IMPORTANT POINT
Dishonour of cheque – Even in absence of any rebuttal evidence, appellant cannot contend that there was absence of foundational facts or that very raising of presumption under Section 118 read with Section 139 of Act in favour of respondent was incorrect.

ORDER

Leave granted.

2. Being aggrieved by the judgment dated 09.10.2023 passed by the High Court of Karnataka-Kalaburagi Bench in Criminal Appeal No.200030 of 2017, the appellant/accused is before this court. By the said judgment, the judgment of acquittal dated 06.01.2017 passed by the I Addl. Civil Judge & J.M.F.C.I Vijaypur in Criminal Case No.2378 of 2013 has been set aside and the appellant has been convicted of the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as, “the Act”).

3. The operative portion of the impugned judgment reads as under:

“The appeal filed by the complainant is allowed. The impugned judgment and order dated 06.01.2017 passed by the I Additional Civil Judge and JMFC-I, Vijayapura, in C.C.No.2378/2013 is hereby set aside.

The accused is found guilty. Acting under Section 255(2) of Cr.P.C., the accused is convicted for the offence punishable under Section 138 of the N.I.Act and he is sentenced to pay fine of Rs.10,10,000/- (Rupees Ten Lakhs Ten Thousand only). In default of payment of fine amount, the accused shall undergo simple imprisonment for a period for six months.

Further, acting under Section 357(1)(b) of Cr.P.C., the appellant is entitled for compensation of Rs.10,00,0000/- out of Rs.10,10,000/- and remaining cost of Rs.10,000/- shall be remitted to the State as expenses.

Office is directed to furnish a copy of this judgment to the accused forthwith.

Office to return the Trial Court records forthwith. The Trial Court shall secure the accused and issue the conviction warrant accordingly. The respondent/accused shall surrender before the Trial Court forthwith.”

4. We have heard learned counsel for the appellant and learned counsel for the respondent and perused the material on record.

5. Learned counsel for the appellant made a twofold submission: firstly, he submitted that the High Court was not right in reversing the judgment and order of acquittal passed by the trial court dated 06.01.2017 and thereby convicting the appellant herein; he contended that the respondent-complainant had not laid the foundational facts so as to prove his case under Section 138 of the Act. Consequently, the trial court rightly did not raise a presumption in favour of the respondent herein as per Sections 118 and 139 of the Act. The High Court has lost sight of this aspect of the case and has instead set aside the judgment and order of acquittal and consequently convicted the appellant herein. He contended that the impugned judgment of conviction may be set aside and the complaint filed by the respondent-complainant may be rejected/dismissed.

6. He next contended, as an alternative submission, that the High Court was not right in awarding a huge compensation of Rs.10,00,000/- which is 100% of the cheque amount as the same is disproportionate having regard to the facts and circumstances of the case. Therefore, learned counsel for the appellant contended that the award of compensation may be set aside by modifying the impugned judgment and order of conviction.

7. Per contra, learned counsel for the respondent-complainant submitted that there is no merit in this appeal; that the trial court was not right in acquitting the appellant herein even in the face of the foundational facts being proved by the respondent herein; the trial court ought to have raised a presumption against the appellant herein inasmuch as the appellant failed to step into the witness box and let in any rebuttal evidence in the matter. He therefore submitted that the High Court was justified in reversing the judgment and order of acquittal of the trial court and convicting the appellant herein. In the circumstances, the contention of the respondent’s counsel was that there is no merit in the appeal.

8. We have considered the rival submissions advanced at the bar and we have perused the material on record.

9. We are not inclined to accept the first submission made by the learned counsel for the appellant inasmuch as we fi