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TMI Blog2018 (12) TMI 1903X X X X Extracts X X X X X X X X Extracts X X X X ..... ove his capacity to lend and which finding has led the trial Court in pronouncing the judgment of acquittal, the same deserves to be set aside and has to be held that the complainant has proved beyond reasonable doubt that the accused has committed the offence punishable under Section 138 of the N.I. Act. The judgment of acquittal is set aside - appeal allowed. - Criminal Appeal No. 661 of 2010 - - - Dated:- 21-12-2018 - THE HON BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY For the Appellant : Harish N.R., Advocate for B.M. Siddappa, Advocate For the Respondent : Ismail M. Musbha, Advocate for C.K. Raghavendra, Advocate JUDGMENT Dr. H.B. Prabhakara Sastry, J. 1. In the complaint filed by the present appellant under Section 200 of Code of Criminal Procedure, against the present respondent, for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as 'N.I. Act'), the learned Civil Judge and JMFC, Challakere, (hereinafter for brevity referred to as `trial Court'), in C.C. No. 765/2007 pronounced the judgment of acquittal on 14.05.2010. It is against the said judgment of acquittal, the compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that since both the partners of the Firm have led their evidence as PWs. 1 and 2 and the business is of the Firm, the finding of the trial Court that there was no authorization for the complainant to institute the complaint is also an erroneous finding. 7. Learned counsel for the respondent in his arguments submitted that the complainant has failed to establish that he had capacity to lend money. The document at Ex. D. 6 which is a statement of account of the complainant-Firm, shows that his bank balance was meager. Learned counsel further submitted that the complainant-Firm being a business firm, lending such a huge amount without any documentation is highly unbelievable. He further submitted that the cheque at Ex. P-1 mentions a printed year upon it as / / 19 , as such, the said cheque which is of the decade 1990, cannot be issued in the year 2007. Therefore, the defence of the accused that the cheque was given to the complainant as a security in the previous loan transaction holds good. 8. The complainant in the case is M/s. Guru Finance Corporation (R). The complainant has stated that it is a registered partnership firm. In the cross-examination of PW. 1, the witnes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a registered partnership firm is an act of a Firm done by PW. 1 with the consent of other partner i.e., PW. 2, as such, the argument of learned counsel for the accused that in the absence of specific letter of authority the complaint was not maintainable, is not acceptable. 11. According to the complainant, it is a financial Firm doing the business of lending money. The transaction in question is one such transaction which it has been doing in its normal course. In order to show that it is a financial firm and the business in question was one of its routine business, the complainant got produced certified copy of money lender licence at Ex. P-7, certified copy of Form No. A at Ex. P-10, certified copy of Form No. C at Ex. P-11, Partnership Deed at Ex. P-12, Cash Book at Ex. P-13, loan ledger book at Ex. P-14 and copy of ledger at Ex. P.15. The said loan ledger book at Ex. p-14 shows an entry of loan amount of ₹ 7,39,000/- as outstanding in the name of the accused. Thus, the alleged bank statement of the said Firm produced by the accused as Ex. D-6, which shows that for the year 2007, the balance was too small and few hundred rupees only, would not give an impression th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Apex Court was pleased to hold that, noticing the printed proforma, date on the cheque leaf as .././199 the High Court observing that it was hard to believe that a business transacting party would give a cheque which is of the year 1990 in relation to the transaction in the year 2007, that by itself in the absence of any other evidence, cannot be conclusive of the fact that the cheque was issued in 1999. 15. The said principle squarely applies to the case on hand also. In the absence of any other material, merely because the proforma date on the cheque leaf shown the same to be of the decade 1990 by that itself it cannot be concluded that the cheque was issued in the said decade, but not the written date mentioned upon it. Further, it is also not the case of the accused that the cheque issued in 1990s cannot be used in the year 2007 by the customer. 16. Therefore, in the absence of any material to show that the cheque in question was issued by the accused as a security in the previous transaction with the complainant, cannot be accepted. Consequently, the presumption existing in favour of the complainant under Section 139 of the N.I. Act about the existence of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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