Mr. Uday Rai vs Mr. Sunder K. Shetty

Mr.Justice Subhash B.Adi

This appeal is by the complainant against the judgment of acquittal in C.C.No.502/2006 dated 26th October 2006 on the file of J.M.F.C., Mangalore, D.K.District.

Case of the complainant was that, accused had borrowed a sum of Rs. 4,00,000/- in October 1997. Towards discharge of the said amount, accused had issued two cheques dated 15.5.1998 and 25.8.1998 for Rs. 2,75,000/- and Rs. 1,25,000/-. Both the cheques on presentation to the Bank have been returned with an endorsement "account closed/funds insufficient". Complainant issued the legal notice on 7.11.1998. The said notice was not received, however, complainant also issued notice by certificate of posting. When the amount was not paid, he filed a private complaint u/s 200 of Cr.P.C. for the offences punishable under Sections 417 and 420 of the Indian Penal Code read with Section 138 of the Negotiable Instruments Act.

On service of summons, accused appears and pleaded not guilty.

Before the learned Magistrate, complainant got himself examined as PW-1 and also examined PW-2 - Bank Manager and got Exs.P1 to P9 marked in his evidence. No evidence was led by the accused.

The trial court on appreciation of the evidence found that, complainant has not proved the source of income, has not proved the transaction and has not examined his maternal uncle Shivarama Shetty from whom he had borrowed money and accordingly, it acquitted the accused. As against the said judgment of acquittal, the complainant is in appeal.

Heard Sri.Malatesh for the appellant - complainant and Sri.Devi Prasad Shetty for the respondent - accused.

It is the specific cast of the complainant that, he was working under his maternal uncle as a cashier in Mumbai from 1993. His maternal uncle was running a hotel business in Mumbai. Complainant wanted to start a hotel business in Hubli. He used to go to Hubli and stay in Deepak Lodge belonging to the accused during 1995 to 1997. During that time, he got acquainted with the accused and accused borrowed a sum of Rs. 4,00,000/- in October 1997.

During the cross-examination, complainant has stated that, he borrowed money from his uncle Shivarama Shetty, a suggestion was made to complainant to examine Shivarama Shetty as a witness, however, complainant denied to examine Shivarama Shetty and has stated that, it is not possible to examine Shivarama Shetty. It is suggested to the complainant that, no such Shivarama Shetty much less maternal uncle is in existence. Though such suggestion is denied, but the fact remains that, complainant, who claims that he had borrowed money from Shivarama Shetty, his maternal uncle, has not examined him despite suggestion is made. His Bank account is produced by PW-2 - Manager of Vijaya Bank, Mangalore. It does not show any amount more than Rs. 12,000/- at any time during the relevant period. No doubt, the complainant need not keep the money in Bank, but if he has admitted that he had borrowed it from his maternal uncle, minimum that the complainant should have shown is that, his uncle hand lent the money to the complainant.

The other circumstance is that, complainant had come to Hubli in search of hotel business, but no evidence is produced to show that he had made any effort to choose any place for starting the hotel or had come in contact with any person during 1995 to 1997, as he alleges that, he used to stay during that period in the hotel of the accused. In turn, accused''s case is that, the complainant was working as a cleaner, then he became supplier and thereafter became cashier in their hotel and the accused has a hotel even in Gulbarga district. Whenever he used to go out, he used to keep some cheques in the hotel, and these two cheques have been misused by the complainant. Though there is no direct evidence, but it probabalizes that the complainant used to go to Hubli and stay in the hotel of accused, but has not produced any evidence to prove his source of income. Complainant''s bank statement does not show such amount at any relevant time Further, there is no evidence to show that, from 1995 to 1997 why he used to go to Hubli and stay in the hotel of accused, even if he had stayed in connection with search of business place, but there is nothing on record to show that he had made any search for business place, much less whether he could have started his business with amount of Rs. 4,00,000/-.

It is in these circumstances, the trial court found that the case of the accused is more probabalized that there is no transaction with the complainant and there is possibility of cheques being misused by the complainant. Though initial presumption arises in favour of the complainant u/s 139 of N.I.Act as regard to the legally recoverable debt, if it is shown that, there is no debt, no transaction, burden shifts on the complainant to prove (he same. Complainant having stated that he had borrowed money, minimum he should have shown is the source of money or shown that he used to stay in the said hotel and he had made any effort to search for a place for running hotel business. However, nothing has been produced except the cheque, legal notice and bank endorsement. In these circumstances, just because the cheque is dishonoured, ipso facio it will not prove that the accused is legally liable to the complainant.

In my opinion, the trial court on proper appreciation of the evidence has rightly acquitted the accused. I find no ground to interfere with the judgment of acquittal.

Accordingly, the appeal fails and same is dismissed.