Shankaregowda vs A. Thimmegowda

A.V. Chandrashekara, J.—Heard the learned counsel for the appellant and perused the records.

The case is at the stage of admission. The appellant herein was the complainant in C.C. No. 234/2014 registered for the offence punishable under Section 138 of N.I. Act. The respondent who was the accused in the said case is acquitted by virtue of considered judgment of acquittal dated 24.02.2015. It is this judgment which is called in question as per Section 378(4) of Cr.P.C.

The case of the complainant is that the accused is very well known to him and the accused approached the complainant on 20.06.2012 for hand loan of Rs. 6,00,000/- for his personal and business problems. On the said date, the complainant is stated to have paid a sum of Rs. 6,00,000/- in cash to the accused and thereafter, he called upon the accused to pay back the money. In this regard, the accused is stated to have issued three cheques drawn on Vijaya Bank, Kollegal Branch, for Rs. 2,00,000/- each on 28.7.2012, 31.07.2012 and 02.08.2012. These cheques, according to the complainant, were issued in regard to loan availed by him on 20.06.2012.

These cheques were presented for encashment by the complainant and they were returned with an endorsement ''funds insufficient''. As such, the complainant got issued a legal notice on 14.8.2012 calling upon the accused-respondent to repay the cheques amount and if he failed to do so criminal and civil action would be taken against him. The respondent issued reply to the said notice by taking untenable stand and he has failed to repay the said amount. Hence, complaint was lodged for the offence punishable under Section-138 of the N.I. Act.

The defence of the accused is that these three cheques were issued in relation to the loan transaction entered into between the complainant and the accused on 5.1.2012 vide Ex. D. 1-registered mortgage deed in which the accused had mortgaged his immovable property bearing Sy. Nos. 197/B1, 204/B3, 197/A1 and 197/CA and that these cheques were only collateral security to the mortgage.

In order to bring home the guilt of the accused, the complainant is examined himself as P.W. 1 and got marked 10 exhibits. The accused has not stepped into the witness box to probabalise his defence. The trial Judge has chosen to frame the following five points for consideration:

Whether the complainant proves that the accused has issued 3 cheques bearing No. 516509 dated 28.07.2012, 516507 dated 31.7.12 and 516508 dated 02.08.2012 for Rs. 2 lakhs each drawn on the account maintained by accused in Vijaya Bank, Kollegal for discharge of whole debt of Rs. 6 lakhs received from him on 20.06.2012?

Whether the complainant prove that aforesaid three cheques are dishonored by the accused bank with shara ''funds in sufficient'' in the account of the accused?

Whether the complainant prove that accused has not paid the cheque amounts inspite of service of legal notice issued by him dated 14.08.2012?

Whether the complainant proves that accused has committed the offence punishable u/s. 138 of NI Act?

What order?

Point Nos. 1 to 4 have been answered in affirmative and 5 in negative. Consequently, the accused is acquitted of the offence punishable under Section 138 of NI Act vide judgment dated 24.2.2015. It is this judgment which is called in question in this appeal.

Learned counsel for the appellant has vehemently contended that neither the accused has stepped into the witness box to probabalise his defence nor made any effective cross-examination to rebut the presumption under Section 118 and 139 of NI Act. It is argued that transaction of loan between the accused and the complainant as per Ex. D. 1 is made prior to issuance of cheques - Ex. P.1 and P.2 and as these cheques were dishonoured, Ex. D.1 is nothing to do with Ex. P.1 and P.2. Hence, he requests this Court to admit the appeal and consider the case on merit.

Perused the entire lower court records.

The presumption available under Sections 118 and 139 of NI Act is rebuttable. Such a presumption can be rebutted by the accused by entering into the witness box as a witness or he can effectively cross-examine the complainant.

In the present case Ex. P.1 to P.3 are the three cheques stated to have been issued by the accused on 28.7.2012, 31.7.2012 and 2.8.2012 in a sum of Rs. 2,00,000/- each. According to the learned counsel for the appellant, these cheques were not in accordance with the availment of Rs. 6,00,000/- as loan in cash from the complainant on 20.6.2012. It is true that initial presumption is available under Section 118(a) of NI Act. In the cross examination of P.W. 1, he has admitted the same. Admittedly, the complainant is not an income tax assessee and he has not placed any records to show that he had paid an amount of Rs. 6,00,000/- to the accused on 20.6.2012. Admittedly, he has a small shop looked after by his son. He has admitted in his cross examination that on 5.1.2012 the accused executed a registered mortgage deed in respect of 2.94 acres of land in Sy. No. 197/B1, 204/B3, 197/A1 and 197/C1.

Though he had initially refused to accept this document, he has ultimately accepted the same and it is got marked through him. He has admitted the contents of the reply notice got issued by the accused. The defence of the accused is that three cheques were taken as additional security for the loan availed by him on 5.1.2012 from the complainant.

The accused has been able to probabalise that only one loan transaction was entered into between himself and the complainant. If Ex. D.1 is considered to be a document evincing earlier loan transaction as contended by the appellant, the complainant is stated to have paid a sum of Rs. 12,00,000/-. But the complainant is thoroughly failed to prove the same.

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. Accordingly, the appeal is dismissed at the stage of admission.