2010 (2) TMI 1243 - HC - Indian Laws

Summary

Issues Involved:
1. Validity of the cheque issued u/s 138 of the Negotiable Instruments Act.
2. Presumption of liability and burden of proof.
3. Rebuttal of statutory presumption by the accused.
4. Appellate court's power to review evidence in acquittal cases.

Summary:

1. Validity of the Cheque Issued u/s 138 of the Negotiable Instruments Act:
The appellant initiated prosecution against the respondent for the offence punishable u/s 138 of the Negotiable Instruments Act. The respondent-accused was acquitted by the Judicial Magistrate, First Class, Amravati. The appellant claimed that the accused issued a cheque for Rs. 46,900/- which was dishonoured due to insufficient funds. The accused contended that the cheque was issued as security and not for any enforceable liability.

2. Presumption of Liability and Burden of Proof:
The appellant argued that the statutory presumption u/s 118 of the Negotiable Instruments Act operated against the accused, asserting that the cheque was made for consideration. The court referred to precedents, including Hiten P. Dalal v. Bratindranath Banerjee and K. Bhaskaran v. Sankaran, emphasizing that the presumption must be rebutted by proof, not merely by plausible explanation.

3. Rebuttal of Statutory Presumption by the Accused:
The accused claimed that the cheque was a blank one given as security and not for discharging any liability. The court noted that even if a blank cheque is given towards liability, once filled and presented, it incurs criminal liability u/s 138 of the Act. The accused failed to provide sufficient proof to rebut the presumption of liability.

4. Appellate Court's Power to Review Evidence in Acquittal Cases:
The court highlighted that the appellate court has full power to review and reappreciate evidence upon which the order of acquittal is founded. The court must ensure that miscarriage of justice is avoided, whether from acquittal of the guilty or conviction of the innocent. The trial court's judgment was found unreasonable and erroneous in ignoring the strong evidence presented by the complainant.

Conclusion:
The appellate court set aside the judgment and order of acquittal, finding the accused guilty of the offence u/s 138 of the Negotiable Instruments Act. The accused was sentenced to imprisonment for a day until the rising of the court and ordered to pay Rs. 46,900/- plus Rs. 10,000/- as compensation to the complainant within sixty days, failing which would result in six months' imprisonment. The appeal was allowed accordingly.