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IN THE HIGH COURT OF KARNATAKA
Dr. H.B. Prabhakara Sastry, J.
H.S. Suresh - Appellant
Versus
S. Panchakshari - Respondent
Criminal Revision Petition No. 1155 of 2012
Decided On : 21-06-2022
Negotiable Instruments Act - Conviction under Section 138 - Summary of Acts and Sections: The court discussed the provisions of Section 138 of the Negotiable Instruments Act, 1881, which deals with the offence of dishonor of cheque for insufficiency of funds. The court emphasized the presumption of legally enforceable debt under Section 139 and the standard of proof required to rebut this presumption. The judgment also highlighted the accused's options to rebut the presumption by showing the non-existence of consideration and debt or by demonstrating the improbability of their existence. The court's decision was influenced by the successful rebuttal of the presumption by the accused, leading to the failure of the complainant to prove the alleged guilt.
Fact of the Case:
The accused was convicted for dishonor of a cheque issued for a loan amount. The complainant alleged that the accused borrowed Rs. 50,000 and issued a cheque, which was dishonored due to insufficient funds. The accused contested the existence of the loan and presented evidence to support his defense.
Finding of the Court:
The court found that the complainant failed to prove the alleged guilt against the accused. It emphasized that the presumption of a legally enforceable debt under Section 139 of the Negotiable Instruments Act was successfully rebutted by the accused. The court concluded that the judgments of the Trial Court and the Sessions Judge's Court were erroneous and perverse, leading to the acquittal of the accused.
Issues: The key issues revolved around the existence of the alleged loan, the dishonor of the cheque, and the successful rebuttal of the presumption of a legally enforceable debt under Section 139 of the Negotiable Instruments Act.
Ratio Decidendi: The court's decision was based on the successful rebuttal of the presumption of a legally enforceable debt by the accused, leading to the failure of the complainant to prove the alleged guilt. The court emphasized the standard of proof required to rebut the presumption and the options available to the accused in doing so.
Final Decision: The Criminal Revision Petition was allowed, and the accused was acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The judgments of the Trial Court and the Sessions Judge's Court were set aside.
JUDGMENT
Dr. H.B. Prabhakara Sastry, J. - The petitioner has challenged in this revision petition, the confirmation of his conviction for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as "the N.I. Act").
2. The respondent in this revision petition is the complainant in C.C. No. 378/2009 filed in the Court of the learned Civil Judge and J.M.F.C., Turuvekere (hereinafter for brevity referred to as "the Trial Court") against the present petitioner (accused) alleging the offence punishable under Section 138 of the N.I. Act.
3. The summary of the case of the complainant in the Trial Court was that on 6.6.2008, accused has borrowed a sum of Rs. 50,000/- from him for the purpose of purchase of Maruti Omni Van and had agreed to return the said amount within six months. When the complainant demanded the accused for the return of the loan amount, the accused issued him a cheque bearing No. 338349 dated 3.1.2009, drawn on State Bank of Mysore, Turuvekere branch, for a sum of Rs. 50,000/- in favour of the complainant. On the same day, complainant presented the cheque for its realization, however, it returned unpaid with the banker's endorsement of "funds insufficient" in the account of the drawer. The complainant thereafter got issued a legal notice to the accused demanding the payment of the cheque amount. Since the accused failed to make payment of the cheque amount, the complainant was constrained to file a criminal case against him in C.C. No. 378/2009 in the Court of the Civil Judge and JMFC, Turuvekere for the offence punishable under Section 138 of the N.I. Act.
4. The accused appeared in the Trial Court and contested the matter through his counsel. He pleaded not guilty and claimed to be tried. Accordingly, the Trial Court by its judgment dated 18.05.2011, held the accused guilty for the alleged offence punishable under Section 138 of the N.I. Act and convicted him for the said offence and sentenced him accordingly.
5. Aggrieved by the said judgment of conviction passed by the Trial Court in C.C. No. 378/2009, the petitioner preferred a Criminal Appeal No. 48/2011 in the Court of the Fast Track at Tiptur, (hereinafter for brevity referred to as "the Sessions Judge's Court).
6. After hearing both side, the learned Sessions Judge's Court, by judgment dated 11.09.2012, dismissed the appeal and confirmed the impugned judgment passed by the Trial Court. Aggrieved by the same, the petitioner has preferred this revision petition.
7. The Trial Court and Sessions Judge's Court's records were called for and the same are placed before this Court.
8. The learned counsel for the petitioner and learned counsel for the respondent are physically present in the Court.
9. Heard the arguments from both side. Perused the materials placed before this Court including the Trial Court and Sessions Judge's Court's records.
10. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the Trial Court.
11. After hearing the learned counsels for the parties, the only point that arise for my consideration in this revision petition is:
Whether the judgment under revision is perverse, illegal and erroneous, warranting interference at the hands of this Court?
12. The complainant who got himself examined as PW1 in his examination-in-chief in the form of affidavit evidence, has reiterated the contentions taken up by him in his complaint. In support of his contention, he got produced and marked the returned dishonored cheque at Ex. P-1, bankers endorsement for returning the cheque at Ex. P-2, counterfoil at Ex. P-3, another bankers endorsement at Ex. P-4, copy of the legal notice at Ex. P-5, postal receipt at Ex. P-6, acknowledgement card at Ex. P-7, Certificate of Posting at Ex. P-8 and the complaint filed by him under Section 200 of Cr.P.C. at Ex. P-9. The complainant got examined one Sri. Athik Chandra Rao-the Deputy Manager of State Bank of Mysuru at Turuveker
The main legal point established in the judgment is the successful rebuttal of the presumption of a legally enforceable debt under Section 139 of the Negotiable Instruments Act, leading to the failur....
Loan - Dishonoured of Cheque - Mere ipse dixit of petitioner and statement in defence under S. 313 Cr.P.C without any material does not rebut presumption cast on petitioner under Section 139 of N.I. ....
Criminal Law - Dishonoured of Cheque - Appeal against conviction - Petitioner in this case, did not raise any probable defence which would create doubts in mind of Court. Court find no reason to inte....
The presumption under Sections 118(a) and 139 of the Negotiable Instruments Act can be rebutted by the accused, leading to acquittal if the complainant fails to prove a legally enforceable debt.
The failure of the complainant to tender for further cross-examination led to the discarding of his evidence, which invalidated the judgments of conviction.
The presumption of a legally enforceable debt under Sections 138 and 139 of the N.I. Act is strong and requires evidence to the contrary by the accused, which was not provided.
The main legal point established in the judgment is that the accused can rebut the presumption of a legally enforceable debt under Section 138 of the N.I.Act by presenting evidence that raises doubts....
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