Court held that issuance of a cheque raises a presumption of debt, shifting the burden to the accused to demonstrate otherwise, particularly upon admission of signature.

JUDGMENT :

M G Uma, J.

The complainant in C.C.No.5324/2018 on the file of learned II Additional Civil Judge and JMFC-II Vijayapur (for short ‘Trial Court’), registered for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short ‘N.I.Act’), is impugning the judgment of acquittal dated 09.10.2020, acquitting the respondent/accused for the above said offence.

2. For the sake of convenience, the parties are referred to as per their rank before the Trial Court.

3. The complainant has filed the private complaint in P.C.No.624/2018 before the Trial Court against the accused alleging commission of the offence punishable under Section 138 of N.I.Act. It is the contention of the complainant that, he was having cordial relationship with the accused since 2014. During February, 2018 the accused approached the complainant and sought for loan of Rs.10,00,000/- to meet his family necessities. The complainant and his son have promised to arrange for the same and accordingly, gave Rs.10,00,000/- to the accused who agreed to repay the same. When the complainant insisted for returning the amount, the accused issued the cheque as per Ex.P1 dated 08.08.2018 for Rs.10,00,000/-. When the cheque was presented for encashment, the same was dishonoured for ‘insufficient funds’ in the account of the accused. Legal notice as per Ex.P3 was issued to the accused, calling upon him to repay the cheque amount. Instead of repaying the cheque amount, the accused has issued reply as per Ex.P6 by taking untenable defence. Thereby, he has committed the offence punishable under Section 138 of the N.I.Act. Therefore, the complainant requested the Trial Court to take cognizance of the offence and to initiate legal action against the accused.

4. The Trial Court took cognizance of the offence, registered the criminal case and summoned the accused. The accused appeared before the Trial Court, pleaded not guilty and claimed to be tried. The complainant examined himself as PW.1 and got marked Exs.P1 to P6 in support his contention. The accused has denied all the incriminatory materials in his statement under Section 313 of Cr.P.C. and examined himself as DW.1. The Trial Court after taking into consideration all these materials on record came to the conclusion that, the complainant is not successful in proving the guilt of the accused beyond reasonable doubt and therefore, passed the impugned judgment of acquittal. Being aggrieved by the same, the complainant is before this Court.

5. Heard Sri S.S.Mamadapur, learned counsel for the appellant and Sri Shivanand V. Pattanashetti, learned counsel for the respondent. Perused the materials on record including the Trial Court records.

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

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

My answer to the above point is in the ‘Affirmative’, for the following:

REASONS

7. It is the contention of the complainant that, the accused had availed loan of Rs.10,00,000/- promising to repay the same within a short period. Towards repayment of the said amount, the accused had issued cheque as per Ex.P1, which came to be dishonoured as there was insufficient funds in the account of the accused. In spite of service of legal notice, the a