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TMI Blog2021 (1) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... ading probable defence rebutting the evidence of the complainant. There are no error committed by the Appellate Court in re-appreciating the evidence available on record. However, committed an error in coming to the conclusion that the complainant is insolvent and the Appellate Court ought not to have made such an observation. But the documentary proof discloses that the complainant was not having sufficient amount in his account and also in his wife's account to lend the money during the particular period. However, it does not mean that the complainant became insolvent - there are no error committed by the Appellate Court in coming to the conclusion that the accused rebutted the case of the complainant. Appeal dismissed. - CRIMINAL APPEAL No.878/2011 - - - Dated:- 23-12-2020 - THE HON'BLE MR. JUSTICE H.P. SANDESH FOR THE PETITIONER: SRI K. VISHWANATHA, ADVOCATE FOR SRI V.S. HEGDE, ADVOCATE FOR THE RESPONDENT : SMT. NIVEDITHA SHETTY, ADVOCATE FOR SRI A. ANAND SHETTY, ADVOCATE JUDGMENT This appeal is filed challenging the judgment of acquittal dated 12.07.2011 passed in Crl.A.No.26/2011, on the file of the Fast Track Judge, Udupi District, Udupi. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the signature on the cheque. The Appellate Court passed an order of acquittal solely on the assumption that the complainant had no money to advance the same in favour of the accused. Hence, it requires interference of this Court. 6. The learned counsel for the appellant/complainant in his argument vehemently contend that the Appellate Court has committed an error inspite the accused admitted the signature on the cheque. Though the accused took the defence that he has not borrowed any loan from the complainant and he has borrowed loan from one Raghupathi Bhat and he had issued the cheque in favour of Raghupathi Bhat, which was misused by the complainant, there is nothing on record to show that he had availed the loan from Raghupathi Bhat to the tune of ₹ 50,000/- and he gave the blank cheque in favour of the said Raghupathi Bhat. Raghupathi Bhat is also not examined before the Trial Court. The reasoning given by the Appellate Court is that the complainant has not filed any income tax returns and also not examined the wife of the complainant from whom he has received the money to advance the loan amount in favour of the accused. Though the complainant claims that he has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e complainant and his wife were having money in their accounts. The learned counsel would submit that though the accused had filed the complaint against the complainant and Raghupathi Bhat, the police after the investigation have filed the 'B' report. The Appellate Court has committed an error in coming to the conclusion that the complainant himself is insolvent and there are no material to substantiate the same. 10. Having heard the arguments of the learned counsel for the complainant and the learned counsel for the accused and on perusal of both oral and documentary evidence placed on record, the points that arise for the consideration of this Court are: (i) Whether the Appellate Court has committed an error in acquitting the accused for the offence punishable under Section 138 of the N.I.Act? (ii) What order? Point Nos.(i) and (ii) 11. In order to consider the grounds urged in the appeal and also the respective submissions, this Court has to re- appreciate the material on record, since there are divergent findings before this Court. This Court would like to first refer to the contents of the complaint. On perusal of the complaint, it is contended tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... witness says that he has not given the cheque for ₹ 20,000/-, but he admits giving the complaint and he also admits that panchayat was held in the police station and he gave the money to the said Arun Kumar Hegde. The document Ex.D.1 was confronted and marked and P.W.1 admits the same. P.W.1 also admits that the accused had given the complaint against him and had filed the complaint before the Kundapura Court in P.C.R.No.232/2007. 13. In the cross-examination of P.W.1 it is elicited that the hotel which he was running at Sasthana was sold in July 2007. He admits that after selling the hotel, he had joined Nursing College as driver. He also admits that he was supplying the contract materials to Arun Kumar Hegde and he was having 407 Tempo and the same was purchased in 2007 February by paying an amount of ₹ 1,25,000/- and paid the amount from his account and his wife account. He had drawn ₹ 79,000/- from his account and an amount of ₹ 75,000/- from his wife account. He is not having any difficulty to produce the bank extract. He also says that the said vehicle was sold in December 2007. He also admits that an amount of ₹ 1,56,600/- was paid to Arun Ku ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uaintance with the complainant and Raghupathi Bhat from the beginning. 17. D.W.2 in his evidence says that he was having acquaintance with the accused and also with the complainant. He took the accused and the complainant to the house of Raghupathi Bhat. He also participated in the talks held with Raghupathi Bhat and also one Vijay Poojary was also present. Raghupathi Bhat lent an amount of ₹ 50,000/- to the accused. He also speaks with regard to the issuance of notice against the accused claiming an amount of ₹ 2,80,000/- and also speaks with regard to the complaint lodged against the complainant and also against Raghupathi Bhat. He was subjected to cross- examination. In the cross-examination, it is elicited that he cannot tell for what purpose the accused availed the loan from Raghupathi Bhat. He claims that the accused gave the signed blank cheque to Raghupathi Bhat. 18. D.W.3 is the Bank Manager and he speaks with regard to the accused maintaining the Over Draft account to the tune of ₹ 2,00,000/-. He admits that in terms of Ex.P.1, the amount is mentioned as ₹ 2,80,000/-. He was subjected to cross-examination. In the cross-examination, he admits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the account of his wife, he relied upon Ex.P.20. On perusal of Ex.P.20, it is clear that an amount of ₹ 25,000/- was deposited on 05.07.2006 and on the same day, the said amount was withdrawn and ₹ 35,000/- was deposited on 10.10.2006 and on the same day, the same was withdrawn. In the month of November and December, the amount available in the account of his wife was ₹ 107 and ₹ 109/-. That on 27.02.2007, an amount of ₹ 75,853/- was credited to the account of his wife and ₹ 75,000/- was withdrawn on the next day i.e. on 28.2.2007. Hence, it is clear that in the month of November and December, no substantial amount was in the account of his wife and also not drawn any amount from the account of his wife. P.W.1 admitted that an amount of ₹ 75,000/- was drawn to purchase the vehicle in February 2007. 22. The complainant also relies upon his loan account as per Ex.P.19. On perusal of Ex.P.19, an amount of ₹ 8,000/- was deposited on 16.11.2006 and an amount of ₹ 5,000/- was withdrawn on 17.11.2006. In the month of December he was having ₹ 1,360/- in his account and he was not having substantial amount to lend money to the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aghupathi Bhat and also he had filed the complaint. In the said complaint, 'B' report was filed and the accused did not dispute the same. It is pertinent to note that P.W.1 in the further cross- examination admits that he sold the vehicle in the month of December 2007 and he had purchased the same in the month of February and when he had purchased the vehicle in the month of February, the question of selling the vehicle and making the payment in favour of the accused, does not arise. He categorically admits that he had purchased the vehicle by paying ₹ 1,25,000/- out of the amount which his wife was having in her account and in his account. He admits that he had taken ₹ 79,000/- from his account and ₹ 75,000/- from his wife account. He also admits that the vehicle was sold in December 2007. Purchasing of the vehicle and selling of the vehicle is only after the alleged loan transaction. It is important to note that in the cross-examination he admits that he had paid an amount of ₹ 1,56,600/- in terms of Ex.P.13 in favour of Arun Kumar Hegde. It is also pertinent to note that P.W.1 categorically admits that Raghupathi Bhat is his friend. 25. Having ..... X X X X Extracts X X X X X X X X Extracts X X X X
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