ING VYSYA BANK Vs. HANUMANTH B. RAMDURG

JUDGEMENT

(1.) THIS appeal is by the aggrieved complainant of C.C. No. 2659/2006 impugning the judgment dated 16.07.2009 passed by Civil Judge (Jr. Dn.) and J.M.F.C., Hubli thereby acquitting the accused for the offence punishable under Section 138 of Negotiable Instrument Act (hereinafter referred to as 'the Act' for brevity).

(2.) THE facts succinctly stated, the appellant herein through its Manager filed a private complaint before the JMFC -I, Hubli alleging that the accused was sanctioned loan of RS. 9,90,000/ - by the complainant/Bank towards purchase of vehicle . The accused failed to repay the loan amount regularly as per the terms of the loan agreement executed by him along with necessary documents at the time of sanctioning the loan. In spite of repeated demands, he did not pay the installments in respect of the balance amount. Towards the installment, he issued a cheque for a sum of Rs. 24,635/ - dated 08.10.2005 of Canara Bank, Station Road, Hubli. When the cheque was presented for encashment on 07.01.2006 through Vaishya Bank, Hubli, it was dishonoured with the shara 'funds insufficient'. The same is intimated to the complainant on 07.01.2006. Demand notice was issued through complainant/Bank on 16.01.2006. The notice returned with the endorsement as 'not claimed'. He has purposely avoided the acceptance of notice to defraud the complainant. By issuing bogus cheque without sufficient funds in his account, he has committed offence punishable under Section 138 of the Act.

(3.) THE learned counsel for the appellant submits that in the absence of rebuttal evidence by the accused about repayment of loan amount, the Court below could not have dismissed the complaint. He had not rebutted the statutory presumptions under Section 139 of the Act in favour of the complainant. Ex. P -5 was the account extract showing the liability of the accused and the cheque was issued to discharge the said liability. The learned Magistrate gave much weightage to the stray admission that emerged in the cross -examination of PW -1 that the cheque was issued towards security. Even otherwise, cheque issued either towards security or towards repayment is suffice to hold that it is towards some legally recoverable debt.