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2020 DIGILAW 406 (KAR)

M. Shivakumar v. Dayavathi

2020-02-12

JOHN MICHAEL CUNHA

body2020
JUDGMENT John Michael Cunha, J. - This appeal is by the complainant challenging acquittal of the respondent/accused for the offence under Section 138 of Negotiable Instruments Act (hereinafter referred to as N.I. Act, for short). 2. Heard learned counsel for appellant and learned counsel for respondent. Perused the records. 3. Appellant (hereinafter referred to as complainant) instituted a proceedings against the respondent (hereinafter referred to as accused) under Section 138 of N.I. Act for dishonour of cheque bearing No. 201769 dated 11.12.2012 for a sum of Rs. 1,50,000/-. 4. The case of the complainant is that the accused approached the complainant and availed hand loan of Rs. 1,50,000/- and towards repayment of the said amount issued, the subject cheque which came to be dishonoured when presented for encashment, as 'funds insufficient'. Statutory notice issued by the complainant was not complied by the accused. Thus, the complainant sought prosecution of the accused. 5. The accused did not reply to the notice issued by the complainant. However, during the course of trial took up a defence that she did not borrow Rs. 1,50,000/- from the complainant at any time. Further, she took up a plea that she was purchasing clothes from the complainant on credit basis and in respect of the said transaction complainant has taken signed blank cheque from her and the same has been made use by the complainant to foist a false case against her. 6. On considering the evidence adduced by the complainant and the accused, learned Magistrate was of the opinion that the complainant failed to prove that the cheque in question was issued by the accused towards repayment of legal debt of Rs. 1,50,000/- and that he had sufficient source of income for advancing a sum of Rs. 1,50,000/- to the accused and with this reasoning, the learned Magistrate dismissed the complaint and consequently, acquitted the accused. 7. Learned counsel for the appellant/complainant while taking me through the evidence let in by the parties pointed out that accused has not disputed the issuance of the cheque. She has also admitted her signature on Ex. P1 cheque. Under the said circumstances, by drawing the presumption attached to the cheque and in view of the failure of the accused to reply to the notice, the learned Magistrate ought to have convicted the accused. She has also admitted her signature on Ex. P1 cheque. Under the said circumstances, by drawing the presumption attached to the cheque and in view of the failure of the accused to reply to the notice, the learned Magistrate ought to have convicted the accused. Further, he pointed out that accused failed to produce any cogent evidence to show that the cheque in question was issued by her as security in respect of the cloth business and in that view of the matter also trial Court has committed an error in acquitting the accused. 8. Learned counsel for the respondent/accused however, argued in support of the impugned judgment contending that the learned Magistrate has appreciated the oral and documentary evidence in proper perspective. The complainant having failed to substantiate that he had advanced a sum of Rs. 1,50,000/- to the accused as stated in the complaint, learned magistrate has rightly rejected the complaint. The accused has probabilized her defence that there was no other transaction between her and the complainant except the cloth business, and the complainant himself having admitted that a sum of Rs. 7,000/- was still due to him in respect of the cloth business, learned Magistrate was justified in dismissing the complaint and acquitting the accused. 9. I have bestowed my careful consideration to the submissions made at the bar and carefully scrutinized the material on record. 10. The accused has not disputed the fact that the cheque in question bears her signature and the same has been issued from the account maintained by her. There is also no dispute that the subject cheque has been dishonoured for reasons of insufficient funds to the credit of the accused. But, in order to make out the offence under Section 138 of N.I. Act, complainant is required to establish that the cheque in question was issued by the accused towards discharge of debt or liability due by the accused as on the date of issuance of the cheque. In the instant case, even though the complainant has come up with the averment that the subject cheque was issued by the accused towards repayment of the loan of Rs. 1,50,000/- borrowed by the accused, yet the complaint is totally silent as to the date, when the alleged amount was borrowed by the accused and the same was advanced by the complainant. 1,50,000/- borrowed by the accused, yet the complaint is totally silent as to the date, when the alleged amount was borrowed by the accused and the same was advanced by the complainant. It is only in the course of cross-examination, complainant asserted that the amount of Rs. 1,50,000/- was paid by him to the accused in the month of June 2012. But, there is absolutely no material to show that any amount was advanced by the complainant in the month of June 2012. The complainant has admitted in his evidence that he has not declared the advancement of the said loan to the accused in the income tax returns filed by him for the relevant year. As a result, except the interested testimony of the complainant, no other material is available on record to show that in the month of June 2012, a sum of Rs. 1,50,000/- was advanced by the complainant to the accused. 11. In the above context, if the answers elicited from PW1 during his cross examination are analysed, it is worth to note that he has unequivocally admitted that he has been carrying on cloth business with the accused since the last 10 years and according to him, a sum of Rs. 7,000/- was still due to him by the accused. Surprisingly, in the course of cross-examination when a specific question was posed to the complainant as to what was the occupation of the accused, the complainant answered that he does not know the occupation of the accused and he did not make any enquiry with regard to her occupation. But subsequent answers elicited from the mouth of the complainant indicate that the accused has been carrying on business with the complainant purchasing cloth from him and in respect of this transaction a sum of Rs. 7,000/- was still due to the complainant. This evidence goes to show that there was a credit transaction between the parties but, by suppressing the real transaction, complainant has tried to project that other than loan transaction he had no other dealings with the accused. In the said circumstances, complainant having failed to prove that the accused had borrowed a hand loan of Rs. This evidence goes to show that there was a credit transaction between the parties but, by suppressing the real transaction, complainant has tried to project that other than loan transaction he had no other dealings with the accused. In the said circumstances, complainant having failed to prove that the accused had borrowed a hand loan of Rs. 1,50,000/- and in repayment thereof she had issued the subject cheque, the stand taken by the accused that the cheque in question was issued by her as security in respect of the said transaction requires to be accepted as probable. This conclusion gets strengthened from the answers elicited in the course of cross examination of the complainant that except the signature, none of the writings of the said cheque are in the hand writing of the accused, which probabilize the defence of the accused that the cheque in question was taken by the complainant in respect of the cloth business. No doubt there is no documentary evidence in proof of the cloth business carried on between the accused and the complainant, yet the complainant having failed to substantiate the basic facts in proof of the advancement of Rs. 1,50,000/- to the accused in lump sum as stated in the compliant, in my view, trial Court was justified in coming to the conclusion that the complainant has failed to establish that the cheque in question was issued by the accused towards discharge of debt or liability due by the accused. Even on reconsideration of the evidence on record, I do not find any reason to differ with the view taken by the trial Court. There is absolutely no material on record to show that as on the date of issuance of the cheque, the accused owed a sum of Rs. 1,50,000/- to the complainant. Complainant has failed to prove that he had advanced a sum of Rs. 1,50,000/- to the accused either in the month of June 2012 or any time subsequent thereto. On the other hand, material on record points out that other than the transaction relating to purchase of cloth by the accused from the complainant there was no other transaction between them. 12. In the light of the above discussion, I do not find any reason to interfere with the findings recorded by the trial Court. On the other hand, material on record points out that other than the transaction relating to purchase of cloth by the accused from the complainant there was no other transaction between them. 12. In the light of the above discussion, I do not find any reason to interfere with the findings recorded by the trial Court. Even otherwise, this appeal having been filed against the order of acquittal merely because an alternate view is possible from the record, cannot be a reason to upset the order of acquittal recorded by the trial Court. Appellant has failed to make out cogent ground to interfere with the impugned order. As a result, the appeal is dismissed.