Case Note & Summary
The petitioner/complainant, R.V. Nathan, filed a criminal revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973, challenging the order dated 22.08.2019 passed by the LXXII Additional City Civil and Sessions Judge, Mayohall Unit, Bengaluru (CCH-73) in Crl.A.No.25225/2018. The appellate court had set aside the conviction recorded by the trial court in C.C.No.53556/2016 dated 02.11.2018 under Section 138 of the Negotiable Instruments Act, 1881. The respondent, A.P. Mahesh, was convicted by the trial court for dishonour of a cheque for Rs.1,88,000/- issued towards repayment of a loan. The appellate court set aside the conviction on the grounds that the complainant failed to prove the existence of a legally enforceable debt and that the legal notice was not properly served. The High Court, after hearing both sides, found that the appellate court had erred in reappreciating the evidence without properly considering the presumption under Section 139 of the Negotiable Instruments Act, 1881, which shifts the burden on the accused to rebut the presumption. The High Court noted that the accused had not rebutted the presumption and that the legal notice was sent to the correct address and was deemed served under Section 27 of the General Clauses Act, 1897. The High Court held that the appellate court's findings were perverse and not based on evidence. Consequently, the High Court allowed the revision petition, set aside the appellate order, and restored the trial court's conviction. The High Court also directed the trial court to release the security deposit of Rs.1,88,000/- deposited by the respondent on 03.12.2018 as per the amended order dated 21.12.2018 to the petitioner.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Presumption under Section 139 - The appellate court set aside the conviction recorded by the trial court under Section 138 of the Negotiable Instruments Act, 1881, on the ground that the complainant failed to prove the existence of a legally enforceable debt. The High Court held that the appellate court erred in reappreciating the evidence without properly considering the presumption under Section 139 of the Act, which shifts the burden on the accused to rebut the presumption. The High Court restored the trial court's conviction, observing that the accused failed to rebut the presumption. (Paras 1-10) B) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Validity of Legal Notice - The appellate court had held that the legal notice was not served properly. The High Court found that the notice was sent to the correct address and was deemed served under Section 27 of the General Clauses Act, 1897. The High Court held that the appellate court's finding on this issue was perverse and not based on evidence. (Paras 5-8) C) Criminal Procedure Code, 1973 - Revision - Section 397 read with Section 401 - Scope of Revision - The High Court, in exercise of revisional jurisdiction, can interfere with an order of the appellate court if it is perverse or based on erroneous appreciation of evidence. The High Court set aside the appellate order and restored the trial court's conviction. (Paras 1-10)
Issue of Consideration
Whether the appellate court was justified in setting aside the conviction under Section 138 of the Negotiable Instruments Act, 1881, by reappreciating evidence without properly considering the presumption under Section 139 of the Act.
Final Decision
The High Court allowed the criminal revision petition, set aside the appellate order dated 22.08.2019 passed by the LXXII Additional City Civil and Sessions Judge, Mayohall Unit, Bengaluru (CCH-73) in Crl.A.No.25225/2018, and restored the trial court's conviction dated 02.11.2018 in C.C.No.53556/2016. The High Court directed the trial court to release the security deposit of Rs.1,88,000/- deposited by the respondent on 03.12.2018 as per the amended order dated 21.12.2018 to the petitioner.
Law Points
- Presumption under Section 139 of Negotiable Instruments Act
- 1881
- Reappreciation of evidence by appellate court
- Burden of proof in cheque dishonour cases
- Validity of legal notice under Section 138
