A.U. Narayana Gowda vs K.R. Somegowda

P.D. Waingankar, J.

This appeal is directed against the judgment and order of acquittal dated 3.9.2011 in C.C. No. 1548/2007 on the file of II Addl. Civil Judge and JMFC, Chikmagalur, whereby the respondent-accused has been acquitted of the offence punishable under Section 138 of N.I. Act.

The facts which gave rise to this appeal are as under:-

"The respondent (who shall hereinafter be called as ''accused'') borrowed a sum of Rs. 2,53,000/- from the ''appellant''(who shall hereinafter be called as complainant). Towards repayment of the loan, the accused issued a cheque for Rs. 2,53,000/- dated: 3.2.2007 in favour of the complainant drawn on Vijaya Bank, Avathi Branch, Chikamagalur. The complainant presented the cheque for encashment on the very same day through his banker Karnataka Bank Limited, Chikamagalur. The cheque came to be dishonoured for ''insufficient funds''. The factum of dishonour of the cheque was brought to the notice of the accused by issuance of notice and the accused was called upon to pay the cheque amount within stipulated period of 15 days from the date of receipt of the notice. The accused having failed to pay the cheque amount, the complainant presented a private complaint before the Magistrate against the accused for the offence punishable under section 138 of N.I. Act."

The accused having denied the charge levelled against him, the complainant in order to establish the charge got himself examined as PW-1 and relied upon seven documents marked as Ex-P1 to P7. The accused got himself examined as DW-1 and relied upon Exs-D1 to D5. The learned Magistrate upon hearing the submissions made by both the learned counsel and on appreciation of evidence recorded a finding that the complainant failed to prove the existence of legally recoverable debt which resulted in the acquittal of the accused by the impugned judgment. Aggrieved by the acquittal of the accused, this appeal is preferred by the complainant.

I have heard both the learned counsel appearing on behalf of the parties. Perused the records and the judgment passed by the court below.

The case of the complainant is that at the request of accused, he advanced a sum of Rs. 2,53,000/- to the accused and towards repayment of the loan amount, the accused issued a cheque for Rs. 2,53,000/- dated 3.2.2007. It is further case of the complainant that on the very date i.e., on 3.2.2007, he presented the cheque for collection through his banker ''Karnataka Bank Limited'', Avathi Branch, Chikmagalur, but the cheque came to be dishonoured and thereby by issuance of notice, he informed the dishonour of the cheque to the accused and called upon him to pay the cheque amount within stipulated period and since the accused failed to pay the cheque amount, a complaint came to be lodged. Apart from his oral evidence to that effect, the complainant has placed on record as many as seven documents marked as Ex-P1 to P7. Ex-P1 is the cheque said to have been issued by accused in favour of the complainant for Rs. 2,53,000/- towards repayment of the loan obtained from the complainant. Ex-P2 is the endorsement issued by the bank informing the complainant that the cheque is dishonoured on account of insufficient funds in the account of the accused. Exs-P3 and P4 are the postal receipts for having sent the notice to the accused by RPAD. Ex-P5 is the postal acknowledgment for having sent the notice by Under certificate of posting. Ex-P6 is the copy of the legal notice issued to the accused calling upon him to pay the cheque amount. Ex-P7 is the reply notice dated 21.3.2007, wherein the accused has denied all the contents of Ex-P6 legal notice issued by the complainant including the advancement of the loan, issuance of the cheque. The accused has categorically denied for having borrowed a sum of Rs. 2,53,000/-from the complainant.

As against evidence placed on record by the complainant, the accused has also stepped into the witness box and led his evidence as DW-1, wherein he denied having borrowed loan of Rs. 2,53,000/- from the complainant. On the other hand, it is the case of the accused that he lost his cheque book and other documents and taking undue advantage of the cheque of the accused that was lost alongwith other documents, the complainant presented the same for collection and filed a false complaint. He has also stated that as soon as he came to know the fact that he lost the cheque book and other documents, he lodged a complaint before his banker Vijaya Bank, Avathi Branch, Chikamagalur. Ex-D1 is the copy of the complaint dated 25.1.2001. Ex-D2 is another complaint dated 23.2.2006 addressed to Sub-Inspector of police, Basavanahalli, Chikamagalur. Ex-D3 is an acknowledgment for having lodged a complaint. The cheque in question is dated 3.2.2007. The complaint that was lodged before the Vijaya Bank is dated 25.1.2001 as per Ex-D1. Therefore, it cannot be said that the cheque that was lost by the accused in the year 2001 has been used by the complainant in the year 2007. Be that as it may, it is not sufficient for the complainant just to produce the cheque.

The complainant has to establish the existence of legally enforceable debt or the transaction between the accused and the complainant which led the accused to issue the cheque in question. It is true that whenever a cheque is issued, a presumption has to be drawn that it is issued towards discharge of debt. But at the same time, it is for the complainant to establish the existence of legally enforceable debt, more so, in this case, when the accused has categorically denied for having borrowed the loan from the complainant. Further, the complainant has not produced any document regarding the transaction, if any, between the accused and the complainant, which ultimately prompted the accused to issue the cheque for Rs. 2,53,000/-. The complainant is bound to prove and establish the circumstance under which the cheque was issued by the accused in his favour. There is absolutely no material placed on record by the complainant in that regard. It is equally true that the burden of proving that the cheque was not issued for any debt or liability is on the accused, but the said burden is equivalent burden that has to be discharged by plaintiff or defendant in a civil case i.e., preponderance of probability. The accused need not lead his evidence in order to discharge the said burden. The accused can discharge the burden either from the cross-examination or from the evidence placed on record by the complainant himself. Having regard to the facts and circumstances of the case, I have no hesitation to hold that the accused has discharged his burden cast upon him, on the other hand, the complainant has failed to discharge the burden as to the existence of legal enforceable debt. The learned Magistrate upon going through the material placed on record and on proper appreciation of evidence has rightly recorded a finding that the complainant has failed to discharge the burden as to the existence of legally enforceable debt and thereby acquitted the accused. On my re-appreciation of evidence, I do not find any reason to call for my interference in the impugned judgment of acquittal.

Accordingly, I pass the following order:-

The appeal is dismissed.