ASHOK BHUSHAN,J. - (1.) This is an appeal by accused challenging the judgment of the High Court of Karnataka dated 04.07.2018 by which judgment the Criminal Appeal filed by the complainant against the acquittal of the accused has been allowed and the accused has been convicted under Section 138 of the Negotiable Instruments Act, 1881 and sentenced to fine of Rs. 8,00,000/-, in default of which to undergo simple imprisonment for three months.
(2.) The brief facts of the case for deciding the appeal are:- 2.1 The complainant gave a notice dated 12.03.2012 to the accused, the appellant stating dishonour of cheque dated 27.02.2012 for an amount of Rs. 6,00,000/-for want of sufficient funds. Thereafter, on non-payment of the amount, a complaint dated 25.04.2012 was filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "Act, 1881). 2.2 Allegation in the complaint was that the accused requested the complainant to lend a hand loan to meet out urgent and family necessary for a sum of Rs. 6,00,000/-. Complainant lent hand loan of Rs. 6,00,000/-dated 27.02.2012 in favour of the accused. A cheque dated 27.02.2012 for Rs. 6,00,000/-was given by the accused, but the same was returned by the bank with the endorsement "Funds Insufficient" on 01.03.2012. 2.3 After notice dated 12.03.2012, which was served on the accused on 13.03.2012, a complaint was filed. PW1 filed his examination-in-chief and was also cross-examined on behalf of the accused. The complainant in support of the complaint filed original cheque dated 27.02.2012, original cheque return memo dated 01.03.2012, office copy of the notice dated 12.03.2012, postal receipt dated 12.03.2012, acknowledgment letter issued by the Department of Post dated 16.04.2012 and letter to Head Post Office dated 11.04.2012. The accused in support of his defence filed Ex.D1 - certified copy of plaint in O.S. No. 148 of 2011, Ex.D2-Certified copy of the private complaint No. 119/2012 in CC No. 2298 of 2012 and in Ext.D3, certified copy of registered sale agreement. 2.4 The trial court framed following two questions:- 1. Whether the complainant proves beyond all reasonable doubts that, the accused had issued a cheque bearing No. 839374 dated 27-02-2012 for Rs.6,00,000/- of Pragathi Gramin Bank, Nijalingappa Colony Branch, Raichur in favour of complainant, towards discharge of legally enforceable debt or liability and the same was dishonored for ' Funds Insufficient' and even after deemed legal notice the accused has not paid the debt covered under the above said cheque and thereby committed an offence punishable Under Section 138 of Negotiable Instruments Act? 2. What Order? 2.5 The trial court after considering the evidence and material on record held that if the accused is able to raise a probable defense which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. By judgment dated 20.02.2015, the accused was acquitted for the offence under Section 138. Complainant aggrieved by said judgment filed a Criminal Appeal under Section 378(4) of Code of Criminal Procedure. The High Court set aside the judgment of the trial court and convicted the accused for the offence under Section 138. Accused aggrieved by judgment of the High Court has come up in this appeal.
(3.) Shri S.N. Bhat, learned counsel for the appellant submits that accused has successfully rebutted the presumption under Section 139 and has raised probable defence, which was accepted by the trial court after considering the material on record. The High Court erred in setting aside the acquittal order. The accused has questioned the financial capacity of the complainant and without there being any proof of financial capacity, the High Court erred in observing that judgment of the trial court is perverse. It is submitted that burden of proof on accused under Section 138 is not a heavy burden as is on a prosecution to prove the offence beyond reasonable doubt. It is submitted that the complainant being a retired employee of Karnataka State Road Transport Corporation, who having retired in 1977 and encashed his retirement benefits of Rs. 8,00,000/-, there was no financial capacity. It is submitted that complainant has filed cases under Section 138 against other persons also. Complainant had also made a payment of Rs. 4,50,000/- for the agreement of sale. The complainant was also a witness of a sale agreement executed by accused, where he received an amount of Rs. 15 lakhs as consideration. There was sufficient material on record to discharge the burden and the High Court erred in setting aside the acquittal order.;