SUMANT FINANCE Vs. GOPAL V HEGDE

JUDGEMENT

(1.) The present appeal is filed by the complainant. The counsel for the appellant is absent. It is noticed that, he has constantly remained absent, though this appeal has been listed before the Court on several occasions, and continuously listed since, 11.09.2013, and though it is called out more than once on each occasion, none has appeared and there is no representation on behalf of the appellant. The counsel is also shown to be absent in other cases as well, before this Court. His conduct is deprecated. In any event, the respondent having been served has remained absent. Therefore, the case is considered even in the absence of the learned counsel for the appellant, as this Court is duty bound to do so in view of the law and having regard to the facts and circumstances, there is no need felt to appoint counsel, amicus curie to assist the Court.

(2.) It is noticed that the complainant is a financial institution and was a partnership firm and money lending licence, and that the respondent herein had borrowed a sum of Rs.30,000/- and executed a promissory note and agreed to repay the amount with interest. Since he failed to do so, and on demand, the respondent said to have issued a cheque bearing No.030887 dated 21.04.2000 for a sum of Rs.31,000/- drawn on State Bank of India, Malagi Branch. The same when presented for collection on 27.04.2000 to K.D.C.C.Bank Ltd., Sirsi, had been returned with an endorsement 'Funds Insufficient". It is on that basis that a complaint was lodged. After issuance of notice, the respondent having entered appearance on summons being served had taken a defence of total denial of the transaction. It is on that basis that the Court below had framed the following points for consideration:

(3.) The Court below held the same in the negative and acquitted the accused. While the reasons afforded, the Court below on its rather lengthy judgment, is only to the effect that the defence of the respondent that the complainant-firm mis-utilized the cheque of the respondent and that notwithstanding a manager of the complainant-firm and General Power of Attorney holder of the managing partner having filed another case on the basis of the very cheque before Additional Chief Metropolitan, Magistrate, Bangalore in respect of the cheque bearing No.3030888, whereas the earlier cheque namely, the present cheque involved in the present case 030887, has been produced in this case, subsequent to the case in 6222/1998. Therefore, there was mischief played by the complainantfirm etc. Though the respondent had admitted his signature on Ex.P1- cheque, it was his defence that he had issued Ex.P1, as well as another to one V.S.Hegde, who was the partner of the complainantfirm and that he had no transaction whatsoever with the complainantfirm. But it was a private transaction between himself and one V.S.Hegde and the said cheque was sought to be misused by the firm etc. In this regard, he had produced the certified copies of the documents pertaining to the cheque bearing No.030888, which was the subject matter of the criminal case before the Court of Additional Chief Metropolitan Magistrate, Bangalore. The Court below has opined that it was incumbent on the complainant-firm to produce the documents pertaining to the loan transaction to establish that the cheque in question was issued for legal liability, and further, as the complainant-firm was engaged in money lending, it was necessary to maintain account extracts ought to have been produced, and since the accused has denied the transaction, it was incumbent on the complainant-firm to establish the transaction and further, that the cheque was issued in discharge of a legal liability. In the absence of which, the Court below has come to the conclusion that the complainant had failed to discharge the burden cast on him. On the face of it, the reasoning of the Court below is not tenable.