B.L. Karunakar Hegde vs Shubhakara Shetty

A.S. Pachhapure, J.—The appellant has challenged the judgment and order acquitting the respondent for the charge u/s 138 of the Negotiable Instruments Act (hereinafter referred to ''NI Act'' for short) on a trial held by JMFC, Puttur. The facts relevant for the purpose of this appeal are as under:

The appellant who is the complainant before the Trial Court is said to have advanced a sum of Rs. 1,40,000/- to the accused in the month of May, 2000. The respondent is the accused before the Trial Court and is said to have issued cheque dated 06.06.2000 for Rs. 1,40,000/- towards repayment of the said dues. The said cheque was presented for encashment in the Co-operative Society and it returned with an endorsement "insufficient funds". The appellant issued a notice and as the demand made in the notice was not complied, he approached the Trial Court with a complaint u/s 200, Cr. P. C. seeking to initiate action u/s 138 of the NI Act.

During the trial, the appellant was examined as PW 1 and document Exs. P1 to P7 were marked. The statement of respondent was recorded u/s 313, Cr. P. C. The respondent is examined as DW 1 and document Exs. D1 and D17 were marked. The Trial Court after hearing the counsel for parties and on appreciation of the material on record, acquitted the respondent for the said charge. Aggrieved by the judgment and order of acquittal, the present appeal has been filed.

I have heard learned Counsel for both the parties.

It is the submission of learned Counsel for the appellant that the signature on the cheque is not in dispute and therefore, he claims that the presumption arise u/s 139 of NI Act and as the said presumption is not rebutted, he contends that the Trial Court ought to have convicted the respondent for the said charge.

On the other hand, learned Counsel for the respondent submits that abundant material is placed on record to rebut the presumption and the Trial Court has rightly acquitted the respondent-accused on the basis of said material.

The appellant has produced the cheque at Ex. P1, the bank endorsements at Exs. P2 and 3, whereas lawyer''s notice has been produced at Ex. P4. In the evidence, he submits that there were transactions between himself and the respondent prior to May, 2000 for about three years. Further, his evidence reveals that appellant had paid loan to the respondent on different occasions in the said period. So it is the defence of respondent that during the years 1997 to 1999, when he had taken loan from the appellant, he had given blank cheque as security and the said cheque has been misused by the appellant by filing a complaint making false allegation that a sum of Rs. 1,40,000/- was advanced as loan in May, 2000.

It is material to note that except the oral version and the, cheque - Ex. P1, the appellant has not produced any material on record to prove the advancement of loan. That apart, PW 1 admits in the cross examination that except the signature, the contents of cheque are in his handwriting. Further, the respondent has produced the documents i.e., letters at Exs. D1, D3 to D6 and it is his contention that towards repayment of loan and in relation to the transactions for the period from 1997 to 1999, the appellant had threatened the respondent in those letters stating that he would send the respondent to jail, in case, if the loan payable is not repaid with costs.

A perusal of these letters would reveal that there was such threat and those letters are addressed to the respondent. Though the appellant has disputed the handwriting in those letters i.e., Exs. D1, D3 to D6, during the pendency of proceedings, those letters were sent to the opinion of handwriting expert after obtaining the admitted handwriting and disputed handwriting of the appellant and a report was given and it reveals that the admitted handwriting and disputed handwriting is similar. So from this opinion, which has been furnished by the expert which is a part of record of the Court, it is very much clear that the letters Exs. D1, D3 to D6 were written by the appellant wherein he has given threat to repay the amount and he has also stated in those letters that in case if the amount is not paid, the blank cheque which has been given by the respondent will be filled in and a complaint would be filed against the respondent. Even in the cross-examination, the appellant admits that he had taken a cheque as a security and he has filled the contents of the said cheque in his handwriting. Though these documents have been marked in the cross examination of appellant for the purpose of marking, the expert opinion would reveal that contents are in the handwriting of appellant and in such circumstances, I do not find any wrong on the part of Trial Court in accepting these documents and, concluding that the respondent has placed material on record to rebut the presumption u/s 139 of the Act. The scrutiny of material placed on record does not reveal any such grounds to warrant interference in the judgment and order of Trial Court. In the result, the appeal fails and is dismissed.

The deposit of Rs. 5,000/- by the appellant before this Court on 30.07.2009 be refunded to him.