TMI Blog2021 (2) TMI 798X X X X Extracts X X X X X X X X Extracts X X X X ..... thereby the presumption would act in favour of complainant. In the present case on hand, apart from mere denial and suggestions in cross-examination, no worthwhile evidence has been adduced and no cogent material has been produced or confronted to PW.1 complainant. Therefore the rebuttal as made by accused is no rebuttal in law or on facts of the case and presumption of law in favour of complainant has not been proved to the contrary by accused. It is seen from the judgment of trial Court that trial Court is impressed by arguments of accused with regard to non service of notice which is erroneous in law and facts of the case as stated in detail in the above paragraph. Further, trial Court has laid entire burden of proof on complainant to prove advancement of loan and issuance of cheque. In the evidence of PW.1, it is clearly stated that on several dates on which complainant advanced loan, right from April 2003 till March 2004 and for repayment of which accused has got issued Ex.P.1 cheque, complainant has also produced Ex.P.7 which is prior in time than issuance of cheque. Ex.P.7 is dated 30.3.2004 and this document has stated in detail the amount of loan having been receive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheque amount, it is suitable in the present case to award compensation double the cheque amount to reasonably compensate the complainant. Appeal allowed. - CRIMINAL APPEAL NO. 2564/2011 - - - Dated:- 7-12-2020 - THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR FOR THE APPELLANT : SRI SANJAY S. KATAGERI , ADVCOATE FOR THE RESPONDENT : SMT GIRIJA S. HIREMATH , ADVOCATE JUDGMENT This appeal is preferred by complainant being aggrieved by the Judgment of acquittal passed by Court of J.M.F.C.-III, Belgaum in Criminal Case No.931/2006 dated 06.12.2010. 2. For the sake of convenience, parties herein shall be referred to as per their status before the trial Court. 3. Brief facts leading to filing of this case is as under : It is the case of complainant that accused is known to him and very well acquainted. Accused was in the habit of taking hand loan from complainant. In the month of April-2003, accused approached the complainant with a request for hand loan of ₹ 50,000/-, which was paid by complainant by cash. Further, in the month of July-2003, accused again approached for hand loan of ₹ 50,000/-, with a promise to repay the same within a sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on bail. The plea of accused was recorded, where he pleaded not guilty and claimed to be tried accordingly, he was tried. 7. In order to prove the guilt of accused, complainant got himself examined as P.W.1 and got marked Exs.P.1 to 7 and closed his side. Thereafter, the statement of accused was recorded under Section 313 of Cr.P.C., where the accused denied all the incriminating evidence against him. Accused did not lead any evidence on his behalf neither did he produce any documents in his favour. 8. After considering the entire materials on record, both oral and documentary, trial Court came to the conclusion that complainant has not proved his case beyond reasonable doubt and that the burden was on the complainant to establish his case, which has not been done in accordance to provision of Section 138 of the N.I.Act. Further, the trial Court held that the service of notice to accused is not complied, as accused was not residing in the said address in which the notice was issued by complainant. Trial Court further held that complainant could not have shifted the burden upon the accused and forced the accused to prove his case, as the accused had raised a preponderance of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of cheque, an adverse inference is drawn is erroneous in law. 11. It is further contended by learned counsel that the theory of accused that cheque was given to one Rudraraj Kulkarni and same has been misused by complainant, is not well founded as no cogent material evidence is produced neither examined any witness to that effect by accused. He further contends that the entire approach of trial Court is erroneous and the trial Court has misdirected itself in understanding proviso to Section 138 of the N.I.Act and presumption under Section 139 of the N.I.Act. He further contends that the trial Court has not applied its mind in appreciating the facts of the case that the law and the precedent of the Hon'ble Supreme Court and this Court. On these grounds, he contends that viewed from any angle the Judgment of acquittal passed by trial Court is perverse, illegal and the same deserves to be set aside and reversed. Hence, he seeks to allow the appeal. 12. Learned counsel relies on the Judgment of Hon'ble Apex Court in the case of C.C.Alavi Haji v. Palepetty Muhammed and Another, reported in (2007) 6 SCC 555 in support of his case. 13. Per Contra, learned counsel for resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese documents, non production of the same will have to be held adverse to the case of complainant, which is rightly held by trial Court. She further contends that it is for complainant to prove existence of legally recoverable debt and only thereafter burden will shift to accused to rebut the presumption. Therefore trial Court has rightly come to a conclusion that complainant has not proved existence of legally recoverable debt and accused has raised a probable defence creating a doubt in the mind of Court which has been appreciated and trial Court has rightfully acquitted the accused. On these submissions she contends that appeal deserves to be dismissed and judgment of acquittal requires to be affirmed. 18. Having heard learned counsel for appellant/complainant and learned counsel for accused, points that would arise for consideration before this Court are: (i) Whether complainant has fulfilled necessary requirements under section 138 of Negotiable Instruments Act? (ii) Whether accused has rebutted the presumption cast in favour of complainant? (iii) Whether judgment of acquittal passed by trial Court deserves to be reversed? 19. In order to answer the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uses Act, 1897, which reads as under: 27. Meaning of service by post.--Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression serve or either of the expressions give or send or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. 21. Section 138 of Negotiable Instruments Act reads as under: 138. Dishonour of cheque for insufficiency, etc., of funds in the accounts Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ances, it cannot be said that service of notice is incomplete and the same would not be fatal to the case of complainant as held by trial Court. 23. On fulfillment of proviso (a) to (c) to Section 138 of Negotiable Instruments Act, technically the offence under section 138 of the Act is made out. Therefore I answer point No.1 in the affirmative with regard to fulfillment of necessary mandatory requirements as contemplated under section 138 of Negotiable Instruments Act by complainant. 24. On presentation of complaint before the Court, the provisions of section 139 of Negotiable Instruments Act comes into play in favour of complainant which is a presumption in law. Section 139 of the Act reads as under: 139. Presumption in favour of holder It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability. 25. No doubt the said presumption is a rebuttable presumption. It is for accused to rebut the presumption cast in favour of complainant to prove to the contrary that there never existed any legally recoverable debt or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Instruments Act as section 139 says that holder of cheque has received the cheque of nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability. It is also essential to have a look at section 118 of Negotiable Instruments Act, which reads as under: 118. Presumptions as to negotiable instruments Until the contrary is proved, the following presumptions shall be made:-- (a) of consideration--that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; (b) as to date--that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance--that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; (d) as to time of transfer--that every transfer of a negotiable instrument was made before its maturity; (e) as to order of endorsements--that the endorsements appearing upon a negotiable instrument were made in the order in which they appear then on; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheque towards the discharge, in whole or in part of the said debt. In the present case, accused has not produced any material to show preponderance of probabilities and has not made out any case for showing any suspicious circumstances and has not raised any reasonable doubt by way of any probable defence. Under these circumstances, the order of acquittal passed by trial Court is contrary to materials both oral and documentary and the same is required to be reversed. Hence, I answer point No.3 in the affirmative. 31. It is seen that cheque is dated 21.7.2004 and in view of enormous delay in non payment of cheque amount, it is suitable in the present case to award compensation double the cheque amount to reasonably compensate the complainant. Hence, I pass the following order: ORDER i) Appeal is allowed. ii) The judgment of acquittal dated 06.12.2010, passed by the Court of JMFC-III, Belagavi, in C.C.No. 931/2006 is hereby set aside and reversed. iii) Accused is convicted for the offence punishable under section 138 of Negotiable Instruments Act and he is sentenced to pay a fine of double the amount of cheque (cheque amount being ₹ 3,60,000/-) within a pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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