumption under Section 139 of the N.I. Act operates in favour of the complainant and the accused must rebut the same by raising a probable defence. The accused failed to rebut the presumption as he did not examine any witness or produce any documentary evidence to support his defence. The trial court's approach was erroneous and the acquittal was set aside. (Paras 1-10) B) Criminal Procedure Code, 1973 - Appeal against acquittal under Section 378(4) - Appellate court's power - The High Court, while hearing an appeal against acquittal, can re-appreciate the evidence and interfere if the findings of the trial court are perverse or based on no evidence. In this case, the trial court's findings were contrary to the evidence on record and the legal presumption, warranting interference. (Paras 1-10)
Issue of Consideration
Whether the trial court was justified in acquitting the accused under Section 138 of the Negotiable Instruments Act, 1881, despite the presumption under Section 139 of the Act and the evidence on record.
Final Decision
Appeal allowed. The judgment and order of acquittal dated 05.07.2011 passed in C.C. No. 1575/2009 is set aside. The respondent-accused is convicted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and sentenced to pay a fine of Rs. 1,25,000, in default to undergo simple imprisonment for six months.
Law Points
- Presumption under Section 139 of Negotiable Instruments Act
- 1881
- Rebuttal of presumption
- Standard of proof in cheque dishonour cases
- Appellate court's power to reverse acquittal
