The presumption of liability under the Negotiable Instruments Act shifts the burden of proof to the accused to show that the cheque was not issued in discharge of debt.

JUDGMENT

1. This appeal is filed by the appellant / complainant being aggrieved by the judgment and order of acquittal dated 24.09.2016 in C.C.No.911/2015 on the file of the Judicial Magistrate First Class, 3^rd Court, Davanagere, wherein the Trial Court acquitted the accused/respondent for the offence punishable under Section 138 of the Negotiable Instruments Act (for short ‘N.I. Act’).

2. The ranks of the parties in the Trial Court henceforth will be considered accordingly for convenience.

Brief facts of the case:

3. The case of the complainant is that the accused had borrowed a sum of Rs.2,50,000/- from the complainant on 17.06.2013 for his family necessities and also agreed to repay the said amount within a short time along with interest at the rate of 2% per month. The accused had issued a post-dated cheque by mentioning the date as 09.10.2014. When the said cheque was presented for encashment, it came to be dishonoured as “Funds Insufficient” and thereafter, he issued a notice to the accused through RPAD demanding for payment of the cheque amount. However, the accused has neither replied to the said notice nor paid the cheque amount. Therefore, the complainant filed a complaint before the Magistrate.

4. To prove the case, the complainant examined himself as PW.1 and got marked five documents as Exs.P1 to P5. The Trial Court after appreciating the oral and documentary evidence on record, recorded the acquittal.

Hence, the complainant has filed this appeal.

5. Heard Sri Chetan B, learned counsel for Sri Suresh M.R., learned counsel for the appellant and Sri Maruthy G.B., learned counsel for the respondent.

6. It is the submission of learned counsel for the appellant that the findings recorded by the Trial Court in acquitting the accused are erroneous, perverse and illegal and the same requires to be set aside.

7. It is the submission of the learned counsel for the appellant / complainant that the Trial Court dismissed the complaint on the ground that the cheque was post-dated cheque, however, the complainant did not disclose that it was a post-dated cheque. Therefore, the ambiguity in respect of issuance of the cheque has not been cleared. In addition to the said ground, the Trial Court elaborately discussed about the financial capacity of the complainant, which is not supposed to be discussed at the initial stage.

8. It is further submitted that the Trial Court after having raised two points i.e., one is post-dated cheque and another one is financial capacity of the complainant and opined that the complainant has not proved the case, hence, dismissed the complaint. The findings of the Trial Court is contrary to the settled principle of law. Therefore, the said findings has to be set aside. Making such submission, the learned counsel for the appellant prays to allow the appeal.

9. Per contra, the learned counsel for the respondent / accused justified the impugned judgment and order of acquittal passed by the Trial Court and he further submitted that the said cheque was issued to the complainant for the purpose of security for the loan of which Nagaraj s/o. Hanumanthappa had borrowed from the complainant.

10. It is further submitted that in spite of clearing the loan, the complainant has failed to return the cheque, therefore, the liability on the cheque would not arise. The Trial Court has rightly appreciated the evidence and dismissed the complaint, which is appropriate and is not required to interfere with the said findings. As such, he prays to dismiss the appeal.

11. Having heard the learned counsel for the respective parties and also perused the findings of the Trial Court in recording the acquittal, it could be gathered that the T