Docid # IndiaLawLib/1011165

KARNATAKA HIGH COURT

SINGLE BENCH
( Before : A.N. Venugopal Gowda, J. )

SUSANNA GEORGE — Appellant

Vs.

S.J. SURESH — Respondent

Criminal Appeal No. 58/2013
Decided on : 02-02-2016

Criminal Procedure Code, 1973 (CrPC) - Section 313

Negotiable Instruments Act, 1881 (NI) - Section 118, Section 138, Section 139

Counsel for Appearing Parties

Venkatesh R. Bhagat, Advocate, for the Respondent

JUDGMENT

A.N. Venugopal Gowda, J.—1. The complainant, aggrieved by the Judgment of the Trial Court, acquitting the accused,
in a case related to the dishonour of the cheque, under S. 138 of the Negotiable Instruments Act, 1881 (for short, 'the
Act'), has filed this appeal.
2. The case in the complaint was that the accused being a known person, borrowed Rs. 4,50,000/- by assuring
repayment within four months and after repeated request and demand, issued cheque (Ex. P1) i.e., towards repayment.
The cheque was dishonoured by the bank with the endorsement insufficient fund' (Exs.P2 & P3). A notice demanding
payment (Ex. P4) was issued. There was neither a reply nor payment of the cheque amount. Hence, private complaint
was filed on 06.11.2008 and registered as PCR 55/2008. Cognizance was taken for the offence punishable under S. 138
of the Act and process was issued to the respondent in C.C. No. 117/2009 by the JMFC, Hunsur. The accused appeared
and pleaded not guilty and claimed trial. Complainant deposed as PW-1 and marked Exs.P1 to P8. The accused was
examined under S. 313 Cr.P.C. He denied the accusation and produced a document, which was marked as Ex. D1. The
Magistrate having regard to the rival contentions and upon appreciation of the evidence and finding that the complainant
has failed to prove that Ex. P1 was issued by the accused towards discharge of legally enforceable debt, by holding that
the accused has shown that there does not exist any legally enforceable debt, acquitted the accused.
3. Learned advocate for the appellant contended that the learned Trial Judge has committed error in the matter of
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appreciation of the evidence and the presumption available under Ss. 118 and 139 of the Act having not been rebutted,

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the judgment of acquittal passed is illegal. Learned counsel submitted that the impugned Judgment being contrary to the

138 of the Act.

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record of the case and the law, is liable to be set aside and the respondent convicted for the offence punishable under S.

4. Learned advocate for the respondent on the otherw

by the learned Trial Judge and the finding being notaperverse or illegal, no interference with the impugned Judgment is
hand contended that there being correct appreciation of evidence

aL in the case of the complainant and submitted that in the facts

and circumstances of the case, the judgment ofiacquittal passed does not call for interference.
called for. Learned counsel pointed out the discrepancies

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5. Keeping in view the rival contentionsnandd the record of the case, the point for consideration is, whether the accused
has rebutted the statutory presumption contemplated by S. 139 of the Act?
6. Ex. P4 is the demand notice. Therein it has been stated as follows:
"1. As you are well aware that you are due with regard to the some of the bills of the Hotel worth a sum of Rs.
4,50,000/- (Rupees Four lakhs fifty thousand only) to my client for your legal necessities, and agreed to repay the
borrowed amount within 6 months.
2. That when you failed to repay the aforesaid loan amount thereof before the expiry of the aforesaid period, my client
approached you and demanded for repayment of the said amount."
7. In the private complaint filed, it was alleged as follows:
"1. The complainant and accused are known to each other the accused had received a Sum of Rs. 4,50,000/- (Rupees
four lakhs fifty thousand only) for his legal necessities promising him to repay the same within four months.
2. That after repeated request and demand made by the complainant to repay the aforesaid amount, the accused
issued a cheque bearing No. 230618, dated: 16.08.2008, for Rs. 4,50,000/- drawn on Canara Bank main Branch,
Mysore, and assured to recover the same by presenting the said cheque."
8. In the sworn statement filed by way of affidavit i.e., in lieu of the examination of the complainant, in the matter of
taking cognizance of the offence, it was stated as follows:
"1. I do swear that, I know the accused and he had received a sum of Rs. 4,50,000/- (Rupees Four Lakh and Fifty
Thousand only) for his legal necessities from me promising him to repay the same within two months.
2. Further I repeatedly requested and demanded to repay the aforesaid amount, the accused issued a cheque bearing
No. 230618, dated: 16-08-2008 for Rs. 4,50,000/-drawn on Canara Bank, Main Branch, Mysore and assured to recover
the same by presenting the said cheque."
9. The complainant, at the relevant point of time was a Teacher in a Government School. During 2007-08, her salary
was Rs. 12,000/- p.m. Apart from being a Teacher, she was not doing any other business. Her husband had retired from
service. She has stated that the amount of Rs. 4,50,000/- was taken 'about 11 years back'. She has asserted that the
contents of Ex. P8 is correct. She has admitted the recitals in Ex. D1, which also makes reference to the cheque Ex. P1. It
is on account of the said evidence and the discrepancies/contradictions, the Trial Judge has held that there is no legally
enforceable debt and that the presumption with regard to Ex. P1 has been rebutted by the accused, by production of Ex.
D1.
 10. The complainant is working as a Teacher in a Government School. At the relevant time, when the loan was
allegedly advanced, she was a Government servant. She is governed by the Government Servants' Conduct Rules, which
prescribe the mode of lending. It is not the case of the appellant that she obtained the permission of the employer and
advanced the loan.
11. The appellant having meagre salary income had no capacity to advance loan of Rs. 4,50,000/- to the respondent.
No record has been produced in proof of the savings and the withdrawal for the purpose of advancing huge sum as loan.
The complainant has not produced any credible material in proof of her capacity to advance loan, that too eleven years
prior to the date of issuance of the cheque -Ex. P1. The sum was not advanced once, but on different occasions. If that be
so, there ought to have been record showing the dates and the respective sums advanced, which accumulated to Rs.
4,50,000/-. There is no debt or consistency even in the pleading. Whether it is debt or other liability is itself doubtful.
The period of repayment is also at variance.
12. The Trial Judge having taken into account the testimony of the complainant and on consideration of the entire oral
and documentary evidence on record has come to the conclusion that the complainant had no source of income to lend
the sum of Rs. 4,50,000/- and failed to prove that there is legally recoverable debt payable by the accused to her.
13. In my opinion, the material evidence on record has been assessed and correctly appreciated. The Trial Judge has
not omitted from consideration any material evidence and there is no misreading of the deposition of PW-1 or the
exhibited documents. In the circumstances, the finding recorded cannot be termed as perverse.
14. In view of the discrepancies in the case of the appellant, the Trial Judge is justified in holding that the presumption
under S. 139 of the Act as having been rebutted by the accused. There is no merit in the appeal.
In the result, appeal is rejected.
Final Result : Dismissed

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