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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
G. RADHA RANI, J.
M. Bharat – Petitioner
Versus
The State of Telangana – Respondent
Criminal Revision Case No. 593 of 2016
Decided On : 01-09-2022
Criminal Procedure Code, 1973 - Sections 397 and 401 - Negotiable Instruments Act, 1881 - Section 138 and 139- S.C. and S.T. (Prevention of Atrocities) Act – Loan – Cheque Dishonoured - Endorsement ‘insufficient funds’ - Whether there is any illegality or infirmity in the orders passed by the Courts below – Held, In the present case also, both Courts below had placed the burden of proof on complainant to show that it was complainant who had to establish that there was a legally enforceable debt, even though accused had not disputed issuance of cheque to the complainant - As it is not correct interpretation of law, and though above decisions are cited before Courts below, they failed to correctly interpret provisions of law and failed to appreciable judgments of Hon’ble Apex Court in correct perspective, it is considered fit to allow Criminal Revision Case by setting aside the orders passed by both the Courts below - Criminal Revision Case is allowed
ORDER :
1. This Criminal Revision Case is filed by the complainant herein under Sections 397 and 401 of Criminal Procedure Code, 1973 assailing the judgment dated 25.11.2015 passed in Criminal Appeal No. 560 of 2015 on the file of the Special Judge for Trial of Offences under S.C. and S.T. (Prevention of Atrocities) Act-cum-VI Additional Metropolitan Sessions Judge, Secunderabad, confirming the judgment dated 15.06.2015 passed in C.C. No. 396 of 2014 (Old C.C. No. 1261 of 2014) on the file of the X Special Magistrate, Hyderabad.
2. Heard learned counsel for the Revision Petitioner/complainant. None appeared for the 2nd respondent/accused.
3. The parties herein will be referred to as per their array in the Court below.
4. The case of the complainant was that the accused herein was known to him for the past four (04) years and due to friendship developed between them, the accused requested the complainant to arrange for a hand loan of Rs.50,000/- and Rs.60,000 and Rs.90,000/- in different spells. The complainant accordingly provided the said amounts as hand loan to the accused. Again, the accused approached him on 03.12.2013 and requested the complainant for a hand loan of Rs.3,00,000/- for his business urgently. The complainant informed the accused that he was not having the said amount of Rs.3 lakhs, but was having only an amount of Rs.2,43,000/- for which the accused accepted to receive the same and also promised to repay the same within one or two months with interest @ 2% per month. But, the accused did not repay the said amount within the agreed time; but, however, he paid interest thereon for a period of three (03) months and failed to pay any amounts thereafter:
3.2 The complainant presented the above cheque in the bank for realization. However, the said cheque was returned by the bank with endorsement ‘insufficient funds’.
3.3 Thereafter, the complainant issued a legal notice dated 25.08.2014 which was delivered to the accused on 27.08.2014. But, even after receiving the same, the accused neither gave reply nor made arrangements for payment of the amount.
5. Aggrieved thereby, the complainant filed a complaint before the Trial Court.
6. Trial was conducted by the X Special Magistrate, Hyderabad. The accused pleaded not guilty. The complainant was examined as PW-1 and Exs.P.1 to P.5 were marked on his behalf. No evidence was adduced by the accused.
7. On considering the oral and documentary evidence on record, the Trial Court, by order dated 15.06.2015, found the accused “not guilty” for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short, ‘the N.I. Act’) and acquitted him.
8. Aggrieved by the order of acquittal passed by the learned X Special Magistrate, Hyderabad in C.C. No. 396 of 2014, dated 15.06.2015, the complainant herein preferred Criminal Appeal, vide Criminal Appeal No. 560 of 2013 before the Special Judge for Trial of Offences under S.C. and S.T. (Prevention of Atrocities) Act-cum-VI Additional Metropolitan Sessions Judge, Secunderabad.
9. On considering the evidence on record, the Appellate Court, by order dated 25.11.2015, also dismissed the Criminal Appeal No. 560 of 2015 and confirmed the judgment of the Trial Court in C.C. No. 396 of 2014, dated 15.06.2015.
10. Aggrieved further, the complainant preferred the present Criminal Revision.
11. Learned counsel for complainant contended that the Appellate Court failed to see that the Trial Court did not consider the presumption as mandated under Section 139 of N.I. Act; in fact, nothing had been considered by the Trial Court except extracting the contentions and citations relied on by the respective parties; it was not stated by the Appellate Court as to how the accused became successful in his rebu
The presumption under Section 139 of the Negotiable Instruments Act is rebuttable, and the accused must raise a probable defense to contest the existence of a legally enforceable debt.
The presumption under Section 139 of the Negotiable Instruments Act is mandatory, placing the burden on the accused to rebut the existence of a legally enforceable debt.
The main legal point established is the significance of the presumption under Sec. 139 of the N.I. Act and the accused's burden to raise a probable defence to rebut the presumption.
Signature admission on cheque raises presumption of debt under NI Act; accused must rebut by preponderance even if blank security cheque; revisional jurisdiction limited, upholds concurrent findings ....
The presumption under Section 139 of the NI Act is rebuttable, and the burden of proof lies on the accused to establish a probable defense against the existence of a legally enforceable debt.
The presumption of issuance under Section 139 of the Negotiable Instruments Act requires the accused to prove the contrary if the cheque's signature is admitted, which was not done in this case.
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