Sri. C. Shivanna vs Sri. Shivanna

N. Ananda, J.—The learned trial Judge has acquitted the accused (respondent) for an offence punishable u/s 138 of Negotiable Instruments Act. Therefore, the appellant (complainant) is before this Court. I have heard Sri. P. Prasanna Kumar, learned counsel for the complainant and Sri. K.M. Umesh, learned counsel for the accused.

The learned trial Judge has acquitted accused for the following reasons:--

(i) The complainant has failed to prove his financial capacity to lend a sum of Rs. 2 lakhs to the accused.

(ii) On the date of alleged transaction, the accused was working in Bombay.

(iii) The complainant has not produced any documentary evidence to prove that loan transaction had taken place in BRSA Guest House at Mysore and that accused had come all the way from Bombay to Mysore to borrow a sum of Rs. 2 lakhs from the complainant.

(iv) It is difficult to believe that the complainant had lent a sum of Rs. 2 lakhs to the accused without any security.

(v) The complainant has failed to prove the existence of legally recoverable debt.

(vi) The complainant is in the habit of filing complaints u/s 138 of N.I. Act by giving wrong addresses before different courts.

In addition to the above, I noticed, there is material discrepancy on the disputed cheque relating to date of presentation. The learned trial Judge for the reasons not apparent in the judgment has not noticed this discrepancy.

It the case of complainant that accused had issued a cheque dated 14.12.2009 on 28.12.2008. The cheque was drawn on the account held by accused with State Bank of India, BARC Branch, Mumbai. It is the case of complainant that at the first instance, he had presented the cheque on 23.02.2010 with his banker namely Lakshmi Vilas Bank, Mysore branch and the cheque was returned for want of ''insufficient funds'' in terms of the return memo dated 26.02.2010. It is the case of complainant that accused requested the complainant to re-present the cheque. Therefore, the complainant re-presented the cheque on 14.05.2010 and again the cheque was dishonoured in terms of the return memo dated 20.05.2010. The complainant had issued legal notice on 07.06.2010.

On perusal of the cheque (Ex.P1), we find that the cheque does not bear the seal of Lakshmi Vilas Bank to indicate that it was presented for the second time on 14.05.2010. Even the challen through which the cheque was presented, the banker of the complainant does not bear the initials of the cashier to acknowledge the receipt of the cheque. The cheque does not indicate that it was presented twice by the complainant. It is obvious that the complainant had presented the cheque on 23.02.2010 and had not issued the legal notice within a period of 30 days. Therefore, he had produced the challen and computer generated return memo to make it appear that he had re-presented the cheque on 14.05.2010. In this view of the matter, the complainant has failed to prove that he had complied with the provisions of Section 138 of N.I. Act.

On re-appreciation of evidence, I find that at the relevant time, the accused was working in B.A.R.C. at Bombay and was residing in Bombay with his family members. It is improbable that the accused had come all the way from Mysore to borrow a sum of Rs. 2 lakhs from the complainant.

The complainant has deposed that he lent. A sum of Rs. 2 lakhs to the accused at 7.30 a.m., on 28.12.2008 in BRSA Guest house, Lakshmipuram, Mysore. It is needless to state that this guest house is situated in protected area and occupants of rooms of the guest house will have to make necessary entries in the register and register of the guest house bears the signature of occupants of guest house at a given point of time. The complainant has admitted that he was working as a Engineer in Rare Materials Project. He retired from the central government service in the year 2007. He has admitted that apart from pension, he does not have any other source of income. He has admitted that while filing complaint against one Aiyappa at JMFC court at Mandya, he has stated that he was the resident of Holalu (Mandya town). The complainant has admitted that in the year 2008, accused was working in Bombay and in June 2009, he was transferred from Bombay to Mysore. In the circumstances, it looks improbable that the complainant had received a cheque/retained the cheque which was drawn by the accused on State Bank of India, BARC branch, Mumbai.

The learned counsel for complainant would submit that accused has admitted his signature on the cheque. Therefore, the presumption would arise u/s 139 of N.I. Act. The learned counsel would submit that this Court will have to raise a presumption regarding the existence of legally recoverable debt and that the cheque was issued to discharge a legally recoverable debt.

It is true such presumption is available u/s 139 of N.I. Act. The law is fairly well settled that in order to raise a presumption (rebuttal presumption), the essential facts in the form of evidence shall be placed by the complainant. The Court cannot ignore the facts and draw the presumption. The rebuttable presumption would come to the aid of party if he is able to establish the basic facts necessary for raising a presumption. The complainant without discharging initial burden cannot insist the court to raise a presumption in his favour and call upon the accused to rebut the presumption.

The law is fairly well settled that rebuttable presumption available u/s 139 of N.I. Act can be rebutted by the accused by depending on the inherent improbabilities in the evidence adduced by complainant or by adducing his evidence. The accused has contended that he was transferred from Bombay to Mysore and in the transit, he had lost the cheque. It is true that the accused has not taken any steps to intimate the banker about the loss of cheque.

In the discussion made supra, I have held that the evidence adduced by complainant is inherently weak and it is sufficient to rebut the presumption available u/s 138 of N.I. Act. Therefore, there cannot be much emphasis on the probability or otherwise of evidence adduced by accused. In the discussion made supra, I have held that the complainant has failed to prove that he had issued statutory notice within 30 days from the date of dishonour of cheque. Therefore, there are no reasons to interfere with the impugned judgment. The appeal is dismissed.