Karnataka High Court
Nageshwar Rao vs Pradeep on 22 September, 2017
Author: R.B Budihal
Bench: R.B Budihal
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
Dated this the 22nd day of September 2017
Before
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
Criminal Appeal No.100180/2016
Between
Nageshwar Rao,
S/o Peraiah Vishwanathula,
Age: 53 Years, Occ: Business,
R/o: "Shrinivas Nilaya",
Opp JT College, JT College Road,
Gadag-582101. ...Appellant
(By Sri. K. L. Patil, Advocate )
And
1. Pradeep,
S/o Krishnarao Kulkarni,
Age: 38 Years, Occ: Business,
2. Dileep,
S/o Krishnarao Kulkarni,
Age: 39 Years, Occ: Business,
Both are R/o Plot No.35,
"Shri.Keshraj", Rajajinagar,
10th Main Road, 1st Cross,
Behind SDM Dental College
PB Road, Sattur, Dharwad. ...Respondents
(By Sri. B Nitin, Advocate)
:2:
This Criminal Appeal is filed under Section 378(4)
of Cr.P.C., praying to call for the records in C.C.
No.541/2012 on the file of I Addl. Civil Judge and JMFC
I Court, Gadag, and allow this criminal appeal and set
aside the judgment and order of acquittal dated
28/04/2016 in Criminal Appeal No.75/2015 on the file
of Hon'ble Addl. District and Sessions Judge, Gadag and
convict the respondents for the offence punishable
under Section 138 of the Negotiable Instruments Act,
1881.
This Criminal Appeal coming on for Admission on
14.09.2017, having been heard and reserved for Orders,
this day, the Court delivered the following:
JUDGMENT
This is an appeal preferred by the appellant/complainant being aggrieved by the judgment and order of acquittal, dated 28.04.2016, passed in Criminal Appeal No.75/2015, by the Additional District and Sessions Judge, Gadag, whereby the learned District and Sessions Judge set aside the judgment and order of conviction, dated 01.10.2015, passed in C.C. No.541/2012 by the I Additional Civil Judge & JMFC, Gadag.
:3:
2. Brief facts of the case are that the appellant herein is the complainant before the Trial Court i.e., the JMFC-I Court, Gadag. The complainant filed a private complaint under Section 200 of the Code of Civil Procedure against the respondents herein for the offence under Section 138 read with Section 142 of the Negotiable Instruments Act (hereinafter referred to as 'the N.I. Act' for short). The averments in the said private complaint are that the complainant is a close friend of the father of the accused by name Krishnarao Gurunathrao Kulkarni. The accused with their father are residing jointly. The respondents/accused were in need of money for business purpose. So, the accused, along with their father, requested the complainant to give financial assistance to increase the volume of their business and to meet business expenses. The complainant, being the best friend of the father of the accused agreed to give financial assistance. Accordingly, whenever the respondents/accused demanded money, :4: the appellant/complainant gave money. The particulars of money advanced are as under:
Sl. No. Date Amount
Advanced
(1) 11-04-2009 1,00,000-00
(2) 07-01-2010 50,000-00
(3) 02-02-2010 3,50,000-00
(4) 31-03-2010 28,400-00
(5) 13-05-2010 50,000-00
(6) 17-05-2010 70,000-00
Total Rs. 6,48,400-00
Therefore, both the accused jointly borrowed an amount of Rs.6,48,400/- from the complainant agreeing to repay the said amount during the business season of 2011-2012. Trusting and believing the father of the accused, the complainant gave financial assistance. As agreed and assured by the accused along with their father, the accused issued seven cheques for various amounts towards discharge of amount borrowed by both the accused to the extent of Rs.6,48,400/-, the particulars of which are as under:
Sl. Bank Cheque Date Amount
No. Name No. Advanced
(1) State Bank of India, 006795 26-11-11 1,00,000-00
Gadag
(2) State Bank of India, 006790 28-11-11 83,200-00
:5:
Gadag
(3) State Bank of India, 006791 28-11-11 98,800-00
Gadag
(4) State Bank of India, 006792 28-11-11 83,200-00
Gadag
(5) State Bank of India, 006793 28-11-11 83,200-00
Gadag
(6) State Bank of India, 006794 28-11-11 1,00,000-00
Gadag
(7) State Bank of India, 774321 26-11-11 1,00,000-00
Gadag
Total Rs. 6,48,400-00
The complainant was assured that on presentation of the cheques for encashment, the same would be honoured. Hence, the complainant accepted the said cheques. The complainant presented the following cheques for encashment through his banker viz., the State Bank of India, Betageri Branch:
Sl. Cheque Date Amount
No. No. Advanced
(1) 6790 28-11-11 83,200-00
(2) 6791 28-11-11 98,800-00
(3) 6792 28-11-11 83,200-00
(4) 6793 28-11-11 83,200-00
(5) 6794 28-11-11 1,00,000-00
Aggregating to Rs. 4,48,400-00
When the said cheques were presented for encashment, the same came to be dishonoured for the reason :6: "payment stopped by the drawer". The banker of the appellant/complainant intimated about the dishonor of cheques on 09.12.2011. When the aforementioned cheques issued by the respondents/accused were dishonoured, the complainant, on 20.12.2011, got issued a notice through his advocate, through a registered post, calling upon the accused to pay the cheque amount. Both the accused received the notice on 22.12.2011. The accused gave a false reply through their advocate which was received by the advocate for the complainant on 09.01.2012. When the appellant presented the cheque bearing No.774321, dated 26.11.2011 for Rs.1,00,000/- for encashment through his banker, the said cheque was honoured by the accused-banker and the amount was credited to the complainant's savings bank account. Therefore, it is alleged that both the accused issued cheques knowing fully well that there was not so much amount in their bank account and that they cannot manage to deposit :7: the necessary amount in their bank account so as to honour the cheques, and thereby the accused had issued the cheques with a mala fide intention to cheat the complainant. Hence, the complaint was filed.
3. Thereafterwards sworn statement of the complainant was recorded and cognizance of the offence was taken. The respondents/accused appeared before the Trial Court and their plea was recorded by the Trial Court. As the accused denied the allegations of the complainant, the matter was posted for evidence on the side of the complainant. The complainant and one more witness were examined as P.Ws.1 and 2 and the complainant got marked the documents as per Exs.P.1 to P.11 and closed their side. On the side of the respondents/accused three witnesses were examined as D.Ws.1 to 3 and they also produced the documents as per Exs.D.1 to D.10 and closed their side. After hearing the arguments on both the sides, the Trial Court ultimately convicted the respondent/accused for the :8: offence punishable under Section 138 of the N.I. Act. Being aggrieved by the same, two appeals were filed before the District Court. The appellant herein filed Criminal Appeal No.80/2015 and respondents herein also filed an appeal in Criminal Appeal No.75/2015. The learned District and Sessions Judge passed a common judgment in respect of both the appeals. The appeal preferred by the complainant in Crl.Appeal No.80/2015 came to be dismissed and the Crl. Appeal No.75/2015 filed by the respondents herein came to be allowed and the judgment and order of conviction passed by the Trial Court was set aside. Therefore, being aggrieved by the said judgment of the learned District and Sessions Judge, the appellant/complainant is before this Court in this criminal appeal challenging the legality and correctness of the said judgment and order of acquittal of the respondents on the grounds as mentioned in the appeal memorandum at ground nos.9 to 22. :9:
4. Heard the arguments of the learned counsel appearing for the appellant/complainant and so also the arguments of the learned counsel appearing for the respondent/accused.
5. Counsel for the appellant made the submission that the business transaction in between the complainant and the respondents/accused is admitted and the respondents have even admitted the issuance of the cheques and their signatures on the cheques. The learned counsel submitted that though the issuance of the cheques is admitted, the respondents are contending that those cheques were issued as a security for the earlier loan and not for the discharge of the existing debt as alleged by the complainant. The learned counsel submitted that when the respondents/accused have taken such a specific contention, it is for them to prove the said fact that the cheques were issued for security in respect of the previous loan and not for discharge of the existing debt. Learned counsel also : 10 : made the submission that the initial presumption regarding passing of consideration for the said instrument as per Section 118 of the N.I. Act and so also the initial presumption that the cheques were issued in discharge of the existing debt as per Section 139 of N.I. Act is in favour of the complainant and it is for the respondents/accused to rebut the said presumption. Learned counsel for the appellant took this Court to the entire materials and made the submission that even looking to the oral evidence and the documents produced on both sides, the respondents/accused were not able to rebut the presumption and hence, the learned counsel made the submission that the JMFC Court rightly convicted the respondents/accused for the said offence, but when the appeal was preferred by the respondents before the District and Sessions Judge, Gadag, the learned Sessions Judge, without appreciating these materials wrongly read the entire material and wrongly proceeded : 11 : to acquit the respondents/accused by allowing their appeal. Hence, the learned counsel submitted that the judgment and order of acquittal passed by the learned Sessions Judge is totally against the materials, both oral and documentary, produced in the case. Hence, he submitted to allow the criminal appeal and to set aside the judgment and order of acquittal passed by the learned Sessions Judge and to restore the judgment and order of conviction passed by the learned JMFC Court, Gadag. In support of his contentions, learned counsel relied upon the following decisions:
1) Rangappa Vs. Mohan reported in AIR 2010 SC 1898
2) T.Vasantkumar Vs. Vijayakumari - CDJ 2015 SC 398
3) Common Cause Vs. Union of India & Others - CDJ 2017 SC 56
6. Per contra, learned counsel appearing for the respondents/accused made the submission that the respondents have proved the fact that the cheques were : 12 : issued for security purpose in respect of the previous loan transaction and they were issued not for discharging the alleged existing debt. Learned counsel for the respondents/accused also made the submission that sofar as the proof of the liability is concerned, the appellant/complainant has to prove the case beyond all reasonable doubt and sofar as the respondents/accused are concerned, the degree of proof is preponderance of probabilities is enough. The learned counsel made the submission that except the cheques no other documents were produced by the appellant/ complainant in support of the contention that there were such transactions; even the income tax returns were also not produced to show that such amount was advanced by the complainant to the respondents.
Learned counsel submitted that no books of accounts were produced before the Trial Court by the complainant. Therefore, in the absence of all these materials, it cannot be said that the complainant : 13 : established his case. The learned counsel also submitted that, when the learned JMFC Court wrongly held that the respondents/accused are guilty of the offence under Section 138 of the N.I. Act and when it was challenged before the District Court, the learned Sessions Judge rightly allowed the appeal of the respondents herein and set aside the judgment and order of conviction. Learned counsel also made the submission that the documents produced by the respondents/accused as per Exs.D1 to D10 clearly go to show that they have discharged the entire loan amount and there was no due at all. It is also submitted that the cheques were dishonored not for insufficient funds, but for the reason that 'stop payment' order was issued to the bank. Learned counsel submitted that looking to all these materials, the learned Sessions Judge rightly allowed the appeal of the respondents/accused; there is no illegality committed, nor there is any perverse or capricious view taken in coming to such conclusion. : 14 : Hence, the learned counsel submitted that there is no merit in the criminal appeal preferred before this Court and the same may be dismissed confirming the judgment and order of acquittal passed by the learned Sessions Judge. In support of their contentions, learned counsel relied upon the following decisions:
1) M.S.Naryana Menon Vs. State of Kerala reported in AIR 2006 SC 3366
2) Kumar Exports Vs. Sharma Carpets reported in AIR 2009 SC 1518
3) Laxmi Dyechem Vs. State of Gujarat reported in AIR 2013 SCW 3468
4) Rangappa Vs. Mohan reported in AIR 2010 SC 1898
7. I have perused the grounds urged in the appeal memorandum, the judgment and order of conviction passed by the Trial Court and the judgment and order passed by the First Appellate Court allowing the appeal of the respondents/accused herein and dismissing the appeal of the appellant/complainant herein, the oral evidence of the parties on both the sides and so also the : 15 : documents produced before the Trial Court. I have also considered the oral submissions made by the learned counsel on both the sides at the Bar and the decisions relied upon by them which are referred to above.
8. Looking to the case of the appellant, the respondents/accused approached the complainant for financial assistance for their business purpose from time to time and as the father of the respondents/accused was well acquainted with the complainant, the complainant advanced loans to the accused persons, as mentioned above while referring to the pleading, totally amounting to Rs.6,48,400/-. Out of the seven cheques said to have been issued to the appellant/complainant by the respondents/accused, two cheques were dated 26.11.2011 and the other five cheques were dated 28.11.2011.
9. I have also perused the documents like legal notice issued by the complainant and the reply notice : 16 : given by the respondents. In the reply notice, it is contended by the respondents/accused herein that the complainant gave the money from time to time by charging interest at 4% per annum. It is their specific contention that in the reply notice-Ex.P.11 issued in reply to the legal notice of the appellant/complainant herein, at clause No.6 that "At this moment, your client returned only three cheques and one cheque bearing No.774321, he did not returned on the ground that it is not traceable." But, this contention raised in the reply notice is patently a false reply. Sofar as the cheque bearing No.774321 is concerned, it is for an amount of Rs.1,00,000/-. It is the case of the appellant/ complainant that out of the seven cheques, one cheque i.e., 774321 for Rs.1,00,000/- was presented to the bank and it was honoured. When that is so, where is the question of appellant/complainant telling the respondents/accused that he did not return on the ground that it is not traceable. Therefore, it cannot be : 17 : accepted at all. As could be seen on page No.7 of the deposition of D.W.1, in the cross-examination portion, he has deposed that out of seven cheques, the cheque dated 26.11.2011 bearing No.774321 for an amount of Rs.1,00,000/- is honoured and the amount is credited to the complainant's account. So, he himself has admitted that the said cheque was honoured and the amount of Rs.1,00,000/- was credited to the complainant's account. It also goes to show that the contention taken by the respondents/accused in the reply notice regarding the said cheque bearing No.774321 is a false contention. Sofar as the other cheques are concerned, it is the contention of the respondents/accused that as the complainant demanded to give new cheques in place of old cheques bearing Nos.774321 to 774324 of Rs.1,00,000/- each, the respondent issued those new cheques bearing Nos.6790 to 6795 on 20.02.2009. So, even according to the contention of the respondents/accused in their : 18 : reply notice-Ex.P.11, at para 6, the respondents admitted that those cheques were issued by the respondents in place of the old cheques as demanded by the complainant. When such a specific contention was taken, it was for the respondents to place material to prove the same.
10. When the issuance of the cheques and signatures on the cheques have been admitted by the respondents as per the reply notice, then there arises an initial presumption in favour of the complainant under Section 118 of the N.I. Act regarding passing of the consideration and also initial presumption under Section 139 of the N.I. Act regarding the existence of a legally recoverable debt and that the cheques were issued in discharge of existing debt. It is no doubt true that the presumption under both the sections is a rebuttable presumption. But, to rebut the same, just taking a plausible explanation is not sufficient for the : 19 : accused person, but he has to prove it with cogent and sufficient materials.
11. Looking to the reply notice itself, in para No.2, it is admitted that "it is true that their clients and their father Krishna Rao G. Kulkarni used to take financial assistance for their business purpose since 2006" and, it is also stated that "Your client use to charge and collect interest at the rate of 4% per annum". Sofar as the interest aspect is concerned, let me discuss it a little later. But, there was a business transaction and the taking financial assistance by the respondents/accused from the complainant is admitted in the reply notice itself. Regarding the payment of interest on the said loan and charging of interest by the complainant at 4% per annum is concerned, P.W.1 has totally denied the said contention of the respondents that complainant was doing money lending business and used to charge interest at 4% per annum. Therefore, it is for the respondents to place the material to show that the : 20 : complainant was charging interest and he was a money lender doing money lending business. Even with regard to the said aspect of matter also, referring to the documents produced at Exs.D.1 to D.10 and the oral evidence of D.Ws.1 to 3, there is no worthy material produced by the respondents/accused to show that the complainant was doing the money lending business and he was charging interest for the amount advanced to the respondents/accused. Even in the reply notice, in the last but four lines of paragraph 9, it is contended that "As such now, a sum of Rs.1,79,400/- is due to be paid towards your client's advances. Now, the Government has assured to clear all pending Bills shortly. As such my client hereby undertakes to clear of the entire due within three months along with due interest." So, this paragraph in the reply notice also go to show that, according to the respondents/accused themselves, they are due in a sum of Rs.1,79,400/-. In the oral evidence of D.W.1, it is stated that P.W.1, on : 21 : 10.02.2012, came to the respondents' house and received a sum of Rs.1,79,400/-. So, regarding the payment of amount of Rs.1,79,400/- said to have been made by the respondents to the appellant/complainant, there is no documentary proof except the statement made by D.W.1 in his evidence. He also stated that he had paid the sum as there were no cheques leaves in the cheque book. When that is so, the respondents 1 and 2, who are highly qualified, passed graduation, were supposed to have obtained documentary evidence for having made payment of Rs.1,79,400/-, which is not done in this case. Therefore, in the absence of any such material it is difficult to accept the contention of the respondents that they have paid cash amount of Rs.1,79,400/- to the complainant.
12. During the course of arguments, it was contended by the learned counsel appearing for the respondents/accused that the complainant has not produced the books of accounts in support of his : 22 : contention regarding the said transaction. But, perusing the oral evidence of P.W.1, he has deposed in the cross- examination that when he was doing the kirana business, he had not opened the accounts books; even without maintaining accounts books he was paying the income tax; that at the time of submitting the income- tax returns, the information regarding from whom the money is due and to whom he has to pay the money in the assets and liabilities statement; he has stated in the assets and liabilities statement that an amount of Rs.6,48,400/- has been paid to accused persons. he has also deposed that he has not produced the income tax returns before the Court. He denied the statement that he had charged interest at 4% for the money given to the accused. He also denied the suggestion that he was making a false statement that he had given a sum of Rs.6,48,400/- to the accused persons.
13. The contention of the accused persons that the cheques were issued to the complainant by way of : 23 : security in respect of previous loan and they are not issued in discharge of the alleged existing loan amount. If really, the accused persons had already discharged the earlier loan amount and there was nothing due, what was the necessity for them to give the blank cheques by putting signatures. Of course, these circumstances will have to be explained by the accused themselves by producing cogent and acceptable material because the burden is on the accused person to rebut the presumption which is raised in favour of the complainant. As I have already observed above, the complainant had already made it clear to the Court that out of the seven cheques issued, one cheque which is numbered 774321 for an amount of Rs.1,00,000/- has already been honoured and the said amount has been credited to his account and the other cheques were dishonoured because of the stop payment order issued by the respondent to the bank.
: 24 :
14. Regarding the presumption under Section 118A and 139 of the N.I. Act, I have perused the decisions of the Hon'ble Apex Court, which are relied upon by the learned counsel appearing for the respondents/accused, viz., the decisions in the case of M.S.Narayana Menon Vs. State of Kerala (supra) (relevant paragraph 12); Kumar Exports Vs. Sharma Carpets (supra) relevant paragraph 6); Laxmi Dyechem Vs. State of Gujarat (supra) (relevant paragraphs 15, 16 and 18); and Rangappa Vs. Mohan (supra). So also, I have perused the decisions of the Hon'ble Apex Court relied upon by the learned counsel appearing for the appellant/complainant viz., in the case of Rangappa Vs. Mohan and another decision in T.Vasanthakumar Vs. Vijayakumari in Crl.Appeal No.728 of 2015 decided on 28.04.2015 and particular paragraph 10 of the said decision. Therefore perusing the decisions relied upon by both the sides, which are referred to above, the respondents/accused have failed to rebut the : 25 : presumption raised under Section118 and the initial presumption in favour of the appellant/complainant under Section 139 of the N.I. Act. The respondents/ accused have not placed any cogent and worth believable material for rebutting the said presumption. Simply taking some contention that they have given signed blank cheques to the appellant/complainant, as requested by the appellant to replace the old cheques, is not sufficient to come to the conclusion that the respondents have rebutted the presumption. The decision of the Hon'ble Apex Court dated 28th April 2015 in T.Vasanthkumar, as discussed in paragraph No.10, is aptly made applicable to the case of the appellant/complainant.
15. It is the contention of the respondents/accused regarding payments that they made payments from time to time to the complainant they have maintained receipt and payment account in respect of Shri Nageshwarrao P.V., Gadag, from : 26 : 10.06.2006 to 08.02.012 and in this connection, the respondents also produced one document Ex.D.1. But, when the document Ex.D.1 was tendered in evidence, the complainant's side raised an objection for marking the document and the said document was got marked subject to the objection of the complainant. I have perused Ex.D.1. This Ex.D.1 is a sheet of paper containing the said entries and the question is about the admissibility of this document and the relevant provision under the Evidence Act is Section 34. In this connection, learned counsel for the appellant/complainant relied upon a decision of the Hon'ble Apex Court in the case of Common Cause (A Registered Society) & Others Vs. Union of India and Others - CDJ 2017 SC 56. Looking to the judgment of the Hon'ble Apex Court, the relevant paragraphs in the said judgment are paragraph Nos.16, 17 and 18 which read as under.
"16. With respect to the kind of materials which have been placed on record, this Court in V.C. : 27 : Shukla's case (supra) has dealt with the matter though at the stage of discharge when investigation had been completed but same is relevant for the purpose of decision of this case also. This Court has considered the entries in Jain Hawala diaries, note books and file containing loose sheets of papers not in the form of "Books of Accounts" and has held that such entires in loose papers/sheets are irrelevant and not admissible under Section 34 of the Evidence Act, and that only where the entries are in the books of accounts regularly kept, depending on the nature of occupation, that those are admissible.
17. It has further been laid down in V.C.Shukla (supra) as to the value of entries in the books of account, that such statement shall not alone be sufficient evidence to charge any person with liability, even if they are relevant and admissible, and that they are only corroborative evidence. It has been held even then independent evidence is necessary as to trustworthiness of those entries which is a requirement to fasten the liability.
18. This Court has further laid down in V.C.Shukla (Supra) that meaning of account book would be spiral note book/pad but not : 28 : loose sheets. The following extract being relevant is quoted hereinbelow:-
"14. In setting aside the order of the trial court, the High Court accepted the contention of the respondents that the documents were not admissible in evidence under Section 34 with the following words:
"An account presupposes the existence of two persons such as a seller and a purchaser, creditor and debtor. Admittedly, the alleged diaries in the present case are not records of the entries arising out of a contract. They do not contain the debits and credits. They can at the most be described as a memorandum kept by a person for his own benefit which will enable him to look into the same whenever the need arises to do so for his future purpose. Admittedly the said diaries were not being maintained on day- to-day basis in the course of business. There is no mention of the dates on which the alleged payments were made. In fact the entries there in are on monthly basis. Even the names of the persons whom the alleged payments were made do not find a mention in full. They have been shown in abbreviated form. Only certain 'letters' have been written against their names which are within the knowledge of only the scribe of the said diaries as to what they stand for and whom they refer to."
17. From a plain reading of the Section it is manifest that to make an entry relevant thereunder it must be shown that it has been made in a book, that book is a book of account : 29 : and that book of account has been regularly kept in the course of business. From the above Section it is also manifest that even if the above requirements are fulfilled and the entry becomes admissible as relevant evidence, still, the statement made therein shall not alone be sufficient evidence to charge any person with liability. It is thus seen that while the first part of the section speaks of the relevancy of the entry as evidence, the second part speaks, in a negative way, of its evidentiary value for charging a person with a liability. It will, therefore, be necessary for us to first ascertain whether the entries in the documents, which we are concerned, fulfill the requirements of the above section so as to be admissible in evidence and if this question is answered in the affirmative then only its probative value need be assessed."
So, looking to the said paragraphs in the judgment of the Hon'ble Apex Court, it is very clear that the document-Ex.D.1 is not at all admissible in evidence because it cannot be considered to be the books of accounts.
: 30 :
16. The remaining documents relied upon by the respondents/accused is Ex.D.2. The contention of the respondents/accused is that the said document (Ex.D.2) goes to show the payment of amount to the complainant and in this connection, the witness D.W.2 is also examined on the side of the respondents/accused. But looking to the oral evidence of D.W.2, a doubt will arise in the mind of the Court regarding genuineness of the said document. I have also perused the evidence of D.W.1. As could be seen on page No.2, in the cross-examination portion of D.W.1, he has deposed that it is true that an amount as shown at item No.18 of Ex.D.2 is not at all paid. Therefore, this itself clearly goes to show that the entries even in Ex.D.2 cannot be said to be the correct entries because the validity of the said document is also seriously challenged by the complainant side. So also, the other documents Ex.D.3 to D5 were also got marked subject to the objection of the complainant side and in : 31 : connection with those documents i.e., Exs.D.3 to D.5 also the competent person is not examined before the Court.
17. So far as the contention that regarding the transaction in the income tax returns, they have shown about the same, the appellant filed an application before this Court under Section 91 of Cr.P.C. read with Section 94 of Cr.P.C. The application is supported by the affidavit and the documents is also produced. In the document for the year 2011-12, there is a mention on the assets side under the head sundry receivables showing an amount of Rs.6,48,400/-.
18. Therefore, considering these aspects of the matter, when the complainant-P.W.1 clearly deposed in his evidence that he has not maintained books of account, the question of complainant producing the books of accounts before the Court in respect of the said transaction does not arise at all. But, on the other : 32 : hand, looking to the oral evidence of D.W.1, in the cross-examination, on page No.4 of the deposition, he has clearly deposed that it is true that before filing of the complaint the complainant got issued a notice to him and further deposed that they have sent a reply notice to the notice issued by the complainant. He admitted as true that on the basis of the reply, the complainant has sent a counter reply. He admitted that as mentioned in Ex.P.11, the books and the registers are in his possession. But when it was suggested that there was no hurdle for him to produce the books of accounts before the Court, the witness stated that there is a hurdle. So, this evidence of D.W.1, in the cross- examination, clearly goes to show that he has maintained books of accounts with regard to the financial transaction with the complainant and even with regard to the payment that he has made. When that is so, the respondents/accused ought to have produced the books of accounts before the Court. When : 33 : the respondents/accused admitted the possession of books of accounts with them and withdrew the same and did not produce the books of accounts, an adverse inference will have to be drawn regarding the contention of the accused. The D.W.1 has even admitted in his cross-examination that he has not maintained any account with regard to how much money he has given to the complainant towards interest. But, it was suggested to the witness that he was giving false evidence that the complainant is doing the money lending business and charging interest, and the said suggestion is denied by the respondent. Therefore, considering all these aspects of the matter, the Trial Court rightly convicted the respondents/accused for the offence punishable under Section 138 of the N.I. Act. When the appeal was preferred the learned Sessions Judge without considering all these aspects of the matter wrongly allowed the appeal filed by the respondent/accused, set aside the judgment and order : 34 : of conviction passed by the Trial Court. Therefore, the judgment and order of the learned District and Sessions Judge acquitting the respondent/accused is patently illegal and is not in accordance with the material produced before the Court.
19. Hence, the appeal is allowed. The judgment and order of acquittal, dated 28.04.2016 passed by the learned District and Sessions Judge in Crl. Appeal No.75/2015 is hereby set aside and the judgment and order of learned JMFC Court convicting the respondents/accused herein for the offence under Section 138 of N.I. Act is upheld.
Sd/-
JUDGE Kms