Home Case Index All Cases Indian Laws Indian Laws + HC Indian Laws - 2021 (1) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (1) TMI 380 - HC - Indian LawsDishonor of Cheque - acquittal of the accused - rebuttal of presumption - burden to prove - it is contended that the Trial Judge has committed an error in coming to the conclusion that the burden is on the complainant to establish the case against the accused beyond doubt - HELD THAT:- It is settled law that once the cheque is admitted and there is no dispute with regard to the signature and so also notice was issued, the Court has to draw mandatory presumption under Section 139 of the N.I. Act. No doubt, in the case on hand, the accused has given reply denying the issuance of the cheque. But in the cross-examination of D.W.1, he categorically admits that he issued the cheques and the contents of Ex.P1 cheques in both the cases are also written by him. It has to be noted that P.W.1 in the cross-examination admits that he filled up the contents of Ex.P1. It is also important to note that D.W.1 categorically admits that no ordinary prudent man would sign the cheque and keep it with him. It is the case of the accused that he lost bunch of papers and cheques and there is no any explanation as to why he singed the bunch of cheques and kept with him. It is also important to note that he relied upon Ex.D1, which does not specify the cheques that he lost. It appears that after the issuance of the cheques, he gave the letter to the police, which is not the complaint. He had only requested the police to inform him, if they find the documents and the cheques, which he had lost and to hand over. It is specifically mentioned that as on the date of borrowing the loan amount and issuing of the cheques, accused Nos.2 and 3 were in charge and responsible for the conduct of the business of the Company and they are responsible for all financial transactions of the Company. Hence, they are liable to be prosecuted under Section 138 of the N.I. Act. When a specific pleading has been made in para Nos.6 and 8 of the complaint that these accused persons were looking after the affairs of the company, the Trial Court ought not to have come to the conclusion that Section 141 of the N.I. Act has not been complied. The cheque is also issued on behalf of the company. It is also important to note that the Trial Judge failed to take note of the 'B' report filed by the police against the complaint-Ex.D2 and the very theory of the cheques having been stolen has not been proved by leading any probable evidence before the Trial Court. The cheque - Ex.P1 also bears the common seal of the Company. When such being the case, the Trial Judge ought not to have come to the conclusion that accused has rebutted the case of the complainant relying upon the documents Ex.D1 and Ex.D2 - The very conclusion of the Trial Court that the accused has rebutted the case of the complainant is perverse as the Trial Judge has not considered the admission elicited from the mouth of D.W.1 with regard to the issuance of the cheques and the signature on the said cheques and so also that an ordinary prudent man would not sign and keep the cheque with him. He claims that not only the complaint on the cheques Ex.P1 and Ex.P2 has been filed, but also several other complaints have been filed. But there is no explanation to the effect that if he has not issued the said cheques, why he had signed and kept the bunch of cheques. Under the circumstances, it requires interference of this Court. The impugned judgment of acquittal passed, on the file of XIII Additional Chief Metropolitan Magistrate, Bengaluru, is hereby set aside - Appeal allowed.
|