GURUPADASWAMY Vs. M. PARTHA

JUDGEMENT

(1.) THE petitioner was the accused in a complaint for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (Hereinafter referred to as the 'NI Act', for brevity).

(2.) IT was alleged that the petitioner herein had obtained a hand loan of Rs.1.50 lakh from the respondent as on 10.12.2007. It is stated that he had issued a cheque for the said amount, in due repayment thereof, vide cheque dated 10.2.2008. The cheque is said to have been returned dishonoured when presented for encashment, on the ground that the funds were insufficient in the bank account of the petitioner, as per the banker's endorsement dated 21.2.2008. The respondent is then said to have issued a legal notice dated 7.3.2008, which was shown to have been duly served on the petitioner, as on 1.6.2010. It is stated that the petitioner did not reply. A complaint having been filed in the above background, the same was contested by the petitioner by filing formal objections, to the effect that he had not borrowed any money as he was never in any need for the same. Though no evidence was tendered by the petitioner, it was suggested in the cross examination of the respondent, that the petitioner was well off and did not need to borrow any money. The trial court had held that the petitioner had not explained nor sought to challenge the manner in which the cheque in question may have come into the hands of the respondent. The petitioner was accordingly found guilty and was sentenced to imprisonment for three months and was also held liable to pay a total fine amount of Rs.1.55 lakh, of which Rs.1.50 lakh was to be paid to the respondent. The said judgment was challenged in appeal. A ground urged was that the purported loan, according to the respondent, was made to meet the expenses of the petitioner's daughter's wedding. It was contended this was false and misleading as the wedding of the petitioner's daughter had taken place in February 2007, whereas the loan was made in December 2007. On this issue, the matter was said to have been remitted to the trial court to record additional evidence. On remand, the petitioner is said to have introduced one more ground of defence, to the effect that the cheque had been issued to some other person, which however, appeared to have fallen into the hands of the respondent, who was seeking to misuse it. The appellate court however, negated all the additional defences set up, while assigning reasons as to why it could not be believed and affirmed the judgment of the trial court. It is that which is sought to be challenged in this petition.

(3.) IT is contended by the learned counsel for the petitioner that there is an initial burden cast on the respondent to establish that he had the means to lend money to the petitioner. Reliance is placed on the decision in Krishna Janardhan Bhat v. Dattatraya G.Hegde, (2008)4 SCC 54 and John K. Abraham v. Simon C. Abraham, (2014) 2 SCC 236. That the cheque was not in the handwriting of the petitioner and therefore it ought to be construed as there being a material alteration made on the cheque. That it was contrary to the procedure prescribed under Section 145 of the NI Act to receive evidence of the accused by way of an affidavit and hence, the proceedings were vitiated. Reliance is placed on the decision in H.Bhagya v. R.Savithramma, 2013(1) KCCR 834, in this regard. The learned counsel for the respondent, on the other hand, seeks to justify the judgments of the courts below.