Mohd. Sirajuddin vs Md. Kaleemuddin

Huluvadi G. Ramesh, J.—Complainant is in appeal in these cases aggrieved by the order of acquittal passed by the III Addl. Sessions Judge, Gulbarga on 1.9.2007 for the offence punishable under S. 138 of the Negotiable Instruments Act. It is alleged in connection with the celebration of marriage of the daughter of accused Rs. 3,75,000/- was borrowed by the accused at different intervals who in turn, had issued four cheques i.e., three cheques of Rs. 1 lakh each and another for Rs. 75,000/-. However, according to the accused, Rs. 75,000/- was advanced by him to the complainant in turn he did not return the amount as such, his daughter''s marriage broke up. Also the complainant forcibly got obtained four cheques signed and foisted a false case against him and, there is no service of notice. As such, rightly the lower appellate court acquitted the accused as against the order of the JMFC, Gulbarga convicting him and ordering to pay compensation.

Heard the counsel representing the parties.

It transpires, in a business transaction between the complainant and the accused, there is some give and take. The stand of the accused is, complainant has filed a false case and forcibly took his signatures on the cheques and he is not due in a sum of Rs. 3,75,000/- to the complainant and complainant has not produced any record to show that he has drawn the amount from the bank.

As per S. 138 and 139 of the Negotiable Instruments Act, once the cheque is signed and issued presumption will be that the cheque was issued towards a legally enforceable debt. S. 118, 119 and 139 of the Negotiable Instruments Act do provide for such a presumption. In the present case there appears to be some semblance of transaction between the complainant and the accused. Whether the accused would have advanced Rs. 75,000/- to the complainant which he says was not returned or in a dispute between the complainant and the accused, complainant would have obtained the cheques and got it signed forcibly are all questions to be thrashed out before the trial court. Even the civil case filed by the accused against the complainant came to be dismissed. Further, so far as service of summons is concerned, the presumption drawn by the court below is, complainant deliberately avoided service of notice to the accused without mentioning the full address of the accused and the reasoning is, accused himself has furnished the address and summons issued by the court has reached the accused.

The defense of the accused is, he himself has advanced Rs. 75,000/- as loan to the complainant. Due to non-payment/not returning the amount, there is break up of the marriage of the daughter of accused. The lower appellate court has proceeded on the premise that if at all the cheques were issued in favour of the complainant by the accused, he could have encashed as per the dates mentioned on the cheques and thus, presumption was drawn against the complainant. Also, doubting the version of the complainant, lower appellate court held that if really the accused had executed such cheques, immediately he could have presented the same for realization. The non-presentation of the cheques for encashing shows the conduct on the part of the complainant and it is also not explained as to why he has presented all the cheques at a time.

However, what is to be noticed is, there is not even a piece of the paper available with the complainant with regard to issuance of cheques for Rs. 3,75,000/-. The cardinal principle is, the moment the cheque is produced duly signed by the accused, initial presumption is in favour of the complainant that for payment of the amount the cheque was presented and it was towards a legally recoverable debt. The initial presumption is in favour of the complainant and the burden is on the accused to disprove the same. However, all is not well with the judgment rendered by the lower appellate court and the matter has to be reconsidered.

In that view of the matter, order of lower appellate court is set aside. Matter is remitted to the lower appellate court for disposal according to law expeditiously, not later than six months, after affording opportunity to both the parties. All contentions are left open to be urged. Parties are also permitted to go for a compromise/understanding, if they so desire during pendency of the matter before the court below. Appeals are allowed.