- (1.)Heard the learned Counsel for the appellant and the Counsel for the respondent.
(2.)The appellant was the complainant alleging an offence punishable under section 138 of the Negotiable Instruments Act, 1881 (Hereinafter referred to as the 'NI Act', for brevity). It was the case of the complainant that he is engaged in agricultural business and that the respondent accused was known to him and the respondent had borrowed a sum of Rs.25,000/- on 3.7.1999, with an assurance that the amount would be repaid in a short while, but there was default. Therefore, when further demands were made for repayment, he had issued a cheque for Rs.25,000/- dated 6.9.1999, which when presented for collection, was returned dishonoured for want of sufficient funds in the account of the accused. Therefore, after issuance of necessary notice under section 138 of the NI Act, a complaint was filed.
The trial court having taken cognizance had issued summons. Respondent no.1 entered appearance and contested the matter and set up a defence claiming that the cheque was never issued in favour of the appellant, but was issued in favour of another in respect of some other transaction and that there was no legal liability outstanding as against the present appellant and the cheque was sought to be misused by the appellant in collusion with another, who was in possession of the same. It is in this background that the trial court had framed the following points for consideration:-

"1. Whether the complainant proves that the accused issued false cheque bearing No.716163 dated 6.9.1999 for Rs.25,000/- towards the discharge of his liability to repay the loan amount, which came to be dishonoured for want of sufficient funds in his account, and thereby committed an offence under section 138 of the NI Act

2. Whether the accused proves that the complainant has misused the blank cheque given as security to DW.1 by the accused

3. Whether the complainant is entitled to the reliefs claimed -

The court below answered points 1 and 3 in the affirmative and point no.2 in the negative and convicted the respondent and sentenced him to pay a fine of Rs.3,000/- and compensation of Rs.25,000/- to the complainant. The same having been challenged in appeal, the appellate court accepted the grounds raised to the effect that there were other transactions involving other persons, which the respondent had established by tendering evidence and accordingly reversed the judgment of the trial court and acquitted the accused. It is that which is under challenge in the present appeal.

(3.)The learned Counsel for the appellant would point out that the cheque being issued on the account of the respondent is not disputed nor is the signature of the respondent denied on the cheque in question. The contention was that there was no transaction between the appellant and the respondent and that the cheque, in fact, had been issued in some other transaction to one Basavaraj , who in turn, handed it over to Mallikarjun Isri. This had been endorsed on the counter foil of the cheque book and therefore, on the evidence of the concerned persons, the court below has accepted the defence and held that the cheque was misused by the complainant and that there was no transaction as between the complainant and the accused and has reversed the judgment, which is not tenable.
The learned Counsel would point out that in terms of section 139, the presumption is in favour of the holder of a cheque, to the effect that the cheque in question was issued in discharge of a legal liability. The presumption is rebuttable presumption and in that regard, the accused would have to tender cogent evidence in support of any defence set up to the effect that there was no outstanding liability and the cheque was not issued in discharge of any legal liability. In the instant case on hand, the mere assertion of other independent transactions between the respondent and others, could not be established by mere oral evidence of such persons. The transactions in question ought to have been established by reference to other independent documents. There is no admission by the complainant of any such transaction. Therefore, it was incumbent on the respondent to have produced material for the trial court in support of his defence and to have examined one Basavaraj to support the claim that there were other transactions in respect of which, a cheque had been issued and that by itself would not enable the respondent to claim that there was no outstanding liability. The several documents produced of criminal cases having been initiated, were also not relevant, in the absence of the respondent establishing that there were independent transactions, in respect of which, the cheque had been issued and therefore, the learned Counsel would submit that the appellate court was not justified in reversing the findings of the trial court.