Bangalore District Court
Sukumar Unnikrishnan vs Jose Francis on 31 March, 2016
IN THE COURT OF THE LII ADDL.CITY CIVIL & SESSIONS
JUDGE: AT BANGALORE CITY (CCH-53)
Dated this the 31st day of March, 2016
PRESENT: Smt.Yadav Vanamala Anandrao, B.Com., LL.B (Spl.,)
LII Addl. City Civil & Sessions Judge,
Bengaluru City.
: CRIMINAL APPEAL NO. 119/2014 :
APPELLANT : Sukumar Unnikrishnan
No.1917, 8th cross,
4th main, HAL 2nd Stage,
Bengaluru-560 075.
(By Smt.C.G.Ashadevi,
Advocate)
-V/S-
RESPONDENT : Jose Francis
S/o. K.D.Francis,
Aged about 30 years,
Residing at No.1808,
2nd floor, Above Axis road,
BEML main road,
Bangalore - 560 075.
(By Sri. M.A.Sebastian, Advocate)
JUDGMENT
This criminal appeal is preferred by the appellant/accused under section 374(3) of Cr.P.C., for setting aside the conviction judgment and order of sentence passed in CC No.116/2010, dated 09.01.2014 by the XIII ACMM., 2 Crl.A.119/2014 Bangalore City, sentencing him to pay Rs.3,55,000/- and in default to undergo simple imprisonment for 6 months.
2. For the sake of convenience, the parties are referred to their rank before the trial court.
3. The brief facts of the case before the trial Court, as the complainant being a business man in supplying and maintaining the inverters, batteries, solar water heater and other related materials and during the course of business the accused had taken service and introduced his friends. The accused approached the complainant for financial assistance of Rs.3,50,000/- to meet his financial commitments and received the said amount as loan in the month of August, 2008, agreeing to return the loan within a month after receipt of the same. But he failed to comply with his promise; even after demand made by the complainant. The wife of the accused requested for some more time and issued the consideration receipt and demand promissory note for Rs.3,50,000/- by and on behalf of her husband, but failed to return the loan amount, towards the repayment of loan amount he has issued a cheque bearing No.792259 dated 15/05/2009, drawn on ICICI Bank and on presentation it 3 Crl.A.119/2014 was dishonoured as "funds insufficient" on 08/10/2009, hence complainant issued a notice dated 13/10/2009 through RPAD and UCP. The RPAD endorsement was 'not claimed'. Inspite of service of notice, accused has not complied as against the notice. Hence, the complainant is constrained to file a private complaint before the XIII ACMM, Bengaluru under Section 138 of NI Act.
4. After taking cognizance of the offence on recording the sworn statement of the complainant and service of summons, accused appeared through counsel and he was released on bail. The plea was recorded. The accused pleaded not guilty of the alleged offence and claimed to be tried. Hence, complainant examined himself as P.W-1 and got marked documents Ex.P.1 to Ex.P.21. Thereafter, the case was posted for recording of Section 313 of Cr.P.C. The incriminating evidence of witness has been denied and the accused himself got examined as DW-1 and got marked document Ex.D.1.
5. The trial Court has considered about the disposal of the case stating that provision under Section 260 sub clause (2) 4 Crl.A.119/2014 of Cr.P.C, when it is desirable to try as summarily and also considering the nature of the trial, it was considered not a fit case to dispose off the matter within 6 months. As the cognizance was taken on 25/11/2009 and the learned trial Judge had taken the charge when the case was posted for arguments and the trial was completed ruing the tenure of his predecessor in office and considering it not just and necessary to recall the witness for further cross-examination or chief-examination. By converting it as summary trial into summons trial as provided under Section 262 of Cr.P.C and thereby following the procedure for summons trial and heard the arguments considering it as summons trial and formulating the points for consideration and appreciating the evidence on record and passed the conviction order against the accused.
6. Hence, aggrieved by the conviction judgment and order on sentence, accused/appellant has preferred this appeal urging the ground that impugned judgment passed by the learned Magistrate under Section 138 of NI Act is illegal, improper, arbitrary one and that the learned Magistrate has committed grave error ignoring the defence taken by the complainant by 5 Crl.A.119/2014 producing the materialistic documents which reveals that appellant was not in India in the month of August, 2008, he has not borrowed the money from the complainant as contended by him. Even on merits, the learned Magistrate has committed error in passing the impugned judgment and it has suffered from material irregularities in law. Hence, it is liable to be set aside. It is based on evidence of complainant and ignoring the material defence taken by the appellant/accused. The sentence impressed by the Court below is exaggeration and liable to be set aside. Hence, it is prayed to allow the appeal.
7. After registering the case and issuance of notice to the respondent, the respondent/complainant appeared through his counsel. The LCR called for. After receiving the LCR, it is heard the arguments of the learned counsels for the respective parties and also perused the appeal memorandum, LCR and record on hand.
8. The following points formulated for consideration of this Court are:
1. Whether the trial court has committed an error in passing conviction judgment and order of 6 Crl.A.119/2014 sentence under Section 138 of N.I. Act in C.C.No.116/2010, dated 09.01.2014?
2. Whether the interference of this Court is necessary to set aside the conviction judgment passed in C.C.No.116/2010, dated 09.01.2014?
3. What order?
9. My answers to the above points are as under:
Point No.1: In the affirmative.
Point No.2: In the affirmative.
Point No.3: As per final order
for the following:
: REASONS:
10. Points No.1 & 2:- These points are interlinked with each other. Hence they are taken up for common discussion to avoid repetition of facts and circumstances of the case. This appeal is preferred by the accused/appellant aggrieved, by the conviction judgment and order of sentence passed by the trial Court under Section 138 of N.I Act, on the grounds stated in the appeal memorandum. It is well known principle of law that in case of invoking said provision of N.I. Act, the complainant has to prove the existence of legally enforceable debt and liability and cheque must have been issued in discharge of such debt or liability. In this connection the 7 Crl.A.119/2014 Learned Counsel for the appellant accused has relied upon the decisions which are considered below:
1) 2009(2) AIR Kar.R.186: The Hon'ble High Court (para 9 and 10 ) referring to the Supreme Court decision in AIR 2008 SC 1325; 2008(4)SCC 54, has held that:
"The complainant has to prove the existence of legally recoverable debt payable to him by the accused as on the date of issuing of the cheque by the accused and that in order to rebut the presumption to be drawn in favour of the complainant, the accused need not prove his defence version beyond reasonable doubt and it is sufficient if he brings on record by adducing his own evidence or by eliciting from the complainant and his witness."
In Para No.23 that- "An accused for discharging the burden of proof placed upon him under statute need not examine himself". He may discharge his burden on the basis of the materials already brought on record. An accused has a constitutional right to maintain silence."
In Para No.11 of this citation the Hon'ble High Court observed that, 'the complainant has not given the exact date on which the accused has borrowed the said amount from him and as in the case on hand, the complainant categorically stated that he paid the amount in the month of December, 2003. Hence, the Hon'ble High Court on this ground itself came to the conclusion that the complainant has failed to prove his version and the accused was acquitted.'
2) 2010(3) Kar R.207: It is observed in Para No.8, the contention of the complainant that, the accused has borrowed Rs.1,30,000/- as hand loan from the complainant.... The complainant does not state date on which he advanced the said loan-even in examination-in- chief, the complainant has not spelled out the date on which the loan was advanced. In the cross-examination, it is elicited from him that the loan was advanced on 06/01/1995, but the Cheques bear the date 06.03.1995. Therefore, presumption under Clause (a) or Section 118 of Act stood rebutted.
3) 2010(4) AIR Kar T 756: In this case, it is observed that, 'the complainant has not placed any evidence to show that he had the financial capacity to lend substantial amount of Rs.4,50,000/- none of the witnesses in presence of whom the loan amount was paid by the complainant examined by the complainant. Admittedly, no document evidencing the loan transaction has come into existence.
8 Crl.A.119/2014 Hence, adverse inference drawn against the complainant held the accused liable to be acquitted.'
4) (2014) 1 Supreme Court Cases (Cri) 791.: In this case, the Hon'ble Supreme Court held that drawing presumption under Section 118 R/w Section 139- Prerequisites for, when the Cheque is for repayment of a loan/advanced money- proof required on the part of the complainant- held, in order to draw presumption under Section 118 R/w Section 139, the burden lies on the complainant to show;
(i) that he had the requisite funds for advancing the sum of money/loan in question to the accused,
(ii) that the issuance of Cheque by the accused in support of repayment of money advanced was true, and
(iii) that the accused was bound to make payment as had been agreed while issuing the cheque in favour of the complainant- In the case involved in the said decision, the complainant was not aware of the date and place when substantial amount of Rs.1,50,000/- was advanced by him and noticing the contradictory statements given by the complainant, the Hon'ble Supreme Court held acquittal of the accused by the trial Court was pervasive and could not be sustained- Acquittal restored.
5) (2015) Cri.L.J1156 (Supreme Court) (From Karnataka). In this decision facts of the case on the point revealed the allegations of the complainant that, the accused borrowed a sum of Rs.1,50,000/- three and half years ago thereafter again borrowed Rs.25,000/- and issued a cheque of Rs.5,00,000/-, which was dishonoured due to stop payment instructions. It was held that, No evidence in support of the complainant giving hand loan to the accused-Nor there was any calculation of account to show as to how the amount of Rs.5,00,000/- was figured- on this ground and other the Hon'ble Court held conviction of accused not proper."
11. With due respect to the said decisions it is proceeded to consider the present case on hand, with due consideration of the guidelines and dictum laid down therein. It is acceptable about the well settled law as argued by him further that the courts are given enormous power for presumption of of 9 Crl.A.119/2014 existence of debt or liability under Section 139 of NI Act provided if the presumption is not rebutted with credible evidence and material support by the accused during proceedings. Mere denial and averments will not suffice to shift the burden on to the complainant. But the law is silent about when and what time the accused can take defence during the proceedings. The Learned Counsel for the appellant has further argued that, the accused has successfully established his defence pertaining to disputed transaction, alleged cheque, non passing of loan amount and non existence of recoverable debt etc., that "the complainant has not proved the case in connection with the cheque issued by the accused towards the financial transaction to the extent of Rs.3,50,000/-, as he has not taken any loan from the complainant in the month of August, 2008, assuring to repay it within a month and non existence of recoverable debt".
12. The gists of the complaint has been reiterated by the complainant as P.W-1 that, the accused took loan of Rs. 3,50,000/- and failed to repay it. On making demands the wife of the accused requested the complainant for some more time to be provided and has issued the consideration receipt along with On- Demand Promissory note for Rs.3,50,000/- on 10 Crl.A.119/2014 behalf of the accused. But, he failed to repay the loan amount and therefore, the cheque bearing No.792259 dated 15/05/2009, drawn on ICICI Bank was issued and it was presented by the complainant through his collecting banker M/s.HDFC Bank, Madiwala branch, Bengaluru for encashment and cheque was returned dishonoured with endorsement of the banker referred to as "funds insufficient"
dated 08/10/2009. Hence, the legal notice was issued on 13/10/2009 and there was no reply from the accused etc. He has referred the documents i.e., the disputed cheque is at Ex.P.1, bank endorsement is at Ex.P.2 and bank return memo is at Ex.P.3. These documents reveal that cheque of Rs.3,50,000/- was dishonoured on its presentation as "funds insufficient".
13. P.W-1 has stated about his efforts made to intimate the dishonour of cheque and demanded the amount to be returned to him i.e., cheque amount of Rs.3,50,000/-, he has referred the office copy of the legal notice which is at Ex.P.4. RPAD receipt and UCP receipts are at Ex.P.5 and Ex.P.6, returned RPAD cover and returned cover opened are at Ex.P.7 and Ex.P.8. He has referred the complaint which is marked 11 Crl.A.119/2014 at Ex.P.11 regarding the demand promissory note and consideration receipt, he has got them marked at Ex.P.10 and Ex.P.11. The other documents relied upon are lease agreement, rental agreement at Ex.P.12 and Ex.P.13, Vat registration certificate at Ex.P.14, certified copy of income tax returns of the year 2007-08, 2008-09 both are at Ex.P.15 and Ex.P.16. He has referred the certified copy of balance sheet of the year 2007, two in numbers at Ex.P.17 and Ex.P.18, certified copy of the certificate of importer and exporter code at Ex.P.19. Ex.P.20 is the certified copy of postal cover for receiving the reply notice.
14. On the other hand, the accused deposed as DW-1, denied the material contents, specifically the alleged loan transaction and issuance of cheque and his liability under the said cheque and referred the documents at Ex.D.1, copy of Visa stating that he was at abroad and he was not in India at the time of alleged transaction.
15. The learned counsel for the respondent has relied upon the decisions supporting his arguments pertaining to the ingredients to be satisfied that the person who had drawn the cheque can be deemed to have committed the offence under 12 Crl.A.119/2014 Section 138 of NI Act and the presumptions as contemplated under Section 118 and 139 of NI Act etc. • Manu/SC/0661/2001 (Equivalent-AIR 2001 SC 2895)- (K.N.Beena V/s Muniyappan and Anr.) "Under Section 118, unless the contrary was proved, it is to be presumed that the negotiable instrument (including a cheque) had been made or drawn for consideration. Under Section 139, the Court has to presume, unless the contrary was proved, that the holder of the cheque received the cheque for discharge, in whole or in part, of a debt or liability. Thus, in complaints under Section 138, the Court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttable. However, the burden of proving that a cheque had not been issued for a debt or liability is on the accused."
• Manu/SC/0376/2010 (Equivalent-AIR 2010 SC 1898)-(Rangappa V/s Mohan) "The accused did not raise a probable defence. The defence of the loss of a blank cheque was taken up belatedly and the accused had mentioned a different date in the 'stop payment' instructions to his bank. Furthermore, the instructions to 'stop payment' had not even mentioned that the cheque had been lost. A Perusal of the trial record also shows that the accused appeared to be aware of the fact that the cheque was with the complainant. Furthermore, the very fact that the accused had failed to reply to the statutory notice under Section 138 of the Act leads to the inference that there was merit in the complainant's version. Apart from not raising a probable defence, the appellant-accused was not able to contest the existence of a legally enforceable debt or liability. "
• Manu/HP/0381/2011 (Bhupinder Singh V/s Prakash Chand and Anr.) "Criminal-Conviction- Offence committed punishable under Section 138 of the Negotiable Instrument Act, 1881 - Held, it was concluded that the stand taken by the Petitioner that he never issued the cheque could not
13 Crl.A.119/2014 be accepted for the simple reason that there were no attending circumstances that any action was taken by him to establish that the cheque was either stolen from him or that it was forged/fabricated - Petition rejected." • Manu/SC/1198/2009 (Equivalent-(2009) 14 SCC 683)- (Jugesh Sehgal V/s Shamsher Singh Gogi) (2) Negotiable Instruments Act, 1881-Section 138- Dishonour of cheque--Ingredients of Section 138. To constitute offence under Section 138 of the Negotiable Instruments Act, 1881 (the Act), the following ingredients are required to be fulfilled :
• a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;
• the cheque should have been issued for the discharge, in whole or in part, of any debt or other liability ;
• that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier ;
• that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
• the payee or the holder in due course of the cheque makes a 14 Crl.A.119/2014 demand for the payment of the said amount or money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
• the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
Being cumulative, it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act.
15. The accused has seriously disputed the very loan transaction. His counsel has specifically argued that "It is clear from the above that the accused has successfully established his defence version by adducing his own evidence and also by eliciting from the cross-examination of P.W- 1(respondent/complainant) and also by producing Ex.D.1, passport which reveals that in the month of August, 2008, he was not at all in India. Hence, the question of borrowing does not at all arise". It is also seriously disputed by the accused i.e., the very financial soundness of the complainant that he was not in a position to lend money and during that period 15 Crl.A.119/2014 accused was working abroad and was financially sound and the very issuance of cheque and signature thereon has been seriously disputed. Under such circumstances though presumption U/sec.118, 138 and 139 of NI Act are available to the complainant, but he has to prove the material allegations. Respondent has to substantiate the defence with reference to the above material dispute. Therefore it is necessary to refer the evidence of P.W.1, the very complainant during cross examination what has been brought on record and the evidence of the very accused what are all deposed by him to substantiate the defence.
16. It is revealed from the evidence of P.W.1 that he has studied upto PUC and come to Bangalore in the year 1999 for job and started his alleged business in the year 2003 in the name and style JS Enterprises and registered it during the year 2006-07. Prior to it he was working as plumber. He has stated to be an income tax and sales tax assessee. But he has not produced any materials to show about running of said business and sales tax and income tax returns of relevant year with reference to the lending of Rs.3,50,000/- to the accused, whether that was taken into account or not, 16 Crl.A.119/2014 the complainant P.W.1 answered that he did not enter in his business records i.e. account books and sales tax returns and that said amount was secured from his friends and raising loan from financial institution.
17. It is also notable point as argued by the learned counsel for the accused that the respondent/complainant has failed to prove financial capacity also. The respondent/complainant has produced Ex.P.12 to Ex.P.20 and tried to show his financial capacity. But, none of the documents discloses income as stated by him. Ex.P.12 and 13 are 2007 and 2008 lease agreements of his shop where he was running his business and these documents do not have any relevance to this case. Ex.P.15 and Ex.P.16 are the self assessed Income Tax Returns of 2007 and 2008. The said Income Tax returns of the year 2007 which reveal the total income of that year is only Rs.1,56,140/-. Ex.P.16 i.e, his income for 2008 is only Rs.1,26,650/-. Both of the documents do not show his Income as stated by him. In third page of These documents it is mentioned as Part A-BS Sl.No.3 shown as current assets, loans and advances in 'B' loans and advances are shown as nil. Documents Ex.P.17 and Ex.P.18 i.e., his business 17 Crl.A.119/2014 Balance sheet which also does not support or tally his statement. The Balance sheet Ex.P.17 and Ex.P.18 for the year 2007-08 discloses the capital investment as only Rs.2,56,079/- (Rupees Two Lakh Fifty six thousand and Seventy nine only) and Rs.3,50,650/- (Rupees Three Lakh fifty thousand six hundred and fifty only) respectively. He has not stated what was the investment and business turn over. When such being his state of affairs the very contention about lending of alleged amount by him, creates doubt that whether he had financial capacity to lend that much of huge amount to accused.
18. There is suggestion made to this complainant that there was no any acquaintance with the complainant. However, the accused is residing near the house of complainant. The wife of accused, who is also one of the accused in another case and the complainant are from Kerala. (Case has been registered against wife of appellant for money due of Rs.8,50,000/.) However during the course of cross examination of DW.1 he deposed that he came to know about the complainant through his wife. Because of the 18 Crl.A.119/2014 relationship of accused and his wife, and their residence, the acquaintance with the complainant, cannot be discarded.
19. Regarding the payment of amount by the complainant he stated that he paid the amount in the month of August 2008 as the accused told him that he was at Dubai and gave Dubai address. He has specifically stated that the said amount was paid prior to 24.08.2008 and that the amount was being received by wife of the accused. Thus, he came with deviated stand that, it was not direct payment to the accused. Thus at the outset it reveals that the alleged amount was not paid directly to the accused, then it remains that whether the said amount was paid by the complainant to the wife of accused, and that whether it had been handed over or received by the accused to the tune of Rs.3,50,000/-. Though he has stated about the alleged promissory note and consideration receipt, Ex.P.9 and P.10, but in this connection there is no evidence of material witnesses specifically the evidence of attesting witnesses and wife of accused in this connection, that wife of accused, had executed Ex.P.9 and P.10 and it has binding force against the accused. So, this theory is unbelievable. At this juncture it creates doubt 19 Crl.A.119/2014 about the actual payment made by the complainant to the tune of Rs.3,50,000/- and it reached to the accused.
20. With reference to his financial condition he deposed that he did not have any documents to show that he was having that much of amount by borrowing from his friends and availment of loan from financiers and arranging of his own funds. Even in connection with raising of loan from the said financiers he has not produced any materials in that regard that he borrowed the money from his friends and also from said financiers so as to give it directly or indirectly to the accused in the month of August, 2008. Even the complainant not specifically stated the date of lending of money in the year 2008 and that DW.1 how needed, because basically it is an admitted fact that accused being employed in abroad was having sound financial status. So, it creates doubt, how and why he was in need of that much of amount.
21. About issuance of cheque he stated that he has pressed upon the accused to repay the loan and about issue of cheque. The promissory note and consideration receipt i.e,Ex.P.9 and 10 are disputed as concocted by the complainant and the accused has not issued any cheque, 20 Crl.A.119/2014 nor the cheque Ex.P.1 bears the signature of the accused, as per Ex.P.1(a). Even it is suggested to the P.W.1 that, "while he was doing electrical work in the house of accused he took the cheques". Therefore, it is apparent regarding the dispute for having issued the disputed cheque. The very signature and contents of the cheque are also disputed. He has not disputed the fact that the complainant used to come over to the house of accused and that business transaction and to work with wife of appellant. During the course of cross examination of D.W1 it has been made clear that the complainant had close acquaintance with the wife of the accused as they are from the same place (Kerala) and that accused was employed and residing abroad and used to come to India twice or thrice in a year. There is no dispute regarding the residences of family members of accused in the given address.
22. D.W1 has admitted the suggestion that in his absence, his wife was taking care of the family needs. He volunteers that it was done under his guidance. The complainant was doing plumbing and electrical work during the year 2000 and the wife of accused used to take the service of the 21 Crl.A.119/2014 complainant for electrical and plumbing work . However there is suggestion that, " they both are Keralites and they are closely associated. The wife of accused had introduced the accused to the complainant and during that time the accused was acquaintaned with the complainant". Regarding the shop of the complainant and purchase of items, D.W.1 deposed that, they have purchased few items from his shop and he was aware of the business transaction, which was taken place between the complainant and his wife with regard to the sale of the electrical items to the brother of wife of accused and the said transaction was within his knowledge. Thus, there might be same transaction pertaining to items purchased. But from this nothing can be inferred that accused was in need of finance.
23. It is very important to consider about the suggestion put to the accused/DW1 because it is suggested that, "from the initial stage of business of complainant, my wife was promoting his business by bringing her friends and relatives to the shop of complainant. I have no personal knowledge of the business transactions between the complainant and my wife". However, it was denied by DW1. He did not know 22 Crl.A.119/2014 personally about the business transaction between his wife and the complainant. It is tried to bring on record through DW1 that, prior to disputed-debt-transaction there were many financial transactions between wife of DW1 and that his son was having his education during the year 2008 and on account of family necessity and education of his son, he (DW1) had borrowed the cheque amount from the complainant. But, DW1 has firmly denied the same. To prove the same, as material facts PW1 has not placed the materials to show the alleged financial transactions prior to the alleged incident and the education of the son of DW1 in the year 2008, etc., and hence he was in need of money. DW1 specifically stated that his son was taking education since the year 2005. Thus, it was not in the year 2008 and that he was not in need of any amount, much less the disputed cheque amount.
24. Thus the suggestions reveal that even wife of accused was supporting the complainant for his upliftment in his business and promoting his business by referring the customers. However there is no nexus about the said loan transaction and the accused, nor it was interse between the 23 Crl.A.119/2014 complainant and wife of accused, assuring the complainant of repayment she executed the promissory note and consideration receipt. It is also important to note that there is suggestion made to this witness that his wife on several occasions represented the complainant that, her husband i.e accused was financially sound and he was working abroad and had taken financial assistance on several occasions. It refers to the financial soundness of DW1. So, the financial sound capacity of the accused, as because he was working abroad, cannot be ignored. He has specifically denied about the money transaction taken place between himself and complainant.
25. Further in connection with Ex.P.9 and 10, the accused did not admit the suggestion that the signature on the instruments as per Ex.P.9 and 10 are of the wife of accused. These Ex.P.9 and 10 are referred by the complainant to bring on record that they were pertaining to the loan raised and confirmed under promissory note. But these documents are not executed by the accused and even the very contents of and signatures are seriously disputed on being executed by wife of accused. No attesting witnesses are examined. There 24 Crl.A.119/2014 is no clinching and cogent evidence that wife of DW1 executed on his behalf (accused) assuring that the amount alleged to be borrowed was noted in Ex.P.9 and P.10 and would be repaid. So it was not duly proved beyond all reasonable doubt about alleged financial transaction as loan, and DW.1 was in need of money and complainant was having capacity to lend said huge money, as contended by him.
26. On consolidated discussion referring the evidence of both P.W.1 and DW.1 it is revealed that, the complainant has not referred and produced the material documents to show about his financial soundness, securing it from the alleged source so that he can lend huge amount of Rs.3,50,000/- in the month of August 2008. When he is running business it cannot be expected that he was avoided to take into account, about huge loan amount paid to the accused, in his books of accounts. Certainly it creates doubt about that alleged lending of money. Even he has stated about borrowing money from outside, by raising loan from his friends and financial institution, but he has not adduced evidence in that regard, i.e. the evidence of his friends who have lent money to him or authorized person from 'Gold 25 Crl.A.119/2014 financiers', as contended by him. He has no documents in that regard nor he has adduced their evidence, who assisted him with finance. What quantum of amount was paid by them is not specified. These factors create doubt about financial capacity of complainant to lend that much of huge amount, in the manner as alleged. He had no money of his own is supporting the defence of accused that the complainant had no financially sound to lend him that much of huge loan.
27. It is brought on record that one Rajendra filed case against wife of accused and it was within the knowledge of the accused, but it does not mean that filing of case against wife of accused, the accused might have created a false case. Therefore these materials are not free from any reasonable doubts and they cannot be considered as clinching and cogent evidence corroborating the evidence of P.W.1.
28. About the cheque, there is difference in the writing with reference to the contents of the cheque and it was written with different ink and script, pertaining to the name as 'Jose Francis' and date are different from that of the writing in the column revealing Rs.3,50,000/- only. There is also 26 Crl.A.119/2014 serious dispute about the signature at Ex.P.1(a). Therefore it is not free from reasonable doubt that it was executed by the accused. The very transaction referred under Ex.P.9 and 10 i.e,demand promissory note and consideration receipt, they are not executed by the accused. It is disputed that it was executed by wife of accused. In this connection Ex.P.10 bears the signature of alleged witness, but the complainant has not adduced any evidence of important witnesses who put signature there upon regarding the execution and amount paid thereunder. It is fatal to the case of the complainant. Under such circumstances the case of the complainant is unbelievable one, towards legally recoverable debt. Therefore it is rightly challenged by the appellant before this Court on several grounds as referred above regarding the impugned conviction judgment. The trial court has not considered the material facts and circumstances which are on record and wrongly come to the conclusion regarding lending of money and that there exists debt as claimed for under the alleged cheque. It has referred out of the version of accused that, as DW.1 took contention that P.W.1 had taken it, when he was attending the work at his house and applied the presumption under Sections 118, 138, 139 of 27 Crl.A.119/2014 the Act, without considering the rebuttal evidence duly placed by the accused. The trial court has come to the wrong conclusion placing reliance on the documents produced by the complainant discarding the evidence on record of the accused and certain material admissions taken from the mouth of the P.W.1 and failed to appreciate the evidence properly. Hence, interference of this appellate court is necessary to set aside the impugned conviction judgment and order of sentence and to acquit the accused for the offence punishable under Section 138 of the N.I.Act. Therefore I answer point No.1 and 2 in the affirmative.
29. Point No;3 : In view of the above discussion and conclusion arrived at, I proceed to pass the following:
ORDER The appeal preferred by the appellant U/Sec. 374(3), Cr.P.C., is hereby allowed.
In the result, the judgment of conviction and order of sentence U/s 138 of N.I.Act, passed in C.C116/2010 by the XIII ACMM, Bangalore, is hereby dismissed.
Consequently, the accused is hereby acquitted for the offence punishable u/s 138 of N.I Act.
The bail bond of accused and that of surety stand canceled.
28 Crl.A.119/2014 Send LCR with copy of this judgment to the Trial court.
(Dictated to the Judgment Writer, transcribed by her, then corrected and pronounced by me in the open court on this the 31st day of March, 2016) (Yadav Vanamala Anandrao) LII Addl. City Civil & Sessions Judge, Bengaluru.
29 Crl.A.119/2014