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2019 DIGILAW 1239 (KAR)

Virupaxagouda v. Basavaraj @ Basavanneppa

2019-06-13

BELLUNKE A.S.

body2019
JUDGMENT : Bellunke A.S. J. This is an appeal filed by the complainant against the judgment and order of acquittal passed by the Civil Judge and JMFC, Badami in Criminal Case No.408/2005 by order dated 20.05.2010. Wherein, the accused came to be acquitted for the offence punishable under Section 138 of N.I. Act. 2. Brief facts of the case are : According to the complainant the accused is known person to him. Therefore, on request of the accused, the complainant has advanced a sum of Rs.1,50,000/- in the month of June-2004, which is repayable on demand. To discharge the said loan amount, the accused has issued a cheque bearing No.196750, dated 20.01.2005 in favour of the complainant drawn on Corporation Bank, Bagalkot for a sum of Rs.1,50,000/-. Thereafter, the complainant presented the said cheque for encashment with his banker i.e., B.D.C.C. Bank, Badami Branch on 20.01.2005, but the said cheque was returned as unpaid with an endorsement "insufficient funds" on the same day. Therefore, the complainant issued a legal notice to the accused on 12.02.2005. The said notice was duly served on respondent. Since no reply was sent, therefore a private complaint under Section 200 of Criminal Procedure Code r/w 142 of Negotiable Instruments Act was filed against the accused for the offence punishable under Section 138A of N.I. Act. 3. The learned Magistrate took the cognizance of the offence alleged. Sworn statement of the complainant was recorded. On the basis of material perused before the learned Magistrate a Criminal Case No.408/2005 for the offence punishable under Section 138 of N.I. Act was registered. The presence of the accused secured. Plea was recorded. Thereafter, the learned JMFC hold the trial of the case. 4. On the basis of the material evidence and documentary evidence available on record, the learned Magistrate accepted the defence raised by the accused and held that the guilt of the accused is not proved beyond any reasonable doubt. Hence, the Court acquitted the accused by the impugned judgment and order. The said judgment has been challenged by the appellant on the following grounds: 1. The court below has not considered the evidence on record in proper perspective and failed to appreciate the evidence on record thereby caused miscarriage of Justice. The Judgment of the court below is illegal. 2. The said judgment has been challenged by the appellant on the following grounds: 1. The court below has not considered the evidence on record in proper perspective and failed to appreciate the evidence on record thereby caused miscarriage of Justice. The Judgment of the court below is illegal. 2. The trial Court has not assigned proper reasons and failed to appreciate the documents on record and came to a wrong conclusion and held that complainant failed to prove the transaction with the accused and failed to prove the legal recoverable debt. 3. The trial Court failed to consider the presumption as provided under Section 139 of the Negotiable Instruments Act. Explanation offered by the complainant as to why the document was not taken for the transaction in question, is not at all considered by the trial Court. 4. The Trial Court wrongly placed burden on the complainant to prove the case. 5. The trial court committed error in holding the complainant is no capacity to pay the amount. The accused has sufficient capacity to lend the money. He has sold the ground nut and out of that amount, he has paid the amount. 6. The issuance of cheque, signature of the accused, dishonorable of cheque are all not denied. The cheque could have been presented by anybody as deposed by PW1. Therefore, merely because the cheque received back by one witness by name Kanavi will not, the bank will not discharge all the liability of the accused towards banker. 7. The accused had not replied the notice of the appellant. The cheque has not issued in favour of Basavanneppa Kanavi. He has only collected the cheque from the Banker. 5. The learned counsel for the appellant has vehemently reiterated the grounds of appeal during the arguments. There is no evidence to show that that the cheque issued in favour of third person, has may be misused. The cheque was presented by the complainant himself to the banker after its dishonour. It was received by another person would not absolve the liability of the accused. The defence raised by the accused has been wrongly accepted by the trial Court. The accused has not replied to the legal notice. The presumption available under law has not been applied by the trial Court. The burden of proof has been wrongly placed on the complainant instead of accused. The defence raised by the accused has been wrongly accepted by the trial Court. The accused has not replied to the legal notice. The presumption available under law has not been applied by the trial Court. The burden of proof has been wrongly placed on the complainant instead of accused. Therefore, on the above said grounds the appellant complainant has prayed to allow the appeal by setting aside the impugned judgment and to convict the accused for the aforesaid facts. 6. The learned counsel for the respondent contended that the cheque was issued to him, the same was not returned and that has been misused and the complainant projected the same and filed the case. Ex.D1 and D3 would goes to show that the defence of the accused has been established. The case of the complainant is disproved. The trial Court has rightly came to a conclusion by acquitting the accused. Therefore, the learned counsel for the respondent accused prayed to dismiss the appeal. 7. On the basis of the above said facts, the following points would arise for consideration: 1. Whether the appellant-accused proved before the trial Court that the accused had committed offence under Section 138 of N.I. Act beyond any reasonable doubt? 2. Whether the appellant-accused proves that the judgment of acquittal of the accused passed by the learned trial Court is perverse, capricious and against to the evidence on record and facts and circumstances of the case? 3. What order? 8. The learned counsel for the appellant accused has relied on following authorities in support of his documents. The first authority in the case of Rangappa V/s. Mohan, 2010 (5) LAWS(SC) 19, SCC (KAR), it is held as : "The trial Judge found in favour of the accused by taking note of some discrepancies in the complainant's version. As per the trial Judge, in the course of the cross-examination the complainant was not certain as to when the accused had actually issued the cheque. It was noted that while the complaint stated that the cheque had been issued in December 2000, at a later point it was conceded that the cheque had been handed over when the accused had met the complainant to obtain the work completion certificate for his house in March 2001. It was noted that while the complaint stated that the cheque had been issued in December 2000, at a later point it was conceded that the cheque had been handed over when the accused had met the complainant to obtain the work completion certificate for his house in March 2001. Later, it was stated that the cheque had been with the complainant about 15-20 days prior to the presentation of the same for encashment, which would place the date of handing over of the cheque in January 2001. Furthermore, the trial Judge noted that in the complaint it had been submitted that the complainant had paid Rs.45,000 in cash as a hand loan to the accused, whereas during the cross-examination it appeared that the complainant had spent this amount during the construction of the accused's house from time to time and that the complainant had realized the extent of the liability after auditing the costs on completion of the construction. Apart from these discrepancies on part of the complainant, the trial judge also noted that the accused used to pay the complainant a monthly salary in lieu of his services as a building supervisor apart from periodically handing over money which was used for the construction of the house. In light of these regular payments, the trial judge found it unlikely that the complainant would have spent his own money on the construction work. With regard to these observations, the trial judge held that there was no material to substantiate that the accused had issued the cheque in relation to a legally enforceable debt. It was observed that the accused's failure to reply to the notice sent by the complainant did not attract the presumption under Section 139 of the Act since the complainant had failed to prove that he had given a hand loan to the accused and that the accused had issued a cheque as alleged. Furthermore, the trial judge erroneously decided that the offence made punishable by Section 138 of the Act had not been committed in this case since the alleged dishonor of cheque was not on account of insufficiency of funds since the accused had instructed his bank to stop the payment. Accordingly, the trial judge had recorded a finding of acquittal. 7. However, on appeal against acquittal, the High Court reversed the findings and convicted the appellant-accused. Accordingly, the trial judge had recorded a finding of acquittal. 7. However, on appeal against acquittal, the High Court reversed the findings and convicted the appellant-accused. The High Court in its order noted that in the course of the trial proceedings, the accused had admitted that the signature on the impugned cheque (No.886322, dated 8.2.2001) was indeed his own. Once this fact has been acknowledged, Section 139 of the Act mandates a presumption that the cheque pertained to a legally enforceable debt or liability. This presumption is of a rebuttal nature and the onus is then on the accused to raise a probable defence. With regard to the present facts, the High Court found that the defence raised by the accused was not probable. In respect of the accused's stand that he had lost a blank cheque bearing signature, the High Court noted that in the instructions sent by the accused to his Bank for stopping payment, there is a reference to cheque No.0886322, dated 20.7.1999. This is in conflict with the complainant's version wherein the accused had given instructions for stopping payment in respect of the same cheque, albeit one which was dated 8.2.2001. The High Court also noted that if the accused had indeed lost a blank cheque bearing his signature, the question of his mentioning the date of the cheque as 20.7.1999 could not arise. At a later point in the order, it has been noted that the instructions sent by the accused to his bank for stopping payment on the cheque do not mention that the same had been lost. However, the correspondence does refer to the cheque being dated 20.7.1999. Furthermore, during the cross-examination of the complainant, it was suggested on behalf of the accused that the complainant had the custody of the cheque since 1998. This suggestion indicates that the accused was aware of the fact that the complainant had the cheque, thereby weakening his claim of having lost a blank cheque. Furthermore, a perusal of the record shows that the accused had belatedly taken up the defence of having lost a blank cheque at the time of his examination during trial. Prior to the filing of the complaint, the accused had not even replied to the notice sent by the complainant since that would have afforded an opportunity to raise the defence at an earlier stage. Prior to the filing of the complaint, the accused had not even replied to the notice sent by the complainant since that would have afforded an opportunity to raise the defence at an earlier stage. All of these circumstances led the High Court to conclude that the accused had not raised a probable defence to rebut the statutory presumption. It was held that: '6. Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant. The presumption referred to in Section 139 of the N.I. Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption. What is required to be established by the accused in order to rebut the presumption is different from each case under given circumstances. But, the fact remains that a mere plausible explanation by way of rebuttal evidence. In other words, the defence raised by way of rebuttal evidence must be probable and capable of being accepted by the Court. The defence raised by the accused was that a blank cheque was lost by him, which was made use of by the complainant. Unless the barrier is crossed by the accused the other defence raised by him whether the cheque was issued towards the hand loan or towards the amount spent by the complainant need not be considered. ..' Hence, the High Court concluded that the alleged discrepancies on part of the complainant which had been noted by the trial court were not material since the accused had failed to raise a probable defence to rebut the presumption placed on him by Section 139 of the Act. Accordingly, the High Court recorded a finding of conviction." 9. The second authority is in the case of Rohitbhai Jivanlal Patel V/s. State of Gujarat and another of Hon'ble Apext Court in Criminal Appeal No.508/2019. "3. Accordingly, the High Court recorded a finding of conviction." 9. The second authority is in the case of Rohitbhai Jivanlal Patel V/s. State of Gujarat and another of Hon'ble Apext Court in Criminal Appeal No.508/2019. "3. Briefly put, the substance of allegations and assertions of the complainant respondent No.2 in each of the 7 cases aforesaid had been as follows: He was having his office in Windor Plaza at Alkapuri, Vadodara and had been visiting the shop of his friend Shri Jagadishbhai in National Plaza in the same locality; the accused-appellant, a trader of edible spices, had his shop near the shop of Shri. Jagdishbhai and in due course of time, the accused, the complainant and the said Shri Jagadishbhai became good friends. The complainant alleged that after developing such friendship, the accused demanded from him a sum of Rs.22,50,000/- as loan for his immediate requirement; and he (the complainant) extended such loan to the accused for a short term by collecting money in piecemeal from his business group. According to the complainant, upon regular demand for re-payment, the accused gave him cheques of difference dates drawn on Corporation Bank, Alkapuri Branch, Vadodara and also gave the acceptance for re-payment on a stamp paper. The complainant alleged that the cheques so issued by the accused, on being presented to the Bank for collection, were returned unpaid either for the reason that the "opening balance was insufficient" or for the reason that the "account was closed". While alleging that the intention of the accused had been of breach of trust and cheating, the complainant pointed out that he got served the notices on the accused after dishonor of the cheques but did not receive the requisite payment. It is noticed that in some of the cases, the accused-appellant did send his reply, denying the transaction as alleged. 6. After examining the record, the Trial Court found that the accused had admitted his signature on the cheques and, with reference to the decision of this Court in the case of Rangappa V.Sri.Mohan, (2010) 11 SCC 441 , drew the presumption envisaged by Section 139 of NI Act. 6.1. 6. After examining the record, the Trial Court found that the accused had admitted his signature on the cheques and, with reference to the decision of this Court in the case of Rangappa V.Sri.Mohan, (2010) 11 SCC 441 , drew the presumption envisaged by Section 139 of NI Act. 6.1. However, after having drawn the presumption, the Trial Court found several factso in favour of the accused and observed, inter alia, that : (a) there was no documentary evidence to show the source of income for advancing the loan to the accused ; (b) the complainant failed to record the transaction in the form of receipts, promissory notes or even kaccha notes; (c) vague and uncertain statement was made by the complainant as compared to the statement of his witness-Shri. Jagdishbhai; (d) the complainant had no knowledge about the dates and other particulars of such cheques; (e ) the witness of complainant was in know of the facts more than the complainant; (f) the complaint allegedly extended the loan to the tune of Rs.22,50,000/- but the 7 cheques in these cases were of Rs.3,00,000/- each and there was no explanation from the complainant as regards the remaining Rs.1,50,000/-; and (g) the suggestion about washing away of the earlier cheques in rains was also doubtful when the complainant's office was on the 8th floor of Windor Plaza. 6.2. With reference to the aforesaid factors and circumstances, the Trial Court concluded that the accused was successful in bringing rebuttal evidence to the requisite level of preponderance of probabilities; and observed that the complainant had failed to prove, beyong all reasonable doubt, that the cheques were issued in part payment of the loan amount of Rs.22,50,000/-. Hence, all the 7 complaint cases were dismissed by similar but separate judgment and orders dated 09.06.2017 while observing as under : "19......All these circumstances creates doubt of the complainant (sic) as alleged and accused has brought on record rebuttable evidence upto to requisite level i.e., Preponderance of probabilities and as such considering section 5,6,32 and 118 and 139 of N.I. Act complainant failed to prove complaint beyond reasonable doubt that the cheque has been issued for the recoverable debt/liability." 22. Therefore, as discussion made herein above, the complainant failed to prove that the disputed cheque has been issued by the accused for the part payment of transaction of Rs.22,50,000/-. Therefore, as discussion made herein above, the complainant failed to prove that the disputed cheque has been issued by the accused for the part payment of transaction of Rs.22,50,000/-. Therefore, the accused is entitled to get acquittal, who has brought on record the circumstances which rebut the presumption under section 118, 119 of N.I.Act....(sic)" 22. For what has been discussed hereinabove, the findings of the High Court convicting the accused-appellant for the offence under Section 138 of the NI Act deserves to be, and are, confirmed. 24. Therefore, this appeal is partly allowed in the following terms: The common judgment and order dated 08.01.2018 in R/Criminal Appeal No.1187/2017 connected with R/Criminal Appeal Nos. 1191/2017 to 1196/2017 by the High Court of Gujarat at Ahmedabad is maintained as regards conviction of the accused-appellant for the offence under Section 138 of the Negotiable Instruments Act, 1881 for dishonor of 7 cheques in the sum of Rs.3 lakhs each, as drawn by him in favouro for the complainant respondent No.2; however, the sentence is modified in he manner that in each of these 7 cases, the accused-appellant shall pay fine to the extent of double the amount of each chequ (i.e., a sum of Rs.6 lakhs in each case) within 2 months from today with the stipulation that in case of default in payment of fine, the accused-appellant shall undergo simple imprisonment for a period of one year. On recovery of the amount of fine, the complainant-respondent No.2 shall be compensated to the tune of Rs.5.5 lakhs in each case. In the event of imprisonment for default in payment of fine, the sentences in all the 7 cases shall run concurrently." 10. The third authority is in the case of Usha Suresh V/s. R.V. Shashidaran, 2005 (10) LAWS(KAR) 54. It is held as under: "14. NO doubt, in the present case the court of first instance i.e., the trial court did convict the accused accepting the case of the complainant but the first appellate Court reversed the judgment for the reasons explained above. In that situation, this Court has to look into the entire evidence once again and has to decide the case afresh. No doubt the first appellate Court has given benefit of doubt in a way by holding there is no relationship of creditor and debtor between the parties. In that situation, this Court has to look into the entire evidence once again and has to decide the case afresh. No doubt the first appellate Court has given benefit of doubt in a way by holding there is no relationship of creditor and debtor between the parties. From the facts established before the trial Court and in view of the judgments relied upon by the appellants, the position of the complainant would squarely fall within the definition of a "creditor" and for all practical purposes, she would be entitled to seek prosecution of the accused u/s. 138 of the Negotiable Instruments Act. The very approach of the first appellate Court towards the case on hand is nothing but a perverse approach. Under these circumstances, this Court has to interfere and do the justice. Accordingly, the judgment of acquittal of the first appellate Court is set aside confirming the judgment of conviction passed by the trial Court. The appeal is allowed. The respondent/accused is found guilty of the offence punishable u/s. 138 of the Negotiable Instruments Act." 11. It is also submitted that notice of these citations has been given to the respondent counsel. In these two judgments of Hon'ble Apex Court, which are latest law relating to presumption available under Section 138 of N.I. Act in favour of the complainant and rebuttal of such presumption by the accused by way of preponderance of probabilities has been laid down. Therefore, these authorities are meticulously perused to understand the position of law laid down by the Hon'ble Apex Court pertaining to Section 138 and 139 of N.I. Act and right of person holding N.I. in due course. 12. In a criminal case, facts and circumstances of each case have to be borne in mind before applying any citations. Therefore, I shall first advert to the doubts entertained by the learned Judge of the trial Court who held that existence of legal recoverable debt is not proved. Advancement of loan of Rs.1,50,000/- is not proved. Therefore, the learned trial Court Judge came to a conclusion that the complainant had no capacity to pay the same and there is no existence of legal recoverable debt by the complainant from the accused. It is finding that lead to the acquittal of the accused. 13. Advancement of loan of Rs.1,50,000/- is not proved. Therefore, the learned trial Court Judge came to a conclusion that the complainant had no capacity to pay the same and there is no existence of legal recoverable debt by the complainant from the accused. It is finding that lead to the acquittal of the accused. 13. It is the specific case of the complainant that he knew the accused and had advanced the loan amount of Rs.1,50,000/- to the accused on his request in the month of June-2004 repayable on demand. To substantiate this contention, not a single scrap of paper has been produced except the cheque which was issued on 20.01.2005. There is no explanation in the complaint as to why no document was taken for having paid a sum of Rs.1,50,000/- (which is not small amount). The defence of the accused is that the complainant is not at all concerned to him. He had some transaction with one Mr. Kanavi, his relative. He had issued a cheque to said Kanavi. Though he requested to him to return back the cheque after his repayment of his dues, but Mr. Kanavi did not returned the same. Therefore, the said Kanavi has misused the cheque and got filed the complaint through the complainant. 14. Though service of legal statutory notice after dishonor of the cheque etc., are disputed to some extent. It is fact on record that the cheque which was presented was not encashed for want of cash in other words it has been dishonoured, that is proved by the evidence of Banker and the documents. The complainant got marked the documents, the endorsement of the BDCC Bank at Ex.P3. Ex.P1 is the cheque in dispute. Ex.P2 is endorsement issued by the Corporation Bank, Ex.P4 is the copy of the legal notice sent to the accused dated 09.02.2005. The Postal receipts for having issued notice at Ex.P5 to 7. Ex.P8 and 9 are the application form for having opened the account by the accused in the Corporation Bank and copy of account extract of the accused bearing A/c No.7472 etc., Ex.P10 is the extract of register of cheque and Hundi purchased which issued by B.D.C.C. Bank, Badami branch, Ex.P11 is signature of the accused put on the Ex.P6 the Postal acknowledgement card and Ex.P12 is Vakalath marking the signature of the accused. 15. 15. The accused has also produced Ex.D1 to 7 in support of his defence, got examined himself as DW1 and one witness as DW2. The trial Court in its judgment at para No.9 has assigned the reasons as to why the advancement of Rs.1,50,000/- by the complainant to the accused is not proved. Para Nos.9 to 14 of the trial court judgment, which reads as under : "9. Point No.1: ............... complaint itself he has not stated any particular date of advancing of loan to the accused or state any place of advancement of loan to the accused. According to the complainant in his cross-examination, he had paid amount of Rs.1,50,000/- to the accused by way of cash. Further he deposed at the time of lending of money one Basvanneppa was present and along with the said Basavanneppa another one Dr.Janil was also present. According to the complainant, during the course of cross-examination, he stated that he has lent the money to the accused in Badami. Further, in his cross-examination, he stated at para No.1 that he lent money to the accused in the house of the said Basavanneppa Kanavi. It is further elicited that he had not sought for execution of any documents from the accused for having borrowed the amount. But this evidence of lending money in the house of one Basavanneppa Kanavi and presence of Basavanneppa and Dr.Janali is totally silent both in his complaint and chief examination. Moreover, the complainant if he is lent the money to the accused why he has not sought for execution of any document from the accused has been not pleaded anywhere in this case. According to the complainant in the cross-examination, he lent the money by way of cash but there is no any proper explanation whether he withdrawn any said amount from his bank account or he kept in his house. 10. Moreover, in this case in order to prove the advancing of loan to the accused admittedly has not been examined any witnesses that too one Basavanneppa and Dr.Janali who were present at the time of lending the money. But, there is no any explanation and evidence why and what prevented him in non-examination of the said Basavanneppa and Dr.Janali if they were present at the time of transaction between the complainant and the accused. But, there is no any explanation and evidence why and what prevented him in non-examination of the said Basavanneppa and Dr.Janali if they were present at the time of transaction between the complainant and the accused. So the mere pleadings without any specific piece of document to show that legally enforceable debt for having advanced to the accused, the averments of the complainant is itself is not sufficient to prove the advancement of the loan to the accused. 11. Further, as above said, along with proving advancement of loan to the accused, the capacity of the complainant is also one of the important factor to substantiate the case of the complainant regarding legal enforceable debt in a offence committed u/s 138 of N.I. Act as per the recent Law laid down by the Apex Courts and N.I. Act. 12. In this case in order to prove factor of lending capacity, he is not produced any piece of documents. But he produced his account extract maintained in the BDCC Bank, branch: Badami. On perusal of the same, it is clear that at no point of time, as on 15.02.2008 the complainant has maintained savings amount more than Rs.1,00,000/-. and at no point of time he has withdrawn any amount to the tune of Rs.1,00,000/- which has been marked at Ex.P9. 13. But his case is that during the course of his cross-examination, he has advanced an amount of Rs.1,50,000/- to the accused from the income earned from selling of groundnut. But the complainant has not produced any bill or documents to show that he is having income more than Rs.1,50,000/- from selling of the said groundnuts. But, the selling of the groundnuts and advancing of the loan has been not whispered in the complaint. But totally sets up new pleadings other than the averments of the complaint and his chief examination. Hence, his versin is could not believable. As such I am of the opinion that there is no evidence or documents to show that the complainant had sufficient income from selling of groundnuts. 14...............Ex.D.3 to 5which are mutation orders as well as the RTC extract of the land bearing Sy.No.55 situated at Hirenasabi of Badami taluka belonging to the complainant. Hence, his versin is could not believable. As such I am of the opinion that there is no evidence or documents to show that the complainant had sufficient income from selling of groundnuts. 14...............Ex.D.3 to 5which are mutation orders as well as the RTC extract of the land bearing Sy.No.55 situated at Hirenasabi of Badami taluka belonging to the complainant. Wherein the counsel submits that the complainant had borrowed a sum of Rs.2,00,000/- from the Grameen Bank Cholachagudda and accordingly the complainant has borrowed Rs.1,00,000/- from the Agricultural Primary Credit Co-op Bank, Cholachagudda and in this regard there is encumbrance entered in the Column No.11 of the RTC Ex.D.5. So the same has been admitted by the P.W.1. In his cross-examination at para No.4 on page 4 of the deposition that he had borrowed the above said loan by creating charge on the above said land. and counsel for the accused in the light of the said admission has submitted that as the complainant himself borrowed the loan from the above said financial Institution in the year 2002 and 2005 during the time of alleged advancement of loan to the accused to an extent of Rs.1,50,000/- the question of advancing to the accused is not acceptable and not proved by the complainant. So when such being the case, if he had sufficient money and income the question of obtaining the loan from the above said financial institution does not arise. However, there is no any explanation from the complainant and evidence to show that the loan was obtained for any particular purpose or to advance the loan to the accused." 16. Another important circumstances of which the trial court negatived the case of the complainant is return of unpaid cheque at Ex.P1, to the said Kanavi by obtaining his signature. PW3-the Bank Manager also has admitted that the dishonored cheque was returned to one Mr. Kanavi. He has also put his signature for having taken back the cheque at Ex.P1. 17. The arguments that advanced is that though any person can present the cheque to the Bank and take it back. The complainant has also admitted in the evidence that the said Kanavi also came along with him to the Bank. There is no explanation as to why the unpaid cheque was returned to Mr. Kanavi instead of complainant. 17. The arguments that advanced is that though any person can present the cheque to the Bank and take it back. The complainant has also admitted in the evidence that the said Kanavi also came along with him to the Bank. There is no explanation as to why the unpaid cheque was returned to Mr. Kanavi instead of complainant. Therefore, having to this admission on record, the defence of the accused appears to have been probabalised. 18. In other words, the accused rebutted the presumption that was in favour of complainant on account of proof of fact that the cheque belongs to the accused and it bears his signature. It was presented to the Bank and dishonored for want of funds. The accused did not pay any amount even after issue of statutory notice. This would give the cause of action to the complainant to file a criminal case against the accused. Further, in the absence of capacity of advance amount, a reasonable doubt raises as to whether the cheque in question issued by the complainant, to discharge the legal enforceable debt. On the contrary, the defence of the accused is that he had given a cheque to the said Kanavi, with whom he had transaction and he has misused the cheque. In fact, said Kanavi is found to be the friend of the complainant. The accused raised defence that the said Kanavi is his relative. Therefore, on account of relation he has projected the complainant by giving the cheque issued in favour of the said complainant. The complainant did not know whose signature attested on Ex.P1(a). 19. The complainant has admitted in the cross examination that he did not know whom the signature at Ex.P1 (a) belongs? There is difference of ink of the pen used for writing Ex.P1. He did not know whether the signature made on Ex.P1 and Ex.P1(a) made with different ink pens. He also did know who wrote the name V.R. Patil on the back of Ex.P1(a). He specifically admitted that he himself and Basavanneppa Kanavi are friends. He does not deny the said Kanavi is the son of uncle of mother of the accused. He also do not know the accused had transaction with the said Kanavi. He does not deny when the blank cheque was issued in favour of Kanavi regarding financial transaction with him. He specifically admitted that he himself and Basavanneppa Kanavi are friends. He does not deny the said Kanavi is the son of uncle of mother of the accused. He also do not know the accused had transaction with the said Kanavi. He does not deny when the blank cheque was issued in favour of Kanavi regarding financial transaction with him. He did not know whether the said Kanavi avoided returning the cheque to the accused inspite of clearing his loan. It is he who had filled up contention at Ex.P1 etc., it is quite probable being the relative of accused might have avoided himself filing a complaint against the accused. 20. Pw2 the Bank Manager only give evidence based on the record. PW3 is Manager who has also given evidence based on the records. He has specifically admitted that after dishonor of cheque it was handed over to one Mr.Kanavi, though anybody can present the cheque to the Bank for encashment. But, has to be presented the cheque to the bank and should be deposited to credit the amount in the account of a person in whose name the cheque is issued. Whenever the cheque is presented to the Bank, it has to be returned to the account holder in whose account it was sought to be deposited. Why it was returned to the said Kanavi is not at all explained. It is very strange to accept the evidence of third party and get it encashed. It is possible if it is within the period cheque. If it is account payee cheque then that is to be credited in the name of account holder. If it is dishonored, should not return to a third person. 21. On examination of all the above said facts and circumstances and evidence available on record, I find that the trial Court has rightly entertained the doubt with regard to the capacity of the complainant advanced the amount and passing of consideration of the Rs.1,50,000/-. The defence raised by the accused found to be a probable one. Therefore, the trial Court has rightly disbelieved the case of the complainant and dismissed the complaint. 22. As regards to the citations filed by the learned counsel for the appellant is concerned, in the first authority the accused and the complainant knew each other. The defence raised by the accused found to be a probable one. Therefore, the trial Court has rightly disbelieved the case of the complainant and dismissed the complaint. 22. As regards to the citations filed by the learned counsel for the appellant is concerned, in the first authority the accused and the complainant knew each other. The accused had sought a hand loan of Rs.45,000/- in order to meet the construction expenses. The amount advanced was Rs.45,000/- not a heavy amount. Moreover, the accused had engaged service of the complainant who is a Civil Engineer for the purpose of construction of his house in Ranebennur. That is how they were acquainted each other. In this background and referring to the presumption available under Section 138 of N.I. Act, the Hon'ble Apex Court found that the complainant had proved the guilt of the accused and affirmed the order of High Court are reversed the order of acquittal of High Court. Therefore, having regard to the aforesaid facts and circumstance of the case, the present case in hand, I find that the learned counsel for the appellant cannot rely upon the ruling of the Hon'ble Apex Court. 23. In the second authority, it was found that the accused had accepted his liability in clear terms. The plea of the accused he had a financial transaction with his friend Jagadishbhai in the past, the person came to be examined as witness on behalf of the complainant. In this case, the specific defence of the accused is that the blank cheques in question and stamp paper were issued to Jagadishbhai, to whom, he had a transaction. But, such cheques and stamp paper were sought to be misused by the complainant. 24. In the present case, the said blank cheqhe is alleged to have been misused by Mr. Kanavi and he got filed this case through this complainant who is his friend. Moreover, the cheque in question, was returned by the Bank to the said Kanavi after dishonor. Therefore, the complainant should have examined the said Kanavi in order to falsify the defence of the accused. In that context, both the authorities of Hon'ble Apex Court relied upon by the appellant cannot be made applicable to the present case and so also the third authority. 25. Therefore, the complainant should have examined the said Kanavi in order to falsify the defence of the accused. In that context, both the authorities of Hon'ble Apex Court relied upon by the appellant cannot be made applicable to the present case and so also the third authority. 25. Therefore, for the aforesaid reasons, I find that the appellant has failed to prove the guilt of the accused beyond any reasonable doubt. Hence, for the aforesaid reasons the order of the trial Court cannot be held perverse, capricious and against to the facts and circumstances of the case. Hence, the points are answered in the negative. Accordingly, the appeal filed by the appellant-complainant is dismissed.