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TMI Blog2021 (8) TMI 377X X X X Extracts X X X X X X X X Extracts X X X X ..... uccessfully rebut the presumption formed in favour of the Crl.R.P.No.3/2019 complainant and as the complainant could not able to prove the alleged loan transaction with the accused, it has to be held that, the complainant has failed to prove the alleged guilt against the accused. Thus, the interference at the hands of this Court in the impugned judgments is warranted. The Criminal Revision Petition is allowed. - CRIMINAL REVISION PETITION No. 3 OF 2019 - - - Dated:- 30-6-2021 - THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY For the Petitioner : Sri. K. Vijaya Kumar, for K V K Law Info. For the Respondent : Sri. B.S. Prasad, Advocate ORDER The present petitioner as the accused was tried by the Court of the learned Principal Civil Judge and Judicial Magistrate First Class, at Bhadravathi, (hereinafter for brevity referred to as the Trial Court ) in C.C.No.4134/2010, for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as the N.I. Act ) and was convicted for the said offence by its judgment of conviction and order on sentence dated 31-08-2016. Aggrieved by the same, the accused pref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment for a period of fifteen days. Challenging the same, the accused preferred an appeal in Criminal Appeal No.5023/2016 before the learned Session's Judge's Court, which after hearing both side, by its judgment Crl.R.P.No.3/2019 dated 01-12-2018, allowed the appeal in part, modifying the order on sentence and fine passed by the Trial Court and convicting and sentencing the accused to pay a fine of ₹ 1,10,000/- within 30 days from the date of the said order and in default, to undergo simple imprisonment for a period of two months. Being aggrieved by the same, the accused has preferred this revision petition. 5. Learned counsel for the revision petitioner/accused and the learned counsel for the respondent/complainant are appearing through video conference. 6. The Trial Court and Sessions Judge's Court's records were called for and the same are placed before this Court. 7. Though this matter was listed for admission, however, as desired by the learned counsels from both side, the arguments on the main matter itself were heard from both side. Perused the materials placed before this Court including the Trial Court and Sessions Judge's Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cate of Posting (UCP). However, as could be seen from the returned postal cover at Exhibit P-7, the notice sent to the accused under registered post has been returned to the sender with the postal endorsement addressee has remained absent during delivery time, hence return to sender . Still, considering the fact that the said notice was also sent under Certificate of Posting, which, according to the complainant (PW-1), has been duly served upon the addressee and also in view of the fact that the said statement of PW-1 has not been specifically denied from the accused's side. Further, more importantly, since the learned counsel for the petitioner/accused submitted that, he would not dispute the question of service of notice upon the accused, it has to be taken that, the notice demanding the payment of the cheque amount was issued by the complainant to the accused and despite which, the accused admittedly has not met the demand made in the notice. Thus, the presumption about the existence of a legally enforceable debt forms in favour of the complainant. However, the said presumption is rebuttable. Crl.R.P.No.3/2019 12. In order to rebut the presumption formed in favour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation-in-chief as PW-1, has stated as to when the alleged loan was given by her to the accused and how much of the amount was given as loan. She has only stated that, towards the repayment of the loan taken by him, the accused issued the cheque at Exhibit P-1 to her. Even in the legal notice at Exhibit P-4 also, the complainant has not stated as to when the loan was given to the accused. However, in the legal notice at Exhibit P-4, it is mentioned that, the loan availed by the accused was a sum of ₹ 2,00,000/-. The details as to the date of the alleged loan and quantum of the loan have come out in the cross-examination of PW-1, wherein she has stated that, the loan amount was for a sum of ₹ 1,00,000/- given to the accused in cash. Thus, according to the evidence of the complainant (PW-1), the loan amount was only for a sum of ₹ 1,00,000/-. However, as already observed above, the legal notice issued to the accused on behalf of the complainant, a copy of which is at Exhibit P-4 mentioned the loan amount as a sum of ₹ 2,00,000/-. Thus, between the legal notice and the evidence of the complainant, there is a great variation regarding the alleged loan amount. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sum of ₹ 1,00,000/- which was repayable in fifteen days, the loanee could bring a cheque for repayment of a sum of ₹ 2,00,000/, that too, duly filled by him at the time of availment of the loan. The evidence of PW-1 nowhere gives any Crl.R.P.No.3/2019 answer to this doubt, which doubt arises by a reading of the evidence of the complainant (PW-1). 18. Thirdly, it is not the case of the complainant that the alleged loan was attracting any interest payable by the accused to the complainant. Thus, the alleged loan said to have been availed by the accused was repayable by him in fifteen days and only the principal amount without any interest thereupon was required to be repaid. In such an event, how come the accused bring a cheque as pre-prepared for double the amount of the alleged loan amount and hand it over to the complainant simultaneously while availing the alleged loan, has remained un-answered by the complainant. 19. Lastly, according to the complainant, the date of the loan was 6th or 7th September 2010. The date of the cheque at Exhibit P-1 is 06-09-2010. The date of filing of the private complaint in the Trial Court is admittedly 16-11-2010, which means, wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the complainant. 21. However both the Trial Court as well the Sessions Judge's Court have failed to notice this aspect and they were carried away only with the statement of the complainant (PW-1) and the documents marked by her from Exhibits P-1 to P.7(a) and held the accused guilty of the alleged offence, which finding Crl.R.P.No.3/2019 of the Trial Court and the Sessions Judge's Court is perverse and erroneous, as such deserves to be set aside. 22. In the light of the above, the alleged financial incapacity of the complainant to lend the loan as canvassed by the learned counsel for the petitioner/accused would not come to the forefront. However, a reading of the evidence led by the parties, more particularly of PW-1 would go to show that, she joined by her husband is running a Provision Store wherein she could able to make out a savings of a sum of ₹ 2,000/- per month and that, she also has got income from her mother's house in the form of sharing the lease amount of Mango garden being maintained by her mother, has remained specifically un-disputed and un-denied. From that evidence, though it can be inferred that the complainant had financial capacity ..... X X X X Extracts X X X X X X X X Extracts X X X X
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