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KARNATAKA HIGH COURT
Rajendra Badamikar, J.
Basavanneppa – Appellant
versus
Sri. Prakash Ramanna Kampli – Respondent
Criminal Appeal No.2787 of 2012
Decided on 2.8.2021
Counsel for the Parties:
For the Appellant:Sri. Deepak C. Maganur, Advocate
For the Respondent:Smt. Girija Hiremath, Advocate for Sri. G.I. Gachchinamath, Advocate
IMPORTANT POINT
When accused has admitted his signature on cheque and when cheque belongs to him, complainant is a holder of cheque in due course under Section 118 of N.I. Act.
Headnote:
Negotiable Instruments Act, 1881 – Sections 138 and 139 – Criminal Procedure Code, 1973 – Section 378 – Dishonour of cheques – Appeal against acquittal – Respondent/accused has not disputed that cheque belongs to his account – He has also admitted his signature on cheque – He simply set up a defence that his clerk has obtained signature on blank cheques and they were misused by appellant/complainant – When respondent/accused has admitted his signature on cheque and when cheque belongs to him, appellant/complainant is a holder of cheque in due course under Section 118 of N.I. Act – Presumption under Section 139 of N.I. Act is in favour of appellant/complainant and it is for respondent/accused to rebut the presumption which is mandatory and statutory presumption – Respondent/accused did not lead any defence evidence for rebutting presumption and he can rebut presumption by available material, but mere denial does not amount to rebuttal of presumption – Trial court committed error apparent on face of records by casting burden on appellant/complainant against mandatory requirement under Section 139 of N.I. Act – Magistrate has erred in holding that there is no legally enforceable debt and committed error in acquitting respondent/accused – Judgment of acquittal passed by Magistrate is erroneous, illegal and capricious and as such, it calls for interference by this court in this appeal – There are no mitigating circumstances to take a different view – Impugned order of acquittal set aside – Respondent/accused convicted for offence punishable under Section 138 of N.I. Act and sentenced to pay fine of Rs.1,00,000/-. (Paras 7, 10 and 11)
Result: Appeal allowed.
JUDGMENT
Rajendra Badamikar, J.—This appeal is filed under Section 378(4) of Cr.P.C. by the complainant who was appellant before the trial court, against the judgment of acquittal passed by the Principal Senior Civil Judge & CJM, Gadag in C.C.No.31/2005 dated 04.07.2011 whereby the learned Magistrate has acquitted the accused/respondent herein.
2. The brief facts of the case of the appellant/complainant are that, he has filed a private complaint against the respondent/accused alleging the offence punishable under Section 138 of Negotiable Instruments Act. According to the complainant, there was transaction between the appellant/complainant and the respondent/accused in respect of supply of greengram and other food grains and accordingly, the appellant/complainant has supplied greengram worth Rs.3,00,000/-. The respondent/accused herein has issued four cheques in respect of repayment of price of the greengram for Rs.75,000/- each and one such cheque pertaining to this case when presented was dishonoured. After issuing notice, the proceedings came to be initiated.
3. The trial court after detailed trial after recording evidence and appreciation held that there is no legally enforceable debt and further held that the appellant/complainant has failed to establish the transaction between himself and the respondent/accused herein and thereby accepted the defence set up by the respondent/accused herein in respect of his clerk misusing the cheques and acquitted him of the offence punishable under Section 138 of N.I. Act. This order is being challenged in this appeal.
4. Heard the arguments of the learned counsel for the appellant/complainant and the learned counsel for the respondent/accused. Perused the records.
5. The learned counsel for the appellant/complainant would argue that the trial court has committed an error in appreciating the evidence on record and failed to consider that there is a presumption in favour of the complainant/appellant under Section 139 of N.I. Act and it is for the respondent/accused to rebut the said presumption. He would submit that the trial court has casted negative burden on the appellant/complainant without forming any presumption in favour of the appellant/complainant and thereby it has lead to miscarriage of justice. He would also submit that there were earlier series of proceedings arising out of the same transaction in Crl.A.Nos.2544, 2545 and 2546 of 2009 and the respondent herein was convicted there and this complaint is out of the same course of transaction, but quite interestingly, the learned Magistrate has taken inconsistent view and hence, he would seek for setting aside the impugned judgment of acquittal and sought for convicting the respondent/accused.
6. Per contra, learned counsel appearing for the respondent/accused would contend that the trial court has appreciated the oral and documentary evidence and the appellant has failed to prove that there was a legally enforceable debt and hence, she would support the trial court’s acquittal judgment.
7. Having heard the arguments and perusing the records, it is to be noted herein that the respondent/accused has not disputed that the cheque belongs to his account. Further, he has also admitted his signature on the cheque. He simply set up a defence that P.W.3 who was working as his clerk has obtained signature on the blank cheques and they were misused by the appellant/complainant. He would also contend that now P.W.3 has left the job with him and hence, he would contend that the cheque is obtained by misrepresentation. When the respondent/accused has admitted his signature on the cheque and when the cheque belongs to him, admittedly the appellant/complainant is a holder of the cheque in due course under Section 118 of N.I. Act. Hence, the presumption under Section 139 of N.I. Act is in favour of the appellant/complainant and it is for the respondent/accused to rebut the said presumption, which is mandatory and statutory presumption.
