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HIGH COURT OF KARNATAKA
MS JUSTICE J.M.KHAZI, J
M/S MOKSH AGARBATTI CO., – Appellant
Versus
M/S SRI BASAVESHWARA TRADERS – Respondent
Key Points: - The cheques issued as security are held to be covered under Section 138 NI Act and can be presented for realization when debt exists (!) (!) . - The presumption under Section 139 NI Act operates in favor of the complainant and shifts to the accused to rebut it; burden then shifts to the complainant if rebuttal occurs (!) [p_21.1] (!) . - The judgment sets aside acquittal, convicts under Section 138 NI Act, and imposes a fine of Rs.15,00,000 with default imprisonment of six months; directs entire fine to be paid as compensation to the complainant (!) (!) .
This is complainant’s appeal filed under Section 378 (4) of Cr.P.C , challenging the impugned judgment and order passed by the trial Court, dismissing the complaint filed by the complainant and thereby acquitting the accused for the offence punishable under Section 138 of N.I. Act.
2. For the sake of convenience, parties are referred to by their rank before the trial Court.
3. It is the case of complainant that it is a commercial establishment i.e., a partnership Firm engaged in manufacture of Moksha Agarbatti. Accused is the Proprietor and authorised signatory, carrying on business in the name and style of M/s Shri Basaveshwara Traders.
Accused has purchased Agarbattis from the complainant from 21.06.2002 to 21.01.2010 under numerous delivery notes-cum-commercial credit tax invoices with the terms and conditions, on credit basis. In pursuance to the orders placed by the accused, the payments were supposed to be made within the stipulated period, as per the terms and conditions. The details of purchase made by the accused are depicted in the Table-I and II.
4. In pursuance to the transactions, accused provided 4 cheques as a security with a condition that the complainant can
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