The Karnataka High Court allowed an appeal filed u/s 378(1) and (3) of Cr. P.C., praying to set aside the judgment and order dated 03-02-2017 passed on the file of the Additional City Civil and Sessions Judge and thereby confirming the judgment dated 16-09-2016 passed by Additional Chief Metropolitan Magistrate. The Court observed that there must be some cogent evidence that is required to be produced either oral or documentary. In the absence of cogent evidence, it cannot be construed that the presumption has been rebutted.
Brief Facts:
The accused had borrowed Rs.2,50,000/- from the complainant and agreed to repay the said amount within one month and issued a cheque dated 10.06.2013 as a security. When the stipulated time was over, the complainant informed the accused and demanded the amount. However, the accused instructed the complainant to present the said cheque. The cheque was presented on 22.08.2013. However, it was dishonored. The accused requested the complainant to present it again but it was dishonored the second time also. On being served notice, the accused issued a fresh cheque dated 21.09.2013 for the said amount. Again, the second cheque was presented for encashment on the same day, however, it was also dishonored. Hence, a complaint was lodged before the jurisdictional Magistrate for the offence under Section 138 of the Negotiable Instruments Act.
The Trial Court after considering oral and documentary evidence on record, recorded the conviction. However, in the appeal, the judgment of conviction was set aside. Hence, the present appeal.
Contentions of the Appellants:
The Learned Counsel for the Appellants submitted that the findings of the Appellate Court in recording the acquittal are against the evidence and law, therefore, the same is liable to be set aside. They are not acceptable for the reason that the issuance of the cheque and signature both have been admitted by the accused. The accused has not led any rebuttable evidence to rebut the presumption.
Contentions of the Respondents:
The Learned Counsel for the Respondents submitted that the contention of the accused is that he had issued cheques to his friend Sri. Seetharam and the cheques which were issued to Sri. Seetharam has been misused by the complainant. It is further submitted that the complainant is a stranger to the accused and no transaction had taken place between the complainant and the accused. It is further submitted that the Trial Court after appreciating the oral and documentary evidence on record rightly recorded the acquittal which requires no interference.
Observations of the Court:
The Court noted that the initial burden to rebut the presumption lies on the accused.
The Court observed that mere denial of the transaction and mere stating that cheques were issued to some other person and those cheques have been misused by the complainant cannot be accepted as true and such contention is unsustainable. To rebut the presumption, there must be some cogent evidence which required to be produced either oral or documentary. In the absence of cogent evidence, it cannot be construed that the presumption has been rebutted.
The Court said that PW.1 has proved the lending capacity and also proved that the cheques in question had been issued for the legally enforceable debt or liability. Therefore, it can be said that the Appellate Court failed to take note of this aspect and also failed to raise the presumption properly.
The decision of the Court:
The Karnataka High Court, allowing the appeal, held that the judgment and order dated 03.02.2017 passed by the Additional City Civil and Sessions Judge is set aside and the judgment and order dated 16.09.2016 passed by the Additional Chief Metropolitan Magistrate is confirmed.
Case Title: Smt. G V Shashikala v. Smt. Giriyappa
Coram: Hon’ble Justice S Rachaiah
Case no.: CRIMINAL APPEAL NO. 648 OF 2017 (A)
Advocate for the Appellant: Mr. M K Venkatramana
Advocate for the Respondent: Mr. C N Naganna
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