TaxTMI 
TaxTMI 
2026 (7) TMI 1181
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....assed by the High Court [High Court of Karnataka at Bangalore] dated 10.10.2013 in Criminal Appeal No. 228 of 2009 [Criminal Appeal No. 228 of 2009 : K. Manjunath vs. Sri Gopalaiah]. 3. The appellant was prosecuted for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 [N.I. Act] on account of dishonor of two cheques drawn on Vijaya Bank, Vidyanagar Branch. One cheque was of Rs. 8,00,000/- (Rupees Eight lakhs) and the other was of Rs. 50,000/- (Rupees Fifty Thousand). Both cheques returned unpaid with endorsement 'insufficient funds' in the account. The complainant served the requisite notice of demand on the accused. Despite service of notice, the requisite amount was not paid. As a result, the respondent fi....
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....t which deals with the appeal of the respondent is extracted below: "17. Regarding Crl.A. No. 228/09: This appeal is directed against the judgment in C.C. No. 417/2006 dated 12.02.2009 on the file of the Addl. Civil Judge (Jr.Dn.) Devanahalli acquitting the respondent/accused Gopalaiah of the offence punishable under section 138 of the N.I. Act. Records reveal the complainant sought prosecution of the respondent on the allegation that the accused had approached him for loan of Rs.8,50,000/- in the month of November 2005 promising to repay the same with interest within three months. After expiry of the period, when the complainant approached the accused, he voluntarily, issued impugned cheques on 13.02.2006 for Rs. 8,00,000....
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....earned trial Judge also noticed from the evidence of the accused that the accused had sufficient money with him because he and his brother had entered into an agreement of sale of their immovable property and received Rs.7,50,000/- on 24.10.2005. The accused had further received Rs.16,00,000/- in the month of January 2006 as seen from D1 and D2. Thus, the learned trial Judge has opined since the accused had sufficient money with him at the relevant period the burden had shifted on the complainant to establish that the accused had borrowed money. In para 10 of his judgment the trial judge has opined that the complainant has tended ocular evidence regarding payment of Rs.8,50,000/- to the accused without any document. The complainant has not ....
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....decision in Rangappa versus Sri Mohan (2010) 11 SCC 441, the High Court concluded that the presumption mandated by Section 139 include the existence of a legally enforceable debt or liability and to raise that presumption, the N.I. Act nowhere requires that complaint must contain averments about proof of capacity of the lender. Besides above, the High Court observed that Section 269SS refers to the recipient of money and not the lender. 9. Based on the above conclusions, the High Court remanded the matter for the Trial Court to decide it afresh after considering the evidence brought on record. 10. Aggrieved by the order of remand, on behalf of the appellant it is submitted that the High Court failed to consider that there was no good ....
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....heque was not issued to discharge a legally enforceable debt lies on the drawer. Such presumption arises not only under Section 139 of the N.I. Act but also under Section 118 (a) of the Act. In that light it was submitted that since the trial court proceeded by wrongly putting the burden on the complainant to prove legally enforceable debt, the High Court was justified in remanding the matter to the trial court for a fresh consideration. 12. We have accorded due consideration to the rival submissions and have perused the materials on record. 13. As the order passed by the High Court is one of remand, it would not be appropriate for us to appreciate evidence and thereby express opinion on the merits of the case. Suffice to state that o....
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....ame to be issued and as to how it came to be with the payee thereof. Circumstance that the payee had no funds to create a legally enforceable debt of the amount equivalent to the cheque is a circumstance, if proved, which may help in dislodging the presumption. 15. In the instant case, it appears, the complainant had led evidence to show his capacity to lend. However, the trial court did not properly consider the evidence on record. 16. In such circumstances, we are of the view that the High Court committed no error in remanding the matter to the Trial Court. The appeal is, therefore, dismissed. The Trial Court shall proceed expeditiously bearing in mind that this complaint relates to the year 2006. 17. All pending applications sha....