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TMI Blog2022 (3) TMI 448X X X X Extracts X X X X X X X X Extracts X X X X ..... engaluru ('trial Court' for short), whereby the learned Magistrate has acquitted the accused/respondent herein for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 ('N.I. Act' for short). 3. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the trial Court. 4. The brief factual matrix of the case is that, the complainant and accused are acquainted with each other and accused is running the hotel business and he has availed hand-loan of Rs. 1,75,000/- from the complainant in the month of October, 2016 for expansion of his hotel business with a promise to return the same within six months. Conceding his request, the complainant has adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial records, the learned Magistrate has come to a conclusion that the complainant has failed to establish that the cheque under Ex. P1 was issued towards legally enforceable debt and as such, acquitted the accused in respect of the offence punishable under Section 138 of the N.I. Act. Being aggrieved by this judgment of acquittal, the appellant/complainant has preferred this appeal. 8. Heard the learned counsel for the appellant/complainant and learned counsel for the respondent/accused. Perused the records. 9. Learned counsel for the appellant would contend that the judgment and order of acquittal is illegal and contrary to law and evidence. He would further contend that, admittedly, the cheque in question belongs to accused and the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he would contend that the trial Court considered these aspects and has rightly acquitted the accused. Hence, he would contend that the impugned judgment of acquittal does not call for any interference and as such, sought for dismissal of the appeal. 11. Having heard the arguments advanced by the learned counsels appearing for the parties on both sides and perusing the records, the following point would arise for consideration: "Whether the judgment of acquittal passed by the trial Court is perverse, capricious and arbitrary so as to call for interference by this Court?" 12. It is the specific contention of the appellant that the accused has availed loan of Rs. 1,75,000/- in the month of October, 2016 for expansion of his hotel business ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000/- as security to one Mr. Balu in respect of purchase of chicken, for his hotel business. Further, it is contended that the said cheque has been misused by the complainant, by colluding with the said Balu. However, it is to be noted here that, admittedly the accused has not issued any cheque for Rs. 30,000/-. If at all, he had issued the cheque as security to one Balu, he could have endorsed the figure of Rs. 30,000/- on it. But, Ex. P1 discloses that, it is for Rs. 1,75,000/-. Further, it is in the name of the complainant. Admittedly, the complainant is the holder of the cheque in due course and presumption is in his favour under Section 118 of the N.I. Act. Except a formal statement that the cheque was issued to one Balu as security fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... status of the complainant was not at all challenged. When the financial status of the complainant was not challenged by the accused, it was mandatory for the trial Court to draw a presumption under Section 139 of the N.I. Act in favour of the complainant. But, the judgment of the trial Court discloses that the trial Court has given unnecessary importance to irrelevant factors and gone to the extent of observing that the accused has denied the source of income and capacity of the complainant. But, on perusal of cross-examination of P.W. 1, the source of income and capacity of the complainant was not at all challenged by the accused. Hence, the trial Court was misconceived the evidence and observed that the source of income and existence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts-Presumptions are rules of evidence and do not conflict with presumption of innocence, which requires prosecution to prove case against accused-Obligation on prosecution may be discharged with help of presumptions of law and presumptions of fact unless accused adduces evidence showing reasonable possibility of non-existence of presumed fact. xxxx xxxx xxxx xxxx (E) Negotiable Instruments Act (26 of 1881), S. 138, S. 139-Dishonour of cheque-Presumption as to legally enforceable debt-Rebuttal-Onus to rebut presumption that cheque issued in discharge of debt or liability is on accused." Hence, it is evident that, it is mandatory for drawing presumption under Section 139 of N.I. Act regarding existence of legally enforceable debt and onu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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