S.L. Shivanna vs Harsha

N. Ananda, J.—The appellant was the complainant (hereinafter referred as ''complainant'') in C.C. No. 1487/2008 initiated against respondent (hereinafter referred as ''accused'') for an offence punishable u/s 138 of the Negotiable Instruments Act, 1881 (for short, ''the Act''). The learned trial Judge had acquitted accused. Therefore, complainant is before this court. I have heard Smt. D. Harshini, learned counsel for complainant. The respondent though served is not represented.

The averments of complaint and evidence adduced by complainant are stated thus:-

The accused and his family members were residing in Maddur and daughter of complainant was also residing in Maddur. The complainant used to visit his daughter''s house at Maddur and complainant developed friendship with accused. The accused had a land situate on Bangalore-Mysore road at Maddur and he had started construction of a shopping complex and he was running short of money. The accused approached complainant and requested him to lend a sum of Rs. 2,00,000/-. The accused had promised to repay the same, within a period of six months. The complainant had lent a sum of Rs. 2,00,000/- to accused, after mortgaging his house. The accused issued an account payee cheque for a sum of Rs. 2,00,000/-. The cheque was presented on 13.06.2008 and it was dishonoured for ''insufficient funds'' on 20.06.2008.

The accused-has denied that he had borrowed a sum of Rs. 2,00,000/- from complainant and he had issued cheque for repayment of said loan amount. During cross-examination of complainant, it was suggested that complainant was running a chit transaction and the elder brother of accused namely Murali was a subscriber to the said chit. In that connection, accused had issued a blank cheque to complainant, which has been misused by complainant to initiate the present complaint. The complainant has denied these suggestions.

The learned counsel for accused, relying on the judgment of the Supreme Court, reported in Rangappa Vs. Sri Mohan, would submit that complainant has proved that dishonoured cheque was drawn by accused, therefore, court has to presume that there was legally enforceable debt or liability and cheque was issued to discharge such legally enforceable debt/liability.

In the judgment reported in Rangappa Vs. Sri Mohan, , the Supreme Court has held:-

Ordinarily in cheque bouncing cases, what the courts have to consider is whether the ingredients of the offence enumerated in Section 138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by Section 139 of the Act...

In other words, provided the facts required to form the basis of a presumption of law exists, the discretion is left with the Court to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man.

(Emphasis supplied).

In the case on hand, apart from dishonoured cheque, complainant has not produced any documents to prove that he had lent a sum of Rs. 2,00,000/- to accused. The complainant has not explained the compelling circumstances under which he had lent a sum of Rs. 2,00,000/- to accused by mortgaging his house. The sequence of events narrated in complaint and evidence of complainant do not inspire confidence. The complainant has deposed; accused was constructing a shopping complex and he had run short of funds and requested complainant to lend a sum of Rs. 2,00,000/-; complainant by mortgaging his house had lent a sum of Rs. 2,00,000/- to accused and granted six months time to accused to repay the said loan.

The complainant has deposed; he had lent a sum of Rs. 2,00,000/- in the month of May 2008 and received cheque dated 13.06.2008 for a sum of Rs. 2,00,000/-; cheque was presented on 13.06.2008 and it was dishonoured for insufficient funds on 20.06.2008.

If the intention of complainant was to accommodate the accused for a period of six months to repay a sum of Rs. 2,00,000/-, things would not have gone in post haste manner indicated above. The complainant has not produced documents to show that he had received a sum of Rs. 2,00,000/- by mortgaging his house. The complainant has not proved his financial ability to lend a sum of Rs. 2,00,000/- to accused. The complainant has not taken any security from accused at the time of lending money. In the circumstances, averments of complaint and evidence of complainant are not sufficient to raise a presumption u/s 139 of the act.

From the tenor of cross-examination of complainant by learned counsel for accused, we find complainant was running a chit fund. In that connection, accused, his sister namely Hemamalini and his elder brother namely Muruli had issued three cheques to complainant. The complainant has misused one of the cheques issued by accused to initiate the instant complaint. The defence of accused appears probable and it is sufficient to rebut presumption available u/s 139 of the Act. There are no reasons to interfere with the impugned judgment. The appeal is dismissed.