9911796707
TMI Blog2021 (1) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... 10.2008 in favor of the complainant for a sum of Rs. 20 lakhs. When the cheque was presented, the same was not honoured and it was dishonoured with an endorsement as 'refer to the drawer' on 20.10.2008. A legal notice was issued. In spite of receipt of the notice, the accused failed to pay the amount. Hence, the complainant was constrained to file the complaint. 4. The accused was secured and he did not plead guilty and in order to substantiate the case of the complainant, he examined himself as P.W.1 and marked the documents as Exs.P1 to P7 and P7(a). The statement of accused was recorded under Section 313 of Cr.P.C. Thereafter, he examined himself as DW.1 and documents at Exs.D1 to D7 are marked. The accused also examined two witnesses as D.W.2 and D.W.3. The Trial Judge after considering both oral and documentary evidence acquitted the accused. Hence, the present appeal is filed before this Court. 5. The main grounds urged in the appeal is that the accused not at all proved his defense which he had taken that he had availed only Rs. 3,50,000/- and paid the entire amount with interest. The Magistrate failed to consider the evidence of P.W.1 and when the accused admitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of MOU to the tune of Rs. 5,50,000/-. When the said document was sent to the handwriting expert, the report is against the accused that the same is concocted and the report has not been challenged. The accused has taken the false defense and in order to prove the false defense, he has indulged in creating a document of Ex.D2 and relied upon the same before the Court and the said document is the forged document. The trial judge ought not to have given any credence to the evidence of the accused and the Trial Court failed to draw the presumption and to appreciate the evidence in a proper perspective, which has resulted in miscarriage of justice. 7. Learned counsel appearing for the appellant in support of his contentions, he relied upon the judgment of the Apex Court in the case of Rangappa v. Mohan reported in AIR 2010 SC 1898, referring to this Judgment he would submit that the facts of the case on hand and also the principles laid down in the Judgment referred supra is aptly applicable to the case on hand. The Apex Court categorically held that once issuance of cheque has been admitted, the Trial Judge ought to have drawn the presumption and statutory presumption comes into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble debt. The Trial Court ought to have raised the presumption under Section 139 of the NI Act. The evidence adduced by the respondent-accused is not sufficient to rebut the presumption raised under Section 139 of the NI Act. 11. The counsel relying upon the judgment of this Court in the case of Sri Yogesh Poojary v. Sri K.Shankara Bhat reported in 2019 (1) KCCR 750, he would submit that in this Judgment, this Court held that, legal notice demanding payment issued by the complainant was returned as unserved with a postal endorsement as addressee was out of station and did not claim the letter. The Trial Court acquitted the accused on the grounds that the notice was not served to the accused and that the said transaction was not declared in the Income Tax return filed by the Complainant. This Court held that the very approach of the Trial Court is erroneous. Mere making of a suggestion to the complainant that he has not disclosed the alleged loan transaction in his Income Tax Returns or eliciting the statement from the complainant that he has not disclosed the alleged loan transaction in his Income Tax Returns by itself is not sufficient. It is also required for the accused to esta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court have mainly proceeded to consider the conduct of the accused. Before considering the conduct of the accused to find out as to whether or not he has been able to rebut the statutory presumption available under Section 139 of the NI Act. The Courts ought to have considered as to whether the complainant has proved the existence of legally enforceable debt. It is only after satisfying that the complainant has proved the existence of legally enforceable debt, the Courts could have proceeded to draw presumption under Section 139 of the NI Act. As the complainant inability to show his source of income so as to enable him to advance a huge loan; non-production of book of accounts; absence of any written document evidence lending money; absence of any witness to the transaction and non-compliance of provisions of Section 269SS of the Income Tax Act, the case of the complainant is doubtful. 15. The learned counsel relying upon the judgment of this Court in the case of Shrimathi v. Renuka reported in 2010 Cri.LJ 372 KAR, referring to this Judgment, the learned counsel would submit that the presumption that holder received cheque for discharging of debt and for raising the said presump ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complaint. The complainant in the complaint averred that both of them are being friends and the accused requested the complainant for hand loan for production of Kannada feature film titled as 'Indian Police History' and promised to repay the amount with interest within a short period. Hence, the complainant had paid the amount of Rs. 20 Lakhs and the accused had agreed to repay the same with 18% interest. When the cheque was presented, the same was dishonoured and thereafter notice was given and the accused did not comply with the demand. 21. Now, this Court has to consider the evidence. The complainant has reiterated the averments of the complaint in his evidence in the affidavit in lieu of his chief evidence. He also marked the documents as Exs.P1 to P7 and P7(a). He was subjected to cross-examination. In the cross-examination, he admits that he knows the accused from the last 10 years. It is suggested that the accused did not shoot the film 'Indian Police History' and the same was denied. He also admits that with regard to the said transaction no other persons are mediated. The accused borrowed the amount in the year 2002, 7 to 8 times, but he cannot tell the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the complaint against him with Jagajeevanram Nagar Police Station for non returning of the said cheque and witness says he is not aware of the same. He admits that in the legal notice and in the complaint and in the affidavit, he has stated that the accused has agreed to repay the amount with 18% interest. He says he paid the amount out of his income and the said income has not been shown in the Income Tax returns. It is suggested that the signature and handwritings available in Ex.P2 are in different ink and the same has been denied. It is suggested that he is not signing the documents similarly and the said suggestion was denied. It is suggested that at the time of availing the amount of Rs. 3,50,000/- he has collected two blank cheques for security and the said suggestion was denied. 22. The accused also led his evidence by filing affidavit and reiterated his defense in his affidavit and also marked the documents as Exs.D1 to D7. He was subjected to cross- examination. In the cross-examination, he admits that the complainant is running 'Nanda Lodge'. He also admits that the complainant may be running the Hotel by spending lakhs of rupees. He also admits that 'Nand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annada near Taluk office. Both of them have signed Ex.D2 near the Taluk Office and at that time, only he himself and the complainant were there. Puttaswamy and Umesh Banakar were signed the same after the complainant left the place by taking the amount. 23. The accused also examined one witness-Umesh Banakar and in his affidavit, he says both complainant and accused were executed MOU and he himself and Puttaswamy attested the said document. It is also his evidence in terms of the said MOU, an amount of Rs. 5,50,000/- was paid to the complainant. He was subjected to cross-examination. In the cross-examination, he admits that he is not aware of availing of loan from the complainant by the accused. Before giving the complaint, he came to know that an amount was obtained from Krishnamurthy through the complainant but he does not know what is the total amount but an amount of Rs. 3,80,000/- was given to the complainant in his presence in the Court premises. He admits that the said amount of Rs. 3,80,000/- was given to the complainant to pay the amount to Sri Krishnamurthy. After four months of having paid the amount they all sat in Mayura Hotel and not met in Kanishka Hotel as deposed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt of Rs. 5,50,000/- in the Hotel. He says that he himself and DW.2 and the accused met in Kanishka Hotel. In the Hotel, they have signed the document-Ex.D2 and the accused gave an amount of Rs. 2 lakhs and DW.2 was also present at that time. He came to know that he has already paid the remaining amount of Rs. 3,50,000/-. It is suggested that while signing Ex.D2, the complainant was not present and the same was denied. It is suggested that the complainant signature was forged and the same was denied. 25. Having perused both oral and documentary evidence available on record and also the principles laid down in the judgments referred supra by the respective counsel, this Court has to re-appreciate the evidence available on record. 26. P.W.1 claims that he has lent the amount of Rs. 20 Lakhs to the accused. It is the defense of the accused that he had availed only an amount of Rs. 3,50,000/- and not Rs. 20 Lakhs. It is also his defense that while lending an amount of Rs. 3,50,000/- he has collected two cheques. The defense, which is raised by the accused was put to P.W.1 in the cross- examination and the same was denied. No doubt, the complainant in the complaint has not stated on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e admits that for having paid the amount of Rs. 5,50,000/- in favour of the complainant also he did not disclose the same in the Income Tax Returns. He did not dispute the cheque, but, he claims that the matter was settled and in terms of Ex.D2 he made the payment in favour of the accused in the presence of DWs.2 and 3. In the cross-examination he admits that he obtained the signature on Ex.D2 from the complainant and the same was an empty paper. It is also elicited from DW.1 that he himself and the complainant both have signed Ex.D2 near Taluk Office and at that time he himself and the complainant were present. He categorically admits that he took the signature of DWs.2 and 3 after the complainant left the place by after taking the money. Hence, it is clear that DWs.2 and 3 were not present at the time of signing Ex.D2. It is important to note that the complainant disputed the document-Ex.D2 and also the document was sent to the handwriting expert and the handwriting expert given the report that the signature in Ex.D2 is not the signature of the complainant. The accused also relies upon the document Ex.D3- endorsement issued by the Police Inspector of Jagajeevanram Nagar Police St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... left the place by receiving the money. There are material contradictions in the evidence of DWs.1 to 3 for having repaid the amount of Rs. 5,50,000/-. Though, the accused relies upon the document- Ex.D2, it is proved that the said document is forged and the evidence of the handwriting expert is unchallenged and also the accused did not examine the handwriting expert and did not dispute the opinion of the handwriting expert. When such being the case, the evidence of the accused cannot be relied upon and the Court cannot give any credence to the evidence of DW.1. For having repaid the amount, the evidence of DWs.1 to 3 are contradictory to each other and even the document-Ex.D2 came into existence is also under the suspicious circumstances. The trial Judge has failed to appreciate these materials before the Court. 31. The Trial Judge though considered the Judgment in Rangappa's case (supra), an observation has been made that the ratio laid down in the aforesaid decision is applicable and supports the defense taken by the accused. The very observation is erroneous. How it supports the case of the defense has not been stated in the judgment. Instead of that the same judgment is h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount in the presence of one Zinnias and Raghavendra, but not taken any steps to examine those persons, is an error committed by the Trial Court. When the complainant has proved his case and accused admitted the signature and also admitted the transaction only his contention is that only an amount of Rs. 3,50,000/- is involved. Hence, burden shifts on the accused to rebut the same instead of the trial judge committing an error in not examining the witness, who was present at the time of lending the loan. The other reason given by the Trial Court also if really the complainant has paid such a huge amount of Rs. 20 Lakhs to the accused as hand loan what would prevent him to pay the same by way of an account payee cheque or by way of Demand Draft as required under the provisions of Section 269SS of Income Tax Act. The Trial Judge also committed an error in observing with regard to Section 269SS of Income Tax Act, the accused also claimed that he repaid the amount of Rs. 9 Lakhs to one Srinivas and also paid the amount to Krishnamurthy. He also categorically admitted that he did not disclose the same in his Income Tax Returns. There cannot be two yardsticks and the Trial Judge co ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
