2019 (2) TMI 1788 - HC - Indian Laws

Dishonor of Cheque - acquittal of charge under Section 138 of the Negotiable Instrument Act - rebuttal of presumption - HELD THAT - Even considering the deposition of the accused who entered the witness box explaining the transaction, it is revealed that complainant appears to be a loan shark and charging interest @10% p.m. and appears to have misused pre-signed cheques obtained prior to advancing any amount. Not only that neither the complainant nor his advocate has courage to cross-examine respondent No.2-original accused who entered the witness box for rebutting the presumption through admissible evidence apart from preponderance of probability. The accused is supposed to rebut the presumption based on preponderance of probability only. Whereas, he is successful in this case to rebut the same by leading her own evidence. There are no reason to interfere with the order of acquittal based on sound reasonings and reached after appreciation of evidence. The applicant-original complainant has failed to make out a case to grant Special Leave to Appeal under sub-section (4) of Section 378 of the Code of Criminal Procedure, 1973 and, therefore, this application stands rejected. Application dismissed.

Summary

Issues involved:
Challenge to order of acquittal under Section 138 of Negotiable Instrument Act based on presumption under Sections 139 and 118; Failure to cross-examine accused; Accused's defense of repayment and misuse of pre-signed cheques; Applicant's request for Special Leave to Appeal.

Analysis:
1. The applicant sought Special Leave to Appeal challenging the acquittal of the accused under Section 138 of the Negotiable Instrument Act. The applicant argued that the accused's defense of signing the agreement without reading it due to good relations was not credible. The applicant also highlighted that the accused failed to rebut the presumption under Sections 139 and 118 of the Act. The learned Magistrate's reasons for acquittal were deemed irrelevant by the applicant, who requested the Court to grant Special Leave to Appeal against the accused.

2. The complainant alleged that a loan of ?3 lakhs was advanced to the accused, with part repayment made and the remaining amount covered by a cheque that bounced due to insufficient funds. The complainant presented evidence, including the agreement and the accused's statement under Section 313 of the CrPC. However, the complainant failed to cross-examine the accused, who testified in her defense. The accused claimed repayment of the loan and interest, accusing the complainant of misusing pre-signed cheques. The learned Judge noted discrepancies in the complainant's claims regarding the transactions and found that the accused had repaid the amount as evidenced by her bank statement.

3. The Court analyzed the evidence presented and concluded that the complainant appeared to be a loan shark charging high interest rates. The Court noted the lack of cross-examination of the accused by the complainant and his advocate, leading to the accused successfully rebutting the presumption against her. The Court found no grounds to interfere with the acquittal order, as it was based on sound reasoning and proper evaluation of the evidence. The application for Special Leave to Appeal was rejected, confirming the Magistrate's order of acquittal.

4. In the final decision, the Court rejected the applicant's plea for Special Leave to Appeal, confirming the order of acquittal passed by the Magistrate. The Court directed the record and proceedings to be sent back to the trial Court promptly.