Point of Law: Burden of proving that a chqeue has not been issued for debt or liability is on the accused, after the initial burden is discharged.

JUDGMENT :

K. SURENDER, J.

1. Aggrieved by the acquittal of the respondent herein for the offence under Section 138 of Negotiable Instruments Act, the present appeal is filed by the complainant.

2. The facts of the case are that the appellant/complainant and the respondent/accused are friends since long time. The complaint informed the accused that his son applied for the post of Technical Fitter in Midhani Factory, Hyderabad. The respondent/accused promised to provide said job, but asked the complainant to pay an amount of Rs. 3,00,000/- for appointment order. However, even after lapse of one year, the accused failed to provide job as promised and upon insisting, the respondent/accused issued cheque bearing No. 656237 dated 16.09.2015 for Rs. 3,00,000/-.

3. The said cheque when sent for clearance was returned with an endorsement “funds insufficient.” The complainant issued legal notice and thereafter filed complaint before the concerned Magistrate Court. The learned Magistrate after completing the examination of the complainant/P.W.1 and marking Exs.P1 to P6, found the accused not guilty for the reason of the understanding between the complainant and the accused regarding giving the amount for securing job as per se illegal according to Section 23 of the Indian Contract Act and the object of such agreement of securing such job is unlawful. The amount was towards bribe and immoral and also a punishable offence. In the said background, when the cheque was issued consequent to an unlawful agreement, presumption under Sections 118 and 139 of Negotiable Instruments Act, cannot be raised, for which reason, the accused was acquitted.

4. Learned counsel for the appellant submits that irrespective of the reason for which cheque is drawn, once the said cheque is dishonoured on presentation, the court has no other option but to raise a presumption under Sections 118 and 139 of the Negotiable Instruments Act. The trial Court committed grave error in getting into the reasons for which the amount was given as it is not necessary to go into the reasons as to why the amount was given. Since the ingredients of Section 138 i.e. drawing of cheque and the amount not being sufficient to honour the cheque, are satisfied, conviction has to be recorded.

5. Learned counsel for the respondent/accused submits that accepting that the amount of Rs. 3,00,000/- was taken by the respondent/accused, for the purpose of securing a job, the same is illegal and in the absence of there being anything which suggests that the amount was taken as loan, the requirement of a ‘enforceable debt’ is lacking, for which reason, the appeal fails. Further, to draw a presumption under Section 139 of Negotiable Instruments Act, there is an initial burden on the complainant to prove that the same is legally enforceable debt. He relied on the judgment of Karnataka High Court in the case of R. Parimala Bai vs. Bhaskar Narasimhaiah, wherein it is held as follows:

“19. Now, coming to the factual aspects of this case. It is clear from the complaint averments that it is the case of the complainant that, the complainant has a son by name B. Sharath, the accused and complainant were known to each other since long. The complainant met the accused and in fact the accused had assured to provide a job to his son in HAL factory. In this context, the accused had requested the complainant to pay an amount of Rs. 10 lakhs and he demanded the same for the purpose of providing a job to the son of the complainant. In this context, it is stated that, on various occasions, the complainant has paid some amounts to him. As the accused could not get the job to the son of the complainant, the complainant approached the accused. Then the accused again demanded for further amount for making payment to the Officers. As per the demand, the complainant paid amount to him. In total, lot of amount has been paid to the accused for the purpose of securing job to the son of the complainant. As the accused was not able