Home Case Index All Cases Indian Laws Indian Laws + HC Indian Laws - 2023 (11) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2023 (11) TMI 605 - KARNATAKA HIGH COURTDishonour of Cheque - accused is before this Court contending that the findings of both orders are contrary to the well settled principles of law and is liable to be set aside - rebuttal of presumption - HELD THAT:- Having regard to the fact that accused admit that the cheque in question is drawn on his account maintained with his banker and it bears his signature, presumption under Sections 118 and 139 of N.I. Act is attracted to the effect that the cheque was issued towards legally recoverable debt or liability. Therefore, the initial burden is on the accused to prove that no consideration has passed i.e, the cheque was not issued towards repayment of any legally recoverable debt or liability and the circumstances in which the cheque has reached the hands of the complainant. Only after the accused rebut the presumption, the burden shifts on the complainant to prove his case, including passing of consideration and his financial capacity to lend such huge sum of money at the relevant point of time. The accused has stepped into the witness box and deposed that the cheque in question as well as the demand Promissory note were given to the son of complainant in connection with the chit fund business run by him and misusing the same, the complainant has filed this complaint. Of course the cross-examination of accused establish the fact that during 2013, he had taken loan of Rs. 16 lakhs from Vijaya Bank and he is repaying the same. Though the demand Promissory Note state and also it is pleaded by the complainant that accused had agreed to repay the said sum along with interest at 2% p.m., there is no explanation for not making any attempts to recover the interest. Both trial Court as well as the Sessions Court has failed to appreciate the oral and documentary evidence placed on record by the complainant in the light of specific defence taken by the accused. Simply on the basis that presumption under Sections 118 and 139 of N.I. Act, they proceeded to convict the accused. The findings of the trial Court as well as the Sessions Court are contrary to the evidence placed on record and as such perverse. It is erroneous and calls for interference by this Court. The Criminal Revision Petition filed under Section 397 r/w 401 Cr.P.C is allowed.
|