Hanumanthappa Hanchinmane vs Agasanakatte A. Basavarajappa

P.D. Waingankra, J.—This appeal is preferred by the appellant-complainant against the Judgment dated 3.9.2010 in C.C. No. 2286/2009 on the file of III Addl. Sr. Civil Judge and JMFC, Davanagere whereby the respondent-accused has been acquitted for the offence punishable under Section 138 of N.I. Act. Aggrieved by the same, the complainant has preferred this appeal.

The parties are referred to their respective ranks before the trial Court.

The case of the appellant is that the accused approached the complainant for loan for the marriage of his daughter and to fulfill the household requirement. Accordingly, the complainant advanced a loan amount of Rs. 3,50,000/- to the accused. Towards repayment of the loan amount, the accused issued a cheque for Rs. 3,50,000/- in favour of the complainant dated 28.11.2007 drawn on State Bank of India at Davanagere.. Complainant presented the cheque for collection, which came to be dishonoured. The factum of dishonour of the cheque was informed to the accused by issuance of legal notice by RPAD. Inspite of service of notice, the accused did not come forward to repay the cheque amount. Hence a complaint came to be filed against the accused for the offence punishable under Section 138 of the N.I. Act.

In order to establish the charge, the complainant got examined himself as PW-1 and relied upon six documents marked as Exs-P1 to P6. The defence during the course of cross-examination of PW-1 got marked Ex-D1 and D2.. The complainant, who was examined as PW-1 has reiterated the case made out by him in his evidence. He has produced the cheque as per Ex-P2, Bank challan-Ex-P3, Bank intimation Ex-P4. All the requirements which are required to file a complaint under Section 138 of N.I. Act has been duly complied with. The defence of the accused is that the complainant had no financial capacity to pay that much of loan amount to the accused nor the complainant has produced any documents in respect of loan transaction with the accused. The complainant has not produced even a scrap of paper to show the source of his income. Under such circumstances, the Trial Court held that the complainant had no capacity to pay the loan amount of Rs. 3,50,000/-. On my appreciation of evidence also, I do not find any evidence placed on record by the complainant to show that he had capacity to advance the loan to the accused, that too, an amount of Rs. 3,50,000/-. It is equally true that no prudent person would advance huge amount of Rs. 3,50,000/- without there being any documents. Further no person would advance loan of Rs. 3,50,000/- without interest. Having taken note of these facts and circumstances of the case, the learned Magistrate has rightly come to the conclusion that the accused did not have capacity to advance the loan amount.

Though the accused has denied having issued a cheque, the fact remains that the cheque is signed by the accused. It was drawn on account of the accused in State Bank of India, Davanagere. The accused made a futile attempt to show the Court that he had transactions with one Veeraraghava Reddy to whom he had issued the cheque which has been misused by the complainant. But the said defence put forth by the accused does not inspire confidence of the Court for the simple reason that the cheque is issued in the name of the complainant. It is true that once the cheque is issued, a presumption has to be drawn under Section 139 of N.I. Act that it has been issued towards discharge of the legally enforceable debt or liability. The said presumption is rebuttal presumption. The accused can rebut the presumption by creating doubt in the mind of the Court from the evidence placed on record by the complainant. It is not necessary that the accused should step into the witness box. Since the complainant has not placed on record any document to show the financial capacity to advance the loan amount of Rs. 3,50,000/- and has not produced any document in relation to transaction in question or agreement containing the terms and conditions of the loan or for that matter, an acknowledgement given by the accused for having received a sum of Rs. 3,50,000/-, it has to be held that the complainant failed to discharge the initial burden cast upon him. There is no evidence to show that the cheque was issued towards discharge of legally enforceable debt and therefore even presumption under Section 139 of N.I. Act is not available to the complainant. Thus the learned Magistrate on proper appreciation of evidence has rightly held that the accused failed to establish the ingredient of the offence punishable under Section 138 of N.I. Act, which resulted in acquittal of 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. The appeal is devoid of merit. Hence, the appeal is dismissed.