Karnataka High Court
S Harish vs Mohammed Ghouse on 11 January, 2010
IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THES PHI El DAY OF JANUARY 2010 BEFORE oy THE HON'BLE MR.JUSTICE K.N.KESHAVANARAYANA CRL.A. NO.788/2009 AW ss MISC.CRL.A060/2009 BETWEEN: S.HARISH S/O SUBBANNA AGED ABOUT 38 YEARS HNO.LIG LL. STAGE KUVEMPUNAGARA EXLENSION: 7 a MYSORE, _ ee APPELLANT [BY SRILK.A-CHANDRASHEKAR. ADV. AND: MOFAMMED GHOUSE AGED ABOUTS. Yes ARs HNO: 1834. /EULLENA (30 ib yy AHMED KEAN: MASAIL. BELIND W. MARKE Tr KLR.MOHALLA - es MYSORE... te .. RESPONDENT (RESPONDENT iS SERVICED) Tri ls ERLA. & MISC CRE. 4060/09 IS FILED U/S.378 MP ER-R.C PRAYING TO SET ASIDE THE JUDGMENT AND (ORDEL PYP22.7.2009 PASSED BY THI | ADDL. FERST CEVIL JUDG (HS DNJ & GMPC. MYSORE. IN| C.C.NO. 1445/07 ACQUI TT NG The RESPONDIENT/ACCUSED FOR THIE ~ OF FENCE P/U/S.1388 OF NI ACT AND TO GRANT SPECIAL ~ LEAVE PTO PRESENT THE APPEAL, RESPECTIVELY. THIS CRIMINAL APPEAL COMING ON POR ADMISSION ALONG WITLT MISCLCRL.4060/09 FOLK SPECIAL LEAVE TO FILE APPEAL This DAY. Tk COURT DIELIVIEERED The FOLLOWING: A Ms be ta JUDGMENT
This appeal filed under Section 878(4) of Cr.P.c, by the complainant is directed against the judgment and Judge (Jr.DnJ and JMFC. Mysore. im ©.C.Ne. 445/07 acquitling the respondenisaccused of the offence -- punishable under Seetion "158 of the Negotiable Instruments Act (for short the N.b Act),
2. The cappellant-complairant filed a private complaint, under ~ Section .200 Cr.P.C. against the respendent alleging. offence. punishable under Section 138 of the Nob ACt inter alia alleging that during April 2007, ther spondent being his close friend, borrowed a
- suin oF RS:1.00.000/ from him to meet his immediate . tainly: jlece sbiries promising to repay the same within 3 months and towards repayment of the said loan ; amount. the accused issued cheque bearing No.126038 "dated 27.¢7.2007 tor a sum of Rs. 1.00,000/- drawn on Syndicate Bank. Mysore and when the said cheque was go i presented for cieashiment. the same was returned with Banker's cndorsement "funds insulficient", fmmediately. the compkiinant issued a Jegal notice. dishonouring of the cheque and catling lipor hint iy pay thre loan eurrolmit within the prescribed period. Though. the notice was served on ihe responderit. he has failed to pay the amount covered: Li rider he cheque. as such he has conimitted offence "pmnishabie under Section 138 of the NL Act. a
3. The learued Mayistrate who took cognizance of the oflinee alleged in, the complaint, after recording SWOrl statement of the complainant. issued summons
- 10 | he ae vised. Wpon service of summons. the aceusect ° appeared belore the learned Magistrate and pleaded not guilty tor the accusation made against him and claimed io be tried, During the trial the complainarit got himself examined as PW.1 and marked Exs.P. f to P.6. te |
4. During: the examination under Section St3 Cr.P.C.. the accused denied all the incriminating Circumstances appearing against him in (he evideree of the complainant. The aceused did not choose. to ead:
any delence evidence, However, deferice of (he aecused was Of total cleviial and (Hai.ol false implication, r was"
his further defence that there Was some (ransaction between hint and sor: of the complainant and in respect of said transaction, Te had delivered lan k cheque to the son of the. eémplaiiant. which has been mis-used by the complainant. iL was luis: defence that he hae not borrowed RS.1-09.000/- from the complainant at any point of time not. fe: issued cheque in question for discharge of debt or any liabilitv. therefore. he has iot
-committect any offence punishable under Section 138 of the NL ACh.
5S. Phe learned Magistrate alter hearing both sides cand on assessment of the oral and documentary evidence. by the judgment under appeal. acquitted the a tat accused of the charges leveled against him on the ground that the complainant las not proved the existence of debt or other liability, therefare,~ the:
ofthe N.1. Act does not arise. Phe ieatned Maistrate in this behalf notieed that Lhe-complainant has ot. spelt... out the exaet date on which the alleged Joan was viven and the alleged date-on which the cheque was issued and that he has not prodneed. any evidence to show his SOULCE of income, Ht was also noticed by the learned Magistrate that apart from the cheque in question, the compiainant Tas rot produced ary other evidence to slow that he had lent Rs. 1.00,000/- to the aceused and twat the, cheque.in question was issued for the discharge of the said debt. In this view of the matter. the learned: Magistrate held that the complainant has failed w prove the giult of the accused for the offence SS punishable under Section 138 of the N.E Act as such.
che learned Magistrate acquitted the accused, Being fe Aw 6 aggrieved by the said judgment and order acquitting the accused, the appellart-complatnant dias presented this appeal along with Misc.Crl.4060/09 for grant of special.
leave to appeat.
6. In spite of service of notice of this appeal. the.
respondent-accused has ~. remained © absent and uurepresented. bo have heard. the learned coinsel appearing for the appellant. Perused the records secured from the court below: -
TAS Tnotieod by: the learued Magistrate curing the course of the judgment under appeal, neither in the compluint nor hy the: swork statement nor in his ne evidence belore the Court, the complainant has stated ws as LO exactly con What dete the loan of Rs.1,00.000/-
was givelr to the accused. it is merely stated by the complainant that during April, 2007, the accused SS requested for hand loan and accordingly. the complaint gave Rs. f.O0.0C0/- as hand loan to the Ke ; we all debt or any other lability is a matter of proof. It is only after the complainant proves the existence of a debt or other liability. then the presumption under Section 139
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discharge of such debt or other liability can be draw. It is obligatory on the partoorthe complatant whenever the accused denies the debt 'or other liability to prove the same by convincing evidences.
9. Inv the case on hand. exeept the cheque in Cuestion there is ne documentary evidenee produced by the appelking -- complainant to show that he had lent a sum of Rs, 1.00,000/* diiring April, 2007. Adimittectly. no. contemporary "document for having -- Tent
- RS.1.60.000/- to the accused and the accused having ° received thes same has come into existence. It is highly difficult ts believe that substantial sium of Rs. 1.00.000/- os would be paid without any document in that regard. As per section 269(ss) of the Income 'Tax Act. all . rin fransachion involving Rs.20,.000/- er above shall be : a 9 done onty through Account pavee cheque. Having regard to the facts and circumstances of the cases. this Court ts of the opinion that the learned Mawistrate is prove the existence of the debt. or other liability. Lnihe absence of the same. the learned Mayisterte has rightly : held that) presumption under, Section 139. has been rebutted.
LQ, Unicter: these ¢reciurstaunces. | see mo error ir the judgment of the court below acquitting the accused. There are no grounds to grant special leave to the appellant to. "ile =. this appeal. Accordingly, Mise.Crl.4060/200 is dismissed. Consequently. the appeal is also rejecied, Sdfa J ud ge