S. Raja vs M.C. Shivaji

Subhash B. ADI

Special leave is granted. Accordingly, Misc. Crl. 3526/2011 is allowed.

Though this matter is listed for admission, it is taken up for final hearing.

This appeal is by the complainant against the judgment of acquittal in C.C. Ho. 552/2010 dated 11.02.2011, on the fife of XV Additional Chief Metropolitan Magistrate, Bangalore City.

Complainant had filed, a private complaint against the accused u/s 200 of Cr.P.C for an offence punishable u/s 138 r/w Section 142 of Negotiable Instrument Act, interalia alleging that the accused had borrowed sum of Rs. 1,20,000/- for his business purpose. In view of the same, accused had issued post-dated cheques in favour of the complainant for sum of Rs. 1,20,000/- , dated 17.9.2009, drawn on IDBI Bank, Aanoor Aman Complex, Veeraparra Street branch, Erode. The cheque was presented to the bank as per date given. However, the bank returned the said cheque with an endorsement "Insufficient Fund". In this regard, legal notice was issued. When the amount was not paid, complainant filed a private complaint against the accused for an offence punishable u/s 138 of N.I. Act

On summons the accused appeared before the trial Court pleaded not guilty. To prove the offence, the complainant got himself examined as PW1 and produced Exs. P1 to P19. The accused did not entered into the witness box nor produced any documents. However, two documents were marked as Exs. C1 and C2

The trial Court found that the accused had admitted that he had issued cheque to one Bahi, it was a blank cheque. Trial Court found that the accused had not taken any action against the Balu and not issued any notice to Balu. However, the trial Court acquitted the accused only on the ground that the complainant has not proved that the debt is legally recoverable relying u/s 139 of N.I. Act. As against the said judgment, the complainant is in appeal.

It is not in dispute that the cheque is issued by the accused to one Balu. It is the case of the accused that the cheque was given to Balu to help the accused in getting contract. Neither Balu as examined nor defence has been probabalised by any material. As against this complainant got himself examined and has also produced documents to show that the accused had issued cheque and it belongs to the accused and on presentation it has been dishonoured.

Initially presumption arises in favour of the complainant if the complainant proves the ingredient u/s 138 of N.I. Act However, the said presumption is rebuttal, but rebuttal must be probable that there is no legally recoverable debt. The trial Court, absolutely, has not at all discussed any materiel and not even assigned a single reason for acquittal except stating that u/s 139 of N.I. Act, the complainant has not proved that the debt is legally recoverable.

In my opinion, the judgment of the trial Court suffers from lack of consideration and the same requires consideration.

Accordingly, the appeal is partly allowed. Judgment in C.C. No. 552/2010 dated 11.02.2011, on the file of XV Additional Chief Metropolitan Magistrate, Bangalore City is set aside.

The matter is remitted to the trial Court with the direction to dispose of this same as early as possible not later than six mouths from the date of receipt of the copy of the order.

Parties are at liberty to lead additional evidence, if any.