The appellate Court has over-looked the statutory presumption provided under Section 139 of the NI Act even though the accused adduced evidence he did not rebut the evidence of the complainant. The case of the complainant is probable than the case of the accused, the Karnataka High Court held in Mr. Muniraju v. M Nagaraju (Cr. Appeal No. 309/2011)
The facts of the are, that the complainant and the accused are friends. The accused had requested the complainant to lend hand loan of Rs.70,000/- to meet out his urgent financial necessity on first week of October, 2006. The complainant gave an amount of Rs 64,000/- on 15.10.2006 and the accused had promised to repay the said loan within three months but the accused did not repay the same. However, on repeated requests, the accused issued a self cheque dated 21.01.2007 and when the same was presented, it was dishonoured. The complainant got issued legal notice both to his residential address as well as his office address. That in spite of receiving the notice sent under certificate of posting, the accused did not give any reply and hence the complainant was forced to file complaint. The trial Court, after recording the evidence of the complainant examined the accused under Section 313 of Crpc The trial Judge, after considering both oral and documentary evidence convicted the accused vide Judgment dated 20.02.2009. Being aggrieved by the same, the accused had preferred an appeal in Criminal Appeal and in the said appeal, the accused was acquitted vide judgment dated 30.11.2010. Being aggrieved, the complainant has filed this appeal.
Learned counsel for complainant also submits that the appellate Court while acquitting the accused has come to a conclusion that the complainant has not obtained any documents while lending money. The fact that both are friends is not disputed. The defense, of the accused is that the cheque kept in the driving school was stolen and to that effect no probable evidence is available to believe the defence of the accused. And, at the same time the counsel contends that the accused do not dispute the cheque and the notice sent under certificate of posting was served on him and though notice sent through RPAD to the residential address and also to office address were returned, the accused did not choose to give any reply to the notice of the complainant. The accused has categorically admitted in the cross-examination that the address mentioned in the registered postal covers are correct and the same is not disputed
The main reliance was made on the case of case of RANGAPPA v. MOHAN AIR 2010 SC 1898 in order to draw presumption that the accused has not disputed his signature on the cheque and also no reply was given to the legal notice. Though the accused has been examined, the statutory presumption under Section 19 the NI Act has not been rebutted by the accused and also the admission on the part of DWI has not been considered by the appellate Court in a perspective manner contended that the appellate Court has committed a fundamental error in not considering the presumption and also held that the complainant was not having any source to lend money in favour of the accused is erroneous and hence, it requires interference by this Court. learned counsel for the respondent in spite of opportunity, did not choose to make his submissions.
The court is of opinion that, “the appellate Court has committed an error in coming to the conclusion that the accused rebutted the evidence of the complainant and in the cross-examination PW1, nothing is elicited except they are good friends and the complainant was also visiting the driving school of the accused Hence, the appellate Court has committed an error in reversing the finding of the trial Court without drawing presumption available in favour of the complainant.”
Conclusively, the accused is directed to pay Rs, 1,00,000 to the complainant within eight weeks of date of judgement. And court found the accused the convict of offence punishable under section 138 of NI Act.
