D RAJU Vs. K B NAGARATHNAMMA

JUDGEMENT

(1.) THIS appeal is filed by the complainant against the order of acquittal passed by the JMFC -II, Shimoga, in C.C.No.617/2009, dated 1st September 2012.

(2.) ACCORDING to the complainant, he and husband of the accused were friends. The accused had availed a loan of Rs.1,56,000/ - from the complainant for the purpose of improvement of poultry farm during 2005 and assured to repay the amount within few months. On demand by the complainant, accused issued two cheques for Rs.50,000/ - and Rs.35,000/ - drawn on ING Vysya Bank, Shimoga. On presentation, the cheques were dishonoured for insufficient funds. Complaint came to be filed. The trial Court of course, taking note of the contention of the complainant that amount was lent towards improvement of poultry farm and in this connection, accused issued two cheques for Rs.50,000/ - and Rs.35,000/ -, held that complainant has not proved that the cheque has been issued by the accused towards discharge of existing debt or liability and acquitted the accused.

(3.) IT appears, there is no agreement between the complainant and accused. It is the stand of the accused that her husband had availed financial assistance only to the tune of Rs.58,000/ - from the complainant and at that time, complainant had taken two blank cheques. Her husband has also returned Rs.34,500/ - i.e., Rs.20,000/ - and Rs.5,500/ - paid in cash and Rs.5,000/ - and Rs.4,000/ - paid by way of cheque and rather, there is no financial transaction between herself and complainant. It is the further case of the accused that there is an admission on the part of the complainant in the cross -examination that in order to improve the poultry farm, he had given the amount of Rs.1,79,800/ -, but this aspect is never stated in the complaint nor in the legal notice. The trial Court also noticed the fact that the agreement alleged to have been executed between the complainant and husband of the accused was two years prior to the alleged date of availment of loan by the accused and in the agreement, there is only mention of payment of Rs.5,000/ - to the accused by the complainant to construct well for the purpose of poultry farm. The trial Court also noticed several discrepancies as to the transaction between the complainant and husband of the accused. It had also observed that the total amount of both the cheques would come to Rs.85,000/ -, whereas the alleged liability is Rs.1,56,000/ -, but in cross -examination, the complainant has admitted that out of Rs.1,79,800/ -, the accused has made a part repayment and she was due of Rs.1,56,000/ -. The difference of the said amount comes to Rs.33,800/ -, which substantiates the defense raised by the accused in her reply notice. The trial Court observed that it is a rebutable presumption as per the decision of the Apex Court in the case of Rangappa vs - Mohan, 2010 AIR(SC) 1898. In the circumstances, though there may be some irregularities on the part of the complainant himself in filling up the cheque amount and also the alleged transaction, the ground raised by the complainant -appellant is that he has not been permitted to cross -examine the accused. However, it appears, the difference of amount that is sought to be claimed by the complainant is not under the cheque, but under a different transaction by way of giving in cash etc., for which, the learned Magistrate can impose fine. In that view of the matter, the impugned order needs interference and accordingly, it is set aside and matter is remitted to the trial Court. It is for the parties to either lead additional evidence or to compromise the matter. Ordered accordingly. Appeal is allowed.