Bharatraj vs Ashok and Others

Huluvadi G. Ramesh, J.—This is a complainant''s appeal against the order of acquittal passed by the JMFC, Basavanabagewadi in CC 588/2004 on 3.5.2010 for the offence punishable under S. 138 of the Negotiable Instruments Act. The 5th accused/5th respondent - Branch Manager of Syndicate Branch is shown to have been discharged. In the connected appeal filed by the complainant against Ashok and Sachin who are accused 1 and 3, it is stated the 1st accused is dead and 3rd accused is alive. The appeal so far as 1st accused is concerned, abates and the only surviving accused is Sachin/3rd accused.

While disposing of Crl. A. 3607/2010 on 26.11.2013, it is noted the appellant is the guarantor who has discharged the loan/amount borrowed by accused 1 and 3 to the financier, due to non-payment by the accused. The reasoning given by the trial court regarding payment is, it should have been under a registered document and opining so, acquitted the accused. This court while negating the said contention and the finding of the trial court on the point of procedure, has held that complainant being the guarantor has returned the amount, the trial court ought to have proceeded throwing the burden on the accused regarding rebuttal of presumption. In stead, it has commented on the procedure that is followed and the status of the complainant that he is a public servant. So observing the finding was reversed and ultimately the matter was remitted to the trial court for disposal of the same, according to law.

As this appeal also arises out of the same order and judgment, the impugned order of acquittal is set aside. Matter is remitted to the trial court for disposal, in accordance with law holding that the initial burden is on the accused to rebut the presumption as per S. 138 and 139 of the Negotiable Instruments Act and on discharge of initial burden by the accused, it would be of course, on the guarantor or the complainant to satisfy the court. Since the 1st accused is no more, the other surviving accused i.e., 3rd accused has to face trial or he is also permitted to go for a compromise, if he is so advised. Appeal is allowed. Send back the records.