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TMI Blog2022 (9) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... ant has also admitted that he asked the respondent for giving security for regularizing his appointment, but he denied the suggestion that the respondent gave two cheques at that time by way of security. Same was the evidence given by respondent when he adduced evidence as DW1. In the light of the evidence available on record, if the findings of the courts below are examined, it may be stated that the trial court is justified in coming to conclusion that the respondent issued the cheques Exs.P1 and P2 for repaying the hand loan that he had obtained from the appellant. When the evidence of PW1 to this effect has not at all been questioned in the cross- examination, it remains unassailed. The appellant got issued legal notice before initia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : A. C. Balaraj , Advocate For the Respondents : V. B. Siddaramaiah , Advocate JUDGMENT This appeal is filed by the complainant questioning the correctness of the judgment dated 21.8.2009 passed by the II Additional District and Sessions Judge, Davanagere, in Criminal Appeal 64/2009. The material facts are as follows: 2. As the cheques issued by the respondent for Rs. 1,25,000/- and Rs. 1,00,000/-, (totally Rs. 2,25,000/-) for discharging the loan that he had taken from the complainant were dishonoured, the latter initiated action for the offence under section 138 of the Negotiable Instruments Act. The learned Magistrate, having found that the evidence adduced by the complainant established that the respondent had borrowed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly enforceable debt. The defence put forth by the respondent was that the complainant was working in his school as a teacher and that he had recommended to the Block Education Officer for approval of the appointment of the complainant. As there was some delay in approval of his appointment, the complainant asked him to offer security, and in that connection he issued blank cheques. Subsequently the complainant filled up the cheques and presented the same to the bank, thus he misused the cheques by him. The Magistrate has not accepted the defence. It is held by the Magistrate that if really this was the transaction, the respondent could have issued reply to the legal notice sent by the complainant after dishonour of the cheques. The responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... came to be allowed. 7. Sri A. C. Balaraj, learned counsel for the appellant, argued that the appellant has clearly stated in the complaint as also in his examination- in-chief that the accused borrowed an amount of Rs. 2,25,000/- and for discharging the same he issued two cheques. Thus the transaction has been referred to. The respondent did not reply to the legal notice issued by the appellant. It is not the defence of the respondent that the appellant had no capacity to lend money. If the evidence given by PW1 remained unassailed, the appellate court should not have reversed the findings of the learned Magistrate. He further argued the trial court came to right conclusion that the respondent issued the cheques for discharging his legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant, and he also admits his signature on the cheques. In the complaint as also in the examination-in-chief, the appellant stated that the respondent obtained hand loan of Rs. 2,25,000/- in the month of December 2006 assuring to repay the same within two months. For discharging this loan the respondent issued two cheques as per Exs.P1 and P2. This was the case projected by the appellant. There is no cross-examination of the appellant on this aspect of the matter. Directly defence was introduced in the cross-examination. Appellant admitted that the respondent had sent a proposal to the Block Education Officer for approving his (appellant's) appointment in the school and there was delay in processing of the recommendation for app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whose appointment was to be confirmed by the education department. This defence is against the practical phenomenon that usually the management demands money from the teachers for confirmation of their appointment in the private schools. 12. The first appellate court has followed the judgment of this court in the case of Shiva Murthy. The accused therein contended that the complainant had no financial capacity to lend a sum of Rs. 75,000/- to him and in that connection he produced many documents to prove the financial condition of the complainant. Therefore in that view, the coordinate Bench of this court held that complainant had to prove his financial capacity. In the case on hand, it is not the defence of the respondent that the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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