The Karnataka High Court allowed an appeal filed u/s 378(4) of Cr.P.C, praying to set aside the judgment dated 05.01.2018, passed by the principal civil judge and JMFC, acquitting the respondent for the offense p/u/s 138 of the N.I. act. The Court observed that when the financial status of the complainant was not at all challenged during the cross-examination or by way of issuing a reply notice, the question of rebuttal of the presumption does not arise at all.
Brief Facts:
The accused had availed a loan of Rs.1,50,000/- from the complainant in month of January 2015, and towards the discharge of the said amount, she issued a cheque for a sum of Rs.1,50,000/-. When the complainant presented the said cheque, it was returned with an endorsement as 'insufficient funds'. Then the complainant issued a legal notice to the accused and in spite of the service of the legal notice, the accused neither paid the amount nor replied to the legal notice. Hence, she has filed a complaint under Section 200 of the Cr.P.C., before the learned Magistrate alleging that the accused has committed an offence under Section 138 of the Negotiable Instruments Acts, 1881.
The learned Magistrate acquitted the accused solely on the ground that the complainant had failed to prove her financial capacity and it was improbable for her to advance a loan of Rs.1,50,000/-. Hence, the present appeal.
Contentions of the Appellant:
The Learned Counsel for the Appellant submitted that the accused has not disputed the cheque and signature on the cheque and hence, the presumption under Section 139 of the N.I. Act is in favor of the complainant. It is also asserted that the learned Magistrate has acquitted the accused only on the grounds of the financial status of the complainant but failed to consider the fact that, the financial status was never challenged.
Contentions of the Respondent:
The Learned Counsel for the Respondent submitted that the complainant has not produced any documents to show her capacity to advance the loan and the learned Magistrate has rightly appreciated this aspect and acquitted the accused, and when the said judgment is well reasoned one, it does not call for any interference.
Observations of the Court:
The Court noted that the initial presumption under Section 139 of the N.I. Act is in favour of the complainant to the effect that the cheque was issued towards legally enforceable liability. The drawing of the said presumption is mandatory and the accused is at liberty to rebut the said presumption.
The Court observed that when the financial status of the complainant was not at all challenged during the cross-examination or by way of issuing a reply notice, the question of rebuttal of the presumption does not arise at all. When the financial status of the complainant itself is not challenged by the accused, the question of considering the capacity of the complainant to advance the loan does not arise at all as under Section 139 of the N.I. Act, it is mandatory for the Court to draw a presumption.
The decision of the Court:
The Karnataka High Court, allowing the appeal, held that the judgment of acquittal does not survive judicial scrutiny and calls for interference.
Case Title: Mary Vinya v. Rema
Coram: Hon’ble Justice Rajendra Badamikar
Case no.: CRIMINAL APPEAL NO. 329 OF 2018 (A)
Advocate for the Appellant: Mr. Rajarama Sooryabail
Advocate for the Respondent: Mr. P. Udayashankar Rai
Read Judgment @LatestLaws.com
Picture Source :
