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2014 DIGILAW 769 (KAR)

Vasavi Finvest Limited v. Jagadeesh Hegde

2014-09-02

ANAND BYRAREDDY

body2014
Judgment : 1. Heard the learned counsel for the appellant. 2. This Court had directed re-construction of the records of the Trial Court in view of the circumstance that the records of the Trial Court have been destroyed. So far, there has been little progress in the re-construction of the records. In any event, the judgment of the Trial Court as well as the copy of the legal notice and the deposition of the complainant are available. From a reading of the judgment, there is sufficient material to consider the case on merits and therefore, the matter is taken up for consideration on merits. 3. It is to be noticed that the present appellant was the complainant before the Trial Court alleging offences punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the NI Act', for brevity). The respondent having entered appearance, had sought to raise the defence that no doubt there was a loan transaction between one Chandrakumar and the present appellant, and the respondent had merely acted as a surety for the loan transaction. The money in a sum of Rs.1,40,000/-was lent on the basis of a promissory note to which the present respondent was also a signatory, but only in the capacity of a surety for the due repayment of the loan. In furtherance of acting as a surety, the respondent was also required to issue a blank cheque duly signed by him and it is that document which is the basis for the complaint. Further, in the course of the trial, the respondent is said to have elicited an admission from the complainant to the effect that the respondent was indeed a surety to the transaction and the court having found that if the complainant on the other hand wanted to contend that there was an independent transaction whereby the respondent had borrowed money on the strength of a promissory note, it was for the complainant to produce material in that regard, in support of which there was no material forthcoming. Further, in the face of the further circumstance that insofar as Chandrakumar, the actual borrower according to the respondent, had been proceeded against in an independent proceeding which even according to the complainant, was pending before another Court, the Court has come to a conclusion that the respondent had sufficiently rebutted the presumption under Section 139 of the NI Act which presumes that the cheque has been issued for due consideration in favour of the holder of the cheque and therefore, the burden was on the complainant to establish that it was issued for due consideration, as there was an admission that the respondent had acted merely as a surety to the transaction. It is on that basis that the complaint was dismissed and the accused was acquitted. Therefore, the learned counsel for the appellant has now filed an application seeking to adduce additional evidence and seeks to produce a promissory note and a Bank Ledger extract to evidence that the appellant had indeed benefited in terms of the loan that was granted which was credited to his Account. 4. In view of the circumstance that the records of the court below have been destroyed and there are no further records made available to the Court and in the light of the findings of the court below as aforesaid which is now sought to be corrected by producing additional evidence from the strength of Section 391 of the Code of Criminal Procedure, 1973 which is only in a situation where this Court is of the opinion that additional evidence would be required to address the matter that the Court should exercise power to call for such additional evidence. The appellant on the other hand seeking to produce such additional evidence which was in fact significant material which ought to have been produced in the first instance before the Trial Court and no explanation forthcoming except to state that the appellant was not aware of such documents required to be produced, are not circumstances which can be appreciated, especially in the light of the further circumstance that the learned counsel for the appellant is not in a position to state as to fate of the proceeding initiated against Chandrakumar. In the absence of any material to indicate that there were two different transactions, the case cannot be probed further in appeal and in the circumstances as aforesaid. In the absence of any material to indicate that there were two different transactions, the case cannot be probed further in appeal and in the circumstances as aforesaid. Accordingly, the appeal stands dismissed.