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2023 Supreme(Online)(KAR) 2123
HIGH COURT OF KARNATAKA
P.N.DESAI, J
MR. VIJAYA MEGHARAJ – Appellant
Versus
MR.SHANKAR – Respondent
CRIMINAL APPEAL NO. 525 OF 2012 | C.C.NO.8095/2006
For the Appellants/Petitioners: SRI. M.D.ALAVANDAR
For the Respondents: SRI. M. SUBRAMANI
The presumption of liability under Section 139 of the Negotiable Instruments Act can be rebutted by evidence of material alteration in the cheque, rendering it void.
Headnote:(A) Negotiable Instruments Act, 1881 - Section 138 and 139 - Appeal against acquittal - The complainant alleged that the accused issued a cheque for repayment of a loan which was dishonored - The trial court acquitted the accused stating the cheque was materially altered - The presumption under Section 139 of N.I. Act was not sufficient due to the evidence of material alteration. (Paras 11, 19-24)
(B) Legal Notice - The legal notice served by the complainant was a crucial step; however, insufficient evidence to establish enforceable debt - Appellate court deemed lower court’s findings justifiable based on assessments of the evidence and the lack of supporting documentation from the complainant. (Paras 12-20)
Facts of the case:
The appellant lent Rs.90,000 to the respondent and received a cheque which was returned owing to the account being closed. The respondent contested the existence of the loan, asserting the cheque was manipulated.
Findings of Court:
The trial court found that the presumption of liability under Section 139 of N.I. Act was rebutted due to evidence of material alteration making the cheque void.
Issues: Whether the acquittal judgement by the trial court was unjustified and if the burden of proof was adequately met.
Ratio Decidendi: The court re-evaluated the material alterations in the cheque, concluding such changes voided the enforceability of the cheque; thus, it was determined the acquittal was proper.
Result: Appeal dismissed.
| Table of Content |
|---|
| 1. overview of the case and introduction of involved parties. (Para 1 , 2 , 3 , 4 , 5) |
| 2. arguments presented by both the appellant and the respondent. (Para 6 , 7 , 8 , 9 , 10) |
| 3. discussion on evidence and material alterations. (Para 11 , 12 , 13 , 14 , 15 , 16 , 18) |
| 4. final analysis of the legal implications of the case. (Para 17 , 20 , 21 , 22 , 23) |
| 5. conclusion and outcome of the appellate decision. (Para 24 , 25) |
JUDGMENT
This appeal arises out of the judgment of acquittal passed in C.C.No.8095/2006 dated 07.03.2012 by the XVIII ACMM & XX ASCJ, Bengaluru wherein the respondent/accused was acquitted for the offences punishable under Section 138 of Negotiable Instruments Act , 1881 (for short hereinafter referred to as 'N.I.Act').
2. The appellant filed a complaint before the learned Magistrate under Section 200 of Code of Criminal Procedure (for short hereinafter referred to as 'Cr.P.C.') against the accused for the offence punishable under Section 138 of N.I.Act.
3. The appellant is the complainant and the respondent is the accused before the Trial Court. They will be referred as per their respective ranks held before the Trial Court for the sake of convenience.
4. It is contended that the accused is known to the complainant. The accused has borrowed a sum of Rs.90,000/- during the month of April, 2005 and towards the repayment of the same, he has issued a cheque bearing No.840034 dated 30.07.2005 for a sum of Rs.90,000/- drawn on Indian Bank, Avenue Road Branch, Bengaluru in favour of the complainant. The complainant demanded the accused to repay the amount. But he did not repay the amount. Infact the accused requested the complainant not to present the cheque issued by him as he was unable to mobilise the funds on 30.07.2005. Thereafter the complainant presented the said cheque on 15.11.2005, but the said cheque was returned dishonored with an endorsement that 'Account Closed'. Hence, the complainant issued statutory legal notice calling upon the accused to pay the amount. Though the notice was served on the accused, the accused neither replied nor come forward to pay the cheque amount. Hence, the complainant lodged the complaint.
5. In order to prove the case of the complainant, he got examined himself as PW.1 and got marked twelve documents as Exs.P1 to P12. The accused got examined himself as DW.1 and examined another witness - B.N.Phaneedra as DW.2 and marked three documents as Exs.D1 to D3. After hearing the arguments, learned ACMM acquitted the accused.
Hence, this appeal.
6. Heard Sri. M.D.Alavandar, learned counsel for the appellant and Sri. M.Subramani, learned counsel for the respondent.
7. Learned counsel for the appellant argued that the judgment passed by the learned ACMM is opposed to the evidence on record and facts of the case. The learned ACMM has not appreciated the evidence in proper perspective. The learned ACMM relying on the self-serving testimony of accused, acquitted him which is not tenable. The accused has admitted the signature on Ex.P1/cheque and issuance of cheque. Though the legal notice is served, the accused has not given any reply. But the learned ACMM has failed to consider the presumption arising under Section 139 of N.I. Act and without drawing any presumption, learned ACMM has answered the point No.1 in negative and the same is illegal. The learned ACMM failed to notice that the defence of the accused regarding committing the theft of cheque is neither probable nor proved. The finding of the learned ACMM regarding financial capacity of the complainant to lend the money is not sustainable either in law or in facts. Though the complainant has proved the ingredients of Section 138 of N.I.Act and presumption is also in his favour and when the accused has failed to rebut such presumption, the learned ACMM, has erred in acquitting the accused.
8. The learned counsel argued that the complainant and accused are known to each other and they are acquainted with each other and the am
