The signed blank cheque carries a legal presumption of liability under the Negotiable Instruments Act, shifting the burden of proof to the accused to demonstrate non-liability.

JUDGMENT :

M.G. Uma, J.

The complainant in C.C. No.1105 of 2011 on the file of the learned principle Civil Judge and JMFC-II, Bidar [for short ‘Trial Court’] is impugning the judgment dated 07.03.2022 acquitting the accused for the offence punishable under Section 138 of Negotiable Instruments Act [for short ‘N.I. Act’].

2. Facts of the case in brief are that, the complainant filed a private complaint before the Trial Court in P.C. No.73/2009 against the respondent alleging commission of the offence punishable under Section 138 of N.I. Act. It is the contention of the complainant in the private complaint that, the accused approached him for grant of loan and accordingly, he advanced hand loan of Rs.1,60,000/-. Accused has not re-paid the loan amount and when he insisted for the repayment of loan, accused issued cheque – Ex.P1 for Rs.1,60,000/- towards repayment of loan amount. When the cheque was presented for encashment, the same was dishonoured as ‘account closed’. The legal notice was issued to accused calling upon him to pay cheque amount, but the legal notice was refused by the accused as per Ex.P4. Cheque amount was also not repaid and thereby, accused has committed the offence punishable under Section 138 of N.I. Act. Accordingly, complainant requested the Trial Court to register the case and to initiate legal action.

3. The learned Magistrate took cognizance of the offence, registered C.C.No.1105/2011 and summoned the accused. The accused had appeared before the Trial Court, pleaded not guilty and claimed to be tried. The complainant examined himself as PW1 and also examined PW2 to prove issuance of cheque by the accused. He got marked Exs.P1 to P5 in support of his contention. The accused denied all the incriminating materials available on record in his statement under Section 313 of Cr.P.C., examined himself as DW1 and also examined his brother as DW2 and got marked Exs.D1 to D4 in support of his defence. The Trial Court, after taking into consideration all these materials on record, came to the conclusion that, the cheque in question said to have been issued to the complainant, was a blank cheque during the year 2001, and the complainant has filled up the cheque and presented it during the year 2008. Therefore, it appears that the cheque was presented towards encashment of the time barred debt and it held that, no offence under Section 138 of N.I. Act is made out, thereby, acquitting the accused. Being aggrieved by the same, the complainant is before this Court.

4. Heard Sri K.M. Ghate, learned counsel appearing for the appellant. Learned counsel for the respondent has remained absent and has not addressed his arguments. His argument is taken as nil. Perused the materials on record, including the Trial Court records.

5. In view of the contentions urged by learned counsel for the appellant, 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

6. It is the contention of the complainant that, the accused had borrowed an amount of Rs.1,60,000/- and towards repayment of the same, he had issued the cheque Ex.P1. On presentation of the cheque, it was dishonored as ‘account closed’. The legal notice issued to the accused was refused. The cheque amount was not repaid and thereby, the accused has committed the abovementioned offence. The complainant filed his affidavit in view of the examinat