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2013 DIGILAW 1430 (KAR)

Sajjid Wodeyar v. T. K. Shareef

2013-12-20

N.ANANDA

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Judgment : 1. The learned trial Judge had acquitted respondent (hereinafter referred to as 'accused') of an offence punishable under section 138 of the Negotiable Instruments Act, 1881 (for short, 'the Act'). Therefore, appellant (hereinafter referred to as 'complainant') is before this court. 2. I have heard Sri Deviprasad Shetty, learned counsel for appellant-complainant and Sri Ismail, learned counsel for respondent-accused. 3. It is the case of complainant that accused had borrowed a sum of Rs.3,00,000/- from him and to discharge the said amount, accused had issued a cheque dated 15.01.2007 for a sum of Rs.3,00,000/- in favour of complainant. On presentation, cheque was dishonoured. There was no response to legal notice caused by complainant. 4. The defence of accused is two fold. The complainant was working as a Sales Manager in a jewellery shop. The complainant and accused were not known to each other. The complainant had no financial capacity to lend in a sum of Rs.3,00,000/- to accused. The uncle of accused by name Shabbir was a customer of jeweller's shop in which complainant was working. The accused had given a blank signed cheque to his uncle namely Shabbir, in relation to certain transaction, which he had with the owner of "Jeweller's House" namely Majid. Therefore, cheque was not issued to discharge a legally recoverable debt or liability. 5. It is seen from complaint that complainant has not stated the date on which he had lent a sum of Rs.3,00,000/- to accused. The complainant has not stated circumstances under which he became acquainted with accused. The complainant should have mentioned the date of loan transaction in the complaint to establish that dishonoured cheque was issued within period of limitation. 6. The law is fairly well settled that proceedings under section 138 of the Act can be initiated when cheque was issued to discharge a legally recoverable debt (which does not include a time barred debt). 7. As regards financial capacity of complainant to lend a sum of Rs.3,00,000/- to accused, complainant has given divergent versions. During cross-examination, complainant (PW1) has deposed; he was running a jeweller's shop in the name and style of "Jeweller's House" in Hampana Katta at Mangalore; he was running said shop since two years. During cross-examination, complainant (PW1) has admitted that he was working as a Sales Manager in "Jeweller's House" on a monthly salary of Rs.10,000/-. 8. During cross-examination, complainant (PW1) has deposed; he was running a jeweller's shop in the name and style of "Jeweller's House" in Hampana Katta at Mangalore; he was running said shop since two years. During cross-examination, complainant (PW1) has admitted that he was working as a Sales Manager in "Jeweller's House" on a monthly salary of Rs.10,000/-. 8. Thus, complainant had given two versions, which are mutually contradictory. In my considered opinion, complainant having taken oath should not have given two versions. These versions cannot be reconciled. Apart from this, complainant has admitted that he had pledged jewels in South Indian Bank, Milagri Branch. The complainant has deposed; he had pledged jewels of his mother; he had also sold a site and lent a sum of Rs.1,00,000/- to accused on 13.11.2006. 9. At this juncture, it is relevant to state that contents of complaint would read that complainant had lent a sum of Rs.3,00,000/- to accused at a stretch. In order to discharge debt, accused had issued dishonoured cheque. 10. The evidence of complainant that he had pledged jewels of his mother to lend a sum of Rs.3,00,000/- to accused looks improbable. There was no compelling reason for complainant to pledge jewels of his mother and lend a sum of Rs.3,00,000/- to accused, whose acquaintance with complainant has not been established. 6 11. The learned counsel for complainant would submit that court below should have raised a presumption in favour of complainant, more particularly when accused has not denied his signature on dishonoured cheque. 12. It is true, under section 139 of the Act, there is presumption in favour of complainant, however, before raising such presumption, complainant has to prove basic ingredients of an offence punishable under Section 138 of the Act. 13. The law is fairly well settled that presumption under section 139 of the Act is rebuttable. The accused can rebut presumption depending upon evidence of complainant, if it is inherently improbable or by adducing defence evidence. In the case on hand, evidence of complainant that he was the owner of "Jeweller's House" is false. The evidence of complainant that he had pledged jewels of his mother to lend a sum of Rs.3,00,000/- to accused is false. The complainant has not adduced satisfactory evidence to prove that accused was acquainted with him. In the case on hand, evidence of complainant that he was the owner of "Jeweller's House" is false. The evidence of complainant that he had pledged jewels of his mother to lend a sum of Rs.3,00,000/- to accused is false. The complainant has not adduced satisfactory evidence to prove that accused was acquainted with him. The complainant has admitted that owner of "Jeweller's House" namely Majid was attending the trial court on every date of hearing. Therefore, defence of accused that he had issued a signed blank cheque to his uncle namely Shabbir and cheque had reached the hands of owner of "Jeweller's House" by name Majid looks probable. In the circumstances, there are no reasons to interfere with the impugned judgment. 14. In the result, I pass the following:- ORDER The appeal is dismissed.