2020 Supreme(Kar) 309

IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
Pradeep Singh Yerur, J.
Vishal - Appellant
Versus
Prakash Kadappa Hegannawar - Respondent
Criminal Appeal No.100296/2016
Decided On : 13-02-2020

Headnote:

Negotiable Instruments Act, 1881 - Section 138 – Criminal Procedure Code - Section 313 – Dishonor of cheque - Legally recoverable debt - Whether or not complainant has discharged his initial burden as to existence of legally enforceable debt - Whether such a transaction has existed or happened - Complaint came to be filed by complainant against accused for recovery of a sum - It is case of complainant that his father and accused were known to each other for the last fifteen years and accused was in need of money and requested for loan from complainant for his business – Accordingly complainant has advanced a sum as loan in month of December for his hotel business and that accused had agreed to repay said amount within two months - It is case of complainant that during first week of March he requested accused to repay loan amount and accordingly accused issued a cheque in favor of complainant which is produced and marked as Ex.P-1 - When accused presented cheque for encashment same came to be dishonored for reasons of account closure pursuant to which complainant got issued a legal notice which was duly served to accused and that accused has not repaid amount and neither he has replied to legal notice – Hence complainant filed present complaint against accused – Held, In present case on hand though accused has admitted signature of cheque and that it belongs to him but has denied transaction of there being any legally recoverable debt and any consideration was paid by virtue of said cheque Ex.P1 - On going through oral evidence and documents produced by complainant it is case of complainant that he has borrowed loan from his friend father brother and Bank/Society to pay to accused of a sum which he has paid at one stretch - Though complainant has produced Exs.P-1 to P-8 and got marked Ex.P-9 through P.W.4 there is no document produced by complainant to show that he has parted with amount to accused - It is also trite law that when a person is paying huge amount to a person whom he is not very well acquainted with he would pay said amount without there being any corroborative or supportive document or agreement - Therefore it is hard to believe that complainant has parted with huge amount without there being any supportive document or witness to said parting of amount - It is also relevant to note here that when accused raises plea that there is no transaction and he does not know accused and places material for closure of account onus shifts on complainant to prove that he had parted with amount as loan to accused and that he had financial capacity and a legally recoverable debt - Sum and substance of these judgments of Honble Apex Court is that there is a presumption under Section 139 of N.I. Act which includes a presumption of existing legally enforceable debt or liability - However such a presumption is rebuttable in nature and once presumption is rebutted by accused onus shifts on complainant to prove his case - It is held that though signature has been admitted a presumption shall be raised under Section 139 of N.I. Act that cheque was issued in discharge of a legal debt or liability - What has to be seen is if said presumption is rebutted by way of a probable defense raised by accused - In court opinion on perusal of entire evidence and material documents it is seen that accused has raised a probable defense and burden has shifted to complainant to prove his financial capacity and issue of there being any legally recoverable debt - Further Trial Court has rightly come to a conclusion that complainant version of parting huge amount without there being any other materials to support and having not proved in evidence that he had source of income to pay to accused is fatal and also failed to prove that there is any legally recoverable debt to accused - Therefore another aspect which canvassed by learned counsel for accused is that complainant after having lent an amount has not charged any interest - No prudent man in court considered view can believe that a person who is doing business would part with such huge amount without charging any interest - Having regard to evidence on record and having gone through documents court of considered view complainant has not established nor proved legally enforceable debt and statutory presumption which was in favor of complainant has been duly rebutted by probable defense by accused - Appeal is dismissed