K.S. Parameshwarappa vs R. Rudrappa

Huluvadi G. Ramesh, J.—This appeal is by the complainant challenging the order of Prl. Civil Judge (Jr. Dn.) & JMFC, Kadur, in CC. No. 794/2002 dated 9.8.2007, in dismissing the complaint filed by the complainant for the offence punishable u/s 138 of the Negotiable Instruments Act and acquitting the accused.

According to the complainant, accused is said to have borrowed a sum of Rs. 30,000/- from the complainant having agreed to repay the same within one month. Thereafter, instead of repaying the same, he issued a cheque drawn on Corporation Bank, Yagati branch, which on presentation, came to be returned as ''account closed''. Accordingly, after issuance of legal notice for non-payment, the complaint came to be filed. The trial Court, after enquiry, has dismissed the complaint on the ground that the complainant has failed to establish that the cheque was issued towards a legally enforceable debt.

Heard.

In the case of Rangappa Vs. Sri Mohan, the Apex Court has held that, as per Section 139 of the Negotiable Instruments Act, the initial presumption is in favour of the complainant that the cheque issued is towards a legally enforceable debt and the negative onus is on the accused to disprove the same, not only by offering explanation, but he has to offer proof of explanation.

Hence, appeal is allowed and the impugned order is set aside. The matter is remitted to the trial Court for disposal of the same, in accordance with law, in the light of the judgment referred to above, after affording opportunity to both the parties, if need be. Office to send back the records.

Parties are directed to appear before the trial Court on 06.12.2010.