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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
RAVI V.HOSMANI
K.V. Vijay Kumar S/o Late Kumaravenkanna – Appellant
Versus
V. Madaiah S/o Late Veerabhadraiah – Respondent
Concurrent findings of conviction under Section 138 of the NI Act are perverse and liable to be set aside in revision where lower courts fail to properly appreciate the accused's probable defence, material inconsistencies, and omissions in the prosecution evidence, resulting in acquittal of the accused. [11][20][21]
The accused is acquitted when the prosecution's case is rendered improbable by the complainant's failure to examine a material witness, non-disclosure of financial capacity, and the accused's credible explanation probabilising misuse of the cheque through documentary evidence. [18][19][20][21]
Perversity in judicial findings arises from non-consideration of the entire record, including the accused's replies denying the transaction and detailing alternative issuance of the cheque, warranting acquittal upon success of the revision petition. [15][17][20][21]
ORDER :
1. Challenging judgment dated 17.04.2021 passed by LXIX Additional City Civil and Sessions Judge, Bengaluru, in Crl.A.No.572/2016 confirming judgment dated 06.04.2016 passed by XXI ACMM, Bengaluru, in CC no.27601/2014, this revision petition is filed.
2. Sri A Madhusudhan Rao, learned counsel for petitioner submitted, this revision petition is against concurrent findings convicting petitioner (accused) for offence punishable under Section 138 of Negotiable Instruments Act, 1881 ('NI Act' for short).
3. It was submitted, present proceedings arise out of a private complaint filed by respondent - complainant under Section 200 of Code of Criminal Procedure, 1973, (‘CrPC’ for short), stating that accused was Telugu Film Distributor and well known to R. Venkateshappa of Anekal, a close friend of complainant, who had introduced accused to him and they had become friends. On 10.06.2013, accused borrowed Rs.5,00,000/- as hand loan assuring return within three months by issuing cheque no.320409 dated 10.09.2013, which when presented returned with endorsement ‘insufficient funds’ and despite demand notice got issued by complainant being served, accused failed to repay amount within time
The burden to prove financial capability lies on the complainant when the accused raises a probable defense, not requiring proof beyond reasonable doubt.
The court upheld the conviction under Section 138 of the NI Act, emphasizing that the presumption of a cheque being issued for a legally enforceable debt was not successfully rebutted by the accused.
The presumption of a legally enforceable debt under Sections 138 and 139 of the N.I. Act is strong and requires evidence to the contrary by the accused, which was not provided.
The omission of particulars in lending does not negate a conviction for dishonor of a cheque if sufficient evidence of issuance exists; excessive interest imposition may be modified.
The presumption of liability under Section 139 of the N.I. Act is rebuttable, and the burden lies on the complainant to prove the existence of a legally enforceable debt beyond reasonable doubt.
To convict under Section 138 of the NI Act, it is essential to establish the signature and due execution of the cheque, with the burden resting on the accused to disprove after admission.
Criminal Law - Dishonoured of Cheque - Appeal against conviction - Petitioner in this case, did not raise any probable defence which would create doubts in mind of Court. Court find no reason to inte....
The main legal point established in the judgment is the successful rebuttal of the presumption of a legally enforceable debt under Section 139 of the Negotiable Instruments Act, leading to the failur....
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