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2010 DIGILAW 661 (KAR)

S. Timmappa v. L. S. Prakash

2010-05-28

K.N.KESHAVANARAYANA

body2010
Judgment : This appeal filed under Section 378 of Cr.P.C. on obtaining special leave from this Court as required by Section 378(5) of Cr.P.C., is directed against the Judgment and Order dated 19.11.2005 passed by the First Additional JMFC, Chitradurga in C.C.No. 1353/95, acquitting the respondent accused of the charge leveled against him for the offence punishable under Section 138 of Negotiable Instruments Act (for short ‘the Act’). 2. The appellant filed private complaint under Section 200 of Cr.P.C. alleging offence punishable under Section 138 of the Act against the respondent herein and one K.R. Vijaya Kumar, inter-alia alleging that the accused re the partners of Chandana Finance Corporation, a registered Firm of partners; they borrowed a sum of Rs. 1,30,000/- from him as hand loan promising to repay the same within two months; for repayment of the said loan amount they issued cheque bearing No.11479 dated 6.3.1995 drawn on Merchants Co-operative Bank, Chitradurga; when the said cheque was presented for encashment, the same was returned unpaid for want of sufficient amount in the account; in spite of service of notice as required by flaw, the accused have failed to pay the amount covered under the cheque as such they have committed the aforesaid offence. 3. The respondent herein upon service of summons appeared before the learned Magistrate and pleaded not guilty for the accusations made against him and claimed to be tried. As the summons and the coercive process issued from the Court could not be served on accused No.2-K.R.Vijaya Kumar, on the memo filed by the complainant, the complaint came to be dismissed as not pressed against the said K.R.Vijaya Kumar and the complaint was continued only against the respondent herein. In support of his case, the complainant examined herself as PW.1 and also examined one more witness as PW.2 and got marked documentary evidence as per Exs.P1 to P.7. 4. During his examination under Section 313 of Cr.P.C, the accused denied all the incriminating circumstances appearing against him in the evidence of the complainant. In defence, the accused examined himself as DW.1 and also examined four other witnesses as DWs. 2 to 5. he produced Exs. D.Q to D.4. 4. During his examination under Section 313 of Cr.P.C, the accused denied all the incriminating circumstances appearing against him in the evidence of the complainant. In defence, the accused examined himself as DW.1 and also examined four other witnesses as DWs. 2 to 5. he produced Exs. D.Q to D.4. The defence of the accused was that at no point of time he along with K.R. Vijaya Kumar borrowed any money from the complainant as alleged and that the cheque in question was not issued by him for discharge of any debt or other liability. It was also his defence that the cheque in question does not bear his signature and the signature appearing therein is a forged one. It was also his defence that he ceased to be the partner of Chandana Finance Corporation with effect from 8.8.1994 itself therefore there was no occasion for him to borrow the loan for the purpose of the firm along with k.r. Vijaya Kumar as such, the whole case of the complainant that the amount was borrowed for the purpose of the firm is false and concocted. 5. During the trial, the disputed cheque was referred to a hand writing expert for examination and report. After examination, the hand writing expert submitted report opining that the signature found in the cheque and the admitted signature of the respondent accused tallies with each other and both the disputed and admitted signatures are made by one and the same person. The hand writing expert was examined as CW.1 and her report came to be marked as Ex.C.1. 6. The learned Magistrate, after hearing both sides, and on appreciation of both the oral as well as documentary evidence, by the Judgment under appeal, held that the complainant has failed to prove the guilt of the accused for the aforesaid offence inasmuch as the complainant has not placed any acceptable evidence to show that he had lent a sum of Rs. 1,30,000/-to the accused, therefore the accused is not guilty of the offence punishable under Section 138 of the N.I. Act. The learned Magistrate was also of the opinion that the defence theory is highly improbable and unacceptable. In that view of the matter the learned Magistrate acquired the accused. Being aggrieved by the said judgment of the acquittal, the complainant has presented this appeal after obtaining special leave. 7. The learned Magistrate was also of the opinion that the defence theory is highly improbable and unacceptable. In that view of the matter the learned Magistrate acquired the accused. Being aggrieved by the said judgment of the acquittal, the complainant has presented this appeal after obtaining special leave. 7. On service of notice of this appeal, the respondent has appeared through his counsel. I have heard the learned counsel for the appellant as well as the counsel appearing for the respondent. Perused the judgment under the appeal. 8. It is now well settled law that the appellate Court while dealing with an appeal against the judgment of acquittal cannot interfere with the said judgment unless it is shown that the judgment is perverse and contrary to the evidence on record or that the trial Court has omitted to consider any material evidence placed on record. As noticed above, it is the definite case of the complainant that the respondent and another were partners of the firm called Chandana Finance Corporation and they borrowed a sum of Rs. 1,30,000/- from him and for discharge of the amount, the cheque in question was issued. No doubt, the respondent disputed the purported signature appearing on the cheque marked as Ex.P.1. However, the Court below on the basis of the report of the hand writing 3xpert has recorded a fining that the said defence cannot be accepted,. the respondent has not seriously disputed the said finding recorded by the court below. Therefore, the evidence on record indicates that the cheque in question-Ex.P.1 bears the signature of respondent-accused and another K.R.Vijaya Kumar claiming to be the Managing Directors of Chandana Finance Corporation. Even according to the complainant, the cheque relates to the account of the partnership firm. Apart from the cheque in question, admittedly the is no other documents evidencing the loan transaction. According to the evidence of the complainant, the amount was borrowed for the purpose of the business of the firm. In other words, the amount was borrowed by the firm and the cheque in question was purported to have been issued by the partnership firm. However the partnership firm was not made an accused by the complainant. 9. Reading of the entire complaint do not indicate that the amount was borrowed by partnership firm. Thus there is inconsistency and discrepancy in the case of the complainant in this regard. However the partnership firm was not made an accused by the complainant. 9. Reading of the entire complaint do not indicate that the amount was borrowed by partnership firm. Thus there is inconsistency and discrepancy in the case of the complainant in this regard. This had been seriously viewed by the Court below to disbelieve the case of the complainant. No doubt, under Section 139 of the Act there is a presumption that the holder of the cheque has received it for the discharge of debt or other liability. It is now well settled law by catena of decisions of the Apex Court and this Court that the existence of debt is not the subject matter of presumption under Section 139 iof the Act. Therefore, the drawee of the cheque has to prove the existence of debt or liability and it is only upon such proof of existence of the debt, the presumption under Section 139 of the Act to the effect that the cheque has been issued for discharge of such debt or other liability can be drawn. Of course, as per clause (a) of Section 118 of the Act, there is resumption that whenever a Negotiable Instrument is made or drawn it is so drawn or made for consideration. As per clause (b) of Section 118 of the Act whenever a Negotiable Instrument bears a date, it shall be presumed that it was so made or drawn on such date. This Court in the case of Shivamurthy v. Amruthraj reported in ILR 2008 Kar 4629 : (2008 (6) AIR Kar R 432) has held that by combined effect of reading of clauses (a) and (b) of Section 118 of the Act would be whenever a Negotiable Instrument bears a date it has to be presumed that it has been so made or drawn on such date and for consideration. It has been further held in the said decision that if in a given case the specific case of the complainant is that no amount was paid on the purported date of issuance of cheque, the presumption under clause (a) of Section 118 of the Act that it is made or drawn for consideration, stood rebutted and it is for the drawee of the cheque to prove passing of consideration. 10. 10. In the case on hand, the complaint is silent as to the date on which the alleged loan was advanced. In the complaint, it is merely stated that the accused borrowed Rs.,30,000/- as hand loan from the complainant. The3 complaint do not state the date on which the complainant advanced the loan of Rs.1,30,000/-to the accused. According to the complaint averments, the cheque was issued on 6.3.1995./ Even in examination-in-chief, the complainant has not spelled out the date on which the loan was advanced. However in the cross-examination, it is elicited from him that loan was advanced on 6.1.1995. Perused of Ex.P. cheque indicates that it bears the date 6.3.1995. Therefore, according to clause (b) of Section 118 of the Act it was deemed to have been drawn on 6.3.1995. From the above, it is clear that no consideration has passed under the cheque Ex.P.1 on 6.3.1995 as even according to the complainant, the loan was advanced on 6.1.1995. Therefore, the presumption under clause (a) of Section 118 of the Act stood rebutted. The perusal of the evidence on record do not satisfactorily establish that the complainant has lent a substantial amount of Rs.1,30,000/-to the accused. As noticed above, except the cheque Ex.P.1, there is no other document evidencing advancement of loan of Rs.1,30,000/-. It is highly difficult to believe that a businessman like the complainant who claims to be a flower vendor and an exporter of flowers, would advance a substantial amount of Rs.1,30,000/-without taking any document to evidence such transaction. 11. Section 269 (ss) of the Income-tax Act directs that any monetary transaction involving Rs.20,000/- and above shall be by means of an account payee cheque. According to the complainant the loan amount was paid in cash. Thus there is violation of provisions of Section 269(ss) of the Income Tax Act. In addition to this, the complainant has not placed any evidence to indicate that he had financial capacity to advance substantial amount of Rs. 1,30,000/-. Though the complainant is his cross-examination has stated that he holds a bank account in Merchants Co-operative Bank, Chitradurga, he has not produced an iota of evidence to show that he had substantial amount in his bank account to lend. No evidence is produced on record to show that the complainant is a flower merchant and an exported of flowers. Though the complainant is his cross-examination has stated that he holds a bank account in Merchants Co-operative Bank, Chitradurga, he has not produced an iota of evidence to show that he had substantial amount in his bank account to lend. No evidence is produced on record to show that the complainant is a flower merchant and an exported of flowers. Therefore, the learned Magistrate is justified in doubting the financial capacity of the complainant to lend substantial amount of rs.1,30,000/-. Thus the complainant has not been able to satisfactorily establish the lending of Rs.1,30,000/- to the accused. 12. On the contrary, the accused has placed oral as well as documentary evidence, which would probabalise his defence theory Ex.DD.1 is a document purported to have been executed by K.R.Vijaya Kumar the other partner in favour of respondent-accused. According to the contents of this document, the respondent-accused retired from the said firm with effect from 8.8.1994 after settling the accounts of the firm. To prove the execution of Ex.D.1 accused has examined two witnesses who have attested this document. No doubt Ex.D.1 is not written as a stamp paper but the signature of K.R.Vijaya Kumar is found on revenue stamps. DWs. 2 and 3 who claim to be the attestors to this document have asserted that in their presence K.R.Vijaya Kumar signed this document. Of course, the fact that respondent-accused retired from the said firm has not been intimated to the Registrar of Firms as required by law. Therefore legally it has to be presumed that the respondent continued as partner of the firm. Nevertheless this document would probabalise the contention of the respondent-accused that he ceased to be the partner of the firm from the date of August 1994 itself and therefore there was no occasion for him to borrow any money from the complaint. The Court below accepting the defence theory has held that the complainant has failed to prove the guilt of the accused. To satisfy myself about the correctness of the judgment passed by the Court below. I have scanned the evidence placed on record. I am convinced that the Court below. I have scanned the evidence placed on record. I am convinced that the Court below has properly appreciated the evidence. The judgment of the Court below is in accordance with law and therefore there is no perversity in the judgment. 13. I have scanned the evidence placed on record. I am convinced that the Court below. I have scanned the evidence placed on record. I am convinced that the Court below has properly appreciated the evidence. The judgment of the Court below is in accordance with law and therefore there is no perversity in the judgment. 13. The learned counsel for the appellant is nor in a position to point out that the Court below has omitted to consider any material available on record. Therefore, I do not find any ground to interfere with the judgment of the Court below acquitting the respondent-accused. In view of the above discussion. I find no merit in the appeal. 14. Accordingly, the appeal is dismissed.