Further, it is clear from the perusal of the evidence of P.W. 1 and the facts elicited in his cross-examination and the documents produced by the complainant himself that complainant is doing money lending business, the date on which the amount was lent to the respondent is not mentioned in the complaint or in the notice. It is only stated that the respondent availed loan of Rs. 50,000/- from the complainant in the month of March 1999. In the notice also the date of lending the amount to the respondent is not mentioned. Further, the appellant doing the money lending business, the money lending licence as per Ex. P. 3 has been produced and complainant cannot contend that money was lent without any document. The ledger extract or any letter sanctioning the loan amount or pronote to show sanction of the loan to the respondent is not produced. In fact material on record shows that though respondent has filed application, the same was rejected and even thereafter the complainant has not made any effort to produce the said documents and in the absence of proof of lending money to the respondent by the complainant as a financial agency, it is clear that the material on record would clearly rebut the presumption under Section 139 of the Act and once the presumption is rebutted, the complainant has to prove by independent evidence the fact that he has lent amount to the respondent and the cheque was issued for discharge of the said loan lent by the complainant to the respondent and the evidence of P.W. 1 is not helpful in the absence of production of day book ledger extract or any other document to show that the amount was lent to the respondent or proof of the date on which the amount was lent. Under the circumstances, the defence taken by the accused-respondent is probabilised
2. The essential facts of the case leading upto this appeal with reference to the rank of the parties before the Trial Court are as follows.-
The appellant herein filed complaint under Section 200 of the Criminal Procedure Code, 1973, describing himself as the Managing Partner and GPA holder of M/s. Lotus Finance against the respondent alleging that respondent had borrowed loan from the complainant and issued two cheques for Rs. 25,000/- each en-cashable on 2-3-2000. When the said cheques were presented for payment they were dishonoured with the endorsement "insufficient fund" and thereafter the complainant issued notice to the respondent to pay the amount of the cheques and since the amount was not paid despite notice, complaint was filed against the respondent of having committed the offence punishable under Section 138 of the Act. Learned CMM, took cognizance of the offence and recorded the sworn statement of the complainant and issued summons to the accused. Accused appeared before the CMM, and denied the plea. On behalf of the complainant, complainant was examined as P.W. 1 and Exs. P. 1 to P. 12 were got marked. The statement of the accused under Section 313 of the Cr.P.C. was recorded. The defence of the accused is that he has not issued any cheque towards the amount borrowed by him and loan was borrowed by his brother and he had issued cheque by way of security for the loan borrowed by his brother and the cheque is being misutilised and a false complaint has been filed. The Trial Court after considering the material on record and the contention of the learned Counsel appearing for the complainant and the accused by judgment dated 7-8-2002 held that the complainant has failed to prove that the accused has committed the offence punishable under Section 138 of the Act. Being aggrieved by the said judgment of acquittal, the complainant is before this Court in this appeal.
3. I have heard the learned Counsel appearing for the complainant-appellant and, the learned Counsel appearing for the accused-respondent in this appeal.
4. The learned Counsel appearing for the appellant submitted that issuance of cheque is admitted and it is not proved that it was issued by way of security and in view of the presumption under Section 139 of the Act, the burden was upon the accused to rebut the presumption and the Trial Court was not justified in holding that the complainant has not proved the guilt of the respondent. In support of his contention he has relied upon the decision of the Hon'ble Supreme Court in K.N. Beena v. Muniyappan and Anr. .
5. Learned Counsel appearing for the respondent submitted that the complainant had filed a separate private complaint against his brother who had borrowed the amount and the said complaint was dismissed and thereafter the present proceedings have been initiated against the respondent and the judgment of acquittal is justified as the date on which the loan was lent to the respondent has not been mentioned in the complaint or notice and the complainant though has produced the licence for doing money lending business has not produced the books of the account to show that the amount was lent to the respondent and wherefore, the Trial Court was justified in acquitting the accused.
6. I have considered the contention of the learned Counsel appearing for the parties in the light of the principle laid down by the Hon'ble Supreme Court in the decision cited by the learned Counsel appearing for the appellant.
7. Having regard to the contentions urged, the point that arises for determination in this appeal is.-
Whether the judgment of acquittal passed by the Trial Court calls for interference in this appeal?
and I answer the above point in the negative for the following.-
REASONS
8. It is clear from the perusal of the complaint filed by the appellant that complainant-M/s. Lotus Finance is a partnership firm and according to the description given in the complaint the firm is represented by Sri M. Senguttuvan who is the Managing Partner/GPA Holder. The partnership deed of the firm is not produced to show that complainant-M. Senguttuvan is the Managing partner. General Power of Attorney is also not produced to show that he has been authorised under general power of attorney to file a complaint. In the deposition the complainant has described himself as authorised by the firm and has produced the authorisation letter. However, the partnership deed has not been produced to show that P.W. 1 is the Managing partner of the firm. Further, it is clear from the perusal of the evidence of P.W. 1 and the facts elicited in his cross-examination and the documents produced by the complainant himself that complainant is doing money lending business, the date on which the amount was lent to the respondent is not mentioned in the complaint or in the notice. It is only stated that the respondent availed loan of Rs. 50,000/- from the complainant in the month of March 1999. In the notice also the date of lending the amount to the respondent is not mentioned. Further, the appellant doing the money lending business, the money lending licence as per Ex. P. 3 has been produced and complainant cannot contend that money was lent without any document. The ledger extract or any letter sanctioning the loan amount or pronote to show sanction of the loan to the respondent is not produced. In fact material on record shows that though respondent has filed application, the same was rejected and even thereafter the complainant has not made any effort to produce the said documents and in the absence of proof of lending money to the respondent by the complainant as a financial agency, it is clear that the material on record would clearly rebut the presumption under Section 139 of the Act and once the presumption is rebutted, the complainant has to prove by independent evidence the fact that he has lent amount to the respondent and the cheque was issued for discharge of the said loan lent by the complainant to the respondent and the evidence of P.W. 1 is not helpful in the absence of production of day book ledger extract or any other document to show that the amount was lent to the respondent or proof of the date on which the amount was lent. Under the circumstances, the defence taken by the accused-respondent is probabilised and it is also clear that PCR No. 34543 of 2000 was filed against the brother of the accused in respect of the transaction of Rs. 50,000/- and the brother of the accused has been convicted and wherefore the defence of the accused that he has only lent the cheque by way of security to the amount borrowed by his brother is probabilised and it is well-settled that the presumption under Section 139 of the Act need not be rebutted only by leading defence evidence and the said presumption can be rebutted even on the basis of the facts elicited in the cross-examination of the complainant as has been done in the present case and accordingly, I hold that judgment of acquittal -is justified and does not call for interference in this appeal. Accordingly, I pass the following order.-
The appeal is dismissed. The judgment of acquittal passed by the 16th Additional CMM, Bangalore City dated 7-8-2002 in C.C. No. 35130 of 2000 is confirmed.
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Karnataka High Court
M. Senguttuvan vs Mahadevaswamy on 12 March, 2007
Equivalent citations: ILR 2007 KAR 2709, 2007 (4) KarLJ 334
1. This appeal by the complainant is directed against the judgment of acquittal passed by 16th Additional CMM, Bangalore dated 7-8-2002 in CC No. 35130 of 2000 acquitting the respondent of having committed the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short, 'the Act').2. The essential facts of the case leading upto this appeal with reference to the rank of the parties before the Trial Court are as follows.-
The appellant herein filed complaint under Section 200 of the Criminal Procedure Code, 1973, describing himself as the Managing Partner and GPA holder of M/s. Lotus Finance against the respondent alleging that respondent had borrowed loan from the complainant and issued two cheques for Rs. 25,000/- each en-cashable on 2-3-2000. When the said cheques were presented for payment they were dishonoured with the endorsement "insufficient fund" and thereafter the complainant issued notice to the respondent to pay the amount of the cheques and since the amount was not paid despite notice, complaint was filed against the respondent of having committed the offence punishable under Section 138 of the Act. Learned CMM, took cognizance of the offence and recorded the sworn statement of the complainant and issued summons to the accused. Accused appeared before the CMM, and denied the plea. On behalf of the complainant, complainant was examined as P.W. 1 and Exs. P. 1 to P. 12 were got marked. The statement of the accused under Section 313 of the Cr.P.C. was recorded. The defence of the accused is that he has not issued any cheque towards the amount borrowed by him and loan was borrowed by his brother and he had issued cheque by way of security for the loan borrowed by his brother and the cheque is being misutilised and a false complaint has been filed. The Trial Court after considering the material on record and the contention of the learned Counsel appearing for the complainant and the accused by judgment dated 7-8-2002 held that the complainant has failed to prove that the accused has committed the offence punishable under Section 138 of the Act. Being aggrieved by the said judgment of acquittal, the complainant is before this Court in this appeal.
3. I have heard the learned Counsel appearing for the complainant-appellant and, the learned Counsel appearing for the accused-respondent in this appeal.
4. The learned Counsel appearing for the appellant submitted that issuance of cheque is admitted and it is not proved that it was issued by way of security and in view of the presumption under Section 139 of the Act, the burden was upon the accused to rebut the presumption and the Trial Court was not justified in holding that the complainant has not proved the guilt of the respondent. In support of his contention he has relied upon the decision of the Hon'ble Supreme Court in K.N. Beena v. Muniyappan and Anr. .
5. Learned Counsel appearing for the respondent submitted that the complainant had filed a separate private complaint against his brother who had borrowed the amount and the said complaint was dismissed and thereafter the present proceedings have been initiated against the respondent and the judgment of acquittal is justified as the date on which the loan was lent to the respondent has not been mentioned in the complaint or notice and the complainant though has produced the licence for doing money lending business has not produced the books of the account to show that the amount was lent to the respondent and wherefore, the Trial Court was justified in acquitting the accused.
6. I have considered the contention of the learned Counsel appearing for the parties in the light of the principle laid down by the Hon'ble Supreme Court in the decision cited by the learned Counsel appearing for the appellant.
7. Having regard to the contentions urged, the point that arises for determination in this appeal is.-
Whether the judgment of acquittal passed by the Trial Court calls for interference in this appeal?
and I answer the above point in the negative for the following.-
REASONS
8. It is clear from the perusal of the complaint filed by the appellant that complainant-M/s. Lotus Finance is a partnership firm and according to the description given in the complaint the firm is represented by Sri M. Senguttuvan who is the Managing Partner/GPA Holder. The partnership deed of the firm is not produced to show that complainant-M. Senguttuvan is the Managing partner. General Power of Attorney is also not produced to show that he has been authorised under general power of attorney to file a complaint. In the deposition the complainant has described himself as authorised by the firm and has produced the authorisation letter. However, the partnership deed has not been produced to show that P.W. 1 is the Managing partner of the firm. Further, it is clear from the perusal of the evidence of P.W. 1 and the facts elicited in his cross-examination and the documents produced by the complainant himself that complainant is doing money lending business, the date on which the amount was lent to the respondent is not mentioned in the complaint or in the notice. It is only stated that the respondent availed loan of Rs. 50,000/- from the complainant in the month of March 1999. In the notice also the date of lending the amount to the respondent is not mentioned. Further, the appellant doing the money lending business, the money lending licence as per Ex. P. 3 has been produced and complainant cannot contend that money was lent without any document. The ledger extract or any letter sanctioning the loan amount or pronote to show sanction of the loan to the respondent is not produced. In fact material on record shows that though respondent has filed application, the same was rejected and even thereafter the complainant has not made any effort to produce the said documents and in the absence of proof of lending money to the respondent by the complainant as a financial agency, it is clear that the material on record would clearly rebut the presumption under Section 139 of the Act and once the presumption is rebutted, the complainant has to prove by independent evidence the fact that he has lent amount to the respondent and the cheque was issued for discharge of the said loan lent by the complainant to the respondent and the evidence of P.W. 1 is not helpful in the absence of production of day book ledger extract or any other document to show that the amount was lent to the respondent or proof of the date on which the amount was lent. Under the circumstances, the defence taken by the accused-respondent is probabilised and it is also clear that PCR No. 34543 of 2000 was filed against the brother of the accused in respect of the transaction of Rs. 50,000/- and the brother of the accused has been convicted and wherefore the defence of the accused that he has only lent the cheque by way of security to the amount borrowed by his brother is probabilised and it is well-settled that the presumption under Section 139 of the Act need not be rebutted only by leading defence evidence and the said presumption can be rebutted even on the basis of the facts elicited in the cross-examination of the complainant as has been done in the present case and accordingly, I hold that judgment of acquittal -is justified and does not call for interference in this appeal. Accordingly, I pass the following order.-
The appeal is dismissed. The judgment of acquittal passed by the 16th Additional CMM, Bangalore City dated 7-8-2002 in C.C. No. 35130 of 2000 is confirmed.
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