ANIL Vs. SRI. HANAMANT

JUDGEMENT

(1.) THE complainant is in appeal against the acquittal of the respondent for offences punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the N.I. Act' for short). Heard the learned Counsel Sri. Mrutyunjay Tata Bangi for the appellant and perused the records in supplementation thereto. It reveals: The appellant Anil Shambhappa Sarabi initiated prosecution of the respondent Hanamant Yallappa Rawal for offences punishable under Section 138 of the N.I. Act, on assertive contention that, he had borrowed Rs. 75,000/ - from him on 01.07.2006 agreeing to repay with interest thereon and had also issued a cheque drawn on the Rabakavi Urban Co -operative Bank, Branch Rabakavi. The cheque was dated 19.07.2006. On 23.11.2006, the complainant presented the cheque through his banker, which was dishonoured with endorsement 'insufficient funds'. Consequently, the appellant issued statutory notice on 05.12.2006 which was served on the accused on 08.12.2006. The accused sent untenable reply on 11.12.2006 denying the liability and then he sought action against the respondent.

(2.) THE respondent -accused resisted the prosecution on the ground that, there was no Privity of contract of loan between the parties and that the impugned cheque was not issued towards any existing debt or legal liability. In The circumstances, the trial was conducted, in which the complainant tendered evidence as PW1, while the accused tendered evidence as DW1. The complainant relied on seven documents and the accused relied on three documents.

(3.) THE learned Counsel for the appellant, Sri. Bangi, referring to the reasons assigned by the learned trial Judge would show that, the learned trial Judge has applied the decision, which has subsequently been overruled by the Hon'ble Supreme Court by its judgment in the case of AIR 2010 SC 1898 . He submits that the view of the learned trial Judge that the complainant has to establish his capacity to lend money was not only factually incorrect, but even in the law such a burden is not cast. As far as cheque is concerned, the complainant has been informed that the cheque could not have been honoured due to insufficient funds, which attracts Section 138 of the N.I. Act and hence the complainant was entitled to proceed against the respondent -accused.