Back
IN THE HIGH COURT OF KARNATAKA
S. Vishwajith Shetty, J.
R. Premkumar – Appellant
Versus
Ramesh Chand Bafna – Respondent
Crl.R.P. No. 534 of 2017
Decided On : 07-03-2023
Negotiable Instruments Act - Offence under Sec. 138 - Summary of Acts and Sections: Sec. 138 of the Negotiable Instruments Act, 1881 - The court discussed the presumption against the petitioner under Sec. 139 of the Act, the defense put forward by the petitioner, and the liability of the legal representatives to pay the fine imposed by the courts below or to undergo default sentence.
Fact of the Case:
The accused was charged for the offence under Sec. 138 of the Negotiable Instruments Act, 1881 for dishonoring a cheque issued towards repayment of a loan. The accused denied the incriminating circumstances and claimed that the cheque was issued as security for a loan transaction related to the purchase of lorries.
Finding of the Court:
The courts below found the petitioner guilty of the alleged offence and convicted him. The High Court upheld the concurrent finding of guilt against the petitioner and dismissed the revision petition.
Issues: The issues included the validity of the defense put forward by the petitioner, the liability of the legal representatives to pay the fine or undergo default sentence, and the admissibility of the petitioner's explanation for issuing the cheque.
Ratio Decidendi: The court held that the defense put forward by the petitioner was not probable and did not rebut the presumption under Sec. 139 of the Act. The court also stated that the liability of the legal representatives to pay the fine or undergo default sentence was not required to be considered at that stage.
Final Decision: The revision petition was dismissed, and any amount deposited by the original accused was ordered to be refunded to the complainant.
JUDGMENT/ORDER
1. This criminal revision petition is filed by the accused challenging the judgment and order of conviction and sentence dtd. 4/3/2016 passed by the Court of XX Addl. Chief Metropolitan Magistrate, Bengaluru, in C.C.No.5975/2013 and the judgment and order dtd. 10/4/2017 passed by the Court of XLVIII Addl. City Civil & Sessions Judge, Bengaluru, in Crl.A.No.365/2016.
2. Heard the learned Counsel for the petitioner and the learned Counsel for the respondent.
3. During the pendency of this revision petition, the original petitioner/accused had died and his sons have come on record as his legal representatives.
4. The original petitioner was charged for the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (for short, 'the Act') before the Trial Court. The respondent/complainant had filed a private complaint against the original petitioner under Sec. 200 Cr.PC alleging that the petitioner had borrowed a sum of Rs.2, 80, 000.00 from him towards his financial necessities on 21/8/2012 and towards repayment of the said amount, he had issued a cheque bearing No.199572 dtd. 26/12/2012 drawn on State Bank of India, Jayanagar Branch, Bengaluru and the said cheque on presentation for realization was dishonoured on the ground 'funds insufficient'. On receipt of the banker's memo to the said effect, the respondent/complainant had got issued a legal notice to the petitioner which was duly served on him and inspite of the same, he had not paid the amount as demanded in the said notice nor he had replied to the said notice. It is under these circumstances, the respondent had filed the private complaint against the petitioner for the offence under Sec. 138 of the Act.
5. In the said proceedings, the petitioner appeared before the Trial Court and pleaded not guilty, and therefore, in order to prove his case, the respondent/complainant had examined himself as PW-1 and got marked 7 documents as Exs.P-1 to P-7. The petitioner who had denied the incriminating circumstances against him available on record in his statement under Sec. 313 Cr.PC, also led defence evidence and examined himself as DW-1 and got marked two documents as Exs.D-1 & D-2. It is the specific defence of the petitioner that he had availed a loan of Rs.8.00 lakhs from the respondent for purchasing two lorries and during the course of the said transaction, he had issued three cheques as security to the respondent. It is also his specific case that since he had not paid the loan dues borrowed by him from the respondent for purchase of lorries, the respondent had seized the lorries and brought the same for sale and one of the cheques issued towards security was misused by the respondent. The Trial Court after hearing the arguments addressed on both sides by its judgment and order dtd. 4/3/2016 had convicted the petitioner for the offence under Sec. 138 and sentenced him to pay fine of Rs.4, 10, 000.00 and in default to undergo simple imprisonment for a period of three months. The appeal filed by the petitioner against the said judgment and order of conviction and sentence was dismissed by the Appellate Court on 10/4/2017, and therefore, the petitioner is before this Court.
6. Learned Counsel for the petitioner submits that it is highly improbable that the respondent who is a financier would have given a hand loan to the petitioner, who was a defaulter in the earlier loan transaction. He submits that the second loan transaction is not supported by any document except Ex.P-1 - cheque in question. He also submits that a stray statement during the cross-examination of PW-1 cannot itself prove the issuance of cheque by the petitioner. He submits that since the original accused is dead, his legal representatives are not liable to pay the fine or undergo default sentence though they have a right to challenge the order of conviction passed against the accused. He, accordingly, prays to allow the petition.
7. Per contra, learned Counsel for the respondent ha
The main legal point established in the judgment is the presumption under Sec. 139 of the Negotiable Instruments Act, which holds the drawer of a dishonored cheque liable unless rebutted.
The presumption under Sec. 139 of the Negotiable Instruments Act holds unless rebutted with a probable defense, leading to liability under Sec. 138.
Failure to rebut the presumption under Section 139 of the N.I. Act and lack of presenting a probable defense can lead to conviction under Section 138 of the N.I. Act.
Dishonoured of cheque - Preponderance of probabilities - Trial Court has disbelieved evidence brought by applicant side and held that presumption that is available under Section 139 of Act, 1881, has....
The central legal point established in the judgment is the burden of proof on the accused to rebut the presumption under Sec. 139 of the NI Act, 1881 in cases of dishonour of cheques.
The main legal point established is that once the signature and execution of a cheque are admitted, there is a presumption under Section 139 of the Negotiable Instruments Act that the cheque was issu....
Issuing cheques in discharge of an existing liability, which are subsequently dishonoured, constitutes an offence under Section 138 of the Negotiable Instruments Act. The jurisdiction of the court in....
Revisional court upholds Sec.138 NI Act conviction unless lower court findings perverse or unreasonable; presumption under Sec.139 unrebutted.
The presumption of issuance of a cheque for a legally recoverable debt under Section 139 of the N.I. Act can only be rebutted by the accused through credible evidence, which the petitioner failed to ....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
