Section 138 NI Act: Accused has not given any satisfactory explanation as to how the cheque executed and signed by him came into the hands of the complainant: High Court has reversed the acquittal and convicted the accused [Read the Order]

Madras High Court has reversed the acquittal and convicted a person accused of cheque bounce when iit found that accused has not even given any satisfactory explanation as to how, the cheque executed and signed by him, came into the hands of the complainant.

A bench of Justice Prakash has passed the order in the case titled as S.Ravi vs S.Kumaresan on 25.09.2019.

In a cheque bounce case, accused was convicted by the Magistrate but when he filed an appela, the appellate court acquitted the accused citing following reasons:

"Yet, I'm impressed that the complainant hasn't successfully discharged the initial burden of establishing the subsistence a legally enforceable debt on the date of issue of the cheque or earlier. Rs.1,50,000/- is a huge amount. The complainant took no security except a post-dated cheque which is Exhibit-P1. No proof of the complainant's economic position to the extent of lending Rs.1,50,000/- so liberally that he bothered to take no security. True, the burden to prove non-existence of consideration is upon the accused. For this, he need not adduce independent evidence on his side, he may even rely upon the complainant's evidence and bring on record preponderance of probabilities pointing to non-existence of consideration. Reference : Kalavalli Vs. Parthasarathy [2008(2) LW (Cri.) 1230 para (42) page (1244)]. I disbelieve the complainant's evidence that he lent Rs.1,50,000/- to the accused just on a post-dated cheque without any other security. ... ..."

The Complainant approached the High Court. Accused despite issuance of notice chosen not to appear in the case before the High Court. Then the High Court appointed an experienced lawyer to appear for accused.

High Court then observed "Apart from merely suggesting to the complainant, the accused had not produced any credible material, in support of the defence taken by him. On the contrary, the complainant has examined the Manager of the bank, in which, the accused was having his account and his statement of account was marked as Ex.P7. In Krishna Janardhan Bhat Vs. Dattatraya G. Hegde [(2008) 4 SCC 54], the Supreme Court held that albeit Section 139 of the NI Act, the complainant should prove the debt satisfactorily. This legal position was specifically overruled by a Three Judge Bench of the Supreme Court in Rangappa Vs. Sri Mohan [(2010) 11 SCC 441], wherein, it is held that it is not necessary for the complainant to prove the debt to the hilt, for, that would make Section 139 of the NI Act otiose. However, the Supreme Court has held that presumption under Section 139 of the NI Act can be discharged by the accused by preponderance of probability and not by proof beyond reasonable doubt".

High Court also observed "This Court perused the Section 313 Cr.P.C. statement of the accused and found that, he has not even given any satisfactory explanation as to how, the cheque executed and signed by him, came into the hands of the complainant. Thus, in the teeth of the evidence adduced by the complainant and in the light of the presumption under Section 139 of the NI Act, the reasons given by the appellate Court, acquitting the accused cannot be sustained".

High Court then held "In the result, this appeal is allowed and the conviction and sentence imposed by the trial Court stands restored. The trial Court is directed to secure the appellant and commit him to prison to undergo the remaining period of sentence, if any".

Read the Order here:

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