S.H. Siddalingaswamy vs Srinivasa and Sampathkumar

N. Ananda, J.—The learned trial Judge has acquitted respondents (accused) for an offence punishable u/s 138 of Negotiable Instruments Act. Therefore, the appellant (complainant) is before this Court. I have heard Sri. Kaleemulla Shariff, learned counsel for the complainant and Sri. A.V. Gangadharappa, learned counsel for the accused.

The averments of the complaint are as follows:--

The accused had borrowed a sum of Rs. 2,30,000/- from the complainant on 12.10.2002. For security of the said amount, they had issued a cheque bearing No. 0924451 dated 12.10.2002 drawn on State Bank of Mysore, Sampige branch. The complainant presented the cheque for collection in State Bank of Mysore, Sampige branch and the same was dishonoured with an endorsement "funds insufficient". The complainant issued a legal notice dated 06.03.2003 and accused in turn, replied to the said notice by raising certain untenable grounds.

The averments of the complaint would reveal that complainant had lent a sum of Rs. 2,30,000/- to the accused on 12.10.2002 and accused had issued a cheque for a sum of Rs. 2,30,000/- of the even date. A perusal of the cheque would reveal that accused had issued a bearer cheque. The contents of cheque bears the signature of accused (drawee). The cheque does not bear an indication that complainant had presented the same for collection with his banker namely, State Bank of Mysore, Sampige branch. The cheque does not bear an indication that it was ever sent for collection. On the other hand, the contents of cheque would give an impression that complainant had presented the cheque to encash and banker has refused to encash as it was a bearer cheque. If the complainant has presented the cheque for encashment, there was no need for the banker to issue an endorsement stating that the cheque could not be honoured for want of funds. As already stated, the cheque does not bear an indication that it was sent for collection.

During the evidence, complainant has come out with a different story that accused had approached him and borrowed a sum of Rs. 2,30,000/- on 12.04.2002 and they had issued a cheque (Ex.P11) as security for repayment of the loan. The cheque issued by accused was post dated cheque dated 12.10.2002. It was drawn for a sum of Rs. 2,30,000/-. During cross-examination, the complainant has denied the suggestion that he was running ''Siddeshwara Finance''. The accused had approached complainant and requested for loan during January, 2002. The accused gave cheque soon after receiving Rs. 2,30,000/- from complainant. The complainant has not produced the counterfoil (challan) for having presented the cheque for encashment on 20.02.2003.

PW-2 who was examined on behalf of the complainant has deposed, on 20.02.2003, the complainant presented a cheque (Ex.P11) for encashment and a token was issued to the complainant. The cheque was returned as there were no sufficient funds in the account on which the cheque was drawn.

In the circumstances, evidence of the complainant that accused had borrowed a sum of Rs. 2,30,000/- as loan from the complainant and they had issued a post dated cheque as security for repayment of the loan cannot be accepted. The evidence of complainant that he had presented the cheque for collection and same was dishonoured with an endorsement ''funds insufficient'' cannot be accepted. The endorsement issued on 20.02.2003 cannot be accepted. The evidence of PW-2, Manager of State Bank of Mysore, Sampige branch, would clearly demonstrate that an endorsement as per Ex. P1 is a blank document. ''The complainant has not come out with truth. The accused had contended that complainant was running ''Siddeshwara Finance'' and in that connection, there were monetary transaction between the two and accused had issued some blank cheques and one of the cheque has been misused to initiate the instant complaint. The defence of accused is probable. In the circumstances, the learned trial Judge was justified in acquitting the accused. There are no reasons to interfere with the impugned judgment.

The appeal is dismissed.