IMPORTANT POINT
Standard of proof on the part of an accused and that of the prosecution in a criminal case is different.

Arali Nagaraj, J.—The petitioner herein who is accused in C.C. No.848 of 2003 has challenged the legality and correctness of the impugned judgment and order of conviction and sentence passed in the said case by the learned Additional Civil Judge (Junior Division) and Judicial Magistrate First Class, Puttur, Dakshina Kannada (thereinafter referred to as the ‘Trial Court’ for short) convicting this petitioner/accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (“N.I. Act” for short) and sentencing him to pay a fine of Rs.27,000. She has also challenged the judgment dated 3.7.2007 passed in Cri. A. No.183 of 2006 on the file of the learned I Additional Sessions Judge, Dakshina Kannada, Mangalore (hereinafter referred to as the “Appellate Court” for short) confirming the said judgment and order of conviction and sentence passed by the Trial Court.

2. Though this case was listed on 5.9.2008 for admission it was taken for final disposal with the consent of the learned counsel appearing for both sides and their arguments on merits were heard in part and then the case was adjourned to 22.9.2008. Further arguments of the learned counsel for the petitioner were heard on 22.9.2008. Since the learned counsel for the respondent 1 was not present his arguments came to be taken as heard and the case is listed today i.e., 25.9.2008 for dictating order. Today, arguments of Sri Gangadharaiah, the learned counsel for respondent1, are heard. Perused the impugned judgments and also the entire material on record in the said case obtained from the Trial Court.

3. Having heard both the sides the point that arises for my determination is:

“Whether the Trial Court and also the Appellate Court are justified in holding that the petitioner/accused is guilty of the offence punishable under Section 138 of the N.I. Act?”

4. My finding on the above point is in the ‘negative’ for the following:

Reasons

5. The case of the complainant as averred in his complaint filed in the said case under Section 200 of the Criminal Procedure Code, 1973 is as under:

The accused is known to the complainant since some time. She approached his shop namely M/s Souza Electronics. After mutual discussion he sold to the accused electronic items worth Rs. 24,335/- and the accused gave him the cheque bearing No.831567, dated 4.12.2001 drawn in favour of M/s. Souza Electronics.

On being presented to the Bank on 4-12-2001 itself the said cheque came to be bounced for want of funds. Therefore the complainant issued statutory notice dated 12.12.2001. Despite receipt of the said notice the accused did not reply to it. Therefore the complainant filed the said case.

6. Sri Nishith Kumar Shetty, the learned counsel for the petitioner strongly contended that both the Trial Court and the Appellate Court proceeded to examine the case of the complainant and also that of the accused on the assumption that the presumption under Section 139 of the N.I. Act extends not only to the fact that the accused issued cheque in question towards discharge of legally enforceable debt, but also to the factum of existence of such debt as on the date of issue of the cheque. He further submitted placing his reliance on the decision of Madras High Court in the case of B. Adarsh Rao v M/s Tamil Nadu Electricals (Cases on Dishonour of Cheques 341) (year of the citation is not found on the Xerox copy of the citation furnished) urged that since the cheque was issued in the name of M/s Souza Electronics, the complainant; namely Lynal Pinto could not maintain the complaint in his own name and the Courts below lost sight of this fact and therefore both the judgments deserve to be set aside.

7. As against the above submission, Sri Gangadhariah, the learned counsel for respondent 1, submitted that since the presumption has to be drawn in favour of the complainant as provided under Section 139 of the N.I. Act when once the cheque is issued the same is held to be issued towards