SHET AND CO. Vs. SRI KULYADI KRISHNA PAI

JUDGEMENT

(1.) THIS appeal is by the complainant challenging the order of the II Addl. Sessions Judge, Mangalore, Dakshina Kannada in Crl. A. No. 17/2005 dated 13 -5 -2009.

(2.) ACCORDING to the complainant, accused had availed loan from the complainant on 5 -9 -2000 and also on subsequent dates to the tune of Rs. 11,25,000/ - through seven cheques. Those cheques issued by the complainant were drawn on Indian Overseas Bank which were duly encashed by the accused, for which, the accused is said to have executed on demand Promissory Note apart from issuing a cheque for Rs. 11,25,000/ - towards repayment drawn on Corporation Bank, Hampanakatta, Mangalore and on presentation of the cheque, it was dishonoured with an endorsement 'insufficient funds ™. After issuing legal notice, complaint was filed before the V JMFC, Mangalore. The learned Magistrate after enquiry, convicted the accused for the offence punishable under Section 138 Negotiable Instruments Act, 1881 (for short the 'N.I. Act ™ ) and directed to pay a sum of Rs. 12,00,000/ - out of which, it was ordered to pay Rs. 5,000/ - towards fine and Rs. 11,50,000/ - to be paid to the complainant as compensation. Against the said order, the accused preferred an appeal before the Sessions Judge, wherein he has allowed the appeal in part on the ground that accused had admitted that he had borrowed Rs. 1 lakh and not Rs. 11,25,000/ - and acquitted the accused stating that no offence is made out under Section 138 of the N.I. Act. Being aggrieved, the complainant has preferred this appeal.

(3.) THE Apex Court in the case of Rangappa vs. Mohan, AIR 2010 SC 1898 while reversing the ratio laid down in Krishna Janardhan ™s case cited supra, held that when the cheque is issued, it is deemed to be a cheque issued towards legally enforceable debt under Section 138 of N.I. Act and it is for the accused to rebut the presumption not only by offering the explanation but proof of explanation has to be produced.