S.F. RAJMAL Vs. ANANTH K.

JUDGEMENT

(1.) THE trial court has acquitted respondent (hereinafter referred to as 'accused) for an offence punishable under Section 138 N.I. Act. Therefore, the appellant (complainant) is before this Court. I have heard Sri. B.V. Shankara Narayana Rao, learned counsel for the complainant and Sri. B.A. Belliappa, learned counsel for the accused.

(2.) THE learned trial Judge on appreciation of evidence of the complainant, accused and DW -1 (father of the accused) has held that complainant has failed to prove the existence of legally recoverable debt. The learned trial Judge has disbelieved the evidence of complainant that on 16.02.2006, accused had borrowed a sum of Rs. 5,50,000/ - from the complainant after execution of on demand promissory note (Ex. P2) agreeing to repay the same with interest at the rate of 1.25% per month. The learned trial Judge has disbelieved the evidence of complainant that in order to discharge legally recoverable debt, accused had issued a cheque dated 15.04.2006 for a sum of Rs. 5,50,000/ - drawn on Vysya Co -operative Bank Limited, Bangalore.

(3.) AFTER going through oral evidence of parties and documents relied upon by the parties, I find that the averments made by complainant and evidence adduced by the complainant would clearly demonstrate that there were differences between the complainant on one side and the mother of the accused and her family members including the accused on the other side. The complainant has admitted that accused was present on the date of cancellation of agreement of sale and return of advance sale consideration. The complainant has adduced evidence to prove that he had lent a sum of Rs. 5,50,000/ - to accused on 16.02.2006. The complainant has adduced documentary evidence to prove that on 16.02.2006, the mother of accused repaid a sum of Rs. 17,00,000/ - (advance sale consideration) to the complainant and they entered into deed of cancellation for cancellation of agreement of sale dated 04.12.2003. The accused has not disputed that on 16.02.2006 his mother repaid advance sale consideration of Rs. 17,00,000/ - to complainant in terms of deed of cancellation of agreement of sale dated 16.02.2006. Therefore, a question would arise, "whether the complainant who had suffered at the hands of mother of the, accused and accused and having received a sum of Rs. 17 lakhs (advance sale consideration) from the mother of accused who had retained the same for over a period of 2 years 3 months without there being relative advantage or benefit to complainant, would again lend money (sum of Rs. 5,50,000/ -) to the accused on the same day i.e., on 16.02.2006 -.