While dealing with acquittal in a cheque bounce case, Karnataka High Court has made pertinent observations as under:
"It is important to note that, after the cheque was bounced, the complainant has given notice to the accused in terms of Ex.P3 and the same was served on the accused. The postal acknowledgment Ex.P4 confirms that notice was served on the accused and he did not choose to give any reply. But the contention of the accused throughout in his cross-examination is that, he did not issue the cheque Ex.P1 and the signature available in Ex.P1 is forged and created by the complainant. If really, the accused did not made any transaction with the complainant, he would have given reply to the notice, Ex.P3 immediately when he received the same. In spite of service of notice, he did not give any reply. If no such transaction has taken place between the complainant, he would have raised the defence that said cheque not belongs to him and the same has not been done.
It is also important to note that in the cross- examination of D.W.1, he categorically admits that when the cheque given by him to the complainant was presented for payment, the same was returned with an endorsement 'insufficient funds'. When there is a clear admission on the part of the accused regarding returning of cheque given by him with an endorsement 'insufficient funds', the Trial Court ought not to have dismissed the complaint on the ground that the complainant has not proved his source for advancing a hand loan to the tune of Rs.4,50,000/-, no doubt in the cross-examination of P.W.1, it is elicited that he has not produced any proof with regard to the source for advancing such amount.
As already pointed out, the accused has not given any reply to the notice and also in the cross- examination, he categorically admits that the cheque has bounced on account of no sufficient fund in the bank account of the accused. Mere non-producing of the document before the Court with regard to the source of income to advance a loan is not a ground to dismiss the complaint. The accused ought to have rebutted the contention of the complainant by producing cogent evidence before the Court and mere denial is not enough. Hence, the Court below ought to have drawn the presumption against the accused that he did not give any reply to the legal notice, though admitted the returning of cheque. The very approach of the Trial Court is erroneous.
In the absence of rebuttal evidence under Section 138 of the Negotiable Instruments Act, the Trial Court ought to have convicted the accused for the offence punishable under Section 138 of Negotiable Instrument Act".
Read the Order here:
Picture Source :
