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2010 DIGILAW 466 (KAR)

D. B. SIDDALINGAIAH v. SHAKUNTALA DEVAPPA

2010-04-05

H.G.RAMESH

body2010
JUDGMENT The complainant is before this Court in appeal aggrieved by the order of acquittal passed by the XVI Additional CMM, Bangalore in CC No. 35096 of 2001 for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. 2. The appellant/complainant filed a complaint against the respondent/accused alleging the during the second week of January 2001, the accused had borrowed a loan of Rs. 6 lacs from him and towards discharge of the same, had issued a cheque dated 1-6-2001 drawn on Central Bank of India, Bangalore. On presentation of the same through his banker, the cheque was returned back with an endorsement 'insufficient funds'. Thereafter, complainant got issued a legal notice to the accused demanding the amount. The notice was received by the accused and she also replied to the said notice on 27-6-2001 through her Advocate denying any such debt. However, since the accused did not pay back the amount, private complaint came to be filed for the offence punishable under Section 138 of the Negotiable Instruments Act before the XVI Additional CMM, Bangalore. Learned Magistrate, took cognizance of the complaint, recorded the sworn statement and ordered issuance of summons. 3. During inquiry, the stand of the complainant is, amount was given in connection with business transaction and that there is an enforceable liability. However, the specific stand of the accused, even in the reply given to the legal notice, is there is no such transaction between the complainant and the accused. In respect of a chit being run by the wife of the complainant, cheques were given as security towards payment of the balance of the chit amount and the cheques were misused due to the difference between the wife of the, complainant and the respondent who were colleagues working in the same institution. It is her stand that unless and until it is demonstrated that there is a legally enforceable debt, mere presumption that the cheque has been issued does not carry any presumptive value regarding enforceable debt and no evidence has been let in this regard nor an iota of evidence is produced. As such, the Trial Court has rightly acquitted the respondent accused and the impugned order does not suffer from any illegality or error. 4. Heard the Counsel representing the parties. 5. As such, the Trial Court has rightly acquitted the respondent accused and the impugned order does not suffer from any illegality or error. 4. Heard the Counsel representing the parties. 5. According to the appellant's Counsel, although the cheque has been duly issued by the respondent, the Trial Court has not accepted the version of the complainant and dismissed the complaint, which is erroneous. It is also submitted- that the amount was borrowed and on demand for repayment, cheque was issued. When it was presented for payment, the same was dishonoured. 6. However, the contention of the respondent's Counsel is that the complainant had no capacity to lend the amount. Rather, there was some transaction only in respect of a chit between the complainant's wife and the respondent. In this connection, the cheque issued was misused. 7. In reply, it is contended by the complainant that the husband of the respondent is carrying on transport business and for the purpose of his business, the amount was borrowed. The same has not been considered by the Trial Court properly. Accordingly, he prays for allowing the appeal and to set aside the order passed by the Trial Court. 8. The Trial Court throughout relying upon the version of the accused, went on stating that the appellant had not proved the capacity to make payment and also the agreement has not been stamped and as such, the claim of the complainant cannot be accepted. The Trial Court has also noted that the complainant came to Bangalore during 1996 and within a short period he could not have gathered Rs. 6 lacs and also stating that the complainant's wife has not been examined as the transaction was between the complainant's 'wife and the respondent, rejected the complaint. 9. In the decision in the case of Tota Singh and Another v State of Punjab, the Apex Court has held that on an order of acquittal is circumscribed by limitation that no interference is to be made with the order of acquittal unless the approach made by the lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the Court below is such which could not have been possibly arrived at by any Court acting reasonably and judiciously and his order is liable to be characterised as perverse. 10. 10. In the case of C. Antony v K.G. Raghavan Nair, it is held, while exercising the appellate power in case of acquittal, the Appellate Court should not only consider every matter on record having a bearing on the question of fact and the reasons given by the Court below in support of order of acquittal. It must express its reasons in the judgment which lead to hold the acquittal as not justified. 11. In the case of Kundan Lal Rallaram v Custodian, Evacuee Property, Bombay, referring to Section 118 of the Negotiable Instruments Act, the Apex Court has held that the presumption is one of law and thereunder, the Court shall presume that the endorsement was so made for consideration and it throws the burden of proof of failure on the maker of the endorsement. 12. Although it is noticed that the cheque has been issued by the accused and bears his signature, as to the contents of the cheque it is said, it is filled up later. Earlier the cheque is said to have been issued in connection with a chit transaction to the wife of the complainant and not to the complainant. In the circumstances, the Trial Court also having noticed the discrepancies and factual background of the complainant and also in the absence of examination of the wife of the complainant, stating that there was a transaction between the accused and the wife of the complainant, has concluded the case. Whether there is genuine transaction of borrowing to the extent mentioned in the cheque or not is immaterial. But the cheque is said to have been issued in connection with some transaction - whether it is in connection with a chit transaction or with regard to borrowing of loan is not made clear except that defense is taken that the cheque was only given as security. 13. However, in view ofthe observation made by the Trial Court that the transaction between the wife of the complainant and the accused has not been denied, it was for the complainant to examine his wife so that the real transaction would have come to light and overcome the doubtful circumstances that has been noted by the Trial Court. 14. In that view of the matter, appeal is allowed. Impugned order is set aside. 14. In that view of the matter, appeal is allowed. Impugned order is set aside. Matter is remitted back to the Trial Court, with a direction to the complainant to examine his wife and thereafter, the Trial Court after hearing the parties, to pass orders in accordance with law.