M/s Vijayalakshmi Finance vs R. Ananda Shetty, Chimmi Enterprises, Bazer Road, Hunsur Mysore District

K.N. Keshavanarayana

This appeal by the complainant is directed against the Judgment and Order dated 29.12.2005 passed by the Civil Judge (Sr. Dn.) & JMPC, Kunsur in CC. NO. 124/2000 acquitting the respondent/accused of the charge levelled against him for the offence punishable under section-138 of the Negotiable Instruments Act (''Act'' for short).

The appellant filed complaint alleging offence under section-138 of the Act inter alia contending that the accused for his legal necessity borrowed a sum of Rs. 21,984/- from the complainant firm agreeing to repay the same with interest at 23% per annum and executed necessary documents in favour of the complainant that towards the discharge of the said loan, accused issued (sic) bearing NO. 0016712 dated 3.3.2000 drawn on Vijaya Bank, Hunsur in favour of the complainant; that when the cheque was presented for encashment the same was returned unpaid with banker''s endorsement ''not arranged for''; that immediately complainant issued legal notice through registered post and also under certificate of posting calling upon the accused to pay the amount covered under the cheque; that though the notice sent by certificate of posting was received by the accused, he has failed to comply with the demands made therein. As such, the accused is guilty of the offence under section-138 of the Act.

Upon service of the summons, the accused appeared before the learned Magistrate and pleaded not guilty for the accusation made against him. The defence of the accused was that much earlier to the alleged date of transaction, he had menetary transaction with the complainant Finance Corporation and in connection with the said monetary transaction, he had handed over blank cheque and the laid blank cheque has been misused by the complainant According to the accused, he has not borrowed Rs. 21,984/- from the complainant nor the cheque in question was issued for discharge of the said loan.

The learned Magistrate after recording the evidence of the parties, and on assessment of oral and documentary evidence, by the Judgment under appeal acquitted the accused holding that the complainant has failed Co prove the existence of the debt and issuance of cheque in question for discharge of the said debt in that view of the matter, the learned Magistrate held that the complainant has failed to prove the guilt of the accused. Consequently, the accused was acquitted. Aggrieved by the said Judgment of acquittal, the complainant is before this Court in this appeal.

I have heard the learned counsel appearing for the appellant as well as the learned counsel for the accused. Perused the records and the judgment under appeal.

Perusal of the complaint does not indicate the date on which the loan was advanced, In the complaint, it is merely stated that the accused for his legal necessities borrowed a sum of Rs. 21,984/- without mentioning the date on which the amount was advanced. Though in the complaint ft is specifically stated that for having borrowed the amount the accused executed necessary documents In favour of the complainant no such document was produced before the Court to substantiate the said contention. On the other hand during the evidence, PW-1 who is the Managing Partner of complainant firm came out with a different story. As per his evidence, on 3,3,2000 accused borrowed a sum of Rs. 21,984/- from the complainant and on the same day for discharge of the said loan, the cheque in question was issued. It is pertinent to note that as per the evidence of PW-2, the Manager of Karnataka Bank, wherein the complainant has its account, the cheque in question was presented for encashment on 3.3.2000 itself. If really the accused had sufficient amount In his account for issue of cheque on 3.3.2000 Itself, there was no occasion for him to borrow any amount from the complainant. This circumstance, as rightly noticed by the learned Magistrate would probablise the defence theory that the cheque In question had been delivered to the complainant in relation to an earlier transaction. PW-1 in his cross-examination has admitted that the accused had borrowed certain money from the complainant.

However according to PW-1, the earlier transaction had been closed and there are documents with the complainant to evidence the same. Contrary to this, he has admitted In the cross-examination that during the pendency of this proceeding, on 19.10.2000 accused remitted Rs. 2,000/- to the complainant and th" same has been acknowledged by issuing receipt as per Ex.D2 and the said amount has been credited to Account No. 54/98, This shows that even in 2000. certain money relating to the transaction that took place in 1998 was outstanding. This further probablises the story of the defence that the cheque in question was delivered to the complainant in relation to a transection that took place in the year 1998. The complainant is a finance Corporation. Therefore as rightly pointed out by the learned Magistrate, the amount could not he advanced without contemporary documents, Though in the complaint specific averment has been made that necessary documents have been executed by the accused in favour of the complainant:, no such documents were produced. PW-1 in his cross-examination has admitted that no doucrnent is executed. He has further admitted that the present loan transaction is not mentioned in any of the records of the complainant firm. This appears to be highly unnatural moreso having regard to the fact that the complainant is a finance Institution whose accounts are required to be audited by the concerned department Having regard to the facts and circumstances of the case, I am of the opinion that the learned Magistrate is justified in holding that the statutory presumption under section-139 of the Act stood rebutted and In the absence of any acceptable evidence by the complainant with regard to lending of Rs. 21,984/- on 33.2000, the learned Magistrate has not committed any error in holding that the cheque in question was not issued for discharge of any debt due by the accused to the complainant in this view of the matter, the Judgment under appeal does not suffer from any perversity or Illegality, as such It does net call for Interference by this Court, The findings recorded by the learned Magistrate are sound and reasonable and are in consonance with the evidence on record. Therefore I find no ground to Interfere with the said Judgment Hence the appeal is dismissed.