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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 ..... nt who was the complainant in the Trial Court. The Sessions Judge's Court in its order 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 Rs. 1,10,000/- within 30 days from the date of the said judgment and in default, to undergo simple imprisonment for a period of two months. Aggrieved by the said judgments, the accused has preferred this revision petition. 2. The summary of the case of the complainant in the Trial Court is that, towards the repayment of the loan borrowed by him, the accused had issued a cheque bearing No.026614 dated 06-09-2010, for a sum of Rs. 2,00,000/- drawn on Corporation Bank, Jannapura Branch, Bhadravathi, Shimoga District, to the complainant. The said cheque, when presented by the complainant through her banker for realisation, returned unpaid with the banker's shara "funds insufficient". It is thereafter the complainant got issued a legal notice to the accused, calling upon him to pay the cheque amount, however, Crl.R.P.No.3/2019 the accused did not respond. This made the complainant to institute a criminal case against the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion are perverse, illegal and erroneous, warranting interference at the hands of this Court? 10. Learned counsel for the petitioner/accused in his argument submitted that, he would not dispute the fact that the complainant and accused were known to each other and that the cheque at Ex.P-1 was drawn by the accused which returned unpaid for the reason of insufficiency of funds as per the banker's endorsement at Exhibit P-3. He also submitted that, he would not dispute the issuance of legal notice by the complainant to the accused at Ex.P-4, though the contention of the alleged non-service of notice was taken by the accused in the Trial Court. He voluntarily submitted that, the ingredients of Section 139 of N.I. Act required to form a presumption about the Crl.R.P.No.3/2019 existence of a legally enforceable debt in favour of the complainant would not be disputed by him. 11. In the light of the above submission of the learned counsel for the petitioner/accused, drawing of the cheque at Exhibit P-1 by the accused and dishonour of the said cheque by the banker and also the issuance of the legal notice by the complainant to the accused, demanding the payment of the cheque amount, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion was issued by the accused to one Smt. Devamma, his elder sister and she had, as a security towards the financial transaction with the complainant, given it to the complainant which was misused by her. However, the complainant as PW-1 has denied the suggestions made to her in the cross-examination in this regard. The evidence of DW-1, in this regard, was denied from the complainant's side in the cross-examination of DW-1. Therefore, in the light of the evidence of the parties, both oral and documentary, the matter has to be analysed. 13. Learned counsel for the petitioner/accused in his argument submitted that, the complaint, the legal notice as well the evidence of the complainant as PW-1 in the form of examination-in-chief are all bald, vague and do not mention as to when and how much the loan amount was given by the Crl.R.P.No.3/2019 complainant to the accused. He further submitted that, if the alleged loan amount is for a sum of Rs. 1,00,000/-, then, how come the accused issues a cheque for a sum of Rs. 2,00,000/- to the complainant, is also unbelievable. Further, the complainant has also failed to show her financial capacity to lend such a huge amount as loan to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m her. However, eight days prior to that date, he had approached her and made a request for the loan. Thus, according to the complainant, the date of the alleged loan was either 6th or 7th of September-2010. In the very same cross-examination, at not less than three places, the complainant as PW-1 has stated that, the accused had brought the cheque duly filled by him while taking the loan amount. Thus, according to the complainant, the cheque at Ex.P-1 was given to her by the accused simultaneously when the accused is said to have collected a sum of Rs. 1,00,000/- in cash from her as loan. However, even according to the complainant (PW-1), the accused had taken the loan from her, promising to repay the same in fifteen days, which means, the alleged loan would have become due for repayment only after fifteen days of the loan, i.e. not before 21-09-2010. However, admittedly, the cheque at Ex.P-1 was Crl.R.P.No.3/2019 presented by the complainant for its realisation much earlier to that date. According to complainant (PW-1), she had submitted the cheque to her banker for its realisation on 06-09-2010 itself, which means, on the very same date of the alleged loan said to have been give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the accused, she was demanding from the accused for the repayment of the loan amount. She has also stated that, on several occasions, she was asking the accused to make the repayment of the loan, however, the accused has denied that he has issued any cheque to her (complainant) and stated that she can do whatever she wants. If the said statement of the complainant that she was demanding the loan amount from the accused since about one year prior to the filing of the complaint is taken, then, the entire case of the complainant falls to the ground on its own, as demanding the payment of the loan amount which loan is said to have been given on 06-09-2010 cannot be made about ten months prior to the loan transaction. This makes it very clear that, somehow after securing the cheque at Exhibit P-1, which was signed by the accused, the complainant had misused the same and filed the present case. 20. The above conclusion that the complainant has not approached the Court with clean hands further gains support from the evidence of DW-1, who has in his evidence reiterated Crl.R.P.No.3/2019 the defence taken up by him in the cross-examination of the complainant (PW-1) and has stated tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. Accordingly, I proceed to pass the following:- ORDER [i] The Criminal Revision Petition is allowed; [ii] The impugned judgment of conviction and order on sentence dated 31-08-2016, passed by the Principal Civil Judge and Judicial Magistrate First Class, at Bhadravathi, in C.C.No.4134/2010, holding the accused guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and sentencing him with imprisonment for a period of three months and to pay a fine of Rs. 2,75,000/-, and in default of payment of fine, to undergo simple imprisonment for a period of fifteen days, is set aside; Consequently, the judgment passed by the IV Additional District and Sessions Judge, Shimoga, Crl.R.P.No.3/2019 sitting at Bhadravathi, dated 01-12-2018, in Criminal Appeal No.5023/2016, modifying the judgment of the Trial Court is also set aside. [iii] The accused - Sri. Dodde Gowda, S/o. Mudde Gowda, Aged about 60 years, MPM Employee, F ..... 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