CAV Judgment

1. This appeal is preferred against judgment dated 29.6.2011 passed by Judicial Magistrate First Class, Ambagarh Chowki, in Criminal Case No.15/2010 wherein the said Court acquitted the respondent for the charges under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act 1881').

2. As per the appellant, he and the respondent were class mates and neighbours and both are working as Shiksha Karmi Grade-II. In the month of June 2009, when the respondent/accused misused the fees of the students, he requested the appellant to help him in the peculiar circumstances of his service. Considering the critical position of the respondent, the appellant agreed to give him Rs.80,000/- on 25.6.2009 and on the same date the respondent orally promised to return the amount within three months. After the stipulated period, the amount was not returned but the respondent gave the appellant a cheque bearing No.978282 dated 01.10.2009 issued by Dena Bank Branch at Ambagarh Chowki. When the cheque was presented for clearance, the same was dishonoured due to insufficient fund. The appellant issued a legal notice in relation to dishonour of cheque but after receiving the notice the respondent failed to remit the balance within the stipulated period and there was no such option available to the appellant except to file a complaint under Section 138 of the Negotiable Instrument Act, 1881. However, the trial Court acquitted the respondent from the charges, hence the appeal.

3. Learned counsel for the appellant submits as under:

(i) Finding of the trial Court that no document is written in favour of the appellant by the respondent regarding loan amount, therefore, liability of debt is not proved, is totally perverse, illegal looking to the provisions of the Act, 1881.

(ii) The trial Court has ignored the provisions of the Act 1881, therefore, finding is based on conjecture and surmises which is not sustainable under the law of the land. Judgment passed by the trial Court should be set aside and the respondent should be punished for the offence in question.

4. On the other hand, learned counsel for the respondent submits that the finding arrived at by the trial Court is based on proper marsheling of evidence and the same is not liable to be interfered with.

5. I have heard learned counsel for the parties and perused record of the court below in which impugned judgment is passed.

6. In the present case, the appellant/complainant was examined himself as PW-1, Ramcharan Sahu, Branch Manager of the Gramin Bank was examined as PW-2 before the trial Court. As per the version of Bulakiram Dewangan (PW-1), the respondent borrowed a sum of Rs.80,000/- from him on 25.6.2008 and agreed to return the amount within three months. After three months the amount was not returned but a cheque was issued in favour of the appellant on 01.10.2009 to the tune of Rs.80,000/-. The cheque was presented before the bank for clearance but the same was dishonoured for insufficiency of fund. Version of this witness is unrebutted in cross examination and it is supported by the version of Ramcharan Sahu (PW-2). From the evidence of the complainant (PW-1), it is established that after dishonour of the cheque one notice was issued to the respondent (Ex-P/4) which was received by him, but the amount was not remitted to the appellant that is why complaint was filed. The respondent did not enter into witness box before the trial Court to rebutt the evidence against the appellant, therefore, the evidence laid by the appellant is unrebutted and there is nothing on record to disbelieve the oral and documentary evidence adduced by the appellant.

7. Learned counsel for the respondent submits that the appellant has not shown his source of income, therefore, it is not established that Rs.80,000/- was given by the appellant to the respondent. He placed reliance in the matters of Rumi Hazarika vs. Anirban Hatikakoty reported in (2016) ACD 885, K. Subramani Vs. K. Damodara Naidu