HC Expounds: It’s for the accused to show that the Cheque issued by him and dishonored by the Bank was not in discharge of any debt/liability

 

A single-judge bench of the Madras High Court comprising of Mr. Justice V. Sivagnanam upheld the trial court judgment in the case pertaining to Sections 138 and 139 of the Negotiable Instruments Act. It was held that due to the statutory assumption in both sections, it’s for the accused to show that the cheque issued by him and dishonored by the Bank was not in discharge of any debt/liability. However, to shift the burden of proof on the complainant, the accused does not need to prove his case beyond a reasonable doubt. Rather, on record, the accused should bring up something which is ‘probable’ for getting the burden of proof shifted to the complainant.

Brief Facts:

In the present case, the appellant was the complainant and the respondent was the accused in S.T.C.No.77 of 2016 on the file of the Judicial Magistrate Court, Yanam. The appellant/complainant filed a complaint against the respondent/accused for an offence under Section 138 of the Negotiable Instruments Act. The accused borrowed a sum of Rs.10,00,000/- from the complainant. To repay that amount, he gave a cheque for a sum of Rs.10,00,000/-. When it was presented for encashment, it was returned for “insufficient funds” in his account. After issuing legal notice, the complaint was filed by the complainant. Before the trial Court, the complainant examined himself as PW1 and filed eight documents as Ex. P1 to Ex. P8, while the accused examined three witnesses as DW1 to DW3 and filed three documents as Ex. D1 to Ex. D3. After trial, the trial Court acquitted the accused on two grounds that there is a previous complaint between the complainant and the accused with regard to the money transaction and subsequent payment of Rs.10,00,000/- by the complainant is not believable one and another ground is the defence witness Mr. Durga Prasad (DW2), Manager of State Bank of Hyderabad, Muramulla Branch deposed that on 27.04.2015 the accused was present in Muramullla Branch of State Bank of Hyderabad and applied Demand Draft for his business purpose and it was also evidenced by Ex.D3. Under these circumstances, as per the trial court, it was not possible that the accused received the amount from the complainant on 27.04.2015 at 1.00 p.m. in the complainant's residence.

Contentions of the Appellant/Complainant:

The appellant contended that the trial Court did not properly consider the evidence adduced by the complainant and failed to consider the law in favor of the complainant under Section 139 of the Negotiable Instruments Act and it maintained the presumption of law that the cheque duly drawn was in discharge of debt or liability. In this case, the accused had not denied his signature in the cheque and the presumption mandated by Section 139 of the NI Act was not properly rebutted. Further, the appellant contended that the complainant filed his bank statement of Account and the income tax returns to support his case but the trial Court did not consider them. As per the appellant, the respondent is guilty of dishonor of cheque for the offence under Section 138 NI Act. 

 

Contentions of the Respondent/Accused:

The learned counsel for the respondent/accused supported the judgment of the trial Court and submitted that the trial Court rightly considered the evidence adduced by the parties. In this case, the complainant specifically stated in his evidence and complaint that the amount has been lent on 27.04.2015 but on that date, the accused was at the State Bank of Hyderabad, Muramulla Branch and not possible to meet the complainant and received the amount. Further, there existed a dispute between the complainant and the accused earlier and in that regard, a criminal complaint has been given on 02.03.2014 and the matter was enquired by the Yanam Police. Under these circumstances, there was no possibility to lend a sum of Rs.10,00,000/- on 27.04.2015 to the accused. As per the accused, he properly rebutted the presumption under Sections 118 & 139 of the NI Act. Further, the appellant submitted that the trial Court rightly acquitted the accused/respondent on the ground of the offence was not proved and there is no valid ground for interfering with the acquittal order passed by the trial Court.

Observations of the Court:

The court observed that it is for the accused to show that the cheque was not issued in the discharge of any debt or other liability. By reading Sections 138 & 139 of the Negotiable Instruments Act together it became abundantly clear to the court that it is for the accused to show that the cheque issued by him and dishonored by the Bank was not in discharge of any debt or liability. Further, it was held that to rebut the statutory presumptions, an accused is not expected to prove his defence beyond a reasonable doubt, rather, something which is probable has to be brought on record to get the burden of proof shifted to the complainant.

After perusing the evidence and testimonies of the witnesses, the judge did not find any ground to take a different view of the evidence taken by the trial Court. Reliance was placed on the Hon’ble Supreme Court in the case of Kanhaiya Lal and ors Vs. State of Rajasthan (2013) 5 SCC 655, wherein the court held that while dealing with the appeal against the acquittals unless there are substantial and compelling reasons, good and sufficient grounds, and very strong circumstances interference is not called for. In this case, as per the court, the complainant failed to discharge the initial burden cast upon him that he had advanced a loan of Rs.10,00,000/- to the accused. Therefore, the judge did not find any reason to interfere with the findings of the trial Court and no merit in the criminal appeal.

Decision of the Court:

The trial court judgment was upheld and accordingly, the criminal appeal was dismissed.

Case Title: Kanakala Satyanarayana vs Vungarala Veera Venkata Subrahmanyam

Coram: Mr. Justice V. Sivagnanam 

 

Case No.: Crl.A.No.86 of 2023

Advocate for the Appellant: Mr. L. Poovendra Perumal

Advocate for the Respondent: M/s. Swarnam J. Rajagopalan

 Read Judgment ;

 

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