T. Subhash vs Venkateswara

P.D. Waingankar, J.—This appeal by the appellant-complainant is against the judgment dated 30.03.2010 in C.C. No. 26401/2007 on the file of the XVII Addl. Small Causes Judge and XXV Additional Chief Metropolitan Magistrate, Mayo Hall, Bengaluru, whereby the respondent/accused has been acquitted of the offence punishable under Section 138 of N.I. Act.

Brief facts which gave rise to this appeal are as under:

In the month of May 2006, at the request of the accused the complainant advanced a sum of Rs. 8,50,000/- as hand loan to the accused in cash. The accused had promised to repay the amount within a period of six months. Towards repayment of loan amount, the accused issued a cheque for Rs. 8,50,000/-. On presentation, the cheque came to be dishonoured for insufficient funds. The complainant informed the factum of dishonour of the cheque to accused by issuance of a notice and called upon him to pay the cheque amount within the stipulated period of 15 days. The accused having failed to pay the cheque amount, the complaint came to be filed before the Magistrate against the accused for an offence punishable under Section 138 of N.I. Act.

In order to prove the commission of the offence by the accused, the complainant got himself examined as PW.1 and relied upon as many as 13 documents which were marked as Exs.P1 to P13. The accused on the other hand got himself examined as DW.1 and relied upon 4 documents which were marked as Exs.D1 to D4. The learned Magistrate on appreciation of evidence came to the conclusion that the complainant failed to discharge the burden cast upon him to show that he had an amount of Rs. 8,50,000/- so as to advance the same to the accused which ultimately resulted in acquittal of the accused for the offence punishable under Section 138 of N.I. Act.

Aggrieved by the acquittal of the accused, the complainant has come up in this appeal.

I have heard the learned counsel appearing for the appellant-complainant and the learned counsel appearing for respondent-accused. Perused the records and the judgment of the trial Court.

Learned counsel for the appellant-complainant would submit that though the complainant has placed sufficient material to constitute an offence under Section 138 of N.I. Act, the trial Court without appreciation of the evidence in its proper perspective has acquitted the accused and hence learned counsel sought to set aside the judgment of acquittal and to convict the accused for an offence punishable under Section 138 of N.I. Act.

Per contra, learned counsel appearing for the respondent-accused would contend that the complainant failed to discharge the initial burden cast upon to show that he had sufficient amount so as to advance the same to the accused. He further submitted that the accused had issued a cheque for Rs. 50,000/- in favour of the complainant towards security for the repayment of an amount of Rs. 50,000/- received by him from the complainant through one K.B. Govind and the said cheque has been tampered by the complainant by showing an amount as Rs. 8,50,000/- by prefixing numerical ''8'' to Rs. 50,000/- and presented the same for collection. The trial Court has rightly noticed the same which resulted in acquittal of the accused. He further submitted that there is no merit in this appeal and hence, he sought for dismissal of the appeal.

Upon hearing the learned counsel for both the parties and upon perusal of the material placed on record, the only point that would arise for my determination is as under:

"Whether the trial Court is justified in acquitting the accused for the offence punishable under Section 138 of N.I. Act?" 8. It is not in dispute that in a case of this nature the initial burden is on the complainant to show that he had sufficient money so as to advance the loan to the accused. Though the complainant has produced as many as 13 documents marked as Exs.P1 to P13, the relevant documents to speak about the financial ability of the complainant as on the date of alleged advancement of loan of Rs. 8,50,000/- to the accused are Exs.P9 to P13. Exs.P9 and P10 are the two pass books of the complainant issued by Vijaya Bank. A perusal of Ex.P9 pass book issued by Vijaya Bank, Jalahalli Branch, Bengaluru would go to show that as on 17.03.2005 he had an amount of Rs. 26,183/- in his account. Ex.P10 another pass book issued by Vijaya Bank which would go to show that he had an amount of Rs. 6,408/- in the month of December 2006. Further the complainant has produced Income Tax Returns for the year 2004-05, 2005-06. These documents would go to show that for the year 2004-05 his total income was Rs. 1,21,928/- and for the year 2005-06 his total income is Rs. 1,19,254/-. When the income of the complainant was Rs. 1,21,928/- for the said year, it was highly impossible for him to advance a sum of Rs. 8,50,000/- to the accused in cash as hand loan that too without obtaining any document such as agreement or on demand promissory note or any other documents. No prudent person would take a risk to advance a cash amount of Rs. 8,50,000/- as hand loan without obtaining documents acknowledging the receipt of loan. Further, no person would advance a huge amount of Rs. 8,50,000/- as loan without charging any interest. Thus, the trial Court on proper appreciation of evidence has rightly held that the complainant failed to discharge the initial burden cast upon him to show financial capacity to advance an amount of Rs. 8,50,000/-.

The accused who stepped into the witness box as DW.1 has spoken under what circumstances he issued a cheque as per Ex.P1 for Rs. 50,000/- in favour of the complainant towards security for the loan amount of Rs. 50,000/- received by him from complainant through one K.B. Govind. The defence of the accused is supported by Ex.D2-office copy of reply notice issued to the counsel for K.B. Govind in response to Ex.D1 the notice issued by counsel for KB. Govind. Ex.D2 is dated 04.11.2006, whereas the complaint was filed on 19.02.2006 subsequent to issue of Ex.D2. Therefore, it is clear that the defence put forth by the accused was disclosed even prior to the filing of the complaint which appears to be probable. As such, the trial Court has rightly accepted defence theory.

From the closer inspection of the cheque-Ex.P1, one can easily come to the conclusion that the numerical ''8'' has been subsequently prefixed to an amount of Rs. 50,000/- shown in Ex.P1 so as to make it Rs. 8,50,000/-. Virtually, the cheque for Rs. 50,000/- issued by the accused towards security for the repayment of the loan amount of Rs. 50,000/- obtained by him from the complainant had been tampered by the complainant to make unlawful gain. It is stated by the accused in his defence evidence that though he repaid the loan amount of Rs. 50,000/- in five installments, the complainant instead of returning the cheque has misused the same. In that case no presumption under Section 139 of N.I. Act can be drawn. Thus, on my re-appreciation of evidence, I do not find any reason so as to call for my interference in the impugned judgment of acquittal of the accused. Hence, I pass the following

ORDER

The appeal is dismissed.