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2009 DIGILAW 232 (KAR)

B. Indramma v. Eshwar

2009-03-25

ARALI NAGARAJ

body2009
Judgment :- (This Criminal Appeal is filed under Section 378(4) of Cr.P.C. praying to set aside the order dated 15.4.2008 in C.C.No.29320/2006 passed by the XII Addl.CMM. Bangalore City acquitting the respondent/accused for the offence P/U/S 138 of N.I. Act and allow the complaint in C.C.No.29320/2006 on the file of the XII Addl.CMM. Bangalore City by convicting the respondent with maximum sentence and to order for payment of maximum compensation out of the fine amount under Section 357 of the Code of Criminal Procedure, 1973 to the appellant/complainant.) The complainant in C.C.No.29320/06 on the file of the learned XXII Addl. Chief Metropolitan Magistrate, Bangalore (hereinafter referred to as the “Trial Court” for short) has challenged in this appeal the judgment and order of acquittal dated 15.4.2008 passed in the said case acquitting the respondent accused of the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the “N.I. Act” for short). 2. Thought this matter is listed today for admission it is taken for final disposal by consent of the learned counsel for both the sides and their arguments on merits are heard. I have perused the impugned judgment and the entire material obtained from the Trial Court. 3. Having heard the learned counsel for the parties the only point that arises for my determination in this appeal is- “Whether the Trial Court was justified in acquitting the accused in the said case (respondent herein) of the offence under Section 138 of N.I. Act by recording its finding that the complainant failed to prove that legally enforceable debt payable to her by the accused was existing as on the date of the cheque in question?” My finding on this point is in the “affirmative” and against the appellant-complaint for the following Reasons 4. Sri. Y.N. Ganesh Bhat, the learned counsel for the appellant-complainant strongly contended that despite the accused admitting the issuing of cheque (Ex.P1) in favour of the complainant, the Trial Court committed serious error in acquitting the accused on the ground that the complainant failed to establish that the complainant lent the amount of Rs.50,000/- to the accused and the latter issued Ex.P1 cheque towards discharge of the said loan amount. 5. Per contra, Sri. 5. Per contra, Sri. Govindraj, the learned counsel for the respondent-accused, while supporting the impugned judgment and order of acquittal, strongly contended that in view of the evidence of PW1 complainant that she had no direct transaction of any kind with the accused and she did not receive the said cheque directly from the accused and that the entire transactions were through her husband (who has not been examined as a witness for the complainant), the Trial Court was quite justified in acquitting the accused of the said offence. 6. On careful reading of the averments in the complaint, it is seen that the complainant has averred therein that during the first week of July 2005, she lent a sum of Rs.50,000/- by way of hand loan to the accused upon his promise and undertaking that he would repay the same within a period of 1½ month. It is further averred in the complaint that when she (complainant) demanded the accused repayment of the said amount of Rs.50,000/-, he issued the cheque in question for the said amount and the same cheque, on being presented to the Bank, came to be bounced. 7. Thus it is the specific case of the complainant in her complaint that it was she who lent the said amount to the accused and who received the cheque in question from the accused towards repayment of the said amount. But she has stated in her evidence that the accused had requested her husband to lend him some money and therefore, her husband had lent the said amount of Rs.50,000/- to the accused and that she did not have any transaction directly with the accused in respect of the lending of the said amount to him. Thus, it is clear that whatever transaction took place, it took place between the husband of the complainant and the accused but not between the complainant and the accused. It is pertinent to note that the complainant has not chosen to get her husband examined as witness for her. This being so, the Trial Court rightly held that the complainant failed to prove the factum of lending of the said amount of Rs.50,000/- to the accused and also the receipt of the cheque in question by the complainant herself towards discharge of the said loan amount. Therefore, I do not find any reasons to interfere with the finding. 8. This being so, the Trial Court rightly held that the complainant failed to prove the factum of lending of the said amount of Rs.50,000/- to the accused and also the receipt of the cheque in question by the complainant herself towards discharge of the said loan amount. Therefore, I do not find any reasons to interfere with the finding. 8. The learned counsel for the appellant-complainant strongly contended that the Trial Court ought to have raised presumption under Section 139 of N.I. Act and held that there existed debt of Rs.50,000/- payable by the accused to the complainant and the accused issued the said cheque in the name of the complainant towards discharge of the said debt. 9. Section 139 of N.I. Act reads as: “It shall be presumed, unless contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 of N.I. Act for discharge, in whole or in part, of any debt or other liability.” On plain reading of this provision, it is clear that in order to raise presumption in favour of the complainant he has to establish the fact that it was he who ‘received’ from the accused the cheque in question and, it is only after this fact is established by the complainant, presumption can be raised that the said cheque was issued by the accused towards discharge of whole or in part of any debt or other liability. When the very factum of delivery of the cheque in question by the accused to the complainant and its receipt by the complainant from the accused itself is seriously disputed by the accused, his admission in his evidence that the cheque in question bears his signature would not be sufficient proof of the fact that he delievered the said cheque to the complainant and the latter ‘received it from the former’ so as to raise the presumption u/s 139 of N.I. Act. 10. 10. Besides this, as observed by Hon’ble Supreme Court in the case of Krishna Janardhan Bhat –vs. Dattatreya G. Hegde reported in AIR 2008 SC 1325 and Areya G. Hegade reported in AIR 2008 SC 1325 ‘Existence of legally recoverable debt’ is not a matter of presumption under Section 139 of the Act.; it merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability. Therefore, the complainant has to establish the fact that there existed legally recoverable debt payable to him by the accused as on the date of the cheque in question. The complainant in the instant case has failed to establish that she lent the said amount of Rs.50,000/- to the accused, and that the accused delivered the said cheque to herself (complainant) on the date on which it is purported to have been issued or on any specific date. Therefore the Trial Court was quite justified in not raising the presumption u/s 139 of N.I. Act in favour of the complainant. 11. For the reasons aforesaid, I am of the considered view that the Trial Court was quite justified in dismissing the complaint of the complainant and thereby acquitting the accused of the said offence. Hence while answering the point raised by me supra in the ‘affirmative’ and against the appellant-complainant, the present appeal is dismissed as being devoid of merits. No order as to costs.