The presumption under Section 139 of the Negotiable Instruments Act applies, placing the burden on the accused to disprove the issuance of a cheque for a legally enforceable debt, which was not met in this case.

CAV ORDER

(PER: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI)

Challenging judgment/order dated 03.10.2018 passed by I Addl. District and Sessions Judge, Dharwad sitting at Hubballi (‘Appellate Court’, for short) in Crl.A.no.72/2017 and judgment/order dated 06.07.2017 passed by Principal Civil Judge and JMFC, Hubballi (‘Trial Court’, for short) in C.C.no.495/2017, this revision petition is filed.

2. Smt.Archana A. Magadum, learned counsel for petitioner submitted, respondent (complainant) had filed private complaint against petitioner, stating that complainant was a partner in M/s.Rokhade Industries, partnership firm engaged in sale of Shahabad stones. It was stated that petitioner was brother-in-law of complainant and was civil contractor by occupation and for execution of his works, purchased goods from complainant. That petitioner had contractual relationship from 2007 and availing credit purchase facility, made purchases from time to time, for which bills were drawn. It was stated, petitioner had purchased goods on credit basis for Rs.3,69,055.50/- and for payment, issued cheque bearing no.0201990, drawn on Ratnakar Bank Limited, Hubballi Branch on 25.02.2013. And when said cheque was presented through complainant’s banker Karnataka Bank Limited, Hubballi on 20.02.2013, it was dishonored as “Account closed”. On communication, petitioner was alleged to have issued cheque dated 06.03.2013 bearing no.0221895 of drawn on same bank but different account number. On presentation, even said cheque was dishonoured on 08.03.2013 with endorsement “Funds Insufficient”.

3. Therefore, complainant got issued legal notice dated 25.03.2013. And as petitioner failed to pay cheque amount within fifteen days of receipt of notice and instead sent untenable reply on 10.04.2013, offence under Section 138 of Negotiable Instruments Act, 1881 (‘NI Act’, for short) was committed. Hence, complaint was filed.

4. It was submitted, after appearance, petitioner pleaded not guilty and sought trial. Complainant examined himself as PW.1 and got marked Exhibits P1 to P23. Thereafter, petitioner was apprised of incriminating circumstances and his statement denying same was recorded under Section 313 of Cr.P.C. Petitioner also led oral evidence by examined himself as DW.1 and without marking any documents.

5. It was submitted, petitioner set-up substantial defence not only denying transactions with complainant after 2009, but also alleging misuse of petitioner’s cheque. Ignoring same, trial Court convicted petitioner and sentenced him to pay fine amount of Rs.7,38,111/- and in default to undergo simple imprisonment for 6 months. Aggrieved, petitioner preferred Crl.A.no.72/2017 on various grounds. It was submitted, without proper appreciation, appeal was dismissed on 03.10.2018, thereby leading to this revision petition.

6. At outset, it was submitted, during relevant period, there were no transactions between complainant and petitioner. Therefore, there was no legally enforceable debt. Though it was allegation of petitioner availing credit facility for purchase of goods worth Rs.3,69,055.55/- was denied, no material was produced to establish supply of goods to petitioner or about their delivery at respective places. It was submitted, even as per complaint, transaction began in year 2007 and ended in 2009. Therefore, cheque dated 08.03.2013 would be in respect of time barred debt.

7. It was submitted, though there was raising of presumption under Section 139 of NI Act, petitioner had not only taken specific stand, but also pointed out, Bills issued on various dates had continuous serial numbers, even when complainant had reasonably large volume of sales of stones, thereby giving rise to grave doubt. Even in cross-examination of complainant, admissions elicited that none of Exs.P8 to 10 - Bills had counter signatures from recipients or driver of vehicle in which they were transported.

8. Complainant admitted, there was no mention about any outstanding amount from petitioner