Cheque Bounce Case under Section 138, Supreme Court upheld the order of Trial Court and reversed High Court Judgment
July 2, 2018
A Bench of Judges, Justice A. K. Sikri and Justice Ashok Bhushan have allowed the Criminal Appeal filed by the Complainant in Kishan Rao v. Shankargouda, Criminal Appeal No. 803 of 2018. This appeal has been filed against the judgment and order of the High Court dated 18.03.2016 by which judgment, Criminal Revision Petition filed by the respondent-accused was allowed by setting aside the order of conviction and sentence recorded against the accused under Section 138 of the Negotiable Instruments Act, 1881.
The appellant (complainant) and the respondent (accused) were known to each other and had good relations. Accused approached the complainant for a loan of Rs.2,00,000/- for the purpose of his business expenses and promised to repay the same within one month. On 25.12.2005, complainant had paid sum of Rs.2,00,000/- as a loan. For repayment of the loan accused issued post dated cheque dated 25.01.2006 in the name of complainant for the amount of Rs.2,00,000/-. The cheque was presented for collection at Bank of Maharashtra Branch at Gulbarga which could not be encashed due to insufficient funds. At the request of the accused the cheque was again represented on 01.03.2006 for collection which was returned on 02.03.2006 by the Bank with the endorsement "insufficient funds".
A notice was issued by the complainant demanding payment of Rs.2,00,000/- which was received by the accused on 14.03.2006 to which reply was sent on 31.03.2006. A complaint was filed by the appellant alleging the offence under Section 138 of the Act, 1881. Cognizance was taken by the Magistrate. Accused stated not guilty of the offence, hence, trial proceeded. In order to prove the guilt, the complainant himself examined as PW.1 and examined two other witnesses PW.2 and Pw.3. He filed documentary evidence Exhs.P1 and P6, statement of the accused was recorded under Section 313 Cr.P.C. Thereafter, the case proceeded for defence evidence. Accused neither examined himself nor produced any evidence either oral or documentary. In the reply to the notice which was sent by the complainant, it was alleged that the said cheque was stolen by the complainant. The complainant was cross-examined by the defence. In the cross-examination defence denied accused's signatures on the cheque. The trial court rejected the defence of the accused that cheque was stolen by the complainant. The trial court drew presumption under Section 139 of the Act, 1881 against the accused. Accused failed to rebut the presumption by leading any evidence on his behalf. The offence having been found proved, the trial court convicted the accused under Section 138 of the Act, 1881 and sentenced him to pay a fine of Rs.2,50,000/- and simple imprisonment for six months.
The appeal was filed by the accused against the said judgment. The Appellate
Court considered the submissions of the parties and dismissed the appeal by
affirming the order of conviction.
Criminal Revision was filed by the accused in the High Court. The High Court by
the impugned judgment has allowed the revision by setting aside the conviction
order. The High Court held that the accused has been successful in creating
doubt in the mind of the Court with regard to the existence of the debt or
liability. Complainant aggrieved by the judgment of the High Court has come in
this appeal.
While allowing the appeal filed by the Complainant the Supreme Court said that "we are of the view that the High Court committed error in setting aside the order of conviction in exercise of revisional jurisdiction. No sufficient ground has been mentioned by the High Court in its judgment to enable it to exercise its revisional jurisdiction for setting aside the conviction."
Read the Judgment of Supreme Court of India in Kishan Rao v. Shankargouda dated 2.7.2018