(Prayer: This Criminal Appeal is filed under Section 378(4) Cr.P.C praying to set aside the judgment and order of acquittal dated 4.3.2009 passed by the II Addl. C.J. (Jr.Dn.) and JMFC, Kadur in C.C.No.942/2007 - acquitting the respondent/accused for the offence punishable under Section 138 of Negotiable Instruments Act.)
1. The learned Trial Judge has acquitted the accused of an offence punishable under Section 138 of Negotiable Instruments Act. Therefore, complainant is before this Court.
2. I have heard Sri Dinesh, learned counsel for complainant and Sri V
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ijaykumar, learned counsel for accused.
3. The averments of the complaint would reveal that in the year 2004, accused was in need of money. Therefore, he approached the complainant. The complainant mortgaged his properties in favour of DCC Bank of Singatagere and raised loan of Rs3,50,000/-. The complainant gave a sum of Rs.2,50,000/- to accused with an understanding that accused shall discharge the loan and redeem the properties of the complainant mortgaged to the bank. The accused did not stand by his words. Therefore, complainant contacted the accused. The complainant on one side, the accused, his wife and his children represented by accused entered into an agreement on 18.7.2005, wherein the accused, his wife and children represented by the accused (father being guardian) agreed to discharge loan in favour of bank and agreed to repay the loan and upto date interest to the bank and get the properties redeemed. The accused did not stand by his words. Therefore, complainant and accused again entered into an agreement on 18.3.2006, wherein accused agreed to pay entire loan of Rs.2,50,000/- and the accrued interest to the bank. It is also said in the agreement that in case if accused fails to repay loan amount and upto date interest to the bank, the complainant was at liberty to take any action against the accused. The complainant was also given right to sell the properties belonging accused and appropriate the sale consideration towards the loan amount.
On 31.12.2006, accused issued a cheque in favour of the complainant for a sum of Rs.3,53,664/- being the principal amount of Rs.2,50,000/- and interest accrued thereon. The cheque was drawn on Chikmagalur Kodagu Grameena Bank, Kadur. On presentation, the cheque was dishonoured for want of sufficient funds. Thereafter, the complaint was initiated.
4. The learned Trial Judge on appreciation of evidence held that the complainant has failed to prove that as on 31.12.2006, accused was due in a sum of Rs.3,53,664/- to complainant. The complainant has not proved existence of legally recoverable debt. Therefore, presumption under Section 139 cannot be raised in favour of complainant. The learned Trial Judge has accepted defence of accused that the cheque was given as a security.
5. The learned counsel for complainant relying on a decision of the Supreme Court in AIR 2010 SUPREME COURT 1898 (in case of RANGAPPA v. MOHAN) submitted that the presumption available under Section 139 of Negotiable Instruments Act, also extends to the existence of legal enforceable debt or liability. The accused has not disputed that certain cheque was drawn by him in favour of complainant. In the circumstances, the Trial Court should have raised a presumption in favour of the complainant.
6. In the decision reported in AIR 2010 SUPREME COURT 1898, the Supreme Court has held thus:
"Ordinarily in cheque bouncing cases, what the courts have to consider is whether the ingredients of the offence enumerated in Section 138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by Section 139 of the Act"
The Supreme Court has further held that basic ingredient for raising a presumption regarding existence of legally recoverable debt is the transaction entered into between the parties.
7. In case on hand, it is specific case of the complainant that he had raised loan from DCC Bank, Singatagere by mortgaging his property and paid the same to accused who had agreed to repay the loan to the bank with the interest accrued thereon. The complainant has not produced the documents to show that he had mortgaged the property and raised loan. The complainant has not produced documents to show that as on 31.12.2006, he was due in a sum of Rs.3,53,664/- to the bank. The agreement dated 18.7.2005 (Ex.P5) relied upon by the complainant would disclose that not only the accused but also his wife had undertaken to discharge the loan. The next agreement dated 18.3.2006 (Ex.P6) relied upon by the complainant would reveal that if the accused fails to discharge loan raised by complainant from DCC Bank, the complainant was at liberty to take any action against him. The complainant is at liberty to appropriate the loan amount by selling the properties of the accused. In my considered opinion, these documents do not establish the existence of legally recoverable debt i.e. a sum of Rs.3,53,664/- as on 31.12.2006. If the complainant had raised the loan from the bank and paid the same to the accused with an understanding that accused shall repay the loan amount and interest to the bank to redeem the properties of the complainant, the best evidence relating to liability of the accused was available with the bank. The complainant for the reasons best known to him, has not caused production documents to prove that as on 31.12.2006 he was due in a sum of Rs.3,53,664/- to the bank and that obligation of discharging that loan was on the accused and the accused had issued the dishonoured cheque to discharge the afore stated debt or liability. In the circumstances, the learned trial Judge was justified in acquitting the accused. There are no reasons to interfere with the impugned judgment. The appeal is dismissed.