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2011 DIGILAW 1152 (KAR)

Veerayya v. G. K. Madivalar

2011-11-30

V.JAGANNATHAN

body2011
JUDGMENT : V. Jagannathan, J: 1. This Criminal Revision Petition is by the accused, who has been convicted by the Trial Court for the offence under Section 138 of the Negotiable Instruments Act and the said judgment and the consequent sentence of fine of Rs.2,00,000/- imposed being confirmed by the lower appellate Court by dismissing the petitioner’s appeal. 2. The facts of the case in short are that, the respondent filed a complaint alleging an offence under Section 138 of the N.I.Act on the footing that the petitioner herein had borrowed a loan of Rs.2,00,000/- from the complainant and towards the discharge of the said loan amount, the petitioner had issued a cheque for Rs.2,00,000/- and the said cheque dated 22.8.2005, on presentation, was returned with the endorsement insufficient funds. After issuing notice to the petitioner and receiving no response, the complainant approached the Trial Court by way of a private complainant under Section 200 of the Cr.P.C. 3. Before the Trial Court, evidence was let in by the complainant by examining himself as P.W.1 and two more witnesses and producing four documents. No evidence was placed by the accused in his defence. The Trial Court, after appreciating the evidence on record, held that the complainant had established the necessary ingredients of Section 138 of the N.I.Act and as the cheque was signed by the accused, the Trial Court accepted the complainant’s case and the petitioner was convicted and sentenced as aforesaid. The lower appellate Court agreed with the Trial Court. 4. Learned Counsel Shri N.Chandrashekharayya for the petitioner, assailing the concurrent findings of the Courts below, put forward four main grounds. The first one is that, there is no proof of the complainant having lent Rs.2,00,000/- to the petitioner because, no receipt or any document was obtained by the complainant the accused. Secondly it is argued that the complainant had no capacity to advance Rs.2,00,000/-because, the complainant was a tailor by occupation. It is also argued in the same context that the complainant does not even know the name of the person who had lent Rs.50,000/- to the complainant. 5. Secondly it is argued that the complainant had no capacity to advance Rs.2,00,000/-because, the complainant was a tailor by occupation. It is also argued in the same context that the complainant does not even know the name of the person who had lent Rs.50,000/- to the complainant. 5. It is then contended that no notice was served on the accused because, the evidence placed is that, the intimation was left with the accused by the postman but, at the same time, Ex.P-4 also reveals that the endorsement on the postal cover was that the petitioner was out of station. Therefore, when the petitioner was not in station, the question of the postman leaving the intimation with the petitioner to collect the postal cover within seven days cannot be accepted. 6. The fourth ground put forward is that, the complaint itself is a premature one inasmuch as the complaint was filed on 16.9.2005 and if the notice was served on 1.9.2006 as contended by the complainant, then, a clear fifteen days ought to have been given before filing the complaint. For this reason also, the complaint, therefore, will have to be termed as premature. 7. In the light of the aforesaid contentions put forward and also relying on this Court’s reported in ILR 2008 Karnataka 4629, it is argued that the Courts below committed an error in convicting the petitioner when there was absolutely no evidence to show the capacity of the compliant to advance the loan amount of Rs.2,00,000/-. One other ground put forward is that, the complainant, in respect of the very same transaction of lending Rs.2,00,000/- loan to the petitioner, had also filed a suit for recovery of money and the said suit, O.S.No.213/2010, was also dismissed by the Trial Court by holding that the complainant had failed to establish that the had advanced Rs.2,00,000/- to the petitioner herein. For all these reasons, the learned Counsel sought for the petition being allowed. 8. For all these reasons, the learned Counsel sought for the petition being allowed. 8. On the other hand, learned Counsel Shri B.V.Somapur for the respondent supported the view taken by the Courts below and argued that the notice was served on the complainant or rather deemed to have been served because of the evidence of the postman that intimation was left with the accused to collect the postal cover within seven days and, as the accused did nor collect the postal cover, it is, therefore, deemed that there was service of notice on the accused. In this regard, the evidence on record as well as the observations of the Trial Court were referred to by the learned Counsel for the respondent. 9. As far as the capacity of the complainant to advance Rs.2,00,000/- is concerned, it is submitted that merely because the comp0lainant is a tailor by occupation, that is no ground to take the view that the complainant had no capacity to advance the loan amount. Secondly it is argued that, apart from being a tailor, the complainant also has got sufficient land as has been deposed in the evidence and, therefore, the complainant also had the other source of income. It is, therefore, argued that the question of the complainant not having the capacity to advance Rs.2,00,000/- does not arise. 10. As far as the cheque is concerned, it is argued that if the accused had not taken the loan of Rs.2,00,000/- there would have been no occasion for the accused to give cheque to the complainant,. Finally, so far as the civil suit is concerned, the submission made is that, the complainant has preferred an appeal questioning the judgment of the Trial Court and the said appeal is pending. For all these reasons, the learned Counsel sought for dismissal of the revision petition. 11. Having thus heard both sides, whether the petitioner has made out a case for this Court to interfere with the concurrent findings of the Courts below is the point for consideration. 12. In the light of the arguments put forward by the learned Counsel for the petitioner, the first and foremost point to be considered is whether the complainant had the financial capacity to advance Rs.2,00,000/-loan to the petitioner. 12. In the light of the arguments put forward by the learned Counsel for the petitioner, the first and foremost point to be considered is whether the complainant had the financial capacity to advance Rs.2,00,000/-loan to the petitioner. It is the case of the complainant that he gave Rs.2,00,000/-to the petitioner because, the petitioner wanted the said amount for his legal necessity and for development of fair price shop and grocery business. The complainant does not say in his evidence as to on what date he gave the loan of Rs.2,00,000/-. Secondly, the complainant also does not know from whom the borrowed Rs.50,000/- to give the amount to the accused. 13. Thirdly, the complainant has admitted in his cross-examination that for having advanced Rs.2,00,000/- to the accused, the complainant did not take any document whatsoever, neither a receipt nor a promissory note was obtained from the accused. In the face of the said evidence of the complainant and his occupation as that of a tailor, in the face of the complainant not placing sufficient evidence to show that he had the financial capacity to advance Rs.2,00,000/-to the petitioner, it has to be held that the complainant had no capacity to advance Rs.2,00,000/- to the petitioner. 14. As far as the argument of the learned Counsel for the respondent that the complainant has got landed property and, therefore, had income from that source is concerned, both in the complaint as well as in the evidence before the Court, the complainant does not whisper anything about the income derived by him from his landed property. No details are given as to the extent of land owned by the complainant or the type of crop grown or the income derived from the said land. No bank pass book is produced to show that, on the day when the complainant advanced Rs.2,00,000/-to the accused, the complainant ha that much of amount in his band amount. 15. It may not be out of place to mention at this place that the learned Counsel for the petitioner has drawn my attention to the observations of the Trial Court in the suit filed by the complainant, wherein the Trial Court has observed that at no point of time, was there a balance of more than Rs.5,000/-in the account of the complainant. That apart, the Trial Court has also observed that the tailor shop was run on the footpath with a tin shed being put. Though this Court is not expected to look to the observations made in the civil suit which was dismissed, even on the basis of the evidence placed in the instant case before the Trial Court, there is absolutely no material placed by the complainant to show that, on the day he advance Rs.2,00,000/- loan to the accused, he had that much of bank balance. 16. Another aspect to be taken note of is that, this Court, in the case of Shiva Murthy Vs. Amruthraj, reported in ILR 2008 Karnataka 4629, has also observed that no prudent man would lend substantial amount of Rs.75,000/- without charging interest and the provisions of Section 269-SS of the Income Tax Act had not been followed and, therefore, the Court, in the instant case, declined to accept the case of the complainant with regard to the loan transaction. In the instant case, the amount involved is not Rs.75,000/- but Rs.2,00,000/- and even in this case also, there is no evidence of the complainant that the said amount was given as loan by charging interest. It is, therefore, difficult to accept the complainant’s case that he lent Rs.2,00,000/- without charging any interest and that too the said amount in cash and not by means of any account payee cheque. For all these reasons, the contention of the learned Counsel for the petitioner that the complainant had no capacity to advance Rs.2,00,000/- loan has to be accepted. 17. As far as the cheque in question is concerned, thought the Courts below have held that the cheque is not in dispute and the signature on the cheque also has not been disputed by the accused and the cheque was returned by the bank with insufficient funds endorsement, yet, in view of the suggestion put to the complainant on behalf of the petitioner that the cheque had been given to the Counsel for the petitioner and the said cheque has been misused by the complainant and his advocate, yet, there being no evidence placed to prove this, as rightly submitted by the learned Counsel for the respondent, mere issuance of cheque was issued towards discharge of a legally recoverable debt. In the instant case, as the very advancement of loan of Rs.2,00,000/-by the complainant to the accused itself is doubtful, the question of the cheque being issued towards discharge of the debt, therefore, does not arise. 18. Coming to the contention concerning service of notice, both the Courts below have held that the notice was addressed to the proper address of the accused and the postal authorities waited upto 1.9.2005 as the accused did not claim the notice and the further material placed by the complainant that the intimation was given on 25.8.2005 and the accused did not collect the notice, therefore, leads to the conclusion that there was deemed service of notice on the accused. Therefore, the contention put forward in this regard has to be rejected for the above reasons and also in view of the reason given by the Trial Court at paragraph 12, 13 and 14 of its judgment. 19. As far as the complaint being filed prematurely is concerned, in view of the settled position in law that in such an event, the Court will have to either wait for the period to be over or return the complaint to the complainant for re-presentation. In the instant case, as the period of 15 days got over and as the Court proceeded to record the evidence in this regard thereafter, this ground put forward by the learned Counsel for the petitioner also does not appeal to me as having any force behind it. 20. One other aspect to be taken note of is the submission concerning the suit filed by the respondent. The learned Counsel for the petitioner has placed the judgment in O.S.No.213/2010, which was in respect of the suit filed by the respondent for recovery of money and the said suit was dismissed by the Trial Court. Though the learned Counsel for the respondent submits that the respondent has preferred an appeal against the dismissal of the suit, the fact that the Trial Court had dismissed the suit also lends support to the argument of the learned Counsel for the petitioner that the complainant had no capacity to advance Rs.2,00,000/- loan to the petitioner. 21. For the aforementioned reasons, the judgments of the Courts below cannot be sustained in law as the complainant has failed to place convincing evidence, to show that he had the capacity to advance Rs.2,00,000/-to the accused. 21. For the aforementioned reasons, the judgments of the Courts below cannot be sustained in law as the complainant has failed to place convincing evidence, to show that he had the capacity to advance Rs.2,00,000/-to the accused. Therefore, when there is no evidence placed to show that the accused had borrowed Rs.2,00,000/-from the complainant, the question of the accused being liable to pay any amount to the complainant does not arise. 22. The revision petition, therefore, stands allowed and the judgments of the Courts below are set aside. The petitioner is acquitted of the offence under Section 138 of the N.I. Act. The amount in deposit, if any made by the petitioner, be refunded to him.