2024 (5) TMI 1320 - HC - Indian Laws

Dishonor of cheque - Challenged the acquittal of the respondent/accused u/s 138 of the Negotiable Instruments Act - cheque issued for repayment of borrowed hand loan - legal notice served, but no response received - Accused contested the case but failed to rebut the allegations - HELD THAT -Admittedly, complainant has not produced any documents to show that the produce of previous year was kept in consignment and also it was sold immediately prior to the alleged lending of Rs.6 lakhs and complainant was in possession of the same. Thus, the complainant has failed to prove her financial capacity to lend Rs.6 lakhs to the accused. In the complaint the complainant has not stated the date on which the hand loan was advanced to the accused. It is only stated that towards repayment of the said amount, accused issued cheque dated 10.01.2013. However, during her cross-examination complainant has stated that accused requested hand loan in the month of November 2013 and she paid the amount on 15.12.2013. As noted earlier, the subject cheque i.e., Ex.P1 is dated 10.01.2013 which creates doubt as to whether Ex.P1 cheque was issued towards alleged transaction or it was already available with the complainant. This fact assumes importance as the accused has taken up a specific defence that complainant, Smt.Kalavathi - the wife of accused and other women were running chit fund and at that time complainant had taken a blank cheque belonging to the accused and though the wife of accused has paid the amount due under the chit transaction, the subject cheque belonging to the accused remained with the complainant and misusing the same, she has filed the complaint. Ex.D1 is the pass book of account maintained by Smt.Kalavathi in Syndicate Bank. It shows withdrawal of Rs.20,000/- on 27.08.2012 and Rs.45,000/- on 25.09.2012 by Smt.Geetha H.K i.e., the complainant. This supports the defence of the accused that there were some chit transaction between his wife Smt.Kalavathi and complainant Smt.Geetha H.K. The contents of Ex.P1 cheque also supports the defence of the accused that except his signature, the rest of the contents are not in his handwriting. From the manner in which the accused has affixed his signature in Kannada, indicates that except the signature, rest of the contents are not in his handwriting. In fact the remaining writing in the cheque tally with the handwriting/signature of the complainant. Thus, when the complainant has failed to prove her financial capacity, as held in APS Forex 2020 (2) TMI 629 - SUPREME COURT , the burden would not shift on the accused to rebut the presumption. Despite the same, through his oral and documentary evidence placed on record and in the light of cross - examination of PW-1, the accused has probabilised his defence. Considering the oral and documentary evidence placed on record, the trial Court has come to a correct conclusion that allegations against accused are not proved and acquitted him. After re-appreciation of the entire material placed on record, this Court is of the considered opinion that it is not a fit case to interfere with the impugned judgment and order passed by the trial Court. In the result, the appeal fails and accordingly - Appeal filed by the complainant u/s 378(4) of CrPC is dismissed - The impugned judgment and order dated 30.07.2015 in C.C. on the file of II Addl.Civil Judge and JMFC, is hereby confirmed.

Summary

Issues:
Challenge of acquittal under Section 138 of Negotiable Instruments Act.

Analysis:
The complainant alleged that the accused borrowed Rs.6 lakhs as a hand loan for house construction and issued a cheque for repayment, which was dishonored. Legal notice was served but not responded to by the accused. The trial court dismissed the complaint, leading to this appeal.

The accused denied the allegations, claiming his wife borrowed money and the cheque was misused. The complainant's financial capacity was questioned. The presumption under Section 139 of the N.I. Act favored the complainant initially, shifting the burden to the accused to disprove issuance for debt repayment.

Citing legal precedents, the court highlighted that the complainant's financial capacity must be proven when challenged. The complainant's lack of evidence regarding her financial status and discrepancies in the dates raised doubts. The accused's defense was supported by evidence, including discrepancies in the cheque contents and withdrawal records.

Ultimately, the court found the complainant failed to establish her financial capacity and the accused's defense was plausible. The trial court's decision was upheld, dismissing the appeal and confirming the acquittal of the accused.

The judgment emphasized the importance of proving financial capacity in cheque bounce cases and the rebuttable nature of the presumption under Section 139 of the N.I. Act. The court's decision was based on a thorough analysis of the evidence and legal principles, leading to the dismissal of the appeal.