IMPORTANT POINT
Dismissal of complaint on account of failure to prove loan transaction need not be interfered with in appeal against acquittal.

Arali Nagaraj, J.- The complainant In C.C. No. 29320/2006 on the file of the learned XXII Addl. Chief Metropolitan Magistrate. Bangalore (hereinafter referred to as the Trial Court for short) has challenged in this appeal the judgment and order of acquittal dated 15.4.2008 passed in the said case acquitting the respondent accused of the offence under Section 138 of the Negotiable Instruments Act, 1881, (hereinafter referred to as the N.I. Act for short).

2. Though this matter is listed today for admission it is taken for final disposal by consent of the Learned counsel for both the sides and their arguments on merits are heard. I have perused the impugned judgment and the entire material obtained from the Trial Court.

3. Having heard the Learned Counsel for the parties the only point that arises for my determination in. this appeal is-

“Whether the Trial Court was justified in acquitting the accused ill the said case (respondent herein) of the offence under Section 138 of N.I. Act by recording its finding that the complainant failed to prove that legally enforceable debt payable to her by the accused was existing as on the date of the cheque in question?’.’

My finding on this point is in the affirmative and against the appellant-complainant for the following.

REASONS

4. Sri Y.N. Ganesh Bhat, the learned counsel for the appellant- complainant strongly contended that despite the accused admitting the issuing of cheque (Ex P1) in favour of the complainant the Trial Court committed serious error in acquitting the accused on the ground that the complainant failed to establish that the complainant lent the amount of Rs. 50,000/- to the accused and the latter issued Ex. P 1 cheque towards discharge of the said loan amount.

5. Per contra, Sri Govindraj, the learned counsel for the respondent-accused, while supporting the impugned judgment and order of acquittal, strongly contended that in view of the evidence of PW 1 complainant that she had no direct transaction of any kind with the accused and she did not receive the said cheque directly from the accused and that the entire transactions were through her husband (who has not been examined as witness for the complainant), the Trial Court was quite justified in acquitting the accused of the said offence.

6. On careful reading of the averments in the complaint, it is seen that the complainant has averred therein that during the first week of July, 2005, she lent a slim of Rs. 50,000/- by way of hand loan to the accused upon his promise and undertaking that he would repay the same within a period of 1-1/2 month. It is further averred in the complaint that when she (complainant) demanded the accused repayment of the said amount of Rs. 50,000/- he issued the cheque in question for the said amount and the same cheque, on being presented to the Bank, came to be bounced.

7. Thus, it is the specific case of the complainant in her complaint that it was she who lent the said amount to the accused and who received the cheque in question from the accused towards repayment of the said amount. But she has stated in her evidence that the accused had requested her husband to lend him some money and therefore, her husband had lent the said amount of Rs. 50,000/- to the accused and that she did not have any transaction directly with the accused in respect of the lending of the said amount to him. Thus, it is clear that whatever transaction took place, it took place between the husband of the complainant and the accused but not between the complainant and the accused. It is pertinent to note that the complainant has not chosen to get her husband examined as witness for her. This being so, the Trial Court rightly held that the complainant failed to prove the factum of lending of the said amount of Rs. 50,000/- to the accused and also the receipt of the cheque in question by the complainant herself towards discharge of the said loan amount. Therefore, I do not find any reasons to interfere with this