The court established that once a cheque is issued and signed, a legal presumption exists regarding its use for a valid debt, shifting the burden of proof to the accused to deny its validity.

JUDGMENT :

(M.G.UMA, J.)

The appellant being the complainant in C.C.No.4787/2018 on the file of the learned V-Additional Civil Judge & JMFC Court, Vijayapura [for short, ‘the Trial Court’], is impugning the judgment dated 16.08.2023 acquitting the respondent-accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 [for short, ‘the N.I.Act’].

2. Facts of the case in brief are that, the appellant -complainant has filed the private complaint in P.C.No.623/2018 against the respondent-accused alleging commission of the offence punishable under Section 138 of N.I. Act. It is the contention of the complainant that, he is a Businessmen by profession and the accused is a Government Servant. The accused requested for hand loan and accordingly he had lent an amount of Rs.12,00,000/- during April 2017. The accused agreed to repay the same and later issued a cheque for Rs.12,00,000/- on 15.02.2018. When the said cheque was presented for encashment, the same was dishonored as there was insufficient fund in the account of the accused.

3. The complainant had not initiated any legal action for dishonor of the said cheque, as the accused requested him not to initiate action. He requested for further hand loan of Rs.2,00,000/-, as he was in dire need of the same. Accordingly, the complainant lent an additional amount of Rs.2,00,000/- to the accused. It is contended that the accused, towards repayment of the legally enforceable debt issued cheque as per Ex.P1 for Rs.14,00,000/- on 11.07.2018. The cheque was presented for encashment, but the same was dishonored as there was insufficient fund in the account of the accused.

4. The legal notice was issued to the accused informing him regarding dishonor of the cheque and calling upon to pay the cheque amount. The accused had not claimed the notice after knowing its contents and the same was returned to the complainant as per Ex.P6. However, another notice sent to the accused was served on him as per postal acknowledgement Ex.P5. The accused had not repaid the cheque amount nor did he reply to the legal notice and thereby he has committed the offence punishable under Section 138 of N.I. Act. Accordingly, the complainant requested the Trial Court to take cognizance of the offence and to initiate legal action.

5. The Trial Court took cognizance of the offence and registered the case in C.C.No.4787/2028. The accused has appeared before the Trial Court, pleaded not guilty and claimed to be tried. In order to prove his conteiont, the complainant examined himself as PW-1 and got marked Exs.P-1 to P-9. The accused has denied all the incriminating materials available on record, but has not led any evidence in support of his defence. The Trial Court, after taking into consideration all these materials on record, came to the conclusion that the complainant has not proved his financial capacity to lend an amount of Rs.14,00,000/-. Therefore, the accused is successful in rebutting the legal presumption under Sections 118 and 139 of N.I. Act. Accordingly, the impugned judgment of acquittal came to be passed. Being aggrieved by the same, the complainant is before this Court.

6. Heard Sri. Sachin M.Mahajan, learned counsel for Sri. R.S.Sidhapurkar, learned counsel for the appellant. Respondent though served has remained absent. Hence, his argument is taken as nil. Perused the materials, including the Trial Court records.

7. In view of the contentions urged by the learned counsel for the appellant, the point that would arise for my consideration is:

"Whether the judgment of the Trial Court acquitting the accused suffers from infirmities and calls for interference by this Court?"

M