The Karnataka High Court dismissed an appeal filed u/s 378(4) of Cr.P.C praying to set aside the impugned judgment passed by the learned second fast track (additional sessions) judge, in criminal appeal dated 23/08/2011, and dismiss the criminal appeal filed by the respondent; b) confirm the judgment and sentence passed by the learned additional civil judge dated 09.02.2011 and allow the above appeal. The Court observed that after the rebuttal of the presumption by the accused on the preponderance of probabilities, the complainant has failed to discharge the burden placed on him beyond a reasonable doubt.
Brief Facts:
It is the case of the complainant that towards repayment of a hand loan of Rs.50,000/- taken from the complainant for his legal necessity and on demand by him, the accused issued a cheque bearing No.441464 dated 05.06.2003, drawn on Canara Bank. The accused assured prompt encashment. However, when the complainant presented it on the same day through the Bank, it was returned with an endorsement 'cheque reportedly lost payment stopped'. When it was brought to the notice of the accused, he apologized and requested him to represent him. However, the second time also it was dishonoured for the same reason. The complainant was issued a legal notice dated 02.09.2003 and it was duly served on him on 05.09.2003. However, the accused has neither paid the amount due nor sent any reply hence, the complaint. The trial Court convicted the accused. The accused succeeded in an appeal before the Fast Track Court. Hence, the present appeal.
Contentions of the Appellants:
The Learned Counsel for the Appellants submitted that the Fast Track Court has grossly erred in reversing the well-reasoned judgment of the trial Court and acquitting the accused. No justifiable reasons are assigned for interfering with the judgment and order of the trial Court. The Fast Track Court has not only failed to draw the presumption under Sections 118 and 139 of the N.I. Act and also wrongly placed the burden on the complainant.
Contentions of the Respondents:
The Learned Counsel for the Respondent submitted on re-appreciation of oral and documentary evidence, the Fast Track Court came to a correct conclusion in acquitting the accused and prays to dismiss the appeal.
Observations of the Court:
The Court noted that presumption u/sec.118 and 139 of N.I. Act is required to be drawn to the effect that it was issued towards repayment of any legally recoverable debt or liability and therefore, the burden is on the accused to rebut the presumption and to prove the circumstances in which the cheque has reached the hands of the complainant.
The Court observed that it was proved that the cheque in question was lost and immediately he gave instructions to stop payment in fact the complainant was summoned to the police station and the concerned police tried to work out a settlement. By this evidence, the accused has rebutted the presumption shifting the burden on the complainant to prove his case. The Court remarked that the complainant has not pleaded and deposed as to what was the transaction between him and the accused. He has not stated in specific terms as to in what connection the cheque was issued and whether the accused borrowed any hand loan from him. He has simply stated that the cheque in question is issued towards repayment of the amount due to the complaint to the tune of Rs.50,000/-. After the rebuttal of the presumption by the accused on the preponderance of probabilities, the complainant has failed to discharge the burden placed on him beyond a reasonable doubt.
The decision of the Court:
The Karnataka High Court, dismissing the appeal, held that the Fast Track Court has come to a correct conclusion that the charge leveled against the accused is not proved and reverse the judgment and order of the trial Court and acquitted the accused.
Case Title: Sri Venkataramaiah v. Sri Puttaswamy
Coram: Hon’ble Justice J. M. Khazi
Case no.: CRIMINAL APPEAL NO.128 OF 2012
Advocate for the Appellant: Mr. A. C. Balaraj
Advocate for the Respondent: Ms. Vidya S.
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