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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RAKESH KAINTHLA
Surender Pal Sharma – Appellant
Versus
Virender Kumar – Respondent
JUDGMENT :
Rakesh Kainthla, J.
The present appeal is directed against the judgment dated 21.05.2015 passed by learned Additional Chief Judicial Magistrate, Court No. 1, Mandi, H.P. (learned Trial Court) vide which the respondent (accused before the learned Trial Court) was acquitted of the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (NI Act). (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.)
2. Briefly stated, the facts giving rise to the present appeal are that the complainant filed a complaint before the learned Trial Court for the commission of an offence punishable under Section 138 of the NI Act. It was asserted that the accused is son-in-law of the complainant and is working as an agent in the Life Insurance Corporation of India. The accused approached the complainant for providing financial help, and the complainant advanced Rs.4,00,000/- to him from time to time. The accused issued a post- dated cheque of Rs.4,00,000/-, dated 08.03.2013, drawn on Indian Overseas Bank, Mandi to discharge his liability. The complainant presented the cheque to his bank, and
In Section 138 NI Act acquittal appeal, interference only if trial court's probable acceptance of blank cheque misuse defence (post-wife's suicide) is perverse; presumption rebutted, no disturbance o....
In appeals against acquittal under NI Act s.138, High Court interferes only if perverse, misreads evidence, or sole guilt view possible; reasonable defence rebutting presumption warrants upholding ac....
Appellate court should not interfere with acquittal under Section 138 NI Act based on reliable forensic evidence disproving accused's signature on cheque, as presumption under Sections 118 and 139 re....
The presumption of consideration for a cheque does not negate the complainant's burden to prove the existence of a legally recoverable debt, which can be rebutted by the accused.
The cheque must represent a legally enforceable debt at the time of encashment; the burden to rebut the presumption of liability lies with the accused.
The burden of proof on the accused in cases under Sec. 138 of the N.I. Act, the presumption of innocence, and the need for compelling reasons to interfere with an acquittal.
Court held that issuance of a cheque raises a presumption of debt, shifting the burden to the accused to demonstrate otherwise, particularly upon admission of signature.
The presumption of the existence of a legal liability under the Negotiable Instruments Act is rebuttable, necessitating the complainant to provide sufficient evidence of such liability.
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