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2012 Supreme(Kar) 578
KARNATAKA HIGH COURT
A.S. Pachhapure, .J
Raghuram v. Shetty - Appellant
Versus
K. Kochu Shetty - Respondent
Criminal Appeal No. 1819 of 2007
Decided On : 20.11.2012
Sriyuths Rahul Rai K, K.M. Nataraj, S.K. Acharya, for the Appellant;
Sri Sampath Anand Shetty, for Respondent.
The main legal point established is that the evidence presented must be consistent and supported by relevant documents to raise a presumption under Section 139 of the Negotiable Instruments Act.
Headnote:
Negotiable Instruments Act - Acquittal Challenge - Section 138 - 139 - 138(1) - 138(2) - 139 - 138 - 138(1) - 138(2) - 139
Fact of the Case:
The appellant challenged the judgment and order of acquittal of the respondent for the charge under Section 138 of the Negotiable Instruments Act. The appellant had advanced a loan to the respondent, who issued a cheque that was dishonored. The appellant filed a complaint under Section 138 of the Act.
Finding of the Court:
The Trial Court acquitted the respondent, and the appellant appealed, seeking permission to produce additional documents. The appellant argued that the respondent admitted the cheque's signature, and the Trial Court could have raised the presumption under Section 139 of the Act. The respondent contended that the appellant misused the blank cheque and there was no evidence of the loan amount. The Court found that the appellant's evidence contradicted the joint memo and the ledger extract, and dismissed the appeal.
Issues: The issues revolved around the validity of the cheque, the presumption under Section 139, and the evidence of the loan amount advanced to the respondent.
Ratio Decidendi: The Court found that the appellant's evidence regarding the loan contradicted the joint memo and ledger extract, leading to the dismissal of the appeal.
Final Decision: The appeal was dismissed, and the application seeking permission to produce additional evidence was not allowed.
A.S. Pachhapure, J.
The appellant has challenged the judgment and order of acquittal of the respondent for the charge under Section 138 of the Negotiable Instruments Act (hereinafter called as the 'Act' for short) on a trial held by the JMFC, Udupi.
2. The facts reveal that the appellant-the complainant before the Trial Court had advanced a loan of Rs. 1 Lakh to the respondent-the accused before the Trial Court and towards repayment of the said amount, the respondent has issued a cheque bearing No. 314862 drawn on Vijaya Bank, Mangalore and the said cheque was presented by the appellant for encashment, but it returned dishonored on 08.09.2004 for want of sufficient funds. The appellant has received the intimation on 10.09.2004 and he has issued the notice dated 21.09.2004 to the respondent calling upon him to pay the cheque amount. As the respondent replied denying the liability, the appellant approached the Trial Court and submitted his complaint for the offence under Section 138 of the Act.
3. As the respondent did not plead guilty the appellant examined as P.W.1 and a witness P.W.2 and in the evidence Ex.P.1 to 10 the documents were marked. The statements were recorded under Section 313 of Cr.P.C. The respondent has not led any evidence, but got marked as Exs. D1 to D3 at the time of the cross- examination of the complainant.
4. The Trial Court on hearing the Counsel and on appreciation of the material on record acquitted the respondent. Aggrieved by the said order, the present appeal has been filed.
5. During the pendency of this appeal, the appellant has filed I.A. No. 1/2012 seeking permission to produce the additional documents.
6. I have heard the learned Counsel for both the parties.
7. It is the contention of the learned Counsel for the appellant that the signature on the cheque has been admitted by the respondent, and the transaction has been proved from the material on record. He submits that the Trial Court could have raised the presumption under Section 139 of the Act and as the respondent has not rebutted the presumption by entering into witness box, he contends that the acquittal is erroneous and illegal. So, he contends that the additional documents produced in this appeal would indicate that the respondent had raised the loan. He submits that permitting the production of the documents the matter may be remitted back to the Trial Court for recording the additional evidence. On these grounds, he sought for setting-aside the impugned order.
8. On the other hand, learned Counsel for the respondent submits that the appellant has misused the blank cheque in his custody and there is no evidence regarding the amount of loan advanced to respondent and the Trial Court has rightly dismissed the complaint. So far as the production of the documents is concerned, he contends that they are irrelevant for the purpose of this case.
9. As could be seen from the allegations in the complaint, there is no mention of the date, month and the year in which the loan of Rs. 1 Lakh was advanced to the respondent. What the appellant states in the complaint is that towards the amount of debt due, the respondent issued the cheque for Rs. 1 Lakh in favour of the complainant. The cheque has been produced at Ex.P1 and it reveals the signature of the respondent is at Ex.P1(a) and it is dated 06.09.2004. Ex.P2 is the bank endorsement and a perusal of the endorsement reveals that the cheque was returned for insufficient funds. Ex.P4 is the notice issued by the appellant in which there is no mention of the date, month and the year, in which the loan was advanced to the respondent. Though, the presumption could be raised under Section 138 of the Act, it is now relevant for this Court to consider whether the respondent has rebutted the presumption from the material made available in the cross-examination of P.W. 1 or the documents produced.
10. Admittedly, the appellant and the respondent were carrying on business as the partners of a firm prior to
