The presumption of debt under Section 138 requires the accused to prove non-existence of liability; the Trial Court erred in acquitting based on unproven defences.

JUDGMENT :

H.P. SANDESH, J.

This appeal is filed against the judgment of acquittal dated 07.05.2014 passed in C.C.No.13970/2003 for the offence punishable under Section 138 of N.I. Act.

2. Heard the learned counsel appearing for the respective parties.

3. The factual matrix of the case of the complainant/appellant before the Trial Court that the respondent/accused is known to him and accused requested the complainant from second week of January to first week of March, 2003 to make the money of Rs.3,00,000/- with an assurance to pay the said amount within a month stating that he would pay the amount immediately after clearance of the Government bill of contract work and believing the words of the accused, the complainant made the payment of Rs.3,00,000/- by way of cash on 10.04.2003 and the accused issued the subject matter of the Cheque dated 09.05.2003 for repayment of the said amount. When the said Cheque was presented before the bank, it was returned with an endorsement ‘insufficient funds’, thus, the complainant contacted the accused in this regard and the accused requested to present the said Cheque after three weeks and again the complainant presented the said Cheque for the second time on 05.06.2003 and once again the said cheque returned with an endorsement as ‘insufficient funds’. After dishonour of the Cheque twice, the complainant issued the legal notice to the accused through RPAD as well as UCP but the accused did not make any payment inspite of service of notice through UCP. Hence, the complainant filed the complaint.

4. The Trial Court took the cognizance and the accused did not plead guilty and claims for trial. In order to prove the case of the complainant, he examined himself as PW1 and also examined one witness as PW2 and also got marked the documents at Ex.P1 to P10. On the other hand, the accused examined himself as DW1 and examined six witnesses as DW2 to DW7 and got marked the documents at Ex.D1 to D16.

5. The accused appeared and took the specific defence that the subject matter of the Cheque was given towards security of chit fund loan in the hands of one Rajamma and Kempegowda who were running the chit business and the said Cheque was also handed over in the year 2000 and there was a balance of Rs.60,000/- to Rs.70,000/- in respect of chit fund and his wife also executed the sale deed in respect of R.S.No.120/1 measuring 29 guntas, Maralaga village in the name of Kempegowda’s mother Javaramma on 12.08.2008 and on the same day, Rajamma and Kempegowda handed over one Cheque and two pronotes and told that one Cheque is lost and taking undue advantage of the said Cheque, Rajamma and Kempegowda got filed this complaint through the complainant. It is also his case that he has intimated the bank not to accept the Cheque on 25.03.2003. Hence, there is no any liability to pay Cheque amount and hence, prays for dismissal of the complaint.

6. The Trial Court at the first instance, acquitted the accused vide judgment dated 26.03.2009 and against the said judgment, the complainant preferred a criminal appeal in Crl.A.No.600/2009 before the High Court of Karnataka and as per the order dated 27.01.2014, this Court set aside the judgment and matter was remanded to the Trial Court to record the evidence of the accused in accordance with law and also directed to dispose of the same within a time bound period. Thereaf