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TMI Blog2022 (11) TMI 993X X X X Extracts X X X X X X X X Extracts X X X X ..... an amount. However, at the demand made by the complainant for the repayment of the loan amount, the accused issued him a cheque bearing No. 118254, dated 01.02.2006, drawn on Canara Bank, Hosur Branch, in favour of the complainant for a sum of Rs. 1 lakh. The said cheque when presented for realisation by the complainant through his Banker on 01.02.2006, the same came to be returned with an endorsement 'funds insufficient'. The complainant got issued a legal notice to the accused on 11.02.2006 both under Registered Post Acknowledgement Due and under Certificate of Posting demanding the payment of the cheque amount. The accused gave an untenable reply, but, did not pay the cheque amount which constrained the complainant to institute a criminal case against the accused in the trial Court for the offence punishable under Section 138 of N.I. Act. 3. Since the accused pleaded not guilty, charges were framed against the accused for the alleged offences. 4. The complainant in order to prove his case, got himself examined as PW-1 and got marked nine documents from Exs.P-1 to P-9. On behalf of the accused, the accused got himself examined as DW-1 and got marked documents from Exs.D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The documents produced by the accused as exhibits would go to show that the wife and children of the accused had sufficient bank balance, so also, the accused. As such, there was no necessity for him to avail any loan. The said evidence of defence was not properly appreciated by the trial Court and the Sessions Judge's Court. He further submitted that as on the date of alleged issuance of cheque i.e., on 31.01.2006 at Bengaluru, the accused was on his duty at Hosur which is demonstrated in Exs.D-1 to D-5. As such, the accused had demonstrated that delivering the said cheque to the complainant on the said day would not arise. This also creates a doubt in the case of the complainant and the accused has successfully rebutted the presumption formed in favour of the complainant. 13. Per contra, learned counsel for the respondent in his argument submitted that the point of PW-1 not tendering himself for further cross-examination by the accused has not been either brought to the notice of the trial Court at the appropriate time by the accused or at least in his Criminal Appeal before the Sessions Judge's Court. As such, he cannot raise the said point for the first time in this r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accused side. After several adjournments, the said application came to be allowed on 10.07.2009 on a cost of Rs. 100/-. The matter was posted again for the cross-examination of PW-1 and adjourned to 23.07.2009. On 23.07.2009, the cost ordered on 10.07.2009 was paid by the accused, however, PW-1 had remained absent on the said day, as such, his cross-examination could not be held on the said day. Thus, the matter was adjourned to 20.08.2009. On 20.08.2009 and on subsequent adjourned dates i.e., on 22.09.2009, 16.10.2009 and 18.11.2009, PW-1 remained absent, as such, his further cross-examination could not be taken place on those dates. Due to the absence of PW-1 on 18.11.2009, the trial Court took the cross-examination of PW-1 as 'NIL' and posted the matter for arguments and adjourned the case to 25.11.2009. On 25.11.2009, the accused filed a memo seeking to discard the evidence of PW-1, however, the trial Court without passing any order on the said memo, adjourned the matter to 22.12.2009 for the arguments in the case. On 22.12.2009, the complainant filed an application under Section 311 of Cr.P.C., seeking permission to tender himself for further cross-examination fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, the trial Court did not pass any order on the memo and without considering the request of the accused to discard the evidence of PW-1, has proceeded to pronounce the impugned judgment by considering the evidence led by PW-1 both oral and documentary. It is not necessary that, it is only after parties to the litigation bringing to the notice of the Court about a witness not tendering himself for cross-examination, the Court should consider the consequences of the same. Even in the absence of either of the parties to the litigation bringing to the notice of the Court about any of the witnesses not tendering himself for further cross-examination, it is the duty of the Court to consider the said fact at least when it takes up the evidence of such a witness for its appreciation and analysis while writing the judgment. 16. Thus, the argument of learned counsel for the respondent/complainant that the accused should have brought to the notice of the trial Court about PW-1 not tendering for his further cross-examination and the same would prevent him from taking such a contention at this stage, is not acceptable. In fact, since the consequences of PW-1 (complainant) not tendering hims ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essed their arguments on the merits of the case and since both the impugned judgments are based upon the analysis of the merits of the case, the arguments from both side on the merits of the case are also now being taken up for consideration. 17. The complainant and accused got themselves examined respectively as PW-1 and DW-1 in the trial Court. The complainant in his examination-in-chief filed in the form of affidavit evidence has reiterated the contentions taken up by him in his complaint which he has got marked at Ex.P-1. Apart from stating that the accused who was known person to him had availed a hand loan of a sum of Rs. 1 lakh in December 2004, the witness in his cross-examination has specifically stated that the date of giving such loan to the accused was 10.12.2004. Though the complainant has stated that the accused had executed an on demand Promissory Note and consideration receipt for having received a sum of Rs. 1 lakh, however, for the reasons best known to him, he has not produced those documents and got them marked as exhibits. The witness further stating that towards repayment of the loan, the accused issued him a cheque bearing No. 118254, dated 01.02.2006, for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso taken a contention that there was no necessity for him to avail any loan since his family members were earning and they had sufficient bank balance. He also took a contention that since his children have already completed their education, the question of he having any financial necessity to cater to their education, as such, availing of loan did not arise. To substantiate his contention, he got produced the examination admission ticket of one Mr. Ratna Deep Dewan at Ex.D-6, the admission intimation to the Regional Engineering College, Tiruchirapalli of said Ratna Deep Dewan at Ex.D-7, job offer letter to said Ratna Deep Dewan at Maruti Udyog Limited, Gurgaon, at Ex.D-8, the job offer letter to Ms.Rashmi Dewan by Thomson Business Information India Private Limited, Bengaluru, at Ex.D-9 and the bank statements of his family members at Exs.D-10, D-11 and D-13 and the salary slip of son of the accused i.e., Ratna Deep Dewan at Ex.D-12. To show that he had already an immovable property also, he had produced a certified copy of the Sale Deed dated 07.11.2005 at Ex.D-14 and the bank statement of State Bank of Travancore at Ex.D-18. No doubt, a perusal of these documents from Exs.D-6 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either the accused has produced any document nor examined said Sri Parthasarathy in his favour. Had really the accused availed a loan from Sri Parthasarathy and issued the cheque in question as a security to him, then the accused should have established the same by producing some documents or examining the witnesses on his side. The same was not done by the accused. Moreover, admittedly for several years, the accused has kept quite without taking any action against the said Parthasarathy for alleged withholding of the cheque of the accused by him for no valid reasons. This also creates a doubt in believing the alleged defence of the accused. 22. It is appreciating these aspects in their proper perspective, both the trial Court and the Sessions Judge's Court have held that the complainant has proved the alleged guilt against the accused and that the accused could not able to rebut the presumption formed in favour of the complainant. Accordingly, both the Courts have held the accused guilty of the alleged offence punishable under Section 138 of N.I. Act and confirmed the conviction respectively. However, the impugned judgments passed by the trial Court and the Sessions Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X
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