Back
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
RAMACHANDRA D.HUDDAR, J.
Smt. Parvathamma.M Wife Of Kempaiah - Appellant
Versus
Smt. Chandrakala.v. Assistant professor wife of G.C. Gangadhar –Respondent
Criminal Appeal No. 508 of 2015
Decided on : 14-06-2024
Negotiable Instruments - Section 138, 139 - The court emphasized the presumption of issuance of a cheque for a legally enforceable debt under Sections 138 and 139 of the NI Act, leading to the conviction of the accused.
Fact of the Case:
The accused borrowed Rs.4,50,000 from the complainant and issued a cheque for the same, which was dishonoured. The complainant filed a complaint under Section 138 of the NI Act after the accused failed to respond to a legal notice.
Finding of the Court:
The trial court acquitted the accused, citing doubts about the transaction. However, the appellate court found that the presumption under Section 139 of the NI Act was not rebutted by the accused, leading to a reversal of the acquittal.
Issues: Whether the accused discharged her evidential burden regarding the cheque issuance and the nature of the transaction under Section 139 of the NI Act.
Ratio Decidendi: The court held that the presumption of issuance of a cheque for a debt under Section 139 of the NI Act is strong and can only be rebutted by credible evidence, which the accused failed to provide.
Result: The appeal is allowed, the acquittal is set aside, and the accused is convicted under Section 138 of the NI Act.
JUDGMENT :
Respondent-accused was tried for the offence under Section 138 of Negotiable Instrument Act, 1881 (for short `the NI Act'). by the XXII Addl. Chief Metropolitan Magistrate, Bengaluru City in CC No.5070/2015. The learned ACMM (`trial Court' for short) acquitted him of the charges levelled against him. Being aggrieved by the same, now the complainant is before this Court by preferring this appeal.
FACTS OF THE CASE AS STATED IN THE COMPLAINT IN BRIEF
2. Accused-Smt.Chandrakala V. (respondent herein) approached the complainant in the first week of November 2012 and availed a hand loan of Rs.4,50,000/- to meet her urgent commitments and family necessities. She assured to return the said amount within six months. After six months when complainant approached the accused, in discharge of the said loan amount, accused issued a duly filled cheque bearing No.539601 dated 29.8.2013 mentioning the consideration as Rs.4,50,000/- drawn on Syndicate Bank, Dr.Ambedkar Institute of Technology, Nagarbhavi Road, Bengaluru 560 056 in the name of complainant. It was assured by the accused that on presentation of the said cheque, it will be honoured.
3. It is alleged that when the cheque was presented for encashment, it was dishonoured by the Banker with an endorsement `Payment stopped by the Drawer' by issuing a memo dated 31.8.2013. Complainant got issued legal notice on 5.9.2013 calling upon the accused to pay the cheque amount. The legal notice so issued by RPAD was duly served on the accused on 6.9.2013. Despite service of notice, accused did not pay the amount or issued any reply to the said notice. Thus, it is alleged that accused has committed the offence under Section 138 of the NI Act. Accordingly, complainant filed a private complaint under Sec.200 of Cr.PC.
PROCEEDINGS BEFORE THE TRIAL COURT
4. The trial Court took the cognizance of the offence, summoned the accused before the Court. Plea against accused for the offence under Section 138 of NI Act framed, read over and explained in Kannada the language known to her. She pleaded not guilty and came to be tried.
5. In support of complainant's case, she herself entered witness box as PW.1 and got marked Ex.P1 to P8 and closed her evidence. The accused was questioned under Section 313 of Cr.PC so as to enable her to answer the incriminating circumstances appearing in the evidence of the prosecution. She denied her complicity in the crime and entered the witness box as DW.1. None of the documents are marked on her behalf.
6. On consideration of the evidence placed on record and on hearing the arguments, the trial Court recorded the findings that accused was not guilty. The trial Court found that it is suggested to PW.1-the complainant in the cross-examination that the accused availed a loan of Rs.50,000/- and at that time, complainant got the cheque of the accused duly signed by her and the remaining contents of the cheque were filled by the complainant. The said cheque was issued by way of security. In fact, accused was and is ready to pay Rs.50,000/- so availed by her from the complainant. According to the trial Court, this suggestion directed to PW.1 though denied by PW.1, but, it has come to the conclusion that in view of the evidence spoken to by PW.1, the complainant is entitled for Rs.50,000/- with 6% interest. The trial Court has come to the conclusion that in view of the facts so brought on record by the accused in the cross- examination and her evidence, a doubt arises in the case of the prosecution with regard to the very transaction stated by the complainant, therefore, the trial Court has passed the impugned judgment of acquittal.
PROCEEDINGS BEFORE THIS COURT
7. In this appeal, the respondent appeared before the Court through her counsel. Despite giving sufficient opportunities has not appeared before the court. All the while it is recorded that there is no representation for respondent. As this appeal is of the year 2015, the appeal was posted on 31.5.2024 to hear the argumen
The presumption under Section 139 of the NI Act obligates the accused to provide credible evidence to rebut the claim of issuance of a cheque for a legally enforceable debt.
The presumption of liability under the NI Act is rebuttable, and the burden of proof lies on the complainant to establish the existence of a legally enforceable debt.
The presumption under Section 139 of the NI Act mandates that a cheque is presumed to be issued for discharge of a debt unless the accused proves otherwise.
Presumption under Section 139 NI Act shifts burden to accused to rebut by probable defence; trial court erred in requiring complainant to prove debt, rendering acquittal perverse in appeal.
Admission of cheque execution triggers Sections 118/139 NI Act presumptions of debt; burden on accused to rebut by evidence; trial acquittal ignoring presumption and shifting onus to complainant is p....
Presumption under Section 139 of the Negotiable Instruments Act requires the accused to present credible evidence to rebut the holder's claim of legal liability regarding the cheque issued.
The presumption under Section 139 of N.I. Act is a presumption of law, as distinguished from the presumption of facts. Presumptions are rules of evidence and do not conflict with the presumption of i....
The presumption of consideration under Section 139 of the N.I. Act shifts the burden to the accused to prove non-existence of debt, which was not done in this case.
The burden of proof, legal presumptions, and the accused's admission of debt in the issuance of the cheque are crucial in determining liability under the Negotiable Instrument Act.
The presumptions under sections 138 and 139 of the NI Act favor the holder, shifting the burden to the accused to rebut the claims of liability.
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
