Smt. L. Padma vs S. Nagabhushana Naidu

Huluvadi G. Ramesh, J.—This appeal is by the complainant assailing the order passed by the XXXVI Addl. City Civil & Sessions Judge, Bangalore, in Crl. A. No. 965/2006 dated 10.7.2008.

In connection with dishonour of cheque issued by the accused to the complainant towards repayment of the hand loan borrowed by him in a sum of Rs. 1,00,000/-, after issuance of legal notice, for non-payment, the complaint came to be filed by the complainant against the Respondent before the XVI Addl. CMM. Bangalore, wherein the learned Magistrate after enquiry, by order dated 05.05.2006, has convicted the accused and sentenced him to pay an amount of Rs. 1,50,000/- out of which, Rs. 10,000/- was ordered to be appropriated to the state and Rs. 1,40,000/- to be paid to the complainant. Against the said order of conviction and sentence, the accused preferred an appeal, wherein the lower appellate Court has reversed the finding of the trial Court. Hence, this appeal.

Heard.

It appears, in series of cases filed against the Respondent, by a common reasoning the lower appellate Court has reversed the order of conviction. The appellate Court has relied upon the decision reported in K. Prakashan Vs. P.K. Surenderan, to hold that the existence of a legally recoverable debt is not a matter of presumption; the complainant has not discharged the burden against the accused and that, there was no occasion for the accused to issue post dated cheque.

The trial Court has given a finding that the signature on the cheque has been admitted, despite that, the lower appellate Court opining that, it is not a ground to convict the accused, has reversed the finding of the learned Magistrate.

In the decision reported in Rangappa Vs. Sri Mohan, , the Apex Court while reversing the finding given in Krishna Janardhan Bhat''s case, has opined that, as per Section 139 of the Negotiable Instruments Act, the initial burden is on the accused to rebut the presumption and the negative onus is on the accused to disprove the presumption not by mere explanation, but proof of explanation has to be offered.

Hence, appeal is allowed and the impugned order of acquittal is set aside. The matter is remitted back to the lower appellate Court for disposal of the same in accordance with law, after affording opportunity to both the parties. All contentions are left open to be urged before the trial Court.

Both the parties are directed to appear before the trial Court on 15.11.2010 and it is for the trial Court to dispose of the matter within three months thereafter. Office to send back the records.