Sri. Anil vs Sri. Hanamant

Dr. Jawad Rahim, J.—The complainant is in appeal against the acquittal of the respondent for offences punishable u/s 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ''the N.I. Act'' for short). Heard the learned Counsel Sri. Mrutyunjay Tata Bangi for the appellant and perused the records in supplementation thereto. It reveals:

The appellant Anil Shambhappa Sarabi initiated prosecution of the respondent Hanamant Yallappa Rawal for offences punishable u/s 138 of the N.I. Act, on assertive contention that, he had borrowed Rs. 75,000/- from him on 01.07.2006 agreeing to repay with interest thereon and had also issued a cheque drawn on the Rabakavi Urban Co-operative Bank, Branch Rabakavi. The cheque was dated 19.07.2006. On 23.11.2006, the complainant presented the cheque through his banker, which was dishonoured with endorsement ''insufficient funds''. Consequently, the appellant issued statutory notice on 05.12.2006 which was served on the accused on 08.12.2006. The accused sent untenable reply on 11.12.2006 denying the liability and then he sought action against the respondent.

The respondent-accused resisted the prosecution on the ground that, there was no Privity of contract of loan between the parties and that the impugned cheque was not issued towards any existing debt or legal liability. In The circumstances, the trial was conducted, in which the complainant tendered evidence as PW1, while the accused tendered evidence as DW1. The complainant relied on seven documents and the accused relied on three documents.

The learned trial Judge, on analyzing the evidence noticed that the cheque, on presentation through the complainant''s banker was dishonoured because the Rabakavi Urban Co-operative Bank was not functional as on the date of presentation of cheque, in view of certain orders passed by the Reserve Bank of India. The learned Judge has further noticed that, the complainant had failed to establish, he has sufficient means and capacity to lend money, relying on the decision in the case of Krishna Janardhan Bhat Vs. Dattatraya G. Hegde, . The learned trial Judge has also felt that, the presumption u/s 139 of the N.I. Act is not always available in favour of the complainant in view of the said judgment. In the resultant position, he acquitted the respondent-accused.

The learned Counsel for the appellant, Sri. Bangi, referring to the reasons assigned by the learned trial Judge would show that, the learned trial Judge has applied the decision, which has subsequently been overruled by the Hon''ble Supreme Court by its judgment in the case of Rangappa Vs. Sri Mohan, . He submits that the view of the learned trial Judge that the complainant has to establish his capacity to lend money was not only factually incorrect, but even in the law such a burden is not cast. As far as cheque is concerned, the complainant has been informed that the cheque could not have been honoured due to insufficient funds, which attracts Section 138 of the N.I. Act and hence the complainant was entitled to proceed against the respondent-accused.

The contentions urged by the learned Counsel for the appellant are applied to facts of this case It is not in dispute that the cheque was drawn on Rabakavi Urban Co-operative Bank, which was rendered nonfunctional by the Reserve Bank of India. The cheque was presented during that period. Therefore, it is not known under what circumstances the bank could make an endorsement of insufficient funds. Even otherwise, the complainant should have examined an Officer of the bank who would have clarified the position as to whether there was any amount to the credit of the accused or cheque has been dishonoured because the bank itself was not permitted to transact. That has not been done.

As regards the reasons assigned by the learned trial Judge, it could be seen that, under law, there is no requirement that the complainant must prove his means and financial capacity to lend money. The reference made by Hon''ble Supreme Court even in the case of Krishna Janardhan Bhat (referred to supra) is to examine the facts for re-assertion as to whether there was legal lending transaction between the parties. In that context, the Apex Court observed that, Section 269 of the Income Tax Act had not been followed and the complainant had not given the money to the accused by cheque or other means. In fact, all these issues have been set at rest by the Hon''ble Supreme Court by its judgment in the case of Rangappa (referred to supra). Therefore, on this ground, the opinion of the trial Court does not appear to be proper. But on the whole, taking into consideration the fact that the complainant has not proved money lending transaction between him and accused and that when the cheque was presented to the bank, the bank was not in existence and also because the initial burden to prove the ingredients of the offence always rests with the complainant and the accused only has to lay a probable defence, I find no reason to interfere with the acquittal recorded by the trial Court.

In the result, the appeal fails confirming the judgment of the trial Court.