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2015 DIGILAW 650 (KAR)

A. M. Govindegowda v. B. V. Ravi

2015-06-22

PRADEEP D.WAINGANKAR

body2015
JUDGMENT : This appeal is against the judgment dated 16-12-2008 in C.C. No. 958 of 2003 on the file of Additional Chief Justice (Junior Division) and Judicial Magistrate First Class, Maddur whereby the respondent-accused has been acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. 2. The facts in brief, which gave rise to this appeal are as under: The accused is stated to be the friend of appellant/complainant as both of them are residing at Besagarahalli Village. The accused was in need of money to discharge hand loan taken by him and to meet other domestic expenses. He borrowed a sum of Rs. 95,200/- from the complainant on 7-4-2003 and agreed to repay the loan amount within a period of two months. After the expiry of period two months, when the complainant demanded the amount, the accused issued a cheque for a sum of Rs.95,200/- dated 9-6-2003 drawn on M/s. M.D.C.C. Bank Limited, KMF Dairy Branch, Gajjalagere. On presentation, the cheque was bounced for insufficient funds. By issuance of a notice, the factum of dishonor of the cheque was brought to the notice of the accused and was called upon to pay the cheque amount within the stipulated period of time. The accused failed to pay the cheque amount and thereby a complaint came to be filed against him for the offence punishable under Section 138 of the N.I. Act. 3. The accused having denied the charge, in order to establish the same, the appellant/complainant got himself examined as P.W. 1, relied upon on 7 documents marked as Exs. P. 1 to P. 7. The respondent-accused, on the other hand got himself examined as D.W. 1 apart from examining D.Ws. 2 to 4. 4. The learned Magistrate upon hearing the submission made by both the learned Counsel and on appreciation of the evidence, by the impugned judgment held that the complainant failed to prove the offence under Section 138 of the N.I. Act, which resulted in acquittal of the accused. Therefore, this appeal by the appellant/complainant. 5. I have heard the submission made by the learned Counsel for the appellant/complainant. Perused the records. 6. The complainant by oral evidence coupled with the documentary' evidence marked as Exs. Therefore, this appeal by the appellant/complainant. 5. I have heard the submission made by the learned Counsel for the appellant/complainant. Perused the records. 6. The complainant by oral evidence coupled with the documentary' evidence marked as Exs. P. 1 to P. 7 established the issuance of cheque by the accused towards the repayment of loan amount of Rs.95,200/-, presentation of the cheque for collection, dishonor of the cheque, issuance of a legal notice and filing of the complaint. From the evidence of the complainant-P.W. 1 coupled with these documents marked as Exs. P. 1 to P. 7, it can be held that all the legal requirement, which are required to be fulfilled to file a complaint under Section 138 of the N.I. Act are duly complied with. 7. The specific case of the complainant is that at the request of the accused who was known to him, he advanced a cash amount of Rs.95,200/- and towards the repayment of the same, the accused issued a cheque marked as Ex. P. 1. But the defence of the accused as could be seen from the evidence placed on record that he had issued the said cheque to one Sri Lokendra and to substantiate the same, he examined one Sri Suresha as D.W. 2 who supported the case of the accused. The further defence of the accused is that Sri Lokendra in turn handed over the said cheque-Ex. P. 1 for Rs.5,200/- to the complainant who in turn prefixed figure 9' so as to make it as Rs.95,200/-. In other words, the accused had denied for having issued Ex. P.I-cheque in favour of the complainant at any point of time. He has also denied for having taken loan for Rs. 95,200/- from the complainant. Though a presumption under Section 139 is in favour of the complainant as to the issuance of cheque towards legally recoverable debt, there is no presumption as to the existence of legal liability and therefore it is for the complainant to prove and establish that the accused was due to pay a sum of Rs.95,200/- to the complainant and to clear the said liability he issued Ex. P. 1-cheque. Moreover, the accused has categorically denied having taken loan from the complainant. No material is forthcoming in order to establish the existence of loan liability except the interested testimony of complainant-P.W. 1. P. 1-cheque. Moreover, the accused has categorically denied having taken loan from the complainant. No material is forthcoming in order to establish the existence of loan liability except the interested testimony of complainant-P.W. 1. No witnesses have been examined on behalf of the complainant who had actually seen the advancement of hand loan by the complainant to the accused, nor the complainant has produced his pass book or any other document to show that as on that day, he had that much of amount so as to lend the same to the accused. The very fact that the figure shown in the cheque is Rs.95,200/- itself creates a doubt in the mind of the Court. No person would ask for loan of Rs.95,200/- unless there are some special reasons for the same. It is interesting to note that the complainant has produced two cheques of Rs.95,200/- said to have been issued by the accused towards the discharge of loan liability marked as Exs. P. 1 and P. 2. If he had really taken a hand loan of Rs.95,200/-, with a condition to repay the same within two months, the issuance of two cheques does not arise. That also further creates a doubt in the mind of the Court. Thus, from the evidence placed on record, the accused has been able to establish his defence that he had not taken loan nor he was due to pay a sum of Rs.95,200/-. Moreover, the complainant has not been able to place on record any evidence to establish the existence of liability. Thus, the learned Magistrate on proper appreciation of the evidence has rightly acquitted the accused. On my reappreciation of the evidence, I do not find any reasons to call for my interference. The appeal is bereft of merits. Hence, I pass the following order: The appeal is dismissed.