The Tax Publishers 2022 TaxPub(CL) 2924 (Tel-HC)

NEGOTIABLE INSTRUMENTS ACT, 1881

Sections 138 & 139

When borrower admitted his signatures on the cheque, then, burden of proof was upon him to show non-existence of legally enforceable debt, but both lower Courts failed to interpret provisions of law and placed the burden of proof on lender to show the existence of legally enforceable debt, order of acquittal was set aside.

Dishonour of cheque - Appeal against acquittal of borrower - Admission of signatures on cheque by borrower - Burden of proof to show existence of legally enforceable debt

Lender filed a complaint under section 138 against borrower. Trail court passed order of acquittal in favour of the borrower on the ground that no evidence of existence of any legally enforceable debt was produced by the lender, which was upheld by Sessions Court. The lender filed Criminal Revision case against the order on the ground that presumption under section 139 was wrongly rebutted by both the Courts. Held: When borrower admitted his signatures on the cheque, the reverse onus was placed by the statute upon him to rebut the presumption under section 139, to show under what circumstances he issued the said cheque to lender. Both the courts placed the burden of proof on lender to show the existence of legally enforceable debt, even though borrower did not dispute the issuance of cheque to lender. They failed to correctly interpret the provisions of law. Thus, the orders passed by both the Courts were set aside and the borrower was convicted for offence under section 138.

REFERRED :

FAVOUR : In favour of appellant

A.Y. :



IN THE TELANGANA HIGH COURT

G. RADHA RANI, J.

M. Bharat v. State of Telangana & Anr.

Criminal Revision Case No. 593 of 2016

1 September, 2022

Petitioner by: K. Rama Subba Rao

Respondent by: Public Prosecutor (TG), V. Harnoor, Nirmal Goyal @ Vikey Goyal

ORDER

This Criminal Revision Case is filed by the complainant herein under sections 397 and 401 of Criminal Procedure Code, 1973 assailing the Judgment, dated 25-11-2015 passed in Criminal Appeal No. 560 of 2015 on the file of the Special Judge for Trial of Offences under S.C.s and S.T.s (Prevention of Atrocities) Act-cum-VI Additional Metropolitan Sessions Judge, Secunderabad, confirming the Judgment, dated 15-6-2015 passed in C.C. No. 396 of 2014 (Old C.C. No. 1261 of 2014) on the file of the X Special Magistrate, Hyderabad.

2. Heard learned counsel for the Revision Petitioner/complainant. None appeared for the 2nd respondent/accused.

3. The parties herein will be referred to as per their array in the Court below.

4. The case of the complainant was that the accused herein was known to him for the past four (04) years and due to friendship developed between them, the accused requested the complainant to arrange for a hand loan of Rs. 50,000, Rs. 60,000 and Rs. 90,000 in different spells. The complainant accordingly provided the said amounts as hand loan to the accused. Again, the accused approached him on 3-12-2013 and requested the complainant for a hand loan of Rs. 3,00,000 for his business urgently. The complainant informed the accused that he was not having the said amount of Rs. 3 lakhs, but was having only an amount of Rs. 2,43,000 for which the accused accepted to receive the same and also promised to repay the same within one or two months with interest @ 2% per month. But, the accused did not repay the said amount within the agreed time; but, however, he paid interest thereon for a period of three (03) months and failed to pay any amounts thereafter.

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