RAMMONARATH RAM ADHIN DUBEY Vs. SHYAMPRAKASH PARASNATH MISHRA

JUDGEMENT

(1.) HEARD learned counsel for the applicant and learned counsel for the first respondent. The prayer in this application is for grant of a special leave to prefer an appeal under sub section 4 of section 378 of the Code of Criminal Procedure, 1973. By the order impugned, the first respondent has been acquitted of the offence punishable under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the said Act of 1881"). The case of the applicant-complainant is that the first respondent had taken a loan of Rs.8.00 lakhs from him and had mortgaged his property by executing a Deed of Mortgage dated 10th July 1998 in his favour. The case of the applicant is that the first respondent was to repay the amount within a period of one year from the date of execution of the deed of mortgage. On 15th November 2000, a cheque in the sum of Rs.8.00 lakh was issued by the first respondent in favour of the applicant. According to the case of the applicant, the cheque was issued towards the discharge of the liability of loan. The said cheque was dishonoured and thereafter the complaint has been filed.

(2.) THE learned counsel for the applicant invited my attention to the findings recorded by the learned Judge. She pointed out that the defence of the first respondent that he had not signed and executed the deed of mortgage has not been accepted and in fact the issue of execution of the deed of mortgage has been decided in favour of the applicant. She submitted that in view of the presumption created by Sections 118 and 139 of the said Act of 1881, the applicant was under no obligation to lead evidence to show that he had advanced a sum of Rs.8.00 lakh to the first respondent and in fact the burden to rebut the presumption was on the first respondent. She submitted that the learned Judge has committed an error by finding fault with the applicant for not producing the statement of bank account from which the amount of Rs.8.00 lakh was allegedly withdrawn by the applicant. She submitted that failure to disclose the amount of loan in Income Tax Returns is not sufficient to rebut the presumption under section 139 of the said Act of 1881.

(3.) THE signature on the deed of mortgage was disputed by the first respondent. While recording finding on this aspect the learned Judge has held that there is mere denial by the first respondent of the signature on the mortgage deed and the first respondent has not examined any witness. The finding of the learned Judge is that it cannot be said that the signature on the mortgage deed is not that of the accused.