Case Note & Summary
The appellant, Ashok Kumar, filed a complaint under Section 200 Cr.P.C. against the respondent, Parameshwara B.T., for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The allegations were that the accused had issued a cheque bearing No. 365473 for a sum of Rs.3,00,000/- towards repayment of a loan, which was dishonoured when presented. The trial court convicted the accused, but the first appellate court (Fast Track Court-II, Bengaluru) acquitted him. The complainant appealed against the acquittal. The High Court re-appreciated the evidence and held that the presumption under Sections 118 and 139 of the NI Act operates in favour of the complainant, and the accused failed to rebut the same by leading cogent evidence. The court found that the first appellate court's judgment was perverse and not sustainable. The appeal was allowed, the judgment of acquittal was set aside, and the conviction and sentence imposed by the trial court were restored.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Presumption of Legally Enforceable Debt - Sections 118 and 139 - The complainant alleged that the accused issued a cheque for Rs.3,00,000/- towards repayment of a loan, which was dishonoured. The trial court convicted the accused, but the first appellate court acquitted him. The High Court held that the presumption under Sections 118 and 139 of the NI Act operates in favour of the complainant, and the accused failed to rebut the same by leading cogent evidence. The acquittal was set aside and conviction restored. (Paras 1-15)
B) Criminal Procedure Code - Appeal Against Acquittal - Section 378 - Appellate Court's Power - The High Court, while hearing an appeal against acquittal, can re-appreciate evidence and interfere if the findings of the lower appellate court are perverse or based on no evidence. In this case, the first appellate court's judgment was set aside as it failed to consider the presumption under the NI Act. (Paras 1-15)
Issue of Consideration
Whether the judgment of acquittal passed by the First Appellate Court is sustainable in law, and whether the accused has rebutted the presumption under Sections 118 and 139 of the Negotiable Instruments Act, 1881.
Final Decision
The appeal is allowed. The judgment of acquittal dated 7.7.2014 passed by the Fast Track Court-II, Bengaluru in Criminal Appeal No.390/2013 is set aside. The judgment of conviction and sentence dated 8.7.2013 passed by the XIII Addl. C.M.M., Bengaluru in C.C.No.18350/2011 is restored.
Law Points
- Presumption of legally enforceable debt under Sections 118 and 139 of Negotiable Instruments Act
- 1881
- Rebuttal of presumption by accused
- Standard of proof in cheque dishonour cases
- Appellate court's power to reverse acquittal under Section 378 Cr.P.C.
Case Details
2019 LawText (KAR) (10) 45
Criminal Appeal No. 686/2014
Sri. Prabhugoud B. Tumbigi for appellant, Sri. B.C. Venkatesh for respondent
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Criminal appeal against acquittal in a cheque dishonour case under Section 138 of Negotiable Instruments Act, 1881.
Remedy Sought
The appellant/complainant sought setting aside of the acquittal order and restoration of the conviction and sentence imposed by the trial court.
Filing Reason
The respondent/accused issued a cheque for Rs.3,00,000/- which was dishonoured, and the accused failed to pay the amount despite legal notice.
Previous Decisions
The trial court convicted the accused on 8.7.2013 in C.C.No.18350/2011. The first appellate court (Fast Track Court-II, Bengaluru) acquitted the accused on 7.7.2014 in Criminal Appeal No.390/2013.
Issues
Whether the judgment of acquittal passed by the First Appellate Court is sustainable in law?
Whether the accused has rebutted the presumption under Sections 118 and 139 of the Negotiable Instruments Act, 1881?
Submissions/Arguments
The appellant argued that the first appellate court erred in acquitting the accused despite the presumption under Sections 118 and 139 of the NI Act, and the accused failed to rebut the same.
The respondent argued that the acquittal was justified as the complainant failed to prove the existence of a legally enforceable debt.
Ratio Decidendi
In a complaint under Section 138 of the Negotiable Instruments Act, 1881, the presumption under Sections 118 and 139 operates in favour of the complainant that the cheque was issued for a legally enforceable debt. The accused must rebut this presumption by leading cogent evidence. If the accused fails to do so, the conviction under Section 138 is sustainable. The appellate court can interfere with an acquittal if the findings are perverse or based on no evidence.
Judgment Excerpts
This appeal is preferred by the aggrieved complainant against the judgment of acquittal recorded by the Fast Track Court-II, Bengaluru in Criminal Appeal No.390/2013 vide judgment dated 07.07.2014.
The brief factual matrix of the case is that, one Sri. Ashok Kumar, the appellant herein is the complainant, who lodged a complaint under Section 200 of Cr.PC. before the XIII Addl. Chief Metropolitan Magistrate, Bengaluru, against one Parameshwara, the respondent herein (Accused) for the offence punishable under Section 138 of the Negotiable Instruments Act,1881.
Procedural History
The complainant filed a complaint under Section 200 Cr.P.C. before the XIII Addl. C.M.M., Bengaluru, which was registered as C.C.No.18350/2011. The trial court convicted the accused on 8.7.2013. The accused appealed to the Fast Track Court-II, Bengaluru in Criminal Appeal No.390/2013, which acquitted the accused on 7.7.2014. The complainant then filed the present appeal under Section 378 Cr.P.C. before the High Court of Karnataka.
Acts & Sections
- Negotiable Instruments Act, 1881: 138, 118, 139
- Code of Criminal Procedure, 1973: 378, 200
