High Court of Madras

R.M. Karuppannan Vs. S. Sakthi

MANU/TN/6512/2018

29.10.2018

Banking

Accused had to prove in the trial by leading cogent evidence that, there was no debt or liability

It is the case of the Complainant that, the Accused borrowed a sum of Rs. 25,000 from him and in discharge of the said loan, the Accused issued the cheque in favour of the Complainant. When the Complainant presented the said cheque for encashment through his banker, the same has been returned as funds insufficient. Hence, the Complainant had issued a legal notice to the Accused to pay the cheque amount, but the Respondent refused to pay the same. Thereafter, the Complainant has filed the complaint under Section 138 of Negotiable Instruments Act, 1881 (N.I. Act).

The trial Court convicted the Accused under Section 138 of the NI Act and sentenced him to undergo three months simple imprisonment and to pay compensation of Rs. 50,000. Aggrieved by the conviction and sentence, the Accused filed appeal before the learned Additional District Judge, who by the judgment has acquitted the Accused. Aggrieved by the same, the Complainant had filed the present appeal against acquittal.

It is settled that, Sections 138 and 139 of the N.I. Act introduced exceptions to the general rule as to the burden of proof in criminal cases and shifted the onus on the Accused. Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the Court "may presume" a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the Accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the Accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact.

It is also settled that, the Accused had to prove in the trial by leading cogent evidence that, there was no debt or liability and that the Accused not having led any evidence could not be said to have discharged the burden cast on him. Existence of legally recoverable debt or liability is a matter of presumption under Section 139 of the N.I. Act. In the case on hand, the Accused has not gone into the witness box. In Rangappa vs. Mohan, it has been held that when once the execution of the cheque is admitted, the presumption under Section 138 of the N.I. Act will work backwards to cover the debt also.

In a complaint filed under Section 138 of the N.I. Act, presumption is the Accused has to pay the cheque amount to the Complainant and to rebut the same the Accused has to produce documents and evidence and make a clear picture that the claim of the Complainant is not true. In the case on hand, the Accused has failed to do so.

Since, issuance of cheque by the Accused and his signature therein are admitted by the Accused and the Complainant has proved his case by way of preponderance of evidence to show that, cheque returned with an endorsement funds insufficient, it is to be held that, the Complainant has proved his case and that the lower appellate Court went wrong in setting aside the judgment of the trial Court, which is a well founded. The acquittal of the Accused by the lower appellate Court deserves interference and accordingly, the appeal is allowed and the judgment of the trial Court is restored.

Relevant

Rangappa vs. Sri Mohan MANU/SC/0376/2010

Tags : Cheque Dishonour Acquittal Validity

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