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KARNATAKA HIGH COURT
Rajendra Badamikar, J.
Shri. Sikandar Babalal Mahat – Appellant
versus
Shri. Mahabubsab R. Hsamani – Respondent
Criminal Appeal No.2715 of 2012 (A)
Decided on 4.8.2021
Negotiable Instruments Act, 1881 – Section 138 – Criminal Procedure Code, 1973 – Section 378 – Dishonour of cheque – Appeal against acquittal – Appellant/complainant is holder of cheque in due course under Section 118 of N.I. Act – Accused/respondent has not disputed his signature on cheque and cheque belongs to him – There is a presumption under Section 139 of N.I. Act in favour of complainant at first instance – However, such statutory presumption is a rebuttable presumption and accused is required to rebut the presumption – When appellant/complainant has not established his financial status, presumption is not available in his favour and complainant has failed to establish that he was financially sound to advance alleged loan amount – Magistrate has considered all material evidence and appreciated oral as well as documentary evidence in detail and he has justified in holding that presumption is rebutted and complainant has failed to discharge his burden of proving his financial status for advancing of loan amount to accused – Judgment of acquittal does not suffer from any infirmity or illegality so as to call for any interference – Appeal dismissed. (Paras 12, 15 and 16)
Result: Criminal Appeal dismissed.
JUDGMENT
Rajendra Badamikar, J.—This appeal is filed by the appellant for setting aside the judgment of acquittal dated 28.03.2012 passed in CC No.479/2006 by the Civil Judge and JMFC, Ramdurg (for short, hereinafter referred as the ‘trial Court’) and sought for convicting the respondent/accused herein for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘N.I. Act’).
2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the trial Court.
3. The complainant/appellant has filed a complaint under Section 200 of Cr.P.C. against the respondent/accused herein for the offence punishable under Section 138 of the N.I. Act. The allegations were that the complainant is well-acquainted with the accused as they are friends from past six to seven years and the accused is a contractor by profession and the complainant is a painter in Ramdurg Taluk. The accused used to take and return hand-loans from the complainant whenever he needed and on 13.12.2005, the accused requested the complainant to lend Rs.1,20,000/- to him to meet his financial difficulties assuring to repay it after four to five months. Then the complainant has asked him time of one week and on 07.01.2006 he lent Rs.90,000/- to the accused, as he is able to adjust that much amount only. It is also alleged that the accused agreed to repay it on or before 10.06.2006. But, after the said period, the accused did not return the said amount and on a request made by the complainant, he issued a cheque drawn on State Bank of Mysore, Ramdurg dated 03.08.2006 for Rs.90,000/- in favour of the complainant. On presentation of the said cheque, it was returned back with an endorsement ‘Insufficient Funds’ on 05.08.2006. The complainant has informed this aspect to the accused. But, as the accused did not respond, he issued a legal notice on 09.08.2006. Even then, as the accused failed to repay the cheque amount, the complainant filed a complaint under Section 138 of the N.I. Act.
4. The learned Magistrate has taken cognizance of the matter and after recording sworn statement, he found that there is material evidence as against the accused to issue process and hence, he issued process against the accused and the accused appeared before the learned Magistrate and was enlarged on bail.
5. Thereafter, plea of the accused was recorded for offence under Section 138 of N.I. Act and the accused pleaded not guilty. Thereafter, the complainant in order to prove the guilt of the accused, he himself got examined as PW.1 and marked documents as per Exs.P1 to P5. After recording the evidence, the statement of the accused was recorded under Section 313 of Cr.P.C. by the learned Magistrate to enable the accused to explain the incriminating evidence appearing against him in the case of prosecution. The case of the accused is total denial and he did not choose to lead any defence evidence. After hearing the arguments, the learned Magistrate has framed the following points for consideration:
i) Whether the complainant proves beyond reasonable doubt that, the accused issued a cheque dated 03.08.2006 for a sum of Rs.90,000/- drawn on S.B.M., Ramdurg in order to discharge his legally enforceable debt and on representation of said cheque, it bounced for want of funds and despite of receiving notice they failed to make payment within stipulated period and thereby committed an offence punishable under Section 138 of N.I. Act?
ii) What order?
6. The learned Magistrate by judgment dated 28.03.2012, answered the point No.1 in the negative and acquitted the accused/respondent herein of the charge leveled against him. Being aggrieved by this judgment of acquittal, the appellant/complainant has filed this appeal under Section 378(1) of Cr.P.C. The records of the trial Court are secured.
7. Heard the arguments advanced by the learned counsel for the appellant. The learned counsel for the respondent did not appear bef
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