Presumption of legally enforceable debt arises upon admission of cheque by the accused; failure to rebut results in liability for cheque dishonor.

JUDGMENT :

M.G. UMA, J.

The appellant being the complainant in C.C.No.6317/2021 on the file of the learned V-Additional Civil Judge & JMFC Court, Vijayapura [for short, ‘the Trial Court’], is impugning the judgment dated 09.02.2024 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.710/2017 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 knowing the accused very well as they were close friends. The accused asked for financial help during July, 2014 as he was constructing a house. Accordingly, the complainant lent an amount of Rs.10,00,000/-. During December, 2014 accused again approached the complainant and sought for financial assistance. Accordingly, he paid Rs.5,50,000/-. During June, 2015 the accused again requested for financial help and an amount of Rs.5,00,000/- was paid by the complainant. It is the contention of the complainant that he has paid in all Rs.20,50,000/- to the accused who promised to repay the same within June, 2020. When the complainant demanded back the amount, the accused issued the cheque for Rs.20,50,000/-. When the cheque was presented for encashment, the same was dishonoured as there was insufficient fund in the account of the accused. Legal notice was issued to the accused informing him regarding dishonor of the cheque and calling upon him to pay the cheque amount. But the accused had refused to receive the legal notice. He has not repaid the cheque amount and thereby committed the offence punishable under Section 138 of N.I. Act. Accordingly, the complainant requested the Trial Court to take cognizance of the offence.

3. The Trial Court took cognizance of the offence and registered C.C.No.6317/2021. The accused has appeared before the Trial Court, pleaded not guilty and claimed to be tried. The complainant examined himself as PW-1 and got marked Exs.P-1 to P-10. The accused has denied all the incriminating materials available on record, but has not led any evidence in support of his defence. However, he got marked Exs.D-1 to D-4 in support of his defence during cross-examination of PW-1. 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.20,50,000/-. 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.

4. Heard Sri Shivashankar H. Manur, learned counsel for the appellant and Sri R.S. Lagali, learned counsel for the respondent. Perused the materials, including the Trial Court records.

5. In view of the rival contentions urged by the learned counsel for both the parties, 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?"

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

REASONS

6. It is the specific contention of the complainant that he was knowing the accused very well and the accused requested for loan during July, 2014 and he paid Rs.10,00,000/- to him. The accused again requested for loan of Rs.5,50,000/- and it was paid during December