M LAXMINARAYAN SETTY, Vs. B MURALI

JUDGEMENT

(1.) IN this criminal appeal, the judgment of acquittal of the respondent is called in question, passed by the II Additional Civil Judge and JMFC, Bellary in C.C.No.899/2008 dated 27.03.2013, wherein, the learned Magistrate acquitted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act' for brevity). The appellant has challenged the said order on several grounds, particularly, the learned counsel for the appellant argued in support of the grounds urged before this Court that the judgment of the trial Court is contrary to the provisions of Section 139 of the Act. The accused has categorically admitted the existence of debt or liability, issuance of the cheque and taken up the defence that he has repaid the amount due under the said cheque. It is the burden on the accused to prove that he has repaid the said amount, in spite of that, the cheque was not returned by the appellant and thereafter by misusing the said cheque, the appellant has claimed the amount under the cheque in order to have wrongful gain. The learned counsel contended that there is no dispute by the accused with regard to the formalities of presentation of the cheque, dishonour of cheque by the concerned bank of the appellant, issuance of notice and thereafter filing of the complaint in time. The learned Magistrate has also not dismissed the complaint on any of the technical grounds, but acquitted the accused on the ground that the complainant has not proved the existence of any legally recoverable debt or liability against the accused. When sufficient materials are there, the learned Magistrate has not applied his judicious mind in proper perspective and has directed himself in a wrong direction in acquitting the accused.

(2.) PER contra, the learned counsel for the accused strenuously contended that, though the accused has admitted issuance of the cheque as well as the transaction between himself and the appellant, nevertheless it is the burden on the complainant to establish by producing convincing and cogent evidence in order to establish existence of debt or liability on the part of the accused and for discharge of the said debt only the disputed cheque has been issued by him. The evidence placed before the Court if it is properly appreciated, it reveals that the complainant has utterly failed to prove his case. Therefore, the learned Magistrate has rightly acquitted the accused and there is no room for interference with the said judgment by this Court.

(3.) BEFORE adverting to the factual aspects of this case, it is just and necessary to look into certain rulings of the Hon'ble Supreme Court, wherein the Hon'ble Supreme Court has said that, in the case of acquittal, the Court should be very careful in reversing the judgment of the trial Court. It is worth to note the rulings of the Supreme Court in the case of State of Uttar Pradesh Vs Gobardhan and Others, 2013 AIR(SCW) 4507, wherein the Hon'ble Supreme Court has held that