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2020 DIGILAW 510 (KAR)

Praveen Capital Private Limited v. Abdul Khader

2020-02-20

MOHAMMAD NAWAZ

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JUDGMENT Mohammad Nawaz, J. - This appeal is filed by the complainant in C.C. No. 1024/2014 on the file of the V-JMFC., Mangalore, wherein, the trial Court by judgment dated 12.02.2019 acquitted the respondent/accused of the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as the N.I. Act for Short). 2. I have heard the learned counsel appearing for the appellant/complainant and the learned counsel appearing for the respondent/accused. 3. It is the case of the complainant that the accused approached the complainant at its office and applied for vehicle loan for his Indica Taxi Model 2007 bearing Reg. No. KA-19-B-8392. After processing the loan application, a sum of Rs. 80,000/- was advanced on 06.07.2013 to the accused. The accused entered into an agreement with the complainant to repay the loan amount in monthly installments. In this regard, he issued a cheque bearing No. 899844 for a sum of Rs. 80,923/- dated 07.05.2014 drawn on Indian Bank, Pumpwell Junction, Mangalore. When the said cheque was presented for encashment on 07.05.2014, it was dishonored with an endorsement 'Funds Insufficient'. A legal notice dated 13.05.2014 was issued to the accused calling upon him to pay the amount covered under the dishonored cheque. Though the notice was served on 16.05.2014, the accused failed to pay the amount within the stipulated time and therefore, the accused committed an offence punishable under Section of 138 of N.I Act. 4. To establish the case, the complainant got examined PW.1 and got marked Ex.P1 to Ex.P11. The trial Court after considering the evidence and material on record, acquitted the accused. Aggrieved by the same, the present appeal is preferred. 5. The contention of the learned counsel for the appellant is that the issuance of cheque is admitted by the accused and therefore, the trial Court ought to have drawn a legal presumption in favour of the complainant. On the other hand, the trial Court has dismissed the complaint imposing burden on the complainant to prove, which is impermissible under law. He contends that when the presumption under Sections 118 and 139 of N.I Act is available to the complainant, it is for the accused to rebut the presumption. In the instant case, the accused has not stepped into the witness box and failed to rebut the presumption. Thus, the Court below has committed an error in acquitting the accused. He contends that when the presumption under Sections 118 and 139 of N.I Act is available to the complainant, it is for the accused to rebut the presumption. In the instant case, the accused has not stepped into the witness box and failed to rebut the presumption. Thus, the Court below has committed an error in acquitting the accused. The learned counsel further contends that the accused availed vehicle loan of Rs. 80,000/-. Loan application is marked as Ex.P8 and the signature of the accused is at Ex.P8(a). The accused agreed to repay the amount in monthly installments; however, he failed to repay the amount. As on the date of issuance of cheque on 07.05.2014, a sum of Rs. 80,923/- was due and therefore, he submits that it was a legally enforceable debt due from the accused. He submits that the entire approach of the trial Court in acquitting the accused is not in accordance with law and therefore, he seeks to allow the appeal. 6. Per Contra, the learned counsel for the respondent would contend that the complainant has not established that as on the date of issuance of cheque, a sum of Rs. 80,923/- was due. No documents have been produced to establish the same. It is contended that the vehicle in question was seized and sold by the complainant and it is not forthcoming as to for what amount it was sold and therefore, it cannot be said that the amount claimed by the complainant was illegally recoverable from the accused. It is also contended that PW.1 is only an agent of the complainant and as he was not aware of the transaction, he was not authorized to file the complaint. The learned counsel further contends that the trial Court has given valid reasons for acquitting the accused. Accordingly, he seeks to dismiss the appeal. 7. The case of the complainant is that a vehicle loan of Rs. 80,000/- was advanced to the accused on 06.07.2013. The accused had agreed to repay the same in monthly installments and entered into an agreement with the complainant. In connection with the aforesaid loan, the accused issued the cheque for a sum of Rs. 80,923/- on 07.05.2014 and when the same was presented to the bank, it was dishonored with an endorsement 'Funds Insufficient'. The accused had agreed to repay the same in monthly installments and entered into an agreement with the complainant. In connection with the aforesaid loan, the accused issued the cheque for a sum of Rs. 80,923/- on 07.05.2014 and when the same was presented to the bank, it was dishonored with an endorsement 'Funds Insufficient'. Inspite of issuance of legal notice, the accused failed to repay the amount within the stipulated time and therefore, the accused committed an offence punishable under Section 138 of N.I Act. 8. The trial Court, with regard to authority of PW.1 to file complaint has observed that PW.1 ought to have explained as to how he acquired knowledge about the transaction in his chief examination. In the absence of such assertion in his chief examination, the court cannot presume that PW-1 is the authorized person of the complainant company. PW-1 has not placed cogent evidence before the Court to show that he is an authorized person to appear on behalf of the company to give evidence. 9. PW.1 is the Accounts Officer of the complainant. He has reiterated the averments made in the complaint. He has stated that earlier a GPA was executed in favour of one Charankumar by the complainant and subsequently Ex.P7 was executed in his favour to conduct the case. 10. Admittedly, PW-1 has not witnessed the transaction as an agent of the holder in due course of the cheque. He has no knowledge about the transaction between the accused and the complainant. He has not stated anything as to how he has acquired acknowledge about the transaction. It is not forthcoming in his evidence as to how a sum of Rs. 80,923 was due as on 07.05.2014, when the loan amount was Rs. 80,000/-. PW.1 has admitted in the cross examination that the vehicle in question was seized and it was sold for a sum of Rs. 20,000/-. However, he has not produced any documents to show that the vehicle was sold for the said amount. However, it is admitted that the vehicle in question was sold by the complainant. The exact amount received after the sale of vehicle in auction has not been convincingly established by the complainant. Though PW.1 has stated that the pre-seizure notice was issued prior to the seizure of the vehicle, copy of any such notice has not been produced. However, it is admitted that the vehicle in question was sold by the complainant. The exact amount received after the sale of vehicle in auction has not been convincingly established by the complainant. Though PW.1 has stated that the pre-seizure notice was issued prior to the seizure of the vehicle, copy of any such notice has not been produced. PW.1 has admitted that in the year 2014, the vehicle was seized. If the vehicle was seized and sold and if the said amount has been adjusted towards the balance payable, then the complainant has failed to establish as to what was the balance amount payable by the accused after selling the vehicle. No cogent documents are placed before the Court to substantiate the same. Even in Ex.P11, statement of accounts, it is not shown that a sum of Rs. 80,923/- was due as on 07.05.2014. The complainant has failed to show that a sum of Rs. 80,923/- was legally recoverable from the accused as on 07.05.2014. 11. It is well settled that the accused can prove his case by means of preponderance of probability by examining himself or by producing documents or by cross examining the prosecution witness. In the present case, the complainant has failed to prove that the cheque in question was issued in discharge of whole or in part of other liability and it was towards legally dischargeable debts. The trial Court having considered the entire evidence and material on record and after giving reasons has come to the conclusion that the complainant has failed to establish the fact that the accused issued Ex.P1 cheque in discharge of a legally recoverable debt. I see no illegality in the judgment passed by the trial Court. Accordingly, appeal is dismissed.