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2007 (2) Bankmann 334
KARNATAKA HIGH COURT
V.G. Sabhahit, J.
M. Senguttuvan —Appellant
versus
Mahadevaswamy —Respondent
Criminal Appeal No. 1650 of 2002
Decided on 12-3-2007
For the Appellant:Sri J. Imayan and Sri M. Shivappa, Advocates.
For the Respondent:Sri Mohandas Shetty, Advocate.
IMPORTANT POINT
Once presumption under Section 139 of the Act is rebutted, complainant has to prove by independent evidence the fact that he issued for discharge of said loan.
Headnote:Negotiable Instruments Act, 1881—Sections 138 and 139—Dishonour of cheque—Appeal against acquittal—Appellant filed complaint on behalf of partnership firm—Partnership deed not produced to prove that he was Managing Partner of the firm—Neither any GPA produced —No documents or records produced to prove that lending of amount to accused in discharge of which dishonoured cheques are alleged to be issued—In absence of proof of lending money to accused by complainant, presumption under Section 139 of the Act is clearly rebutted—Complainant has to prove by independent evidence that cheque were issued in discharge of existing debt or liability—Defence of accused that he issued cheques as security for amount lent to his brother is probabilized—Judgment of acquittal justified—No interference warranted. (Para 8)
(ii) Negotiable Instruments Act, 1881—Section 139—Presumption under —Rebuttal of—Presumption under Section 139 of the Act need not be rebutted only by leading defence evidence — Said presumption can be rebutted even on the basis of fact elicited in cross-examination of complainant. (Para 8)
Facts of the Case:
(A) Appeal by complainant is directed against judgment dated 7.8.2002 passed by trial Court acquitting respondent of having committed the offence punishable under Section 138 of the N.I. Act.
(B) Appellant filed complaint under Section 200 of Criminal Procedure Code describing himself as Managing Partner and GPA holder of M/s Lotus Finance against respondent alleging therein that respondent had borrowed loan from complainant and issued two cheques for Rs. 25,000 each encashable on 2.3.2000. The said cheques when presented for payment, were dishonoured for want of sufficient funds. Complainant issued statutory notice and on failure of respondent to make payment, filed complaint for offence under Section 138 of the Act.
(C ) Defence of accused before trial Court was that he had not borrowed any amount from complainant. He had issued cheques by way of security for loan borrowed by his brother and cheques have been misutilized and a false complaint has been filed.
(D) Trial Court after considering material on record and contention of counsel appearing for parties acquitted the respondent.
(E) Hence this appeal.
(G) Findings of the Court:
Appellant has failed to prove that he was Managing Partner of the firm or its GPA holder . Further appellant failed to produce documents records to prove that any amount was lent to respondent and dishonoured cheques were issued in discharge of said loan. Defence raised by respondent that cheques were issued by way of security for amount lent by complainant to his brother who has already been convicted in complaint filed by present appellant is probabilized as a result of appellant failure to prove his case.
Result: Appeal dismissed.
Please provide the specific legal document content within
V.G. Sabhahit, J.—This appeal by the complainant is directed against the judgment of acquittal passed by 16th Additional CMM, Bangalore dated 7.8.2002 in CC No.35130 of 2000 acquitting the respondent of having committed the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short, ‘the Act’).
2. The essential facts of the case leading upto this appeal with reference to the rank of the parties before the Trial Court are as follows:
The appellant herein filed complaint under Section 200 of the Criminal Procedure Code, 1973, describing himself as the Managing Partner and GPA holder of M/s. Lotus Finance against the respondent alleging that respondent had borrowed loan from the complainant and issued two cheques for Rs. 25,000 each encashable on 2.3.2000. When the said cheques were presented for payment they were dishonoured with the endorsement “insufficient fund” and thereafter the complainant issued notice to the respondent to pay the amount of the cheques and since the amount was not paid despite notice, complaint was filed against the respondent of having committed the offence punishable under Section 138 of the Act. Learned CMM, took cognizance of the offence and recorded the sworn statement of the complainant and issued summons to the accused. Accused appeared before the CMM, and denied the plea. On behalf of the complainant, complainant was examined as P.W. l and Exs. P.1 to P. 12 were got marked. The statement of the accused under Section 313 of the Cr. P.C. was recorded. The defence of the accused is that he has not issued any cheque towards the amount borrowed by him and loan was borrowed by his brother and he had issued cheque by way of security for the loan borrowed by his brother and the cheque is being misutilised and a false complaint has been filed. The Trial Court after considering the material on record and the contention of the learned Counsel appearing for the complainant and the accused by judgment dated 7.8.2002 held that the complainant has failed to prove that the accused has committed the offence punishable under Section 138 of the Act. Being aggrieved by the said judgment of acquittal, the complainant is before this Court in this appeal.
3. I have heard the learned Counsel appearing for the complainant appellant and, the learned Counsel appearing for the accused respondent in this appeal.
4. The learned Counsel appearing for the appellant submitted that issuance of cheque is admitted and it is not proved that it was issued by way of security and in view of the presumption under Section 139 of the Act, the burden was upon the accused to rebut the presumption and the Trial Court was not justified in holding that the complainant has not proved the guilt of the respondent. In support of his contention he has relied upon the decision of the Hon’ble Supreme Court in K.N. Beena v. Muniyappan and Another.1
5. Learned Counsel appearing for the respondent submitted that the complainant had filed a separate private complaint against his brother who had borrowed the amount and the said complaint was dismissed and thereafter the present proceedings have been initiated against the respondent and the judgment of acquittal is justified as the date on which the loan was lent to the respondent has not been mentioned in the complaint or notice and the complainant though has produced the licence for doing money lending business has not produced the books of the account to show that the amount was lent to the respondent and wherefore, the Trial Court was justified in acquitting the accused.
6. I have considered the contention of the learned Counsel appearing for the parties in the light of the principle laid down by the Hon’ble Supreme Court in the decision cited by the learned Counsel appearing for the appellant.
7. Having regard to the contentions urged, the point that arises for determination in this appeal is:
“Whether the judgment of acquittal passed by the Trial Court calls for int
