Chandrashekar Kanchan vs Bhaskar. S. Salian Poojary

Huluvadi G .Ramesh, J.—This appeal is by the complainant assailing the order of learned JMFC, Udupi in C.C. No. 7522/2003 dated 29.12.2006 in acquitting the accused and dismissing the complaint.

According to the complainant, the accused had borrowed a sum of Rs. 35,000/- with a promise to repay the same with interest at 18% p.a. and in this regard, had issued a cheque dated 15.02.2003 drawn on South Canara District Central Co-operative Bank Ltd., Kaup branch, in favour of the complainant, which on presentation for encashment, came to be dishonoured for insufficient funds. Accordingly, he issued a legal notice for which the accused sent an untenable reply as such, the complaint came to be filed for non-payment. The trial Court, after enquiry, believing the version of the accused that the cheque was lost and in this regard he has filed a complaint and also intimated the bank and that the complainant has not produced any proof for making payment to the accused and also regarding availability of the amount in his account and drawing of the amount, has dismissed the complaint, against which, this appeal is preferred.

Heard

According to the learned Counsel for the complainant, the accused had borrowed a sum of Rs. 35,000/- and agreed to pay the same with interest thereon and in this regard he had issued a cheque. The complainant has withdrawn the amount from the bank account for which there is a specific entry. The theory of the defense is totally false and the finding of the trial Court is erroneous.

Per-contra, the learned Counsel appearing for the accused has submitted that, the cheque in question along with other documents was stolen from the first aid box of the autorickshaw of the accused and in this regard he had issued an intimation to the bank to stop payment as per Ex.D1, which is corroborated by the evidence of D.W.2, the bank official, whereas the complainant has net produced any document to prove that he has drawn the amount from the bank to lend it to the accused and rather, the accused is successful in rebutting the presumption and has proved that there is no legally enforceable debt. Accordingly, he has sought for dismissal.

In the case on hand, according to the complainant, he has got the document to show that the amount was available in his account and he has drawn the said amount and made payment to the accused.

So far as accused giving intimation to the bank regarding theft of cheque and other documents and filing of the complaint, is a matter to be considered only if the complainant is not able to show that he has not drawn the amount from the bank from his account to lend it to the accused.

In the circumstances, appeal is allowed and the impugned order is set aside. The matter is remitted to the trial Court, to afford an opportunity to the complainant to establish that he had drawn the amount from the bank prior to making payment to the accused as contended by him and, also with liberty to the parties to lead additional evidence if any. Office to send back the records.

Parties are directed to appear before the trial Court on 16.122010.