Rajashekar vs Nirmala Rajanna

A.S. Pachhapure, J.—The appellant has challenged the Judgment and Order of acquitting the respondent for the charge u/s 138 of the Negotiable Instruments Act [hereinafter referred to as "the Act" for short] on a trial held by the Addl. C.M.M., Mayo Hall, Bangalore. The facts relevant for the purpose of this appeal are as under:

The appellant is the complainant, whereas the respondent is the accused before the trial Court. The appellant is said to have advanced a sum of Rs. 1 lakh to the respondent on 05.06.2006 as a hand-loan agreeing to repay the said sum within 4 months. As the amount was not repaid, the appellant is said to have approached the respondent and in turn the respondent is said to have issued a cheque bearing No. 149143 for a sum of Rs. 1 lakh on 14.10.2006, drawn on Canara Bank. The cheque was presented for encashment and it returned with endorsement of funds insufficient. The appellant issued a notice and as the notice was not replied, he approached the trial Court and submitted the complaint u/s 200 Cr.P.C. to initiate action against the respondent for the offence punishable u/s 138 of the Act.

After appearance of the respondent, the trial Court recorded the evidence of P.W. 1 and in his evidence, documents Exs. P1 to 10 were got marked. Statement of the respondent was recorded u/s 313 Cr.P.C. The respondent is examined as D.W. 1 and in her evidence, documents Exs. D1 to 12 were got marked. The trial Court after hearing learned counsel for the parties and on appreciation of the material on record acquitted the respondent for the said charge. Aggrieved by the Order, the present appeal has been filed.

I have heard learned counsel for both the parties.

The point that arises for my consideration is;

Whether the appellant has made out any grounds to warrant interference in the Judgment and Order of acquitting the respondent for the charge u/s 138 of the Act?

Learned counsel for the appellant would contend that the signature on the cheque is admitted and therefore, he submits that a presumption arises u/s 139 of the Act. He also contends that the material placed on record is insufficient to rebut the presumption, and have the acquittal order passed by the trial Court is erroneous and illegal. On the other hand, learned counsel for the respondent has supported the Judgment and Order of the trial Court.

As could be seen from the material placed on record, the respondent has denied issuance of the cheque and receipt of the hand-loan of Rs. 1 lakh from the appellant. It is her specific case that she is the owner of site No. 12, C.V. Raman Nagar Post, Bangalore, and there was an agreement between herself and the appellant for sale of the said site for a sum of Rs. 4,75,000-00 and a sum of Rs. 81,000-00 has been paid as an advance. The agreement was cancelled and at that time, she had issued a cheque for a sum of Rs. 1,00,000-00 in favour of the appellant. It is also borne out from the material placed on record that she had repaid the said amount and obtained an endorsement of the appellant on the agreement itself regarding payment of the amount and cancellation of the agreement. The copy of the said agreement with endorsement are produced as Ex. D10. Further-more, it also reveals that the respondent had executed a power of attorney in favour of the appellant for sale of the said site and that the power of attorney has been produced by the appellant at Ex. P9. Ex. P10 is the sale agreement said to have been executed by the respondent in favour of the appellant and 2 others. Furthermore, the respondent has produced the certified copy of the order sheet in O.S. No. 8412/2004, a suit instituted for the relief of declaration and injunction, wherein the respondent herein is the defendant and one Jayamma R., is the plaintiff and this relates to registered Sale Deed in respect of the suit site and this suit was pending all along and also on the date when the alleged transaction was entered into. The appellant has set up the plaintiff in the said suit who had obtained the Sale Deed. The suit in O.S. No. 8412/2004 is said to have been instituted at the instance of the appellant. From this document, it is very much clear that as on the date of the alleged transaction, there was a litigation in relation to this property on the basis of the Sale Deed by setting up the plaintiff as a litigant in the said suit and the respondent herein was the defendant. When the relationship between the parties was strained, rather it is improbable that the appellant could have entered into a loan transaction with the respondent. The material placed on record would clearly indicate that the relationship between the parties were strained and it is because of this reason that the trial Court was of the opinion that there was no loan transaction between the parties and the defence put-forth by the respondent is probable. Taking into consideration this aspect, I do not find any justifiable ground to warrant interference in the Judgment and Order of the trial Court. In the result, the appeal fails and it is dismissed accordingly.