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2013 DIGILAW 882 (KAR)

SHEKHARAPPA v. NAGAPPA

2013-08-06

N.ANANDA

body2013
JUDGMENT N. ANANDA, J.-The appellant was the complainant and respondent was the accused in C.C. No. 276/2012. The learned trial Judge has acquitted the accused of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act'). Therefore, complainant has filed this appeal. 2. I have heard Sri. B.V. Somapur, learned counsel for complainant and Sri. P.H. Gotkhindi, learned counsel for accused. 3. The complainant is a practicing advocate at Yelburga. In the complaint, it is stated that accused was known to complainant. The accused for his contract works and also for family necessities availed a loan of Rs. 5,00,000/- from complainant, agreeing to repay the same as and when demanded by complainant. 4. At this stage, it is relevant to state that in the cause-title of complaint, so also in the legal notice dated 04.12.2006, complainant has stated that accused is an employee of Zilla Panchayath office at Yelburga. The averments made in the complaint and legal notice that accused had availed loan for a sum of Rs. 5,00,000/- for contract works looks prima facie absurd. 5. In the complaint, complainant has not stated the date on which he had lent a sum of Rs. 5,00,000/- to the accused. Even in the legal notice complainant has not stated the date on which he had lent a sum of Rs. 5,00,000/- to the accused. 6. This omission assumes importance in view of the following: (a) The complainant, a practicing advocate, who is alleged to have lent a sum of Rs. 5,00,000/- to the accused (an employee of Zilla Panchayath), had not obtained any document as security. (b) The complainant had not even maintained any record to indicate that he had lent a sum of Rs. 5,00,000/- to accused. 7. It is the case of complainant that accused had issued a cheque dated 01.12.2006 for a sum of Rs. 5,00,000/- drawn in favour of complainant on State Bank of Hyderabad, Yelburga Branch. In order to avail the benefit of presumption available under Section 139 of the Act, the complainant has to prove existence of legally recoverable debt. 8. The legally recoverable debt does not include time barred debt. Therefore, the complainant should have stated that cheque dated 01.12.2006 was issued within a period of three years from the date on which he had lent a sum of Rs. 5,00,000/- to accused. 9. 8. The legally recoverable debt does not include time barred debt. Therefore, the complainant should have stated that cheque dated 01.12.2006 was issued within a period of three years from the date on which he had lent a sum of Rs. 5,00,000/- to accused. 9. The learned counsel for complainant referring to evidence of DW-2 would submit that DW-2 had admitted that transaction between complainant and DW-2 took place in the year 2004. The learned counsel has also referred to the evidence of DW-1 to draw support and to fill up the voids in the complaint and legal notice. 10. It is the specific defence of accused that he was not a Contractor. He was a Clerk in the Office of Zilla Panchayath at Yelburga. 11. DW-2/Virupakshappa, who is the nephew of accused, had borrowed a sum of Rs. 50,000/- from complainant in the year 2004 for his contract works. The amount was repaid. In that connection, he had given blank cheques signed by accused to complainant apart from executing a bond paper in favour of complainant. After the amount was repaid, complainant did not return the bond paper and cheques and one of the cheques has been misused to file the instant complaint. 12. The learned counsel for complainant relying on evidence of DWs-1 and 2 would submit that the transaction has taken place in the year 2004. The accused has not disputed his signature on the dishnoured cheque. In the circumstances, the trial Court should have raised a presumption in favour of complainant that the dishonoured cheque was issued to discharge legally recoverable debt. 13. These submissions cannot be accepted for the following reasons:- The admissions made by DWs-1 and 2 will have to be accepted in entirety. The complainant cannot contend the part of admission favourable to complainant is true and part of admission which is not favourable to complainant is false. There is no presumption regarding existence of legally recoverable debt. The primary burden lies upon the complainant to prove the existence of legally recoverable debt. If the complainant is successful in proving the existence of legally recoverable debt, then a presumption would arise that the cheque was issued to complainant by accused to discharge the legally recoverable debt. 14. The evidence on record does not indicate that accused and complainant were known to each other. If the complainant is successful in proving the existence of legally recoverable debt, then a presumption would arise that the cheque was issued to complainant by accused to discharge the legally recoverable debt. 14. The evidence on record does not indicate that accused and complainant were known to each other. It also looks improbable that complainant (a practicing advocate) had lent a huge sum of Rs. 5,00,000/- to accused without taking any security or even without noting the date on which the amount was lent. The complainant has not produced document to show that subsequent to alleged date of cheque, i.e., the date on which the cheque was issued, there was demand by complainant. The complainant has also not assigned reasons for lending huge sum of Rs. 5,00,000/- to accused without obtaining any security or without charging any interest, more particularly, when the evidence on record does not disclose that complainant and accused were acquainted to each other. The learned trial Judge on proper appreciation of evidence adduced by complainant and defence version, held that complainant has failed to prove the existence of legally recoverable debt. The evidence adduced by complainant does not disclose the date on which a sum of Rs. 5,00,000/- was lent to accused, who was not acquainted to complainant. It looks improbable that complainant had lent a sum of Rs. 5,00,000/- without taking any security and even without noting the date on which the amount was lent. 15. On the other hand, evidence of DW-1 (accused) and DW-2 (nephew) would reveal that DW.2, for the purpose of his contract works, had borrowed a sum of Rs. 50,000/- from complainant in the year 2004 and he had repaid the same. The learned trial Judge has accepted the defence version that DW-2 had given a blank cheque signed by accused as security for the repayment of loan (a sum of Rs. 50,000/- which he had borrowed from complainant). 16. As already stated, the complainant is an advocate. The averments of complaint and legal notice are rather contradictory. In the cause-title of complaint, it is stated that accused is an employee of office of Zilla Panchayath at Yelburga. In the body of complaint and also in the legal notice, it is stated that accused had borrowed a sum of Rs. 5,00,000/- for his contract works. The averments of complaint and legal notice are rather contradictory. In the cause-title of complaint, it is stated that accused is an employee of office of Zilla Panchayath at Yelburga. In the body of complaint and also in the legal notice, it is stated that accused had borrowed a sum of Rs. 5,00,000/- for his contract works. It is difficult to believe that complainant being an advocate would lend a sum of Rs. 5,00,000/- to accused without knowing the avocation of accused and the purpose for which loan was sought. Therefore, the learned trial Judge was justified in rejecting the version of complainant and accepting version of defence. 17. On reconsideration of the matter, I do not find any reasons to interfere with the impugned judgment of acquittal. The appeal is dismissed.