Burden of Proof

Page 1
[@ SPECIAL LEAVE PETITION(Crl) No(s)4628 OF 2009
H.K.ABDUL ZABBAR Respondent(s)
1 Heard Mr. R.S. Hegde, learned counsel in
support of this petition and Mr. G.V.
Chandrashekhar, learned counsel appearing for the
2 Leave granted.
3 Both the counsel have made their
4 The facts giving rise to this criminal
appeal are as follows _
The respondent had issued four cheques to
the appellant, which had bounced. Out of the five
cheques, a cheque dated 31st July, 2003, was
issued for an amount of ` 1,36,000/-, andPage 2
three other cheques dated 10th August, 2003, 15th
August, 2003 and 18th August, 2003, respectively
were for a sum of ` One lakh each. Since those
cheques got bounced, the appellant filed a
Complaint bearing No.2857 of 2003, in the Court of
Judicial Magistrate, First Class-II, Davangere, in
the State of Karnataka, under Section 138 of the
Negotiable Instruments Act, 1881. The case of the
appellant is that since these cheques were
dishonoured, an appropriate order under the law was
5 The defence of the respondent was that
there was an agreement of sale between the parties,
and that the Complainant was a businessman dealing
in lands, and it was in that transaction that the
respondent had issued some cheques earlier, but
since transaction did not fructify, he had issued a
notice dated 28th July, 2003, not to clear those
cheques. However, this defence could not be
accepted for the simple reason that all the
cheques, which had bounced were issued subsequent
to the said Notice dated 28th July, 2003.
Therefore, no more justification was required for
allowing the Complaint. The defence raised by the
respondent could not be accepted and, therefore,
the Learned Magistrate considered the factual, asPage 3
well as legal position and allowed the Complaint
filed by the appellant herein.
6 The respondent being aggrieved therefrom
filed a Criminal Appeal bearing No.51 of 2005,
before the Additional Sessions Judge, Fast Track
Court-II, Davangere. The learned Judge framed
necessary points for consideration, namely, whether
the impugned judgment of conviction recorded by
JMFC-II, Davangere, could not be sustained under
law and whether the punishment was in any way
disproportionate. The learned Judge decided both
those points in the negative, but passed an order
whereby he partly allowed the appeal. The
conviction recorded by the learned JMFC-II Court,
Davangere, was confirmed, but the sentence was
modified by him as follows:
“The Accused/Appellant for the
offence punishable under Section
138 of the Negotiable Instrument
Act shall undergo simple
imprisonment three months and pay
fine of Rs.5,000/-. In default to
pay such fine he shall undergo
simple imprisonment for a further
period of three months.
The Accused/Appellant shall pay to
the Complainant/Respondent a sum
of Rs.4,50,000/-(Four lakhs Fifty
thousand) as compensation to the
Complainant/Respondent. In
default to pay such compensation
he shall undergo simple
imprisonment for a further period
of six months. It was further
directed that the
Accused/Appellant shall pay thePage 4
fine amount and also the
compensation amount within 45
(forty five) days from this date
and surrender before the J.M.F.C.-
II Court, Davangere, to undergo
the sentence. In case of failure
to do so, the Learned Magistrate
shall take steps to enforce the
7 This judgment and order rendered by the
Addl. Sessions Judge on 4th May, 2006, was carried
by the respondent further in Criminal Revision
Petition No.1295 of 2006. This time, however, the
respondent was successful, and the plea raised by
the respondent based on the Notice dated 28th July,
2003, was accepted by the learned Single Judge of
the Karnataka High Court. The learned Single
Judge referred to the judgment of a Bench of two
Judges of this Court in Krishna Janardhan Bhat Vs.
Dattatraya G.Hegde, reported in [2008(4)SCC 54],
and stated that the burden is always on the
Complainant to establish not only issuance of
cheque, but existence of debt or legal liability.
In the facts of this case, the learned Judge took
the view that the respondent had raised an
acceptable defence. He therefore, allowed the
Revision and set aside the judgment rendered by the
courts below. The accused respondent was
acquitted of the offence under Section 138 of the
Negotiable Instruments Act, 1888, and the amountPage 5
deposited in court was directed to be refunded.
8 Being aggrieved by the judgment of the High
Court dated 8th December, 2008, the present criminal
appeal has been filed. Mr. R.S. Hegde, learned
counsel for the appellant, submitted that the
approach of the learned Judge was erroneous on
facts, as well as on law. As noted above, though,
the respondent had given some cheques earlier, and
had issued a Notice dated 28th July, 2003 not to
encash those cheques, the respondent had issued
the disputed cheques thereafter. Therefore, the
defence taken by the respondent that he had issued
a Notice not to clear those cheques was not tenable
on facts, and there was no defence as to why those
cheques should not have been put into Bank and
9 Secondly, as far as the proposition
canvased on the basis of the judgment in Krishna
Janardhan Bhat (supra) is concerned, it must be
noted that the same has been specifically held to
be not a correct one in paragraph 26 of the
judgment rendered by a three-Judge Bench in
Rangappa vs. Sri Mohan, reported in [2010(11)SCC
441]. The judgment clearly held that the
presumption under Section 139 of the Negotiable
Instruments Act, 1881, includes the presumption ofPage 6
the existence at a legally enforceable debt or
liability. That presumption is required to be
honoured, and if it is not so done, the entire
basis of making these provisions will be lost.
Therefore, it has been held that it is for the
accused to explain his case and defend it once the
fact of cheque bouncing is prima facie established.
The burden is on him to disprove the allegations
once a prima facie case is made out by the
10 Mr. G.V. Chandrashekar, learned counsel
for the respondent, on the other hand, submitted
that in the facts of this case, there was an
agreement between the parties. He contended that
although it is true that the agreement was not
produced, but the fact of it was not disputed by
the appellant himself. That being so, since the
agreement was not being acted upon, the cheques
were not expected to be cleared. He, therefore,
submitted that the order of the High Court was
justified on the facts of the particular case.
11 We have noted the submissions of both the
counsel. As noted earlier, it has clearly come on
record that disputed cheques were given subsequent
to the Notice not to clear the earlier cheques.
There was no explanation as to why the subsequentPage 7
cheques could not have been cleared. The
agreement on the basis of which the submission was
made was not produced in the courts below. That
being so, on facts there was no error on the part
of the learned Magistrate, as well as the learned
Addl. Sessions Judge, in the view that they have
taken. As far as the legal position is concerned,
in our view, that has been settled adequately in
Rangappa’s case(supra), which has specifically
explained the observations in Krishna Janardhan
Bhat (supra).
12 This being the position, we allow this
appeal, set aside the order passed by the learned
Judge of Karnataka High Court and restore the order
passed by the Additional Sessions Judge. The
parties will bear their own costs.
July 23, 2013.


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s