Karnataka High Court
Shri.Madanmohan Premratan Mohta vs Shri.Dattaram D. Vernekar on 10 July, 2013
Author: N.Ananda
Bench: N. Ananda
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 10TH DAY OF JULY, 2013
BEFORE
THE HON'BLE MR. JUSTICE N. ANANDA
CRL. A. No.2531/2013
BETWEEN:
Shri Madanmohan Premratan Mohta,
Age: Major, Occ: Business.
R/o 2nd Cross Road,
Bhagyanagar,
Belgaum. .. Appellant
(By Sri Vitthal S. Teli, Adv.)
AND:
Shri.Dattaram D. Vernekar,
Age 50 years, Occ: Goldsmith,
R/o Infront of Kalamandir,
Shukrawarpet,
Tilakwadi, Belgaum. .. Respondent
This criminal appeal is filed under section 378(4) of
Cr.P.C., praying to set-aside the judgment dated 7.7.12 in
C.C.No.1811/2008 passed by the IV JMFC Court, Belgaum,
and etc.
This criminal appeal coming on for admission this
day, the court., delivered the following:
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JUDGMENT
The trial court has acquitted respondent of an offence punishable under Section 138 of Negotiable Instruments Act. Therefore, complainant has filed this appeal.
2. Heard the learned Counsel for Complainant.
3. The complainant has contended that respondent had borrowed a sum of Rs.10 lakhs from complainant in the month of January, 2000, promising to repay the loan amount with interest at the prevalent rate on or before 31.12.2000. The accused did not repay the loan amount and was dodging the complainant. On 7.5.2001, accused issued a cheque for Rs.10 lakhs in favour of the complainant. On presentation, the cheque was dishonored. There was no response to the statutory notice issued by complainant. Therefore, the instant complaint was filed.
4. The learned Trial Judge on critical analysis of evidence has held that, complainant has failed to produce 3 documentary evidence to prove that he had lent a huge sum of Rs.10 lakhs to accused.
5. The complainant was an income tax assessee. He has not produced statement of accounts to prove that he had lent a sum of Rs.10 lakhs to accused. The complainant has admitted that he has not shown in the income tax returns that he had lent a sum of Rs.10 lakhs to accused. Above all, disputed cheque was issued by respondent/accused in the name of his firm. It is not the case of complainant that he had lent money to the firm. If money had been lent to respondent/accused, it is not understandable as to how the complainant accepted the cheque drawn by accused as partner of M/s Dattatram Dhananjay Vernekar Jewellers Exporters. The learned trial Judge has relied on the judgment of the Supreme Court reported in AIR 2008 S.C.278 in the case of John K. John vs. Tom Verghees & another, wherein it has held:
"The presumption u/s 139 could be raised in respect of some consideration and burden is on the complainant to show that he had paid amount shown in the cheque. Whenever there is huge amount shown in the cheque, though 4 the initial burden is on the accused, it is equally necessary to know how the complainant advanced such a huge amount."
6. The complainant is alleged to have lent huge sum of Rs.10 lakhs to accused. Though the initial burden is on the accused, it is equally necessary for the complainant to prove that he had advanced huge sum of Rs.10 lakhs to accused without any security and without maintaining any records. The complainant had not even made entry in the books of accounts that he had lent a sum of Rs.10 lakhs to accused. It is true that there is presumption available under Section 139 of Negotiable Instruments Act. However, if evidence of complainant is inherently weak such a presumption cannot be raised.
7. In the circumstances, there are no reasons to interfere with the impugned judgment of acquittal. The appeal is dismissed.
SD/-
JUDGE Sub/