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2023 DIGILAW 1262 (KAR)

Yelahanka Merchants Finance Company v. Savitha

2023-11-02

G.BASAVARAJA

body2023
JUDGMENT 1. Heard learned counsel for appellant. 2. This appeal is preferred by the Appellant/Complainant against the order dtd. 28/6/2019 passed by the XXV Addl. Chief Metropolitan Magistrate, Bengaluru in CC No.21929/2016. 3. Brief facts of the case : Appellant/Complainant had filed a complaint against the accused persons under Sec. 200 of Cr.P.C. for dishonour of cheque, which is punishable under Sec. 138 of Negotiable Instruments Act (for short hereinafter referred to as 'NI Act'). The trial Court has taken cognizance and a case came to be registered in CC No.21929/2016 on the file of XXV Addl. C.M.M., Bengaluru. 4. To substantiate his case the Appellant/Complainant examined himself as PW1 and got marked 23 documents marked as Ex.P1 to P23 and closed his side. Statement under Sec. 313 of Cr.P.C. was recorded and accused did not adduce any evidence on his behalf, but got marked one sale deed as Ex.D1. 5. On hearing both sides, the trial Court acquitted the accused for the offence punishable under Sec. 138 of NI Act. Being aggrieved by the judgment of acquittal passed by the trial Court Appellant/Complainant has preferred this appeal. 6. Learned counsel for Appellant/Complainant submitted that the Appellant/Complainant has proved the essential ingredients of Sec. 138 of NI Act by producing oral and documentary evidence. Accused has not adduced any evidence to rebut the statutory presumption under Sec. 139 of NI Act. However, the trial Court has observed in Page-12 to the effect that the Appellant/Complainant has not produced any documents to establish the fact that when exactly the accused has become defaulter and from what date the interest has been calculated. Further, the trial Court observed that the Complainant has failed to establish the fact of granting loan of Rs.65.00 lakhs and therefore, on all these grounds it is not possible to hold that the accused is guilty of the offence. 7. The Appellant/Complainant in this appeal has filed an application in IA No.2/2019 under the provisions of Sec. 391 of Cr.P.C. seeking the permission to lead additional evidence. Appellant/Complainant sought permission to adduce additional evidence to substantiate his case, if the matter is remanded back to the trial Court. Hence, he seeks to allow this appeal and remand the matter to the trial Court. 8. Though notice is served on the respondent, she remained unrepresented. 9. Appellant/Complainant sought permission to adduce additional evidence to substantiate his case, if the matter is remanded back to the trial Court. Hence, he seeks to allow this appeal and remand the matter to the trial Court. 8. Though notice is served on the respondent, she remained unrepresented. 9. Having heard the learned counsel for Appellant/Complainant and on perusal of the records, the following points arise for my consideration: (a) Whether the Appellant/Complainant has made out a case to interfere with the impugned judgment passed by the trial Court? (b) Whether the application in IA No.2/2019 filed under Sec. 391 of Cr.P.C. deserves to be allowed? (c) What order? 10. My answer to the aforesaid points are : (a) In the affirmative; (b) In the affirmative; (c) As per final order. Reg. Point Nos. (a) and (b): 11. On perusal of the impugned judgment, it is clear that the accused has issued a cheque in favour of the Appellant/Complainant for a sum of Rs.37, 17, 100.00 dtd. 19/7/2016. The same on presentation for encashment, was dishonoured on 21/7/2016. The Appellant/Complainant has issued a legal notice dtd. 9/8/2016 to the accused calling upon her to make the payment as demanded. The same was served on the accused on 10/8/2016. But there was no reply to the notice issued by the Appellant/Complainant by the accused. Hence, the Appellant/Complainant filed a complaint under Sec. 200 Cr.P.C. against the accused on 15/9/2016. Accordingly, the Appellant/Complainant has proved the essential ingredients of Sec. 138 of NI Act except the Explanation of Sec. 138 of NI Act, as opined by the trial Court. 12. The trial Court in the impugned order at Para-12 and 13, has observed as follows: "12. By looking into the cross-examination portion of PW-1. Though, it is established by the complainant firm that there was a loan that the accused has to pay. But the complainant has miserably failed to establish the fact of granting of loan of Rs.65, 00, 000.00 - as contended. By looking into the cross-examination portion of PW-1. Though, it is established by the complainant firm that there was a loan that the accused has to pay. But the complainant has miserably failed to establish the fact of granting of loan of Rs.65, 00, 000.00 - as contended. The learned counsel appearing for the complainant has argued that the tenor of the cross-examination of PW-1 and the Suggestion made by the accused counsel to the PW1 will certainly establishes the fact that he has paid more than Rs.40, 00, 000.00 it is also admitted by the PW-1 why this Rs.40, 00, 000.00 have been paid to the complainant is not explained by the accused by entering to the witness box as a defence witness. Hence, it has to be considered that by the relevant document produced by the complainant presumption has to be drawn by the Court that the Complainant firm has sanctioned the loan and for which the cheque was issued and made to dishonour thereby the commission of the offence has been proved. The presumption. drawn by the Court has not rebutted by the accused counsel. Hence, accused is liable for conviction. 13. No doubt the accused has taken a defence that he has made a payment to the complainant firm to the extent of Rs.40, 00, 000.00. But merely because it is stated in the suggestion or in the course of cross-examination to that effect the burden of proving the aspect by granting of loan of Rs.65, 00, 000.00- loan will not absolve. Since, it is the bounden duty of the complainant to establish the fact. Then only the question of rebutting the presumption drawn in favour of the complainant arises. That as per the well established principles of law that when the accused admits the signature on the cheque and issue of cheque for security also then also the accused is liable for conviction. But that principle is applicable only when the complainant has successfully established the fact of extending of a legally recoverable debt for which the cheque has been paid and that was dishonoured for "Insufficient Funds". But that principle is applicable only when the complainant has successfully established the fact of extending of a legally recoverable debt for which the cheque has been paid and that was dishonoured for "Insufficient Funds". But whereas in this case by looking into the cross-examination portion of PW-1 and also looking into the document of Ex.P-3 and the specific admission given by the PW-1 that along with cheque no confirmation letter was issued and also by looking to the contradictory evidence of PW-1 with respect to the loan transaction and also by adding Rs. Eleven Lakhs incidental charges to the loan without establishing the fact that she has visited the accused for recovery of loan. There is absolutely no document placed before the Court to establish the fact that when exactly the accused has become defaulter of the loan amount and from what date the interest has been calculated and thereby the accused has issued the cheque for that calculated amount. As such the non-production of the document that accused has taken the amount as stated in the complaint and in the absence of production of document to establish the exact due amount as on the date of complaint. I am of the opinion that the complainant has miserably failed to prove the fact of existing debt of Rs.65, 00, 000.00- and out of that there was a balance of Rs.37, 17, 100.00 for issue of cheque. Then the question of drawing the presumption in favour of the complainant does not arise at all. When presumption is not drawn in favour of the complainant. The question of rebutting that presumption by the accused also does not arise at all. In such a event I am of the opinion that the complainant has miserably failed to prove the commission of the offence by the accused person with respect to the offence punishable U/s 138 of N.I.Act. Hence, I have no hesitation to answer Point No. 1 in the Negative." 13. In the present appeal, at this stage, the Appellant/Complainant has filed an application under Sec. 391 of Cr.P.C. seeking permission to adduce additional evidence before the trial Court, which is supported by an affidavit, in which it is stated that the trial Court has not at all considered the documents, such as, seven Bank Statements of various dates the copies of which are produced along with the application. It is clear that the said documents are produced before the trial Court, but were not marked. Therefore, the trial Court has not considered the said seven documents produced by the Appellant/Complainant. 14. The respondent - accused has not issued any reply to the notice issued by the Appellant/Complainant and has not adduced any evidence before the trial Court. 15. Since the Appellant/Complainant wants to adduce additional evidence to substantiate its case, it is just and proper to provide one more opportunity to the Appellant/Complainant to adduce additional evidence as sought for in the application - IA No.2/2019. Accordingly, I answer the points (a) & (b) in the affirmative. Reg. Point No.(c): 16. In view of the discussions made above, I proceed to pass the following order: ORDER (i) The appeal is allowed. (ii) The order dtd. 28/6/2019 passed by the XXV Addl. Chief Metropolitan Magistrate, Bengaluru in CC No.21929/2016, is set aside. (iii) Application - IA No.2/2019 filed under Sec. 391 of Cr.P.C. is allowed.; (iv) The matter is remanded back to the trial Court with a direction to provide opportunity to both the parties to adduce additional oral and documentary evidence.; (v) Thereafter the trial Court shall dispose of the matter in accordance with law, as early as possible, since the matter is of the year 2016.; (vi) Registry is directed to send a copy of this order to the trial Court.; (vii) Appellant/Complainant is directed to appear before the trial Court on 25/11/2023, without seeking for any further notice from the trial Court.; (viii) Further, the trial Court is directed to secure the presence of the accused and provide her opportunity to adduce additional evidence both oral and documentary, if any.