Smt. Pankaja Thaman vs Sri T. Ramesh Gowda

Huluvadi G. Ramesh, J.—Appeal is by the complainant assailing the order of the Fast Track Court IV, Bangalore in Crl. A 1358/2007 dismissing the complaint and acquitting the accused.

According to the complainant, she had lent a loan of Rs. 1,50,000/- to her sister''s husband who is none other than the accused herein during February 2006 Towards discharge of the same, the accused had given a cheque for Rs. 1,50,000/- dated 2.5.2006 drawn on Canara Bank, Girinagar Branch. The same was dishonored on presentation for ''insufficient funds''/payment stopped by the drawer. After causing legal notice, since the amount was not paid, case came to be filed. The trial court after inquiry, held the accused guilty of the offence and ordered to pay Rs. 2 lakhs out of which, Rs. 1,50,000/- was to be paid to the complainant and Rs. 50,000/- to the State. In the appeal preferred by the accused, the appellate court reversed the finding of the trial court. Hence, this appeal.

Heard the counsel representing the parties.

According to the Appellant''s counsel, complainant was conducting coaching classes, she had maintained sufficient funds with her to make payment and also, she lent the amount out of relation for the purchase of a flat by the accused who is none other than her brother in law (sister''s husband). Ultimately, the cheque issued by the accused towards repayment, came to be dishonored. The trial court although has rightly convicted the accused, but the appellate court relying upon Krishna Janardhana Bhat''s case AIR 2009 SC 738, has come to an erroneous conclusion. It is also submitted, when the cheque was duly signed and issued by the accused to the complainant, the dishonour of the same attracts Section 138 of the Negotiable Instruments Act. The cheque was issued towards a legally enforceable debt and by an erroneous reasoning, the appellate court committed an error in acquitting the accused.

Per contra, counsel for the Respondent accused submitted that the accused and the complainant are relatives. After receiving the loan from the bank and from his father, a flat was purchased and later, in order to repay the loan to the bank, he wanted to let out the flat. However, his wife and his father in law in stead, insisted that they should stay together in the flat. In this regard, as differences arose, case was filed alleging dowry harassment u/s 498, IPC. Meanwhile, when he was arrested, the complainant made use of one of the cheques which was returned from the Developers after having made payment and, she also filed a false complaint as he did not yield to the terms of his sister in law and her father. It is also submitted the complainant had no source of income of her own. The cheque that was stolen when he was taken into custody in the criminal case filed against him, has been misused only to harass and to file a false case against him.

Before the trial court, the accused in his examination has stated, four cheques which were given by him to the Developers were returned back and they were post-dated cheques for which they had also issued a receipt which he had not produced. The trial court on the ground that he was unable to produce any receipt regarding return of the cheques by the Developers and that apart, he had no sufficient amount in his account, held that the dishonour of the cheque attracts Section 138 of the Negotiable Instruments Act. It has also observed that, in order to escape from the clutches, he has intimated the banker to stop payment and also that the accused must have sufficient funds in his account before ordering for stopping payment of the cheque. Accordingly, it has opined that the accused has failed to prove that he had given instruction to the bank to stop payment with a bonafide intention.

The appellate court having noted that the complainant has not made it specific as to how much amount she paid to the accused and also she has not obtained any documents other than the cheque and also noticing that since 1999 she is not working and she has completed her graduation during 1994; except the amount that was given to her by he father during festivals she had no other money and that she has also not stated that she borrowed the amount from her husband, opined that it is difficult to accept the case of the complainant and dismissed the complaint.

According to the accused, the complainant is none other than his sister in law and she was set up by his wife and father in law to file a false case against him having regard to the differences between them and, a case u/s 498A, IPC also has been filed against the accused wherein he was arrested and at that time, out of the four cheques which were returned by the Developers on payment being made by the accused, one cheque was misused to file a case against him. It is also submitted that in the flat purchased by the accused, his wife and child are staying and that he is staying separately. This is the explanation offered by the accused in support of his case. Taking into consideration the ratio laid down in Krishna Janardhana Bhat''s case, ultimately the explanation offered by the accused regarding non-issuance of cheque has weighed in favour of the accused apart from the evidence regarding the status of the complainant that she was jobless and that she had only the money given to her by her father Further, there is also no whisper in her evidence that she has lent the amount out of her share received from her father on sale of the house by her father. In the circumstances, it has to be held, the appellate court has rightly acquitted the accused which order does not call for any interference.

In the result, the appeal is dismissed.