M. Muniraju vs Shri P.S Nagaraju

Subhash B.Adi

Appeal by the complainant, questioning the judgment of acquittal in C.C.No.7901/2005 dated 4th August 2006 on the file of XXII Addl. CM. M., Bangalore City.

Case of the complainant was that, the accused had approached the complainant on 6.10.2004 with a request for hand loan of Rs. 4,00.000/- for the purpose of performing his daughter''s marriage. Accused received the money of Rs. 4,00.000/- and issued a cheque dated 6.11.2004. When the Cheque was presented to the Bank, it returned with an endorsement "funds insufficient". Complainant issued legal notice on 23.11.2004. calling upon the accused to pay the said amount with interest, however, the accused though received the notice, but gave an untenable reply denying the transaction itself, as such, complainant filed a private complaint for an offence punishable under

On service of summons, accused appeared before the trial court and pleaded not guilty.

Complainant to prove his case got himself examined as PW-1 and produced Exs.P1 to P9 whereas, accused got himself examined as DW-1 and also examined his daughter as DW-2, however, no documents were produced in his evidence.

The trial court on appreciation of the entire evidence found that the complainant has not proved his case that he had paid Rs. 4.00,000/- by way of loan to the accused and has also not proved that there is any legally recoverable debt, accordingly, it acquitted the accused. As against the judgment of acquittal, complainant is in appeal.

I heard Sri.Pradeep Naik learned Counsel for the appellant - complainant and Sri.Muralidhar, learned Counsel on behalf of M/s.Sree Ranga Associates for the respondent -accused.

Learned Counsel for the complainant submitted that, the cheque belonging to the accused and drawn from his account is not in dispute. On its presentation, it has been dishonoured for want of sufficient fund is also not in dispute. Further legal notice was also issued to the accused and the accused has acknowledged the same. Complainant has proved that, despite the demand, accused has not made the payment and to prove the same, he has produced the dishonoured cheque -Ex.P2, bank endorsement - Ex.P3.acknowledgement - Ex.P8, notice - Ex.P7 and reply notice -Ex.P9.

Complainant has taken a defence in the reply notice that, he knew one Vijay, who was a priest in Shaneshwara temple and through whom one Muralidharan, his friend, who wanted money, had approached the complainant and complainant had advanced Rs. 10,000/- to Muralidharan. However, said Muralidharan had not paid the said amount. Complainant and his friend came to the house of the accused and took the blank cheque. In the reply, accused had admitted that, there was a transaction with the complainant and the accused had: issued the cheque, however, to claim that Muralidharan had taken money, but no evidence is produced nor there is any evidence to show that transaction was only for Rs. 10,000/-. When the cheque is for Rs. 4,00.000/- presumption arises that transaction is also for Rs. 4.00,000/-. To show that the complainant had the source of income to pay such an amount, in the cross-examination, he has stated that. Rs. 2,50,000/- was received by his father as a retirement benefit and Rs. 1,50,000/- he had borrowed from his brother-in-law and had made the payment to the complainant. Though the accused has taken a defence that only Rs. 10,000/- was paid to Muralidharan and he knew Vijay, but nothing has been produced nor any evidence is led to prove the same. On the other hand, complainant has produced the cheque belonging to the accused and also adduced the evidence to show that accused had borrowed money and to discharge the said loan, he had issued the cheque.

On the other hand, Sri.Muralidhar, learned Counsel for the respondent - accused submitted that, to prove the offence u/s 138 of the Negotiable Instruments Act, by mere production of the dishonoured cheque by itself will not prove the offence unless the complainant proves that there is a legally recoverable debt due from the accused. Except producing the cheque, bank endorsement, notice and reply, complainant has not produced any material to show that he was having amount in his possession to pay Rs. 4,0,000/- to the accused. In turn, he submitted that, accused had not borrowed any money from the complainant. It is Muralidharan, who had borrowed the said amount and Muralidharan having not paid the amount, the complainant and another had come to the house of the accused and they had taken blank cheque as a security, as such, there was no transaction with the accused and the case is falsely filed against the accused. He also submitted that, his daughter has been examined as DW-2 and she has stated that, there was no marriage proposal or marriage at the time of alleged transaction, so the theory of the accused borrowing money for the marriage of his daughter has not been proved. When the accused has shown that there is no liability or transaction between the complainant and the accused, the harden was more on the complainant to prove and having not discharged, the trial court on proper appreciation of the evidence has rightly acquitted the accused. He also submitted that, there is absolutely no material on which the complainant can claim transaction between himself and the accused.

In view of the submissions made by both the Counsel, the point that arises for consideration in this appeal is:

Whether the complainant has established that there is a legally recoverable debt due from the accused?

The undisputed facts are that. Ex.P2 is the cheque belonging to the accused and it is from his account. Ex.P3 is the bank endorsement, which shows that the said cheque has been returned for want of sufficient fund and Ex.P7 is the notice. Ex.P8 is the acknowledgement and Ex.P9 is the reply. These documents are not in dispute. These materials show that cheque issued by the accused has been dishonoured end even after notice, accused has not made the payment, though there is a presumption of legally recoverable debt, but it is rebuttable presumption.

Accused has caused reply as per Ex.P9. In his reply, accused had stated that, he is a God fearing person, he used to go to Shaneshwara temple and in Shaneshwara temple, he came in contact with one Vijay, the priest, who used to help him to have an early darshan. Muralidharan is his friend, who was working as Assistant Computer Operator in State Bank of Mysore. Muralidharan was in need of Rs. 10,000/-. Since the accused had no money, he had approached Vijay, who had introduced the complainant and the complainant had paid Rs. 10,000/- to Muralidharan. Muralidharan had not paid the said amount, as such, complainant and another had come to his house and threatening the accused, he had taken the signed cross blank cheque. This averment is made in the reply and also in the evidence. However, to substantiate that Muralidharan had obtained Rs. 10,000/- from the complainant, neither any documents nor any evidence is produced, though an attempt is made to show that witness summons was issued to Muralidharan and Muralidharan had given a letter on 3.8.2006, but no evidence of Muralidharan is led. The complainant does not admit that there was any transaction between himself and Muralidharan. It is also stated that, Vijay, the priest is known to the accused. Even the complainant has also stated that, through Vijay, he came in contact with the accused. Said Vijay has not been examined. If the cheque is issued and it is dishonoured, there has to be minimum rebuttable evidence to show that there is no transaction or even if there is transaction, but the debt has not become legally recoverable debt. Except oral assertion of the accused that he had not borrowed money and Muralidharan had borrowed Rs. 10,000/-, there is no other evidence and the accused admits the transaction and issue of cheque, burden was on the accused to prove that cheque was not issued for Rs. 4,00,000/-, but it was only as a security, there is hardly any evidence.

Further, it is not in dispute that the accused was an employee in Reserve Bank of India at the time of alleged transaction and the person working in Reserve Bank of India will be knowing the repercussion of issuing blank cheque and such a prudent man having thorough banking knowledge, it is not understandable as to how he could issue a blank cheque in favour of the complainant and it is not known as to how Muralidharan, who was working as an Assistant Computer Operator in State Bank of Mysore could have approached the complainant only for Rs. 10,000/-. There is no evidence, even to appreciate the same, evidence of the accused does not show any credibility, as accused and the alleged Muralidharan being bank employees could have approached the complainant for loan of only Rs. 10,000/-. According to the accused, the complainant is a stranger, hence, it does not stand to any reason that two Bank employees could approach for loan of only Rs. 10,000/ to stranger, and accused could give blank cheque.

Trial court only on the ground that the accused has stated in his evidence that he is a God fearing person, it has believed the version of the accused rather appreciating the evidence on record, there is no consideration of the evidence by the trial court. In my opinion, findings of the trial court are perverse and contrary to the evidence on record. If the accused wants to rebut the presumption, he must show from the evidence that the presumption arising u/s 139 of N.I.Act has been rebutted. When there is no acceptable and rebuttable evidence, the trial court ought not to have acquitted the accused. In these circumstances, I find that the appeal deserves to be allowed.

Accordingly, the appeal is allowed. The judgment of acquittal in CC.No.7901/2005 dated 4th August 2006 on the file of XXII Addl.C.M.M., Bangalore City, is hereby set aside.

The accused is convicted for an offence punishable u/s 138 of the Negotiable Instruments Act. Accused is sentenced with fine of Rs. 4,50,000/-, out of which, complainant be paid Rs. 4,25,000/- and Rs. 25,000/- be appropriated to the State account towards fine. In default of payment of fine by the accused, the accused shall undergo six months S.I.