The Court can draw a presumption that the cheques are given towards debt or liability, unless rebutted, as per the judgment of RANGAPPA v. SRI MOHAN (2010) 11 SCC 441.

JUDGMENT :

1. This appeal is filed challenging the judgment and order of acquittal dated 18.11.2016 passed in C.C.No.41767/2010, on the file of XXI Additional Chief Metropolitan Magistrate, Bangalore, for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (‘NI Act’ for short).

2. The parties are referred to as per their original ranking before the Trial Court as complainant and accused to avoid confusion and for convenience of the Court.

3. The factual matrix of the case is that the complainant in the complaint has contended that the accused is doing road contract business. The accused was purchasing bitumen for asphalting the road from the complainant on credit basis. In addition to the supply of bitumen to the accused, the complainant had given handloan of Rs.5,00,000/through cheque bearing No.382015 on 16.6.2008. Hence, the accused had issued three cheques in favour of the complainant, two cheques amounting to a sum of Rs.5,00,000/each and one cheque for Rs.3,00,000/. The complainant had presented the said cheques to his bank on 20.4.2010 and those cheques were dishounoured with an endorsement “exceeds arrangement”. The said fact was brought to the notice of the accused by issuing legal notice dated 24.4.2010 and the same was duly served and the accused had given untenable reply dated 6.5.2010. Hence, the complainant had filed the complaint which is numbered as C.C.No.41767/2010.

4. The accused did not plead guilty. Hence, the complainant to substantiate his case, examined himself as P.W.1 and got marked the documents at Exs.P1 to 16. The accused examined himself as D.W.1 and got marked one document as Ex.D1. The Trial Court after recording 313 statement of the accused and after hearing both the parties, acquitted the accused. Hence, the present appeal is filed before this Court.

5. The grounds urged in the appeal is that the learned Trial Judge has failed to adopt a pragmatic approach while appreciating the facts and specific contentions raised by the parties. The Trial Judge has overlooked the contentions and has wrongly come to the conclusion that the complainant has not proved his case, even though there is no dispute with regard to the fact that the complainant had supplied bitumen to the accused and produced documents at Exs.P.13 to 15 to evidence the said fact and erroneously acquitted the accused based on the wrong assessment of oral evidence without giving weightage to the documentary evidence. The Trial Judge has failed to invoke the presumption under Sections 118 and 139 of the NI Act. In the absence of any rebuttal evidence, the Trial Judge ought to have drawn the presumption and the same has not been done.

6. The Trial Judge has totally erred in not taking into consideration that there is no misuse of cheques and the accused had not initiated any legal action against the complainant for the misuse of cheques, which were purported to have been given to the complainant for security purpose. This aspect itself was sufficient for the Trial Court to infer that the accused is liable to discharge his debt. Apart from that, the signatures of the accused were sent to the handwriting expert and the handwriting expert opined that those signatures are the signatures of the accused. Inspite of that, the Trial Court has committed an error in acquitting the accused.

7. The learned counsel for the complainant reiterated the grounds urged in the appeal memo and further contended that Exs.P.13 to 15 supports the case of the complainant. The Trial Court failed to appreciate the documentary evidence available on record, instead accepted the contention of the accused relying upon his oral evidence. The very conclusion of the Trial Judge that the accused has raised a probable defence to rebut the presumption, is not correct. The very conclusion of the Trial Judge that the complainant has failed to prove the guilt of the accused beyond reasonable doubt, is erroneous. The Trial Court while considering the