N.M. Threethegowda vs A. Abdul Refekh

A.V. Chandrashekara, J.—Smt. Rashmi Patel, learned Advocate for R. Nataraj who is present in the Court submits that they have already given NOC Vakalath to the complainant-appellant. But no arrangement is made by the appellant to represent him in this appeal. Heard Sri. R. Srinivas, the learned Advocate for the accused-respondent and perused the records.

By the impugned Judgment dated 29.10.2011 passed by the XIII Additional Chief Metropolitan Magistrate, Bengaluru, in C.C. No. 19223/2009, the accused-respondent herein has been acquitted for the offence punishable under Section-138 of the Negotiable Instrument Act. Assailing the said judgment of acquittal, the complainant has preferred the present appeal.

The appellant herein was the complainant in a complaint filed in terms of Section-2(d) of the Code of Criminal Procedure for the offence punishable under Section-138 of the Negotiable Instrument Act. According to the complainant, a sum of Rs. 4,00,00,000/- (rupees four crores) had been given to the respondent-accused by way of an investment and in turn, accused-respondent had issued a cheque dated 20.09.2008 bearing No. 5890888 drawn on Amanath Co-Operative Bank, in favour of the appellant. In spite of several demands, the accused did not repay the said amount and as such, the complainant presented the said cheque for encashment and the same was returned with an endorsement "funds insufficient/account closed". A statutory notice was got issued in terms of Section-138 of the N.I. Act, calling upon the accused-respondent to repay the cheque amount. The respondent issued reply notice by taking untenable grounds and as he failed to repay the said amount, a complaint was filed in terms of Section-2(d) of Cr.P.C., for the offence punishable under Section-138 of the N.I. Act.

After taking cognizance, summons were issued to the respondent-accused. In order to bring home the guilt of the accused, the complainant examined himself as P.W. 1 and got marked 38 exhibits. The accused examined himself as D.W. 1 and got marked 10 exhibits.

It is the case of the accused that the complainant was working as agent under the accused and at that point of time, in the year 1988, the complainant had taken away two cheques belonging to the accused and in that regard a police complaint was lodged against the complainant. Only after lodging of criminal complainant against the complainant, by misusing those stolen two cheques, a frivolous/false complaint is filed against the accused-respondent.

After evaluating the oral and documentary evidence adduced by the respective parties, the learned Judge of the trial court has come to the conclusion that the complainant has failed to prove that the cheque in question was issued by the accused for legally recoverable debt of Rs. 4,00,00,000/- and that there was no relationship of debtor and creditor between the complainant and accused and consequently, acquitted the accused-respondent herein for the offence punishable under Section-138 of the N.I. Act.

As could be seen from the reasonings assigned in paragraph-15 of the impugned Judgment, the learned judge of the trial Court, while acquitting the accused-respondent has discussed the entire case elaborately, in the light of the oral and documentary evidence let in by the respective parties.

On perusal of the materials on record, the complainant tried to substantially improve his case while adducing evidence that Banashankari Leasing Company had advanced Rs. 4,00,00,000/- and the same was handed over to the accused for investment by way of cheque and cash. The complainant has relied on tripartite agreement stated to have been entered into between Banashankari Leasing Company, himself and the accused, as per Ex. P.13. The learned Judge of the trial Court has specifically held that the complainant has not produced any documents to substantiate that the accused had received a sum of Rs. 4,00,00,000/-. The learned Judge has categorically recorded a finding that the presumption available U/S. 138 of the N.I. Act is rebuttable one and the accused has placed sufficient material to rebut the same.

No witnesses or officials were examined on behalf of Banashankari Leasing Company to prove that the said leasing company has indeed released a sum of Rs. 20,00,00,000/- in the joint names of the complainant as well as the accused for investment, as alleged by the complainant. The learned Judge has observed that if really the said amount had been released in the joint names, then both the complainant as well as the accused were in-debted to the said leasing company. Furthermore, the said leasing company has not taken any action against the accused or complaint. Despite searching cross-examination of D.W.. 1 by the counsel for the complainant, nothing contra has been elicited in the mouth of D.W. 1 to substantiate that Banashankari Leasing Company had indeed advanced the funds for investment with the accused. It is in this view of the matter, the trial Court has specifically held that there was no relationship of debtor and creditor between the complainant and the accused, so as to draw presumption available U/S. 138 of the N.I. Act. If really the complaint had sufficient money at his disposal to pay a sum of Rs. 4,00,00,000/- to the accused and if really a sum of Rs. 20,00,00,000/- had been released by the Banashankari leasing company and that was the basis for him to pay a sum of Rs. 4,00,00,000/- to the accused, nothing prevented him to produce documentary evidence to that effect and he ought to have examined any official from the said company, as witness to substantiate his case. Added to this, the financial condition of the complainant, as on the date of issuing of cheque is also taken into consideration by the learned trial Judge. For the first time, the complainant has made futile efforts to the effect that Banashankari Leasing Company has compelled the complainant to invest the said amount with the accused, but no materials are forthcoming to substantiate the same. This material improvement of the case by the complainant has also taken into consideration by the learned trial judge, while dismissing the complaint.

The learned trial judge, after evaluating the oral and documentary evidence in proper perspective, has come to the conclusion that the complainant has failed to prove that the accused was due to him and the cheque in question was issued towards the discharge of the legally recoverable debt. On examining the materials on record, this Court does not find any illegality, perversity or error apparent on the face of the record in the findings recorded by the learned trial judge, while acquitting the accused-respondent. No good grounds are made out to interfere with the well considered such finding of the trial court.

Hence, question of granting special leave does not arise. Accordingly, the criminal appeal filed by the complainant-appellant is dismissed as unfit for admission.