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Tukaram Vs. Dileep and Ors. (Neutral Citation: 2024:BHC-AUG:10507) - (High Court of Bombay) (11 Jun 2024)

Fundamental burden is on complainant to prove existence of legally enforceable debt

MANU/MH/3472/2024

Criminal

The original complainant, who instituted proceeding under Section 138 of the Negotiable Instruments Act, 1881 (N.I. Act), is dissatisfied by the judgment and order of acquittal passed by the trial Court

Section 138 of the N.I. Act has three essential ingredients viz.;Firstly, that there is legally enforceable debt.Secondly, that the cheque was drawn from account of bank for discharge in whole or in part any debt or other liability which presupposes a legally enforceable debt.Thirdly, cheque so issued has been dishonoured.

Fundamental burden is on complainant to prove existence of legally enforceable debt and only if it is so proved, only then presumption available under law i.e. under Sections 118 and 139 of N.I. Act, automatically comes into play. The Hon'ble Apex Court in the case of Krishna Janardhan Bhat v. Dattatraya Hegde, has also clarified that existence of legally enforceable debt is not a matter of presumption. It merely raises a presumption in favour of the holder of the cheque that the same has been issued for discharge of any liability or debt. Only when accused fails to rebut the presumption, offence under Section 138 can be said to be brought home.

Initial burden on complainant is to first prove the foundational facts alleged by him regarding so called transaction of sale and purchase of sugarcane buds. On re- appreciating the entire evidence, it is noticed that, evidence of complainant is conspicuously silent as to exactly when and where said transaction took place. There is no oral or documentary supportive evidence of complainant to be involved in the business of sale of sugarcane buds and he selling buds to accused as is claimed by him. Where this transaction took place is not coming on record. There is no evidence to suggest that accused was also owning and possessing land which was available for cultivation of sugarcane crop.

Complainant failed to establish and demonstrate transaction and sale of sugarcane buds to accused worth Rs.46,000 and accused issuing cheque towards price of the buds and not otherwise. Acquittal from offence under Section 138 of N.I. Act cannot be said to be illegal or against evidence. No case is made out to interfere. Appeal dismissed.

Tags :   PRESUMPTION  ACQUITTAL  LEGALITY

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