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2020 Supreme(Kar) 1270
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
H.B. Prabhakara Sastry, J.
Ashalatha - Appellant
Versus
K. Yakub - Respondent
Criminal Appeal No. 111 of 2011
Decided On : 24-09-2020
G.L. Mohan Maiya, Advocate, A. Keshava Bhat, Advocate, K. Shrikrishna, Advocate, P.V. Kalpana, Advocate
The burden of proving the existence of a legally enforceable debt under Section 138 of the N.I. Act lies with the complainant, and failure to discharge this burden can lead to the acquittal of the accused.
Headnote:
N.I.Act - Dishonoured Cheque - Section 138 of N.I.Act - Summary of the acts and sections referenced and discussed by the court: The court discussed the evidence presented regarding the issuance of a cheque under Section 138 of the Negotiable Instruments Act, 1881. It analyzed the loan transaction, repayment, and the legal notice issued, focusing on the dishonoured cheque and the subsequent payments made by the accused. The court also considered the presumption under Section 139 of the N.I. Act and the burden of proof on the complainant to establish the existence of a legally enforceable debt.
Fact of the Case:
The complainant filed a case against the accused for dishonour of a cheque issued for a loan. The Trial Court acquitted the accused, leading to the appeal.
Finding of the Court:
The court found that the complainant failed to prove the existence of a legally enforceable debt to the extent of the cheque amount. It noted discrepancies in the loan amount, repayment, and observed suppression of material facts by the complainant.
Issues: 1) Whether the accused committed an offence under Section 138 of N.I.Act. 2) Whether the judgment deserved interference.
Ratio Decidendi: The court held that the complainant failed to discharge the burden of proving the existence of a legally enforceable debt, leading to the acquittal of the accused.
Final Decision: The Criminal Appeal was dismissed, and the impugned judgment acquitting the accused under Section 138 of N.I. Act was confirmed.
JUDGMENT
H.B.Prabhakara Sastry, J. - The present appellant was the complainant in the Court of the learned Civil Judge and Judicial Magistrate First Class, Belthangady, Dakshina Kannada (hereinafter for brevity referred to as "Trial Court"), in C.C.No.128/2007, which case was filed against the present respondent arraigning him as accused, under Section 200 of Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as "Cr.P.C."), for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as "N.I.Act").
2. The summary of the case of the complainant in the Trial Court is that, the accused had issued a cheque to her bearing No.281721 for a sum of Rs. 75,000/- for satisfaction of a legally recoverable debt. When the said cheque was presented for its realisation through the Banker of the complainant, on 20-12-2004, the same came to be dishonoured with the banker's endorsement as 'funds insufficient'. The complainant on 05-01-2005 got issued a legal notice to the accused, calling upon him to pay the cheque amount. Though the accused received the said notice on 08-01-2005, but he failed to pay the cheque amount, which constrained the complainant to institute a criminal case against him in the Trial Court for the offence punishable under Section 138 of the N.I. Act.
3. The respondent who was the accused in the Trial Court appeared and contested the matter.
In order to prove the guilt of the accused, the complainant examined herself as PW-1 and got marked documents from Exs.P-1 to P-5(a)(b)(c).
On behalf of the accused, the accused got examined one Naveen Prasad as DW-2 apart from examining himself as DW-1 and got marked a sole document, i.e. receipt dated 15-01-2005 at Ex.D-1.
4. After hearing both side, the Trial Court by its impugned judgment dated 22-11-2010, acquitted the accused for the offence punishable under Section 138 of the N.I. Act.
5. The Trial Court records were called for and the same are placed before this Court.
6. In view of the fact that the learned counsel for the respondent failed to appear before this Court on several dates of hearing and also considering the fact that this appeal was nearly ten years' old appeal, this Court by a detailed order dated 16-09-2020, appointed the learned counsel Smt. P.V. Kalpana, as Amicus Curiae for the respondent.
7. Heard the arguments of learned counsel for the appellant and the learned Amicus Curiae for the respondent and perused the materials placed before this Court including the Trial Court records.
8. Learned counsel for the appellant in his argument submitted that, the accused was the drawer of the cheque at Ex.P-1, which when presented for realisation, came to be dishonoured for the reason of insufficiency of fund. The legal notice as required under Section 138 of the N.I. Act has also been issued to the accused for which, he did not respond by making the payment of the cheque amount. Thus, the guilt against the accused has been proved beyond reasonable doubt.
Learned counsel further submitted that, the Trial Court, however, opined that there was no evidence for lending a sum of Rs. 50,000/- in cash to the accused by the complainant. It also observed that, there was variation in the ink in the cheque at Ex.P-1. Further, the Trial Court observed that the complainant had not approached it with clean hands and had not disclosed the receiving of a part of the cheque amount. Thus, she was not entitled for the relief as sought for.
Stating that the said observation made by the Trial Court is erroneous which deserves to be set aside, the learned counsel prayed for allowing of the appeal.
9. Learned Amicus Curiae for the respondent in her arguments submitted that the loan availed by the accused from the complainant was only a sum of Rs. 25,000/- and at the time of availing the said loan, the complainant had collected a blank signed cheque as a security from the accused. Even before the complainant filed the pr
