TMI Blog2021 (8) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... did not lead any defence evidence for rebutting the presumption and he can rebut the presumption by available material, but mere denial does not amount to rebuttal of the presumption. The trial court while considering the transaction has dealt it as if a civil case and casted burden on the appellant/complainant to prove the transaction ignoring the presumption under Section 139 of N.I.Act - The trial court committed an error apparent on the face of the records by casting burden on the appellant/complainant against the mandatory requirement under Section 139 of N.I.Act. The learned Magistrate has erred in holding that there is no legally enforceable debt and committed an error in acquitting the respondent/accused. The judgment of acquitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presented was dishonoured. After issuing notice, the proceedings came to be initiated. 3. The trial court after detailed trial after recording evidence and appreciation held that there is no legally enforceable debt and further held that the appellant/complainant has failed to establish the transaction between himself and the respondent/accused herein and thereby accepted the defence set up by the respondent/accused herein in respect of his clerk misusing the cheques and acquitted him of the offence punishable under Section 138 of N.I.Act. This order is being challenged in this appeal. 4. Heard the arguments of the learned counsel for the appellant/complainant and the learned counsel for the respondent/accused. Perused the records. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso admitted his signature on the cheque. He simply set up a defence that P.W.3 who was working as his clerk has obtained signature on the blank cheques and they were misused by the appellant/complainant. He would also contend that now P.W.3 has left the job with him and hence, he would contend that the cheque is obtained by misrepresentation. When the respondent/accused has admitted his signature on the cheque and when the cheque belongs to him, admittedly the appellant/complainant is a holder of the cheque in due course under Section 118 of N.I.Act. Hence, the presumption under Section 139 of N.I.Act is in favour of the appellant/complainant and it is for the respondent/accused to rebut the said presumption, which is mandatory and statuto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,02,000/- as ordered by the learned Magistrate. The judgments passed by this court in Crl.A.Nos.2544, 2545 and 2546 of 2009 have reached finality and admittedly they are pertaining to this transaction of ₹ 3,00,000/- in respect of greengram and four cheques were issued and in three cheques, the matter ended in conviction and in this case, it is ended in acquittal. 9. Very strangely, the trial court while considering the transaction has dealt it as if a civil case and casted burden on the appellant/complainant to prove the transaction ignoring the presumption under Section 139 of N.I.Act. This Court relying on the decision rendered by the Apex Court in the case of Krishna Janardhan Bhat Vs Dattatraya G.Hegde (2008) 4 SCC 54, held t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous, illegal and capricious and as such, it calls for interference by this court in this appeal. 11. Learned counsel for the respondent/accused submits that lenient view may be taken. But however, in earlier cases arising out of the same transaction, the respondent/accused was imposed fine of ₹ 1,02,000/- and the High Court has only set aside the imprisonment of two years. There are no mitigating circumstances to take a different view. Hence, the fine will meet the ends of justice. Accordingly, I proceed to pass the following: ORDER The appeal is allowed. The impugned order of acquittal dated 04.07.2011 passed by the Principal Senior Civil Judge CJM, Gadag in C.C.No.31/2005 is set aside. The respondent/accused is convict ..... X X X X Extracts X X X X X X X X Extracts X X X X
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