SHAILENDRA ALVA Vs. NAGESH

JUDGEMENT

(1.) THIS appeal is filed under Sec. 378 (4) of the Cr. RC. by the appellant-complainant to set aside the order of dismissal dated 14-3-2002 passed by the Additional Civil Judge, Mangalore, D. K. by acquitting the respondent for which he has beencharge sheeted.

(2.) ASSAILING the same the appellant-complainant has come up with this appeal mainly on the ground that the judgment and order passed by the Court below is contrary to the provisions of Ss. 138, 139, 148 and 118 of negotiable Instruments Act (hereinafter referred to as 'the Act' ). The finding recorded by the trial Court is that the liability of the accused is not proved and appellant-complainant has failed to prove the issuance of the cheque towards the existing legally recoverable debt. But the Court below has overlooked and ignored the presumption prevailing in favour of the holder in due course. In view of the provisions of Sec. 139 of the Act, the presumption in favour of the complainant who was the holder of the cheque that the cheque received was of the nature referred in Sec. 138 of the Act for discharge in whole or in part of any debt to any other liability and the accused was required to dislodge that presumption. Neither the respondent has given any reply to the legal notice nor rebutted the evidence of the complainant. Therefore, there is a failure on the part of the trial Court. Once the cheque has been issued and signature has been admitted, then automatically the burden lies on the respondent-accused to prove his case. There is a specific finding that the respondent has borrowed the money and issued cheques. It cannot be said that the complaint is lacking in expressing that the cheques have been issued for discharge of the existing debt. Hence,this appeal.

(3.) HEARD the arguments of learned counsel for the appellant and learned counsel for the respondent.