Case Note & Summary
The applicant, Dr. Anilbhai Dineshchandra Chauhan, filed a criminal revision application under Section 397 of the Code of Criminal Procedure, 1973, challenging the judgment and order dated 16.11.2006 passed by the learned 6th Additional Chief Judicial Magistrate, Gandhinagar, in Criminal Case No.6612/2005. The learned Magistrate had acquitted the respondent No.2 (original accused) for the offence under Section 138 of the Negotiable Instruments Act, 1881. The applicant and respondent No.2 were doctors and relatives. The applicant alleged that on 28.02.2005, respondent No.2 borrowed Rs.50,000/- and later another Rs.75,000/-, totaling Rs.1,25,000/-. Towards repayment, respondent No.2 issued a cheque dated 15.05.2005. On 13.05.2005, respondent No.2 allegedly called the applicant not to deposit the cheque, and on 19.05.2005, a promissory note was executed. On 03.08.2005, the applicant deposited the cheque, but it was dishonored with the endorsement 'stop payment'. A statutory notice was sent on 30.09.2005, served on 04.10.2005, but no payment was made, leading to the complaint. The learned Magistrate acquitted the accused. The High Court heard arguments from both sides. The court noted that the complainant failed to prove the loan transaction and the service of notice. The accused had examined a handwriting expert who opined that the signatures on the cheque and promissory note were not of the accused. The court found that the accused had rebutted the presumption under Section 139 of the NI Act by showing that the cheque was not issued for any debt. The court held that the revisional court's scope is limited and that the Magistrate's findings were based on evidence and not perverse. The revision application was dismissed.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Acquittal - Complainant failed to prove legally enforceable debt or liability - The court held that the complainant did not satisfactorily prove the loan transaction or the service of statutory notice, and the accused successfully rebutted the presumption under Section 139 by showing that the cheque was not issued for any debt - Held that the acquittal was proper and no interference was warranted (Paras 5-7).
Issue of Consideration
Whether the learned Magistrate erred in acquitting the accused under Section 138 of the NI Act despite the presumption under Section 139 of the NI Act and the evidence on record.
Final Decision
The High Court dismissed the revision application, upholding the acquittal of the accused.
Law Points
- Presumption under Section 139 NI Act is rebuttable
- burden on accused to show preponderance of probabilities
- service of notice under Section 138 NI Act must be proved
- revisional court's scope under Section 397 CrPC is limited to correctness
- legality
- or propriety of lower court's order.
