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2020 Supreme(Kar) 1368
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
H.P. Sandesh, J.
Jayalakshmma - Appellant
Versus
Shashikala - Respondent
Criminal Appeal No. 348 of 2011
Decided On : 05-10-2020
Vinayaka S Koti, Advocate, P.V. Kalpana, Advocate
The judgment emphasized the importance of adducing rebuttal evidence to challenge the complainant's case under Section 138 of the N.I. Act.
Headnote:
N.I. Act - Cheque Dishonour - Sections 138, 139 - Presumption in case of no reply to notice - Defence of signature mismatch - Failure to rebut complainant's case - Judgment discussed key legal provisions and interpretations under Sections 138 and 139 of the N.I. Act, and emphasized the importance of adducing rebuttal evidence to challenge the complainant's case.
Fact of the Case:
The accused borrowed Rs.40,000 from the complainant and issued a post-dated cheque to discharge the debt. The cheque was dishonoured, and legal notice was issued. The accused failed to reply to the notice, and the complainant filed a complaint. The Trial Court acquitted the accused, leading to the present appeal.
Finding of the Court:
The Trial Court erred in acquitting the accused as the defence failed to rebut the complainant's case. The accused's failure to reply to the notice and provide acceptable rebuttal evidence led to the finding of guilt under Section 138 of the N.I. Act.
Issues: (i) Whether the Trial Judge erred in acquitting the accused under Section 138 of the N.I. Act? (ii) What order?
Ratio Decidendi: The accused's failure to reply to the notice and provide acceptable rebuttal evidence led to the finding of guilt under Section 138 of the N.I. Act. The defence's failure to prove signature mismatch and the absence of logical evidence regarding the cheque's possession supported the decision.
Final Decision: The appeal was allowed, the judgment of acquittal was set aside, and the accused was convicted under Section 138 of the N.I. Act. The accused was sentenced to six months' imprisonment and directed to pay Rs.80,000 within four weeks, with a fee of Rs.3,000 to the amicus curiae.
JUDGMENT
H.P. Sandesh, J. - This appeal is filed challenging the judgment of acquittal dated 07.12.2010 passed in C.C.No.44/2007, on the file of the Senior Civil Judge and JMFC, Hiriyur.
2. The parties are referred to as per their original rankings before the Trial Court to avoid the confusion and for the convenience of the Court.
3. The factual matrix of the case is that the accused had borrowed a sum of Rs.40,000/- from the complainant for her legal necessity on 03.03.2007 and in order to discharge the said liability she had issued post dated cheque for an amount of Rs.40,000/- dated 03.04.2007. When the said cheque was presented, it was dishonoured. Hence, legal notice was issued. Inspite of service of notice, no reply was given by the accused. Hence, the complaint was filed. The complainant in order to substantiate the averments of the complaint, examined herself as P.W.1 and other two witnesses as P.W.2 and P.W.3 and got marked the documents at Exs.P.1 to 9. The accused has not adduced any evidence. However, got marked the documents at Ex.D.1 and Exs.D.1(a) to D.1(c)
4. The Trial Court after considering both oral and documentary evidence placed on record, acquitted the accused. Hence, the present appeal.
5. The main contention of the learned counsel for the appellant/complainant in this appeal is that the Trial Court has committed an error in holding that there is no material to show that the complainant has advanced to the accused, when the cheque as well as notice itself stood proof of the borrowing. The accused failed to lead any evidence to the effect that the defence which had been taken during the cross-examination of P.W.1. The Trial Court ought to have presumed that the contents of the cheque in the light of the provisions of Section 118 of the Negotiable Instruments Act ('N.I. Act' for short) that the cheque was given in discharge of the legally recoverable debt. The Trial Court has completely slipped into error in not considering the vital aspects of the case and the casual conduct of the accused in not intimating to the bank nor lodging the case before the police regarding the cheque which was lifted by the husband of the complainant.
6. The learned counsel for the complainant in support of his contentions submits that notice was issued and the same was served on the accused, but no reply was given. The Trial Judge ought to have invoked the presumption for having issued the cheque. In support of his contentions, he relied upon the judgment of the Hon'ble Supreme Court in the case of RANGAPPA v. MOHAN, (2010) AIR SC 1898 and brought to my notice paragraph No.7 of the judgment regarding presumption in case of no reply is given.
7. The learned counsel also relied upon the judgment of the Supreme Court in the case of BIR SINGH v. MUKESH KUMAR,2019 1 KarLR 689, wherein it is held that under Sections 138 and 139 if a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence.
8. The learned counsel also relied upon the judgment of the Hon'ble Apex Court in the case of M/S. SHREE DANESHWARI TRADERS v. SANJAY JAIN AND ANOTHER, (2019) AIR SC 4003 and brought to my notice paragraph No.17 of the judgment that it is for the accused to adduce the evidence in rebuttal of the evidence of the complainant under Section 139 of the Act. The counsel also brought to my notice paragraph No.16 that once the cheque is issued by the drawer, a presumption under Section 139 of the NI Act in favour of the holder would be attracted.
9. The learned counsel also relied upon the judgment of this Court in the case of C.N. DINESHA v. SMT. C.G. MALLIKA, (2017) 3 AIRKarR 365 . Referring this judgment, the learned counsel brought to the notice of this Court paragraph No.10 of the judgment.
10. The le
