SHIVALINGAPPA Vs. SRI. BASAGONDA

JUDGEMENT

(1.) A complainant's appeal against the acquittal of respondent for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act'). Heard the learned counsel for the appellant and learned counsel for the respondent. Perused the records in supplementation thereto. It reveals: (A) The appellant Sri. Shivalingappa Mallappa Vajramatti initiated prosecution of the respondent for an offence punishable under Section 138 of the Act' on the accusation that the respondent had borrowed from him a sum of Rs. 34,000/ - on 06.01.2001 and in discharge of the said liability, issued the impugned cheque. The impugned cheque on presentation to the Bank was dishonoured on 31.10.2001. In view of dishonour of cheque, he issued statutory notice to the accused on 05.11.2001, which was refused by endorsement dated 13.11.2001. (B) The learned Magistrate took cognizance and summoned the respondent who entered appearance and denied the charge. While admitting his signature on the cheques impugned, he denied cheque was issued to the appellant in discharge of any liability. According to the respondent/accused, he had borrowed loan from M/s. Banashankari Finance Company situated in Rabakavi on 24.09.1996 and at the time of availing the loan, the Finance Company insisted and obtained from him two blank cheques as security. Though he had repaid the loan, the Finance Company did not return the cheques and when he approached them, he found that the Company was closed in the year 2000. He alleged that the cheques have been misused by' the complainant having obtained them from his daughter who was one of the Director of the said Company. (C) In the trial that ensued the complainant tendered evidence as PW -1 and examined one Sangamanath and relied on nine documents while the accused tendered evidence as DW -1 and examined two witnesses and he also relied thirteen documents. (D) Learned trial Judge had analysed the evidence noticing the ocular testimony of the complainant was not believable version, firstly because he had not proved that accused was his friend and because of the friendship, he did not obtain any receipt while advancing the loan. This opinion is formed by the learned trial Judge considering the age difference between them, as the complainant was 67 years while the accused was found to be 40 years old. The second ground is the complainant had not explained the difference in the ink used to sign and filling up of the amount in the cheque. The third circumstance noticed by the learned trial Judge is the complainant has not established that he is financially well -off and capable of lending money in a sum of Rs. 34,000/ - to the accused. To gain support to his opinion, the learned trial Judge relied on the decision of the Hon'ble Apex Court in the case of Krishna Janardhan Bhat Vs. Dattatraya G. Hegde, AIR 2008 SC 1325 and also the decision in the case of K. Narayana Nayak Vs. Sri M. Shivarama Shetty, (2008) CriLJ 3411 . Being of that view, he recorded the acquittal. Assailing the said finding, the complainant is before this Court.

(2.) THE learned appellant's counsel would contend that the approach of the learned trial Judge to non -suit the complainant is based on the dictum of the Hon'ble Apex Court in the case of KRISHNA JANARDHAN BHAT (Supra), which was no longer a good law as on the date the judgment was rendered. He submits, the presumption under Section 139 of the Act has not been given a statutory credence by the learned trial Judge as otherwise, the burden of proof should have been shifted on the accused. Lastly, he submits that the conduct of the accused had been ignored. The accused had refused to receive the statutory notice. If the accused was not due any amount, he would have certainly replied to the notice'. On these grounds, he seeks setting aside of the impugned judgment.

(3.) AS could be seen from the finding of the learned trial Judge, no doubt as rightly pointed out by the appellant's counsel, the learned trial Judge has mislead himself in believing that the judgment in the case of KRISHNA JANARDHAN BHAT (supra) compelled the complainant to disclose his financial position and capacity to lend money and that presumption under Section 139 of the Act was not always available to the complainant. Such a view undoubtedly is not proper in view of the subsequent decision of the Hon'ble Apex Court in the case of AIR 2010 SC 1898 wherein the Hon'ble Apex Court has re -examined the effect of statutory presumption engrafted under Section 139 of the Act and discussed about in whose favour a presumption could be raised. To this extent, the judgment impugned herein passed by the learned trial Judge is not proper. Similarly, the view of the learned trial Judge that the complainant has not established his financial position or capacity to lend money, was also not a proper conclusion in view of the decision of the Hon'ble Apex Court in the case of RANGAPPA (supra). However, on merit it could be seen, the accused had taken a specific defence that he had borrowed money from M/s. Banashankari Finance Company of which the complainant's daughter was admittedly a Director. The contention of the accused that he had issued two cheques as security to the said Company had remained uncontroverted.