Karnataka High Court
Shiva Murthy vs Amruthraj on 27 June, 2008
Equivalent citations: 2008 (6) AIR KAR R 432
mwf' IN THE HIGH COURT OF KARNATAKA AT SANOALORE OATEO THIS THE 27*" DAY OF JUNE 2008 & BEFORE . K THE HON'BLE iV£R.JUSTlCE K.N.iI<ESI-IAVA?~I5"II'2A'I:_':LI§\'I'?!fA-II CRIMINAL REVISION PETITION NO.ISO7I:;:c>O5[ I _ I I' BETWEEN: SHIVA MURTHY SIO LATE SUBBANNA KN TOURS AND TRAVELS, NO 187-E), ADICHfNCHU'N.AG¥RII'ROAE3 OPP TO VEENESHESHANIIIA IIHAIVANA KUVEMPUNAGAR I S T MYSORE I 3 _'-..fg_...'PETITIONER (BY SMT.VIJETH;$;R NAIK, ADV.) * AMRUTHRAJ I I S10 RAMASHETTY I MANOYA KOPALUVGR/EMA' ARA;KER.E I~IOSI_I SR.':PATNATALUK"* ---------- NANOYSOISTRICT I (ST SIvIT;'IKAIJIAE'& BHANU. ADVS.) RESPONDENT ,.TIH.IS.IIICRIMINAL REVISION PETITION IS FILED UlS.397 4ST' Cr.P.C BY THE PETITIONER PRAYING THAT THIS HOhi'BLE COURT MAY BE PLEASEO TO SET ASIDE THE ',.3Lim-WENT OF CONVICTION AND SENTENCE PASSED BY 'THE S.J., F.T.C-II. MANDYA IN CRL.A.NO. 8612004 AND THE JUDGMENT OF CONVICTION AND SENTENCE ?ASSEO BY WTHE ADDITIONAL CIVIL JUDGE(JR.DN) & JMFO, SRIRANGAPATNA IN C.C.NO. 45712003. THIS CRIMINAL REVISION PETITION COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING: ".7 ORDER
This Revision petition is filed under Section eers"Aréaé'.;~-trite Secticn 401 of Cr.l-'-'.C, questioning the legality V' the judgment dated 19.8.2005 passed; ' Track Court-ll, Mandya, in Crl.A.No.$Bl__2:t;i(i-Q1' disrn_i_ssing'~ 'easier appeal filed by the petitioner and a.fiirrning: the"'§iritlgn'tent of' conviction and sentence .passed""§tt5oi:'ih'e-»s_Additional Civil Judge, (Jr.De.) & JMFC, Sriranga'p'attr'ia"in_f'§C$ convicting the petitioner herein _tor.__the Section 138 of the Negotiable the NJ Act') and sentencing for a period of six months and tocpay' in default to undergo simple impriserrraentior twat' also directing the petitioner to aaytjcompensationiiof F2:!s.75,000/- to the complainant being the valtre oi the.ci?tevque.
' V"ereepondent herein is the complainant before the learried Magistrate. I shall refer to the parties herein with reference to their .r"a'iikin9 in the Court below.
3. The compiainant filed a complaint against the accused Section $38 of the N3 Act, interaiia contending that the "accused fer the purpose of improving his business and for E'-Zxs.P.1 to R8. The accused examined one Mahavir Jain as~--DW.1 to prove his defence and got marked Ex.D.'l.
6. Buying trial, the defence of the accused was Eel taken loan on his vehicie from one Mahaveer Finano'iers ar'id'1'atthe""
time of taking toan from the said financiereghe ha'<:¥_Vg'iv:en tiii€ori--.i§la?ni< cheques bearing i\tos.480734 andandonj?$}.:§'.2f3Q3:'3wher:.V: * he cieared the said loan, he tooit4_i:bacic.those"etiroivnzblanit cheques and thereafter those two u;ere"fo'u..nei~rnissinq. it it was aiso his defence that tater 'notice from one of his ex»-empioyee to pay the amount covered under"jeneV_v_ot'tl1e:i'ahove cheques, he came to know that theisaidq those two cheques and the comptainantiiihashpresentedvone of the two cheques. According to 'i V. thee---a{cc»i;tsed',.. he wasnai due any amount to the comptainant nor theiichetzuedne.question was issued for discharge of any iegat Eiahliiiity due' to the compiainant.
7. After the parties led evidence, the learned Magistrate examined the accused under Section 313 Cr.P.C and after hearing "the learned counsel appearing on both the sides, the teamed Magistrate by judgment dated 29.10.2004 held that the complainant has proved that the accused had issued the cheque in question 5"?
towards discharge of legal liability due by him to the complainant and that the cheque in question has been disho.no'uVred"cI"§.«rhen presented for encashrrtent and inspite of service of__"notic,e'on accused, the accused has failed to ccmpiywithlé thee-'iald»e V ' therein by paying the amount covered.vurid_er'lVthecheauei View of the matter. the learnedllt!lag.istrate"held that:th:eV'accused is" ' guilty of the offence punishableAp_u.nidA'er Section "'i'38_of.,the NJ Act and accordingly passed 'theorderfiof c'onjy'i:ction and sentence as noted earlier. 1
8. Being aggrieved by the 'said-jud_gri1ent of conviction and sentence, the"accused'pfiledkfiriminal Appeai ¥\lo.86l2004 before the Sessions §_3c-urt. 'Presiding Otficer of FTC»-ll to whom the appeal iatesrvassigned. heard the matter. acting the pendency V' . ofthe said appeal,'Vthe"accused sought to produce certain additional Atiiling an application and the said application came to .be,__allcwed the Appellate Ceurt. Those documents were marked as Exe,i5;:2 te P.13. After hearing the counsel for the parties, the A 51" Appellate Court by the judgment under revisien affirmed the finding the Trial Ceurt and held that the accused is guilty of the offence it punishable under Section '£38 cf the NJ Act. /?
9. Being aggrieved by the said iudgement passedf"by the Appellate Court. the accused-petitioner has presented.yth'isVf€evisien Petition questioning the legality and correctness of the Courts beiow. y -V ._
10. I have heard the learnedzyiycounsefi a--pp'earing= both sides.
contended that the Courts.belov{rhaye«utterly f.ail'e'dvt.0 see that the complainant has not proiied-thet_ existence ._of=. legally enforceable debt or IiabilAity'iagainstpthellaecused. In this regard, he contended that the e=,(i_d'ence on'recore-eileiarly establishes that the complainant had no tiAnancie.I:Vcapacity tovadvance loan of Rs.75,000i- as on the V' - alleeedi»-dated' of lending; therefore, the Courts below ought to have held theéceeiplainant had utterly failed to prove the existence of contended that the material on record indicates that t:h=ere':.was no agreement for payment of interest on this amount A 57 ofViF§s_i75.00Ol- and this circumstance also suggests that there was he loan transaction between the complainant and the accused. He turther contended that the Courts below have erroneously held that presumption under Section 339 of the NJ Act would extend even to the existence of legally enforceable debt or liability. According to I")
31. {earned counsel appeariim for thepetitiioherjrehemently'' ' the learned counsel, the presumption under Section 139 of the N.l Act is only to the extent that the cheque is issued for of debt or liabiiity and this presumption does not __.¢:~*f§tt'e't*il<'.*_'Vi'*t:c)_:i. t-he existence of legally enforceable debtmor liabi!ity,..4.jttle:retoreA, the V» complainant is under an obligation to iqrovethe enforceable debt or liability as asmatter of to s, the Csourt. It is only if the comptaviihant establishes the existence of legally enforceable debtver"lviabilit§iitheit..pies.timptiohAiuhde: Section 139 of the NJ Act to tl--:eV"ch'ee_Lie issued was for discharge of s~uci1i'l1ega|lt/ enetceai'dl"aed¢a dr liability could be drawn. In on a recent decision of the Hoi1'ble--Slio'ree3:e'Couitt'vin the case of Krishna Janardhan Bhat vs; sdamayaeia.gaga¢ reported in 2003 AIR saw 733. Thegieahfled counseil' suitnmitted that in the case on hand, as the 'V " corfiptainahtiihas not placed any evidence worthy of acceptance to of legally enfotceable debt or tiatzility against the.ii__acc.ueed.; the Courts below are not justified in cttawing presuatetion under Section 339 of the NJ Act and on that basis holding the accused guilty of the offence gunishable under Section of the NI Act. with these submissions, the learned counsel sought for setting aside the judgment of the Courts below and for acquitml of the accused.
it we
12. On the other hand. learned counsel for the respondent- comclainant contended that there is sufficient evidence on record to prove that the accused borrowed a sum of Rs.?5,0GO[+'~fro«ttt'~the compiainant and for discharge of the said debt the' cheque in question. In this regard. teamed counsel ~sLib,niittedV that 'V 2 during the cross-examination of F:-1'.W.1;~ce%noiai.'nafit. "the.r_e"a:_i_s absolutely no suggestion put to'hi._r_n tothe financiai capacity to tend a sum tflhereiore. in the absence of any such suig§esti<.iVn. §the:«l.eafned counsei submitted that there is no suvbstanceninvitthe iearned counsel for the petition_er"%ft(ith regard existence of legally enforceable counsei further submitted that thevtoonduct 'of_ti;e' taking different stand at different stages would be a.circ'umstaitce to hoid that the defence of the accutseti-é~1vasA. notvttconsistent and acceptabie. Therefore, having reg_a:s that the accused has admitted issuance of below have rightiy drawn presumption avaiiable undo: 139 of l\t.i Act. as such, the Courts beiow have act it committed any error in hoiding the accused guilty of the ofience tea. Section 133 of the M Act. with these contentions, the it iearned counsel sought for disraissai of the petition. 5"?
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13. In the light of the above, the point for my conside.ration "9 Whether the Courts below were justified iii" _ ' the accused guilty of the offense"tim:$er'_SectieniV';i38VVef~'. the NJ Act?"
14. Perusal of the judgment-.of the*TilaiCouniindisates that I * the learned Magistrate afier referringte the orai«--e_\ridenr3:e of I-"W.'l and aw; has gone on tegfate that;;_the"deffence of the accused that he had delivered two blank.ch§que.s_te the..fi'nanci'er and that he got those two blank cr;eaaes::'reti:_rn'ed.frorn"Vthe*financier and thereafter those ex»-employee D.Si1ekar, who later delivered «to the cornpiainant. who inturn presented the cl*;_egu'e by filling the blanks, cannot be aoeeptedi as theiiidefe-nce of the accused is not consistent and ' accegtavhiel. he triai Magistrate having regard to the fact that the ccuseciv his signature on the cheque in question has proceeded draw presuraption under Section 139 of the NJ Act V , anehasiioiaserved that as per Section 139 of the NJ Act. it shalt be presiuarned unless the contrary is proved that the holder of a cheque ' received the cheque for the discharge in whole or part of any debt or other liability.
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15. From the records of the Trial Court, it is noticedflttat in the Trial Court the accused did not produce any evidence in support of his contention that the coetttlainant financial capacity to lend a sum of Rs;7'3,0C0{- 'on of lending. However, during cross~e$tam'l'nation of_.PW.1,"cel'tal'n_V answers have been elicited in th:i:§*~._regard.Betore the"'"Appellate"
Court. the accused produced 'dncuments--..te~v'§prove the aforesaid contention. after hearing the objections of V the .._'resgo'ondent allowed the said application §.by§"»a4n was not questioned.
Thereayfter, submitted before the Appeiiete no objection to mark those documents and thatihejdees contents thereof, those documents werentarkedi oy, and parties did not choose to lead any 'V " orei evidence.on those documents.
" _ Taklihg. into consideration all these additional documents, 'the'Appellate_C§'ourt proceeded to hold that these documents are of no 'consequence in the light of the presumption available under .u A$'e?ctionVVs139 of the M Act. The Appellate Court also held that in light of the presumption, it has to be presumed under Section V' 139 of the NJ Act. that the cheque in question has been issued for discharge of debt or iiabitity due by the accused to the complainant fiv ii and since the accused has not rebutted the said presumption, the Appellate Court has confirmed the order of conviction , passed. xby the trial Magistrate.
1?. In the light of the above, it is necessary»to--..finej:or.rt as what is the position in law about presarnotior; ..unde-rtSieeti_oa_:j of the NJ Act and to what extent presurri'a_tion,_ iunderisefctioniv '1,'39iVo¥ the N.|Act extends.
18. The i-lon'ble Supreme___"Court_ in thecase of Krishna Janarfiran Bhat referred -to:sL_rpra, an occasion to consider this aspect,oftheiArr1iatter_._:'=Thisirnatter."arises out of the judgment of this Court. raetierieri receptor ea reported decision are; The aéopelilantii therein named Krishna Janardhan Bhat and
- one wereviointly running the business in the name and style ict::'Vi'na§a.Enterprises at Hubli and appellant statect to have executed of Attorney in favour of the said R.G.Bhat. It was allege'cl.th-at the appellant handed over the duly attorney four blank for meeting certain expenses of the business. Thereafter, ctisputes and differences arose between the appellant and R.G.Bhat in connection with running of the said business. Therefore, the Power of Attorney was cancelled. The disputes between them was referred to Panchayatn Thereafter on the 9/1.
12 premise that the appellant had issued cheque to the respondent therein for Rs.1,50,90G2'- towards discharge of certain loan and that the said cheque came to be dishonoured when preserjfteid-..for errcashmerit, a complaint was filed. Before the appellant therein contended that thereyvas no.legally_v.eriforceat§le"= if debtor liability and that he has not isszred .anéy.ivcheeues*; 4' 'Hoxrreverl, the trial Judge convicted the accti_sed~app_ei'iant. fitter by the accused therein before thevlvsessions ajlsoicame to be dismissed. in the revision filed Court, the revision petition was partly allowecthy the' substantial sentence to one week. 'if~i1erea'fter,:=._the atat§§r:'~.',éf3a_.__carried to the Hon'ble Suprettje t~lon'bIe Supreme Court, it was contended». theV'i'rtal.. as well as Appellate Court have misreadthe 'provisions of Section 138 of the Ni Act and it was further contended thatlpresumption under Section 139 of the N.l regarding the existence of legally enforceable debt orv_'vl-ialoviliityl, therefore, the order of conviction recorded by the AAC)ourt'sv.t_trerein was not proper. in paragraphs 16 to 22 of the ju.d§rrzent, the i-lon'bIe Supreme Court has referred to the manner in yfvhich the Courts therein proceeded to determine the case. fitter L. referring to the oral evidence of the complainant therein in paragraphs 23 to 25, the Supreme Court in paragraphs 28 to 33 has observed thus;
a " 28. indisputably, a mandatory presumption'. required to be raised in terms of Section 1 f$§'b)' :a'l_7ci'._i A4 Section 139 of the Act. Section 13(1)..orl_fll2e1vQ§cr. " T defines "negotiable insaumentflo ""e__ 'V _ note, bill of exchange or _cl7eooe :psysble'..&3§fber' to] ' order or to bearer".
29. Section 133 offhe Acthes*. sngrasen:s,syrz..~ 3 tlzatthere is"le§g:ly1.gnrslcés$e,*¢ebt.-
ll) thetlbe cheqUe.rre.sV account of _ in part of any ____ H 1 presupposes a L debt: ill) issued had been returned '4 'owe to lnscrfficlency of funds. 3'0. appendw to the said section or compliance with legal requirements
b all complaint pelitlon can be acted upon by a "cow: of law. Section 'I39 of the Act merely raises a presumption in regard to the second aspect of the matter. Exlsfence of legally recoverable debt is not a matter of presumption unobr Section 139 of the Act. it merely raises a presumption in favour of a holder of the cheque that the same has been lssum for discharge of any debt or other fiabllliy.
X?
31.The Courts betow, as noticed hereinbefore, pmeeded on the basis that Section 139 raises_e___ presumption in regard in existence of a debt A'
19. Thus from the observations ezgtractettaboéie, :ittis--.ociear that presumption under Sectioni'_i3x9 ofVth.eV'i"~.!.Vl ige.¢,1nly to tihei"
extent that the cheque was drawnviéfotiidischatge or in part of any debt J other liabiiity the saidi"ptes£in1iption do not reiate to the existence of iegaliy enf_o}_eeat:>le.t>de'bt,oriliiatiility. Therefore. before drawing'th'e;;ntestii11ptéoi1'Render Section 139 of the N.I Act, it is the duty ettne*_£';o_tirt tc..see__v.rhether or net the complainant has dischar§ed_ his initiai existence of Iegaity enforceabie debts ..I\§odoiibt as."per' Section 118(a) of the Act, there is a V' - réebiettatfiie ptesumptionwthat every negotiable instrument was made erAdrawi§"foir"oo'n_sideration and when such instrument is accepted, it stiaii be. that it was accepted for consideration. Aecording:. to clause (23) of Sec.118, there is a presentation that A "ifnegotiabie instrument bearing a date was made or drawng1__ ii" . such date.
20. Reading of both ciauses (a) & (b) of Section 118 together makes it ciear that as per the presumption under these clauses, the is» 15 consideration is supposed to have been received on the"date%:'ef'the cheque. If in a given case from the apparent averm'entvorVV'fi'oe:o:the evidence of the drawee of the cheque .it~can' be the' it ' apparent date of the cheque no consideratiori or other words if according to the sf>ecific"'case of the .dra?t§eé._jo~r..ho--iider in . L' due course of a cheque, ioan was_tai:en*en a particuiariztay and for the discharge of the saniefon tater the Ioanee issued the cheque, the presumptionunde;.'stand rebutted. In that event, 'checru:e'has"teiprove as a matter of fact the grnemiygmebie debt or Iiabtiity before involvihpdiithei' ._-i-éectien 139 of the Act. as, the presurs;;t§on-- not extend as to the existence of debt or legally einferrzeetzieiiliebiiity as held by the Horfble Supreme V' ._ in---Krishna Jaherdhan Bhetis case referred to supra. in this the I-Ion'b|e Supreme Court has held in para-32 that" n 0 it .. accused for discharging the burden of preof .__ pieced upon him under a statute need not examine himself He may discharge his burden m the basis of the materials aireedy brought on record. An accused has a constitutions! right to maintain silence. Standard of proof on the part of an accused and that of the pmsecufion in a criminal case is afferent. In para-31. their Lordships have observed that ; fie "The Courts below in our opinion, committed a serious error in proceeding on the basis that for proving defence the accused is required to step witness box and unless he does so. he wouiofnoty' "
discharging his burden. Such an approac'h__:'on:the ' part ofthe Courts, we feei, is nqtcorrfect. " " i ~ y
21 . in the light of the above, if rroaymay avermenis. mgff . complaint or from the specific case' the thekicheque, or from other materials on teco_rd, that.no consideration was paid on the purported date' be prope: on the part of the Court held thatithe prestiéniiptihoriiuvnder Section 118(a) of the: eveniiifv the accused has not entered the witness box. ' V. "' . fiuvveawe 'W
22.. in the above reported decision, the i~ion'bie,(Court considering Various circumstances such as the complainants inability to"Vs'hc&u his source of income so as to enable him to advance a huge loan; nomproduction of book of accounts; absence by V' » ofptoof to show that the complainant got so much money from the absence of any written document evidencing lending of V 'money; absence of any witness to the transaction; non compiiance of provisions of Section 269 S8 of income Tax Act which direct; that any advance taken by way of any loan of more than Rs.20,0{)0i- should be made only by way of an Account Payee cheque; has set aside the conviction recorded against the accused therein. Before concluding the matter, the Hon'bie Supreme__{3ourt has also noticed the difficuity of proving a negative. The "ieLie}ie.nt observations are found in paragraphs 44 and 45 oftiie. which read thus;
" xxxxx The courts must be lén fifieid in mereiy on the eppiiceiion ofe.V_oresumpiion:._,_L8s contemplated under seczianfms of eemggeene instruments Act, same to irgmee or misfakon conviction?" _ 'ii, is Aieforemenfioned reasons that we hai/e .{ai%en fViinto.vvVco§;oic$erafion the decision; cfifficulty of proving ia" neiii;§L_a.z1iv*e':.??§;S_Pefi;i? it is not flyaire never be proved' but fhereare difiicuifies are faced by tne'ia;cuse£s e'i'ig.@ and reasonable mistake of fact. 'V 'a recent article 'The presumption of V' innocence end"F?oierse Burdens; e Balancing Duty " A in 2007 cu (March Per!) 142 it has been V "In determining whefher a reverse burden is compatible with the presumption of innocence regard shouid aiso be had to the pragmaiics of proof How ofifficuit would 1? be for the prosecution to prove guiif without the reverse burden? How easiiy couid an innocent oierewant discharge the reverse burden'? But courts wiii not aiiow those pragmatic considerations to override the legitimate rights of rho oieferxzient. Pragmatism wiii have 18 greater sway Mars the reverse burdesn would not pose the risk of great injustice-«whether me offence is not too serrbus or the reverse burden any ccnoems a matter Incitimtai to guilt. And "
weight wiil be givan to prosecutoniai efficiegiéy " "
regufatory environment. "
45. We are not obiivious of 1.1' provision has been inseneq in the business, trade, commercévs«sa}ad industrisi'wac":;'iviiis;-s if the country and the stficts-!:'a§§ifiiy"ip pmrbcwfe. gnéater vigilance in finakrcisi' méiifers v.sttn"~ssafeguard the faith of the creditor in which is essentisgz to m; fire" as' "a developing :'cO£in't:}?':iike " This, hfiweuér, shall not mean that V1ti2e'courVtsVsf:alIp1,.ffs'a:s:§§ffnd eye to the ground realiiies. Sfstfifes mandsfizs of presumption but it stops . flat it Vfibt say how presumption drawn " bé have rebutted. Other important _ of (age! jurisprudence, nameiy, pmsumptfon as human rights and the doctrine of r:e_yéf$¢As:'burden introduced by Section 139 should " Aw dggcaéely baianoed. Such bafiancing acts, indisputably maid largely depend upon the factuai matrix of each V H case, the materials brought on record and having regard fvo Iegai prfncipies goveming the same. "
I9
23. In the case on hand also, both the Courts below after holding that the evidence on record shows that the accused has issued the cheque in question, have proceededf':'to7:.Vdraw presumption under Section '$39 of the NJ Act, even' existence of legally enforceable debtor.l,iabi|it§§..il'ni" .li§hti'_of the V' ' judgment of the i-lon'ble Supreme reasoning of the Courts below in this case. canno1fbeAi».he!dVVas legal: "
and proper. The Courts below mt mad'e~ endeavour to find out as to whether or pr;;--:--suinptio'ralunder section 118(a) of the Act has stood rebutted--and.V the complainant has proved the_"e$iij:;ten:;e"--.of le'gaI:ly'*enforceable debt or liability. Without recordingVa..findin§_'on__thie aspect of the matter, the Courts below were not jiuetitied drevring presumption under Section 139 of the l"~i.lAct.a - M l' l it let me consider the evidence on record to find out..4_.as the complainant has proved the existence of legally? enforceable debt or liability so as to draw presumption under V' 'T Section 139 of the Act.
25. According to the case of the complainant, on 20.5.2002, the accused borrowed from him a sum of Rs.75,0{)0i- for improvement of his business and for discharge of that debt on the /b 23 same day the accused issued the cheque in question iout, reqéiiested him to present the said cheque for encashment_ Accordingly. when the said cheque was presentecl:':o_n ., the same came to be dishonoured with a»r_iiend'ors'errre:nt~fpafymen't stopped by the drawer'. Thelicompiainant has.'reite'rated°'these'=s facts in his examination-inichief of affidaviti self- serving statement of thelcomplainant' the date' of lending the money itself, the accusediissuedtiiev cheogire.vi'n_'_.question, there is no other evidence to seine. Admittedly the cheque bears 'iherefore, as per ciause (b) of Sect!on.iAl"8:Vof presumed that the cheque was drawn no consideration was paid by the cemeiainaht touthe on 10.3.2003. in view of this, thestatijtory oresiimption under Section 1i8(a) of the Act has stood Therefore, the complainant was under an obiigafioniio ieroize the existence of the debt by convincing evidence.' -féven according to the complainant there was no documevntiary evidence to prove sending of money of Rs.75,000/- to .,t'ne. accused and accused has not executed any document _'v_ei:idencing receipt of money as loan. in the cross-examination, certain suggestions have been put to him to the effect that he does not have annual income of more than Rs.i0,0G0l- from his agricuituial land. According to him, he owns 3/3 acre of agriciilturai & land. in addition to the agriculture. he also does milk business. ln the timber cross-examination, he has admitted that a.«heu_'se"'has been allotted to him under Ashreya scheme.
suggestion that he has falsely ciepose-d.,,th_at he 'he's.::lent"a at " . Rs.75.000l- to the accused. Apart:'».fro¥ij:"ihis e{al'-.'evidéhfce.."the complainant has not placed an-y_ oiher-._evidence" §:3.,..§3lfQ\z§e existence of legally enforceable debtter liability; noticed above, there is no documentary eiiiidence in proof?» lending of Rs.75.000f-
26. The ciocumentsuihich as the Appellate Court are the certified cepiles. issued in Form-F by the Tahsildar; Taiuic" 'flAccording to the contena of gx_D_9;"'gh§ipccimglainantvheiliongs to Madiwal caste coming under Group-ll-Aland he hesianinual income of Rs.9000l-. This certificate is is the copy of the mortgage deed ' appellant in favour of the Government in f-'crm-3 H at-"asrn Gandhi Rural Housing Scheme. As pet the contentsv.'Vo'f$VEx.D.iG, the complainant has mortgaged the site eliettzedvhto him under Ashreya scheme as security for loan of F§is}1fi,OO0i- availed by him for the purpose of construction of the it "house on the site. Ex.D.11 is the allotment order under Ashreya Housing Scheme issued by Zilla Panchayath. Mandya. According to the contents of E'.x.D.11, complainant was allotted house under 22 Ashreya scheme in Koppal village. It is stated in Ex.D.1 the allottee is a person belonging to below poverty line.'to Ex.D.i'l, persons whose annual income is less"
are entitied for allotment. Exs.D.1O :&"D;"i'l« 'aide i As noticed earlier. according to the coinplaipnant, he lent«.a"s£im%Vcf_VV Rs.75,000l- to the accused on Theiconiplainant has" i not disputed the correctness of_lExs;D.9"to_ D.1i.' '~--lf according to Exs.D.9 to DJ}. the annualomeieorriplainant was hardly Rs.9.0D0l- and hL3'«§5_ a person poverty line, it is not explained as :c_ou_l*dfjniusteriiohis resources to pay Rs.?5,oeQ;; ;.inl2o.5.2oo2. If the annual income ofon -22.3.2092 was hardly Rs.9,000/--», within namely on 20.5.2002 how he could lendesurn Rs._7S',o€w(5:'- to the accused is not explained. These gvircumstancesy, in my considered view, would clearly indicate that the not in a financial position to lend Rs.75,0=00l~-- to acctiseoas sought to be contended by him.
..2"i'«.:_ Learned counsel for the complainant contended that in V' » Aadditionoto agricuitnre. the complainant also had income from milk oousioness. Assuming that the complainant was also doing milk wbusiness. that cannot be considered as a separate income. The income declared in Ex.D.9 is the income of the complainant from all y 23 sources, whether it is agricultural income or income from milk business or from any other avocation. Having got the .dec'lfarativon that his annual income was oniy Rs.9,000/- as does not lie in the mouth of the complaitnant to conte~nci: he "
highet income from other scurces. Heacannot 'deciarefieszser income for the purpose of getting -the benefit from: > meant for persons in the categor§i"ef'beVlow fine and later turn around and say that.4_h'e had to give it as a loan. Therefore. there is no substance contentien.
28. The.Vcarnplainant rhea a}_so.i"n.ot 'established as to when and hear hecoilested"thi's"am--ou'nt of Rs.75,Ei00l- as on 20.5.2002 fer lendingto the accu'sed""'*--tn'addition to this, it is also pertinent to notegjthet. acoord.in'gV'to the complainant, he lent Rs,":'5,000/- on 'zihe amount was sought to be repaid by the accused according to the compiainant, the accused req--u_este=d hiimlto present the cheque only on 10.3.2003 nearly about .tQ_.Aihonths later. If a substantial amount of Rs.'?5,€)00i- had lent, in the usual cousse of business transaction it is reasonable to presume that there would be an agreement for payment of interest. Why the complainant should lend a substantial amount of Rs.75.000l- to the accused without charging 24 interest. The complainant in his oral evidence has notstated anything as to why payment of interest was not agreed,..__"" *
29. In the case of John K Joiin" «as. "..TogVnfir'arghese another ( 2007 AIR SCW 6738), the lsioniiele' 'Supreme considering the appeal against anrkdet of "ao_qu%ttal-,.jongcomolaint" V under Section 138 of the l§l.l.Actr-has"g_obser.ved' ttiat..the:§conduct of the complainant should be tt has observed in para-t0thus;_* . 3 . . V .
"whyj exeoutediaithough a huge sumjvef was to the respondent an stiffen' oouid be posed in the 'matter; V 'i"'f:V$'~$: the 'High Court to draw its own ""«--.l:\V3of'.onIy no document had been . _exec%c_:l sue?-2 interest had been charged."
Titus', the circumstances of not charging any interest was also Vconsidered .ae._:the televant circumstance to find out as to whether itheexistenee -of the debt has been proved or not. in the case on hand..also,vnot onty no document has been executed even. no it » xintetestwhas been charged, No explanation is forthcoming from the Aieornplainant as to why interest was not charged on Rs§?5,000!- it "alleged to have been lent by him for a period of nearly 10 months. No prudent man, in my considered view. would lend substantial amount of Rs,75.0G0l- without charging interest. Aclmittedty, 26
31. $21 the tight of the discussion made above, I hoid that the complainant has uflerty faited to prove the existence4vof"-tegetly enforceabte debt against the accused. Therefore, drawing presumption under Section 13§Vof N.l _Ar:t= in this view of the matter, the Courts ieeloytr eernet 4j'£tStifI!ed;;V.ir:t recording conviction against ther'eccused.u'nder , NJ Act. ln this View of the rnatterithie' .'e_visiorr- petition deserves to be atlowed and the accused is
32. Accordingly, the .i.'.§rirr§ihal" Retrieienitéetition is aitowed. The judgment .Votfr:envici;io'n sentence are hereby set aside. The aceused charges levelled against him for the offence rztunishable unrdler 138 of the Act. The complaint filedgby the res'po_ndVent therein is dismissed. The bait and surety accused are discharged. The amount stated to have fine petitioner, before the Triat Court pursuant to the-4..iudg_tnont~r'ot the Courts below is ordered to be returned to the ' " " -- ' petitiohertherein.
Sd/-
Judge