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TMI Blog2020 (12) TMI 1007X X X X Extracts X X X X X X X X Extracts X X X X ..... also he had availed loan from Ashok, but while availing the loan earlier, he has not given any cheque to Ashok for security. There is no dispute that the accused has to place the material of preponderance of probabilities. In the case on hand, I have already pointed out that though an attempt is made by the accused to place the preponderance of probabilities, those documents are not worthwhile to accept the defence and the evidence of D.W.2 is also not worthwhile. The Appellate Court while reversing the findings of the Trial Court has assigned the reasons that the handwriting available in Ex.P.1 are in different ink. P.W.1 in the cross-examination admits the same. But the fact that he has signed the cheque and handed over the same, has not been explained. D.Ws.1 and 2 in their cross- examination categorically admits that they went to the office of the complainant - If no transaction was taken place between them, what made them to go to the house or the office of the complainant, is not explained. On perusal of 313 statement of the accused also, nothing is stated with regard to availing of loan from the brother of the complainant and handing over the cheques to Ashok. The defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s case, he himself examined as P.W.1 and got marked the documents as Exs.P1 to P8. The accused was subjected to 313 statement and he examined himself as D.W.1 and also examined one witness by name Sri Ismail as DW.2 and got marked the documents as Exs.D1 to D3. The accused also in the Appellate Court filed an application under Section 391 of Cr.P.C, and the same was allowed and examined one more witness as DW.3 and through DW.3, documents - Exs.D4 to D7 and Ex.P9 are marked. 6. The learned Magistrate after considering both oral and documentary evidence convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 ('the NI Act' for short). Being aggrieved by the said Judgment of conviction, the accused had filed Crl.A.No.37/2009. The Appellate Court reverse the findings of the Trial Court and acquitted the accused. Hence, the present appeal is filed by the complainant. 7. The complainant in this appeal would contend that the Appellate Court has grossly erred in appreciating the evidence available on record and erroneously came to the conclusion and acquitted the accused. The learned Sessions Judge has erred in permitting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Whether the Appellate Court has committed an error in acquitting the accused for the offence punishable under Section 138 of the NI Act? (2) What order? Point Nos.(1) and (2): 12. Having heard the submissions of the respective counsel and also on perusal of the records, learned Magistrate has convicted the accused considering the material on record, the same has been reversed by the Sessions Judge and there are divergent findings. Hence, this Court has to re-appreciate the material again. 13. The complainant in the complaint has contended that the accused had borrowed hand loan of ₹ 1,50,000/- and promised to return the same within a short period but failed to discharge the liability. In support of the contentions examined the complainant as P.W.1. P.W.1 reiterated the complaint averments in his affidavit in lieu of chief evidence. P.W.1 got marked the documents as Exs.P1 to P8. In the cross- examination, it is elicited that he is a mechanic and running the travel agency. It is also elicited that earlier he was having buses now he is having the Cars. It is also elicited that he is having 4 to 5 persons in the garage and they are not giving any receipt for havi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest along with one Ismail. When he demanded to return the cheque, Ashok told that he is having the cheques in the office, he would return the same on the next day, but he did not return the same. But he has received the notice in the month of April-May 2006 claiming that an amount of ₹ 1,50,000/- was lent to him. He replied to the said notice personally through registered post and relied upon the documents - Exs.D1 and D2. It is also his evidence that after six months, he has received one more notice and he gave the reply to the said notice also and got marked the document-Ex.D3, subject to objection. Immediately, he had approached the said Ashok and he promised that he will see that the case will be withdrawn and also convinced the complainant to withdraw the case, but did not take back the case. He gave the complaint against the complainant and the said Ashok in Ullal Police Station and both of them were called to Police Station and agreed to settle the same. DW.1 in his evidence claims that Ex.P1 was given to the said Ashok and except his signature other writings do not belong to him. He was subjected to cross- examination. 15. In the cross-examination, he admits tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Ashok. Hence, he visited the house of Ashok. Ashok told that the cheque was given to his brother and all of them went to the house of his brother and they agreed to withdraw the case. He was subjected to cross-examination. 17. In the cross-examination, though he says that when loan transaction was taken place between the accused and Ashok, he was present, again he says that he was not present at that time and he was not aware when the amount was given to the accused. He claims that they went to the house of Ashok from KSRTC bus stand and he cannot tell in which direction the house of Ashok is located and in which direction the sit out is located. He also cannot tell whether there is a compound or not. He claims that he had seen the complainant only once and also admits that once they went to see him and he cannot tell whether the same is the office or the residence. But they were there in the said place for about 45 minutes. No other persons were there at that time. He also cannot tell whether it is first floor or ground floor. But he claims that the accused, complainant and Ashok were present at that time. 18. Now this Court has to see the evidence of D.W.3, who has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e did not return the cheques. No doubt in the cross-examination, it is elicited that signature and writings available on Ex.P.1 are in different ink and also different writings. It is also elicited that he did not disclose the lending of money to the accused in his income tax returns. Except from these two answers elicited from the mouth of P.W.1 regarding the transaction is concerned, nothing is elicited. No doubt, a specific defence was taken that the cheque was given to the brother of the complainant and the same was misused. The accused led his evidence in the line of defence, which he has taken. In the cross-examination, he categorically admits that if any letters or notices are sent to anybody, he used to put the signature, but not found any date in both Exs.D.1 and 3. 21. I have already pointed out that in order to substantiate that he has given the reply, no documentary proof is produced that those letters are served on the complainant. I have already pointed out that no suggestion was made to P.W.1 that those two letters Exs.D.1 and 3 are served on him. But he categorically admits that Ex.D.1 was not sent through registered post and also admits that the cover was also n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He cannot tell whether the house of Ashok is having compound or not. He claims that he had seen the complainant only once. It is also his evidence that they went to meet the complainant. Whether they met him in the office or in the residence, he is not aware of it. But he claims that they were there in the said place for about 45 minutes and in the said place also no other persons were there. Having perused the evidence of D.W.2, the very evidence of D.W.2 does not inspire the confidence of the Court that he had accompanied the accused while returning the money to Ashok. He has not given any description of the house of Ashok, though he tells he went and met Ashok twice or thrice. 24. Having perused the evidence of D.Ws.1 and 2 with regard to the transaction is concerned, though accused claims that he had availed the loan of ₹ 25,000/- from Ashok and repaid the amount, no document is placed before the Court. Though the accused relies upon the evidence of D.W.2, the evidence of D.W.2 does not inspire the confidence of the Court. The accused also made an effort to dislodge the case of the complainant by producing Exs.D.1 and 3 and those documents does not bear the date and fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oubt, the Apex Court in the case of Basalingappa (supra), held that the prosecution must establish its case beyond reasonable doubt and the accused to prove the defence must meet standard of preponderance of probabilities. 27. Having perused the principles laid down in the above judgment, there is no dispute that the accused has to place the material of preponderance of probabilities. In the case on hand, I have already pointed out that though an attempt is made by the accused to place the preponderance of probabilities, those documents are not worthwhile to accept the defence and the evidence of D.W.2 is also not worthwhile. The Appellate Court while reversing the findings of the Trial Court has assigned the reasons that the handwriting available in Ex.P.1 are in different ink. P.W.1 in the cross-examination admits the same. But the fact that he has signed the cheque and handed over the same, has not been explained. D.Ws.1 and 2 in their cross- examination categorically admits that they went to the office of the complainant. If no transaction was taken place between them, what made them to go to the house or the office of the complainant, is not explained. On perusal of 313 sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he very finding of the Appellate Court is perverse and not considered the admissions elicited from the mouth of D.Ws.1 and 2 and against the material on record and committed an error in mainly relying upon the evidence of D.W.3 and not discussed the evidence of P.W.1, D.W.1 and D.W.2 in detail. The Appellate Court got carried away with regard to the admission of P.W.1 in respect of handwriting available in Ex.P.1. The Appellate Court in the judgment held that even if blank cheque is given after signing the cheque and handed over the same to the complainant, the accused has to explain under what circumstances the same was handed over making the signature. The very defence of the accused that he had availed an amount of ₹ 25,000/- from the brother of the complainant has not been proved and also not probablised by adducing any preponderance of probabilities. Hence, the defence of the accused cannot be accepted. 30. The learned counsel for the accused submits that nowhere it is mentioned in the complaint, legal notice and in the evidence of P.W.1 on what basis the amount was lent and no document is obtained for having lent the loan. P.W.1 admits in the cross-examination that n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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