Karnataka High Court
Basavalingappa S/O Gollallappa ... vs Madivalappa Bhimaraya Patil (Hadagal) on 10 January, 2022
Author: V. Srishananda
Bench: V. Srishananda
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL APPEAL NO.200116/2014
BETWEEN:
Basavalingapa S/o Gollallappa Hadagal,
Age : 50 years, Occ : Teacher
Sri Gurunidhi Higher Primary School,
Shrirampur,
R/o Shrirampur, Tq : Hosadurga,
Dist : Chitradurga.
... Appellant
(By Sri Shivanand V.Pattanshetti, Advocate)
AND:
Madivalappa Bhimaraya Patil (Hadagal),
Age : 45 years, Occ: Lecturer,
Govt. Polytechnic College,
Near DDPI Office, Gulbarga.
... Respondent
(By Sri Avinash A.Uplaonkar, HCGP)
This Criminal appeal is filed under Section 378(4) of
Cr.P.C praying to allow the appeal by setting aside the
judgment passed by the II Addl. Sessions Judge, Bijapur
dated 16.10.2014 in Crl.A.No.24/2013 and consequently
restore the judgment of conviction order of sentence
passed by the JMFC-I Court, Bijapur dated 24.04.2013 in
C.C.No.1505/2011.
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This appeal coming on for Final Hearing this day, the
Court delivered the following:
JUDGMENT
Heard Sri Shivanand V.Pattanshetti and Sri Avinash A.Uplaonkar learned counsel for the parties.
2. The present appeal is filed by the complainant in C.C.No.1505/2011 who obtained an order of conviction of the respondent herein for the offence punishable under Section 138 of the Negotiable Instrument Act (for short, 'N.I.Act') and was entitled to a sum of `1,05,000/- as compensation which was reversed and accused came to be acquitted of in Crl.A.No.24/2013.
3. Brief facts of the case are as under :-
A complaint under Section 200 of Cr.P.C came to be filed by the appellant herein contending that accused has committed an offence punishable under Section 138 of N.I.Act and as the cheque issued by him towards his obligation in repaying the consideration amount of `2,20,000/-, two cheques came to be dishonored and 3 another cheque in a sum of `1,00,000/- came to be dishonored for stop payment and he sought for action against the accused.
4. The complaint averments further reveal that the notice issued by him regarding the dishonor of cheques has been improperly replied and there was no compliance to the callings of notice, he was constrained to file a complaint before the learned Magistrate.
5. Initially, a complaint came to be filed in the court of Judicial Magistrate First Class, Hosadurga in P.C.No.102/2005 and later it was transferred to the Court of Judicial Magistrate First Class, Vijayapur. Since the accused denied the plea, trial was held.
6. In order to prove the case of the complainant, complainant got examined himself as PW.1 and relied on 10 documents which were exhibited and marked as Exs.P.1 to P.10. On his behalf he also examined two witnesses namely, Rajesh and Jagadishwar. 4
7. In order to rebut the presumption available to the complainant, accused got examined himself as DW1 and he also produced 10 documents which were exhibited and marked as Exs.D1 to D.10.
8. Accused statement was recorded as is contemplated under Section 313 of Cr.P.C. On conclusion of the prosecution evidence wherein accused denied the incriminatory materials produced against him and he has also answered that he has got probable defence to put- forth and he has examined himself as DW.1.
9. Learned trial Magistrate after hearing the parties in detail, passed an order of conviction convicting the accused for the offence punishable under Section 138 of N.I.Act and ordered to pay a fine of `1,10,000/- with default sentence of two months simple imprisonment and out of `1,10,000/-, a sum of `1,05,000/- was ordered to paid as compensation to the complainant. Being aggrieved by the said judgment, the accused filed an appeal before II Addl. District Judge, Vijayapur in Crl.A.No.24/2013. 5
10. Learned Judge after securing the trial Court records and hearing the parties in detail by judgment dated 16.10.2014 reversed the judgment passed by the learned Magistrate in C.C.No.1505/2011 and acquitted the accused. Being aggrieved by the same, complainant is before this Court in this appeal.
11. In the appeal following grounds have been raised :-
x That, the impugned judgment of acquittal recorded by the learned Sessions Judge is contrary to law, facts of the case and Hence, the same is liable to be set evidence on the record. aside.
x That, one of the essential ingredients of See. 138 of N.I. Act that a cheqe in question must have been issued towards a legally recoverable or enforceable debt or liability Sec, 118 and 139 of N.I. Act envisage certain presumptions, under Sec. 118 a presumption shall be raised regarding consideration, date, of transfer, endorsement, and regarding holder in case negotiable instruments. Even Sec. 139 a rebuttable presumption shall be raised that the cheque in question was issued regarding discharge of a legally enforceable debt and these presumptions are mandatory presumptions that are required to be raised in case of negotiable instrument. This fact and law is misinterpreted by the lower appellate court. .6
x That, in number of decisions the Hon'ble Apex Court and this Hon'ble Court held that, issuance of cheque and signature on the cheque is accepted and admitted by the accused in an initial presumption has to be raised infavour of complainant, that cheque in question was issued towards legally recoverable debt. This fact and law is misinterpreted by the lower appellate court.
x That, the concept of the strict rules of pleadings in a Civil law cannot be important in criminal proceedings. The complaint has to contain basic necessary material ingredients of the offence and its commission by the accused. The mention of the other details of the evidentiary material is not necessary, nor is This such absence fatal for maintainability of the complaint. principles of law is misunderstood by the lower appellate court.
x That, the 1st appellate court has considered the documents pertaining to Civil suits and allowed the appeal is bad-in-law. Since, the Civil suits and complaint under 138 of N.I. Act., are independent proceedings and the proceedings U/s. 138 of N.I. Act is summary in nature. S0, strict proof under evidence act This fact and law is misinterpreted by the by the lower appellate court.
x That, Negotiable Instrument Act was enacted to bring credibility to the cheque and the very purpose of enactment is to the promote the use of negotiable instrument, while to discourage the issuance of cheque without having sufficient funds in their accounts. Such being the case the intention of the legislature is that complainant be suitably compensated while accused be punished for his act. This principle of law is overlooked and misinterpreted by the lower appellate court.7
x That, the story created by the respondent is highly unbelievable and unnatural.
x That, appellant himself laid a evidence as PW.1 and two independent witnesses PW.2 & 3, the say of two independent witness is corroborated to the say of PW.1/complainant. But, lower appellate court not properly interpreted the evidence of PW.1 to 3.
x That, the 1st appellate court passed the judgment only on the base of surmise and conjecture. So, 1st appellate court passed the judgment with hypothetical approach.
x The lower appellate court has failed to appreciate the materials produced by the complainant in the proper prospective.
x That, evidence led and documents marked by the respondent has no evidensary value in the eye of law x There are material irregularities and infirmities in the 15. impugned order calling for the interference of this Hon'ble Court' in order to do justice.
x That, learned lower appellate court not raised proper probabilities and inference on the basis of evidence on record. Hence, the order of acquittal is not proper.
x Thus viewed from any an, the impugned judgment of acquittal recorded by the learned lower appellate court is illegal, erroneous and deserves to be set aside.8
12. Reiterating the above grounds Sri Shivanand V.Pattanshetti, vehemently contended that the learned Judge in the first appellate Court has not properly appreciated the material evidence on record and misplaced the principles of law while appreciating the presumption available to the complainant and wrongly recorded the finding that accused has rebutted the presumption available to the complainant and sought for allowing the appeal.
13. Per contra, learned counsel representing the accused Sri Avinash A.Uplaonkar vehemently contended that the relationship between the accused and the complainant no doubt stood established; but the material on record clearly indicate that complainant himself was due money to the accused whereby accused has taken recourse to law by filing a suit for recovery of money which was originally numbered as O.S.No.16/2008 and later on numbered as O.S.No.87/2009 which came to be decreed as per judgment Ex.D10 and therefore, the accused has 9 sufficiently rebutted the presumption available to the complainant by placing positive evidence on record and thus sought for dismissal of the appeal.
14. In view of rival contentions, following points would arise for consideration:-
1. Whether the complainant has established beyond all reasonable doubt that accused is guilty of the offence punishable under Section 138 of the Negotiable Instrument Act ?
2. Whether the judgment passed by the learned Judge in the first Appellate Court in Crl.A.No.24/2013 dated 16.10.2014 by II Addl.
District and Sessions Judge, Vijayapur is suffering from legal infirmity and perversity and thus calls for interference ?
3. What order ?
15. In the case on hand, the issuance of cheque and the signature found in Ex.P.1 is not in dispute. Admittedly, the cheque on presentation came to be dishonored with an endorsement as per Ex.P.2. The bank 10 endorsement shows that cheque came to be dishonored, as payment "stopped by the drawer". Thereafter, a legal notice came to be issued on 10.09.2008 as per Ex.P.3. Notice was dully served on the accused as per postal acknowledgment marked at Ex.P.5. Accused got issued a reply as per Ex.P.6. In Ex.P.6, it has been specifically mentioned that accused is working as a Lecturer drawing handsome salary and his wife is also a lecturer having a good salary and therefore they are maintaining good status in the society and they are having good financial background in the village.
16. It is further contended in the reply notice that complainant's father died long back and complainant ran into financial crises. At that juncture, complainant approached the accused and he got him a petty job. It is further contended in the reply notice that in order to met his financial crises, the complainant approached the accused and sought for hand loan of `1,00,000/- and to maintain family prestige, the accused has lent a sum of 11 `1,00,000/- by issuing separate cheques in a sum of `50,000/- dated 07.05.2007. He gave `10,000/- and also issued `50,000/- each on 07.05.2007 and 21.01.2008 by way of cheques. It is further contended in the reply that accused pleaded further sum of `1,00,000/- to save the landed property and at that juncture, he issued another cheque of `1,00,000/- with an intention to help the complainant. Later he came to know that the complainant had borrowed the said amount with mala-fide intention and therefore he had to issued stop payment order to his banker.
17. It is denied that he had any transaction in respect of Sy.No.50/2 measuring 4.00 acres of land in a sum of `2,20,000/- and therefore, no consideration amount has been passed on in respect of Ex.P.1 - cheque.
18. After receipt of such reply, the complainant filed a case before the Judicial Magistrate First Class at Hosadurga Court which on transfer was tried by JMFC, Vijayapur.
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19. The complainant in order to prove the complaint averments got examined himself as PW.1 by reiterating the complaint averments. In the cross- examination of the complainant, he admits that he has also filed a suit in O.S.No.602/2011. He admits that in the notice marked at Ex.P.3 no date is mentioned as to payment of `2,20,000/- and he has not obtained any receipt. He admits that there is an acknowledgment issued by the accused that he would pay `50,000/- within three days from 20.04.2007 and balance amount of `1,70,000/- will be pay within six months. However, no such document was produced before the court.
20. He admits that O.S.No.225/2008 is filed with a prayer for permanent for injunction against him which came to be decreed in respect of Sy.No.50/2 measuring 9 acres 32 guntas in Kudargond Village, Sindagi Taluk. He admits that he has not filed any appeal against the said judgment.
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21. He also admits that in respect of `50,000/- cheque issued by accused to the complainant two cases are pending before the court at Kalaburagi. Ex.D10 is the judgment whereby the Civil Court at Kalaburagi has passed a decree against the complainant for payment of `50,000/- came to be decreed.
22. PW.2 is one Rajesh who has worked as Manager in State Bank of India. He has been examined to prove that cheque came to be dishonoured with. His cross- examination, he admits that after verifying the stop payment instructions and the bank account and other the details, the cheque is not honored.
23. PW.3 is one Jagadishwar. He deposed that he is the resident of Magangeri Village, Jewargi Taluk. He further deposed that he acquainted with the complainant and accused and also deposed about the transaction that took place between the complainant and the accused in a sum of `2,20,000/- wherein Channabasappa (accused) had agreed to sell the property to the extent of 4.00 acres of 14 Kudargond Village. He also deposed that it was an oral agreement.
24. In his cross-examination he admits that there was a panchayat in his village and wherein himself, Sahebgouda, Rudragouda, Gurulingayya and four others were present and at that juncture he had received a cheque in a sum of `50,000/- from the accused on 07.05.2005 and he handed over the same to the complainant. He admits that the said cheque is honored and thereafter another cheque was handed over to Siddu Biradar who is relative of the complainant.
25. He admits in his cross-examination that he is not personally aware of the alleged transaction between the complainant and the accused.
26. Accused got himself examined as DW.1 wherein he has reiterated the contents of the reply notice and specifically stated that he is not due any amount to the complainant and infact complainant is due to him in respect of hand loan and he has initiated action against the 15 complainant in O.S.No.516/2008 (renumbered as O.S.No.87/2009) which came to be decreed. In his cross- examination, no useful materials are elicited so as to prove the transaction between the complainant and the accused in respect of Sy.No.50/2 and sum of `2,20,000/- has been paid by the complainant to the accused.
27. In the lengthy cross-examination, the suggestions made to the accused that he is deposing falsely is denied by the accused.
28. The learned trial Magistrate appreciated the material evidence on record and convicted the accused by recording a finding that the cheque came to be issued for legally recoverable debt i.e., in respect of on part of repayment of a sum of `2,20,000/- and convicted the accused by resorting the presumption available to the complainant under Section 139 of Negotiable Instrument Act.
29. The learned Judge in the first appellate Court while re-appreciating the material evidence on record in 16 the light of the rival contentions, in paragraph 13 onwards is held as under :-
"REASONS
13. Points No.1 to 3 : Admitted facts in this case are that accused/appellant and complainant/respondent are cousin brothers, so to say father of accused/appellant and father of complainant/respondent are full brothers. According to the case of complainant/respondent, in the year 2005 there was an oral agreement of sale in between brother of accused/appellant by name Chanabasappa Bhimaray Patil in respect of land R.S.No.51/2 of Kudargond village for Rs.2,20,000/- and later on that sale agreement was cancelled and accused/appellant has taken liability of his brother-Chanabasappa to repay the consideration amount received by his brother. It is also case of the complainant that towards discharge of said liability, accused/appellant initially had issued two cheques for Rs.50,000/- each on 7.5.2007 and 21.1.2008 that which have been encashed by the complainant. In respect of remaining amount accused/appellant had issued another cheque dated 8.8.2008 for Rs.1,00,000/- drawn on State Bank of India, Treasury Branch, Bijapur, on presentation of said cheque for encashment, it came to be returned on 14.8.2008 17 with an endorsement of bank that 'payment stopped by drawer.' Therefore this fact was brought to the notice of accused/appellant by issuing notice dated 10.9.2008 calling upon him to pay the cheque amount within 15 days from the date of receipt of said notice. It is alleged that accused/appellant instead of paying the cheque amount has issued a false reply notice as per Ex.P.6. Therefore ultimately the complainant had to file this complaint before JMFC, Hosadurga which stood transferred to Bijapur on the point of jurisdiction. It is borne out from the records that accused/appellant having denied the accusation stood for trial.
14. From the evidence of Dw.1 and line of cross-examination made to Pw.1, there is no dispute about the fact that Ex.P.1 cheque belongs to accused/appellant. It is also clear from Ex.P.2 endorsement of bank that on presentation of said cheque, it was returned with an endorsement that payment stopped by drawer. In order to prove the fact of stopping of payment, complainant has examined Pw.2. The official of bank has come before the court and deposed about stop payment letter received by them from the account holder. In his cross-examination, Ex.D.6 came to be marked. On receipt of this letter, bank authorities stated to have stopped the payment. This official admitted 18 that signature appearing on Ex.P.1/cheque is not there on this application. This is a certified xerox extract of letter said to have been received by bank on the requisition of account holder dated 14.6.2010 as per Ex.D.7. Anybody for that matter on perusal of Ex.P.1 and this Ex.D.6, though it bears all other particulars, but it does not bear the signature of account holder one appearing in Ex.P.1. Thus it creates a reasonable doubt about the instruction of stop payment by account holder himself. Any way, even presuming for a while that ingredients of Sec.138 N.I. Act have been established by the complainant/respondent and there was presumption U/s.139 of N.I. Act that issuance of cheque is towards discharge of legally enforceable liability on the part of accused/appellant, then also it is required to see as to whether this presumption has been suitably rebutted by accused/appellant by producing evidence on his part.
15. As per law laid down by the Hon'ble Apex Court one reiterated by trial court in its judgment on page-26 i.e. case of Rangappa V/s Mohan reported in AIR 2010 SC 1898 wherein their lordships have held as under :-
'rebuttable presumption U/s.139 is a device to prevent undue delay in the course of litigation. However, it must be remembered 19 that the offence made punishable by Sec.138 can be better described as regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation or reverse onus clause and the accused/defendant cannot be expected to discharge and unduly high standard of proof.' It is further held that :-
'In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is settled position that when an accused has to rebut the presumption U/s.139, the standard of proof for doing so is that of preponderance of probability. Therefore if the accused is able to raise a probable defence, which creates doubt about the existence of legally enforceable debt or liability, the presumption can fail.'
16. This case law has been again reiterated by Hon'ble Apex Court in a decision reported in 20 2013 AIAR (Criminal) 909 Supreme Court of India between C.Keshavammurthy V/s H.K.Abdul Zabbar as under :-
'Negotiable Instruments Act 1881, Sec.139-
Presumption arising under-Scope of-
Presumption U/s.139 N.I. Act includes the presumption of the existence of a legally enforceable debt or liability-Such presumption is required to be honoured and if it is not so done, the entire basis of making these provisions will be lost-It is therefore, for the accused to explain his case and defend it once the fact of bouncing of cheque issued by him is primafacie established - Burden is on him to disprove the allegations once a prima-facie case is made out by the complainant.' Therefore in the light of above two decisions and regard being had to the scope of appellate jurisdiction as provided U/s.386 of CrPC, the entire evidence placed on record can be reassessed by appellate court to address the grounds urged by accused/appellant. His main contention is that trial court has virtually misread the evidence on record and presumption of law U/s.139 of N.I. Act and standard of proof of rebuttal evidence required to be placed by accused/appellant.21
17. On going through the contents of Ex.P.3 copy of legal notice and averments made in the complaint coupled with the evidence of Pw.1, it is difficult to conceive that at particular time, sale transaction was there between this complainant/respondent and brother of accused/appellant i.e. Chanabasappa. It is not clear as to whether said transaction was written one or oral one. PW-1 in his cross-examination has admitted that said Chanabasappa's son by name Ningappagouda in whose name land R.S.No.50/2 of Kudargond village was standing under minor guardian had filed a suit for decree for permanent injunction against this complainant as defendant No.1. Said suit was filed through minor guardian Mahadevi. Said suit came to be decreed against defendant No.1 and others as per Ex.D.1 on 12.4.2012. In that suit this complainant himself took a contention that Chanabasappa and his wife Mahadevi i.e. parents of Ningappagouda have availed loan of Rs.2,20,000/- and as a security for the repayment of said loan, 4 acres of land in R.S.No.50/2 measuring 9 acres 32 gunthas standing in the name of their son Ningappagouda was mutated in the name of this complainant on 16.1.2006. The certified copy written statement filed by complainant in that suit has been produced and marked at Ex.D.2. If one were go through the contents of judgment Ex.D.1, this complainant got 22 himself examined as Dw.1 reiterating the fact that Rs.2,20,000/- was taken by Chanabasappa and his wife Mahadevi as a hand loan, as a security for the repayment of said hand loan by giving a wardi to the revenue officials got 4 acres of land in R.S.No.50/2 mutated in the name of this complainant and therefore it was not a sale transaction. Now it is further mentioned in the written statement Ex.D.2 that subsequently in the year 2007 i.e. 24.4.2007 panchayat was held and in the said panchayat Gurulingayya Hiremath, Sahebgouda Biradar, Kenchappa Pujari @ Melinamani, Bhimaray Nagavi, Rajashekhar Melinamani were participated, wherein it was resolved that plaintiff has to return Rs.2,20,000/-
and after repayment of entire amount only, possession of land has to be redelivered. This so- called agreement has been suppressed by complainant in his complaint and his evidence. It is not his case that as on the date of said agreement dated 24.4.2007, this accused/appellant was also present and that he had taken over the liability of his brother Chanabasappa. Therefore in the absence of which it becomes difficult to believe that said impugned cheque Ex.P.1 was issued to the complainant towards discharge of liability of his brother Chanabasappa. Pw.1 has admitted in his cross-examination that he has not challenged the judgment rendered in O.S.No.225/2008 which he 23 has suffered injunctive decree and his possession is not accepted by civil court. This is one positive rebuttal evidence placed by accused/appellant that which has not been properly appreciated by the trial court and it has certainly led to miscarriage of justice.
18. Second set of rebuttal evidence that is placed on record is, that according to the accused/appellant this complainant being his cousin brother, he was suffering from financial difficulties and had approached him for financial help and accordingly he had helped him twice by giving two cheques for Rs.50,000/- each and that was not repaid, instead of that by misusing third cheque which was landed in his custody, he has tried to hoodwink the accused.
19. Accused/appellant has deposed to the effect that he had to take recourse to law for recovery of two cheque amount of Rs.50,000/- by filing two suits in O.S.No.516/2008 and O.S. No.87/2009 on the file of Civil Judge (Jr.Dn), Gulbarga, wherein this complainant/respondent has filed his written statements, but did not effectively contest the same. Ex.D.9 is written statement filed in O.S.No.87/2009 by complainant/respondent whereas Ex.D.10 is certified copy of judgment in O.S.No.87/2009. It is clear from the judgment in O.S.No.87/2009 that this complainant has not 24 effectively contested the suit and not even cross- examined PW-1 i.e. accused/appellant nor he himself entered the witness box to prove the defence set up by him. When these two suits are relating to recovery of amount pertaining to two cheque got encashed by complainant that which the complainant has tried to relate it to one issued in discharge of liability of accused/appellant is falsified."
30. This Court being the court of appeal insofar as the judgment of the first appellate court is concerned, re- appreciated the material evidence on record.
31. No doubt, under Section 118 and under Section 139 of the Negotiable Instrument Act, the complainant enjoys a presumption that a Negotiable Instrument Act (cheque is at Ex.P.1) is issued for a valid consideration. But the said presumption is rebuttable presumption. In order to rebut the presumption, accused examined himself as DW.1.
32. In the reply notice itself, the accused has taken a specific stand that there was no transaction 25 between him and the complainant as is alleged in the notice at Ex.P.3 that is for the purchase of 4.00 acres of land in Kudargond Village, Sindagi Taluk for a valid sale consideration of `2,20,000/-. Further, the accused has taken a specific stand that the complainant is financially weak and in fact accused has helped him on two occasion by way of cheques and also a sum of `10,000/- as a hand loan.
33. Subsequently, when a property was to be saved by the complainant, complainant approached the accused again with a request of `1,00,000/- and at that juncture, he has issued a cheque in a sum of `1,00,000/- and later on he came to no such financial necessity was there for the complainant and immediately issued the stop payment. Therefore, accused has taken a specific stand by placing necessary oral and documentary evidence on record to rebut the presumption available to the complainant. Further, when such a reply was sent, it was necessary for the complainant to issue a rejoinder or 26 atleast by way of abundant caution place the alleged agreement on record.
34. It is pertinent to note that in respect of said land in Sy.No.50/2 when there was interference by the complainant, an injunction suit was filed in O.S.No.225/2008 by the accused against the complainant herein, which on contest case came to be decreed. It is admitted by the complainant that he has not preferred any appeal against the said judgment. In the civil suit i.e., O.S.No.225/2008, the written statement filed the accused is also produced at Ex.D.2. In the written statement, the defendant has taken-up the contention that he had paid loan of `2,20,000/- as the advance amount in respect of sale transaction between him and the accused and therefore, he was put into the possession of the property.
35. The said contentions has been duly considered by the Judge in the Civil Court and after thorough trial and appreciating the material evidence on record, the contention taken up by the defendant that there was an 27 agreement between the complainant and the accused in respect of Sy.No.50/2 and accused has advanced a sum of `2,20,000/- as advance amount is negated and decree came to be passed in favour of accused restraining the complainant from interfering with the said land.
36. When such a finding has been recorded by the duly constituted Civil Court that there was no agreement and there was no payment of consideration the same has got a bearing on the proceedings that is filed by the complainant against the accused. More so, when the said judgment was admittedly not challenged by the complainant. This is one circumstance where the accused has rebutted the presumption available to the complainant.
37. Further to establish the financial status of the accused is concerned, the complainant had filed a case for recovery of the money in a sum of `50,000/- which was advanced by him to the complainant in O.S.No.516/2008 (which is subsequently numbered as O.S.No.87/2009) came to be decreed.
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38. The judgment copy is produced before the learned trial Magistrate and marked at Ex.D10. Admittedly, as per the said decree, the complainant himself is required to pay a sum of `50,000/- with costs. These are the documents which would sufficiently establish the stand taken by the accused that the complainant had no transaction whatsoever in respect of the agreement of sale between the complainant and accused in respect of Sy.No.50/2 of Kudargond Village, Sindagi Taluk.
39. Further, the alleged agreement is also not produced by the complainant and PW.3 specifically admits that it is an oral transaction and he has no personal knowledge about the alleged sale transaction. PW.3 also admits that there was a panchayat convened so also complainant admits in cross-examination that there was a panchayat and an acknowledgment is given by the accused to the complainant for return of the advanced money. No such acknowledgment is produced by the complainant even after such an admission is obtained by the accused in 29 the cross-examination of PW.1. This is another circumstance where accused has rebutted the presumption.
40. Under such circumstances, in the absence of any cogent material being placed by the complainant so as to prove that he had the financial capacity to lend the money in a sum of `2,20,000/- for the purposes of sale consideration in respect of agreement to sell of a land bearing Sy.No.50/2 in Kudargond village, Sindagi Tlauk and the question of repayment of the said sale consideration would not arise and the accused having issued the cheque as a part consideration of `2,20,000/- vide Ex.P.1 stands not proved.
41. Accordingly, this Court is of the considered opinion that the finding recorded by the learned Judge in the first appellate Court acquitting the accused by reversing the finding recorded by the learned trial Magistrate that the complainant has failed to prove that 30 Ex.P.1 came to be issued for legally recoverable debt is not suffering from legal infirmity or perversity.
42. In view of the foregoing discussions, this court is answered point No.1 and 2 in the negative and the following :
ORDER Appeal sans merit and is hereby dismissed.
Sd/-
JUDGE sn