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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL APPEAL No.404/2011 C/W CRIMINAL APPEAL Nos.401/2011, 402/2011, 403/2011
BETWEEN:
SMT. SUMITHRA, AGED ABOUT 44 YEARS, W/O SIDDU, R/A RAILWAY POLICE QUARTERS., MAQ-15, PANDESHWARA, MANGALURU.
… COMMON APPELLANT
(BY SRI SACHIN B.S., ADVOCATE FOR M/S.DHARMASHREE ASSOCIATES)
AND:
B.S. SUDHIR, ADULT, FIREMAN/DRIVER, NO.2115, PUTTUR FIRE STATION, PUTTUR TOWN, DAKSHINA KANNADA.
... COMMON RESPONDENT
(BY SRI. P.P. HEGDE, ADVOCATE)
THESE CRIMINAL APPEALS ARE FILED UNDER SECTION 378(4) OF CR.P.C PRAYING THIS COURT TO SET ASIDE THE ORDER DATED 06.01.2011 PASSED BY THE JMFC (IV COURT), MANGALURU, D.K., IN C.C.NOS.6076/2008, 6059/2008,
2 6060/2008, 6077/2008 RESPECTIVELY ACQUITTING THE RESPONDENT/ ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT.
THESE CRIMINAL APPEALS COMING ON FOR HEARING THROUGH VIDEO CONFERENCE THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T
These appeals are filed by the complainant who is common in all the appeals and the accused is also common and the Trial Judge has delivered the judgment independently in all the four cases. Having heard the arguments of respective learned counsel, the case of the complainant is only one transaction of availing the loan, but issued four cheques and all the four cheques are dishonoured. Hence, this Court felt that all the matters have to be taken up together for common disposal. Hence, taken up for common disposal.
These appeals are filed challenging the judgment of acquittal dated 06.01.2011 passed in C.C.Nos.6070/2008, 6059/2008, 6060/2008, 6077/2008 on the file of the IV JMFC, Mangalore, Dakshina Kannada.
The factual matrix of the case is that the accused owed a sum of Rs.2,04,000/- to the complainant and in
3 discharge of the legally enforceable liability, he has issued four cheques drawn on Syndicate Bank for a sum of Rs.51,000/- each in favour of the complainant. The accused while issuing the cheques assured that the same would be honoured. The cheques were presented and those cheques were returned dishonoured to the complainant with an endorsement dated 03.05.2007 and for dishonour of all the four cheques, the complainant got issued notice dated 08.05.2007 through registered post for due compliance with regard to Section 138 of Negotiable Instruments Act, 1881 (‘NI Act’ for short). The notice was duly served on the accused on 10.05.2007. The accused did not comply the demand, instead he gave untenable reply dated 22.05.2007. Hence, the present complaints were filed.
In pursuance of the complaints, the Trial Court issued summons against the accused and thereafter secured him. The accused denied the acquisitions made in the complaint and claimed trial. The complainant in order to substantiate her case examined herself as P.W.1 and got marked the documents at Exs.P.1 to 5 i.e., cheque, bank memo, notice, acknowledgment and reply notice. The Trial Judge also recorded
4 the statement of the accused under Section 313 of Cr.P.C. The accused did not choose to lead any defence evidence. The Trial Judge after considering both oral and documentary evidence placed on record, acquitted the accused and hence these present appeals are filed before this Court.
The main contention of the learned counsel for the appellant/complainant in all the appeals is that the Trial Judge’s order is against the material on record and also contrary to law. The Trial Judge has failed to note that when the issuance of the cheques are not disputed, there is a statutory presumption regarding legally enforceable debt. The Trial Judge without considering the same, shifted the burden on the complainant. The accused even failed to step into the witness box and no documents are marked. The Trial Judge ought to have convicted the accused, instead of erroneously appreciated the evidence of record.
The learned counsel for the complainant in all the appeals vehemently contend that the Trial Judge has committed an error in appreciating both oral and documentary evidence placed on record. The learned counsel would submit that there is
5 no dispute with regard to the issuance of four cheques by the accused. The main defence raised by the accused is that the complainant is lending money and collecting the blank cheques as security and the complainant had obtained four cheques from the accused as security. The other defence is that he had borrowed an amount of Rs.20,000/- and repaid the amount with interest. The complainant refused to return the cheques after the repayment of the amount and those cheques are misused by the complainant and filed the present case.
The learned counsel would also submit that the Trial Judge considering the defence of the accused gave an erroneous finding in coming to the conclusion that the complainant has not proved the case. The learned counsel would submit that the Trial Judge ought to have drawn the presumption under Section 139 of the NI Act. Once the presumption is drawn and the cheque was not disputed, the burden lies on the accused to rebut the said presumption and the same has not been done. The accused did not choose to step into the witness box and not placed any plausible defence except making the suggestion in the cross- examination. Mere suggestion is not enough to come to a
6 conclusion that the complainant has not made out the case. The Trial Judge also committed an error in coming to the conclusion that the complainant was not having source of income and other observation that the complainant has not produced any documents and the findings of the Trial Court that it is impossible to give huge amount to the accused is also erroneous. The other reason given by the Trial Court is with regard to the financial capacity no documents are produced.
The learned counsel would also submit that the Trial Judge culled out unimportant material while giving the reasons and not drawn the presumption. When the accused has admitted the issuance of the cheques, there was no need of producing the documents as held by the Trial Court. Hence, the Trial Judge has committed an error in appreciating both oral and documentary evidence placed on record and hence it requires interference of this Court.
The learned counsel for the appellant relied upon the judgment of the Apex Court in the case of RANGAPPA v. SRI MOHAN reported in (2010) 11 SCC 441. Referring this judgment, the learned counsel would contend that the Apex
7 Court has categorically held that once the cheque has been admitted, the presumption has to be drawn. In the case on hand, the Trial Judge has not drawn the presumption.
The learned counsel also relied upon the judgment of Apex Court in the case of ROHITBHAI JIVANLAL PATEL v. STATE OF GUJARAT AND ANOTHER reported in (2019) AIR SC 1876 and brought to the notice of this Court paragraph Nos.6.1, 17, 18 and 19. The learned counsel referring paragraph No.19 would submit that with regard to source the Apex Court has categorically held that the observations of the Trial Court that there was no documentary evidence to show the source of funds with the respondent to advance the loan, or that the respondent did not record the transaction in the form of receipt of even kachcha notes, or that there were inconsistencies in the statement of the complainant and his witness, or that the witness of the complaint was more in know of facts etc. would have been relevant if the matter was to be examined with reference to the onus on the complainant to prove his case beyond reasonable doubt. These considerations and observations do not stand in conformity with the presumption existing in
8 favour of the complainant by virtue of Sections 118 and 139 of the NI Act. Needless to reiterate that the result of such presumption is that existence of a legally enforceable debt is to be presumed in favour of the complainant. When such a presumption is drawn, the factors relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration while examining, if the accused has been able to rebut the presumption or not. The other observations as regards any variance in the statement of complainant and witness; or want of knowledge about dates and other particulars of the cheques; or washing away of the earlier cheques in the rains though the office of the complainant being on the 8th floor had also been of irrelevant factors for consideration of a probable defence of the appellant.
The learned counsel referring this judgment would contend that that reasoning assigned by the Trial Court is contrary to the observations made by the Apex Court. Hence, this case is aptly applicable to the case on hand.
9 12. The learned counsel also relied upon the judgment of the Hon'ble Apex Court in the case of APC FOREX SERVICES PVT. LTD. v. SHAKTI INTERNATIONAL FASHION LINKERS AND OTHERS reported in 2020 SCC Online SC 193. The learned counsel referring this judgment brought to my notice paragraph No.21 with regard to the issuance of the cheques for the second time, after the earlier cheques were dishonoured and also regarding presumption under Section 139 of the NI Act. The further observation that to rebut the presumption, the accused was required to lead the evidence that full amount due and payable to the complainant has been paid. In the present case, no such evidence has been led by the accused. The story put forward by the accused that the cheques were given by way of security, is not believable in the absence of further evidence to rebut the presumption and more particularly the cheque in question was issued for the second time, after the earlier cheques were dishonoured.
The learned counsel referring this judgment would contend that the defence of the accused in this case is also that subject matter of the cheques are collected as security and also
10 he had availed the loan of Rs.20,000/- and repaid the same. Even though the accused did not choose to enter the witness box, the Trial Judge accepted the defence of the accused and committed an error.
The learned counsel also relied upon the judgment of this Court in the case of SRIPAD v. RAMADAS M. SHET reported in (2014) 4 AIR Kant R 98. The learned counsel referring paragraph No.15 of the judgment brought to the notice of this Court the observations made in the judgment regarding the Trial Court has culled out certain unimportant factors into its judgment stating that the complainant has not produced any material to show that the complainant has got such an amount of Rs.50,000/- to advance loan to the accused. He has not produced any income tax returns and the complainant has admitted that he has filed several complaints on the basis of the cheque for recovery of the amount. These materials are totally irrelevant so far as this case is concerned. The Trial Court has not appreciated the evidence on record led by the parties but swayed away by relying upon unimportant and irrelevant materials.
11 15. The learned counsel referring this judgment would contend that in the case on hand also the Trial Judge has culled out certain unimportant factors to come to a conclusion that the complainant has not proved the case. Hence, this judgment is aptly applicable to the case on hand.
The learned counsel also relied upon the judgment of this Court in the case of SRI YOGESH POOJARY v. SRI K. SHANKARA BHAT reported in ILR 2019 KAR 493 and brought to my notice paragraph Nos.8 to 10 with regard to the presumption. When the cheque is admitted, the Court is bound to draw the presumption and the presumption has to be rebutted by placing the material before the Court. There must be plausible evidence before the Court to accept the defence of the accused. Inspite of no circumstances are made out by the accused, the Trial Judge has committed an error in acquitting the accused.
Per contra, learned counsel appearing for the accused brought to the notice of this Court that Ex.P3-notice and further contend that the complaint is also silent regarding lending of money. The learned counsel also referring the
12 evidence of complainant would contend that in the cross- examination, the accused has probabilised his defense which has been taken. The accused admitted availing of loan of Rs.20,000/- and categorically contended that the said amount was repaid and several demands were made to return the cheques but she did not return the cheques instead of mis-used those cheques. The learned counsel draws the attention of this Court with regard to cross-examination of P.W.1 and would submit that the accused has probabilised the case.
The learned counsel would submit that there was no reason for the accused to have approached for availing the loan and nature of transaction is also not mentioned whether it is for interest or without interest. The relationship between complainant and accused is also not stated in the complaint and the fact that the complainant is the wife of a Railway Police is also suppressed. Date of loan is also not specified in the complaint as well as in the notice and even in the chief evidence. The complainant is the wife of the Police Constable. How she got the money, what was the source of her income and mode of payment also not stated and only the cheques, which are
13 collected from the accused at the time of availing the amount of Rs.20,000/- was mis-used. The complainant also in the cross- examination categorically admits that the accused has demanded to return the cheques. Hence, the defence of the accused is made out that after repayment of the amount which he was availed to the extent of Rs.20,000/- is repaid. Thereafter, he demanded the complainant to return the cheques.
The learned counsel would submit that in the elaborate cross-examination of P.W.1, the case of the accused was probabilised, though P.W.1 categorically admits that she is having documents to produce with regard to the financial capacity to make payment and also doing the cloth business, nothing is produced before the Trial Court. The Trial Court has rightly appreciated the material available on record and come to the right conclusion that the complainant has not made out the case.
The learned counsel also would submit that under Section 269S of the Income Tax Act, if any payment more than Rs.20,000/- and the same has to be issued through cheque and
14 also under Section 269SS of the Income Tax Act, there is a provision for penalty for non-compliance of the Income Tax Act.
In support of his contention, he relied upon the Judgment in the case of John K. Abraham v. Simon C.Abraham and another reported in (2014) 2 SCC 236, and brought to the notice of this Court in paragraph Nos.6.1, 6.2 and 6.3 with regard to source, date of transaction and nature of transaction. Though, the complainant admits that having documents to show that she was having the money, no documents are produced and also the learned counsel brought to the notice of this Court in paragraph No.9 of the Judgment with regard to rebuttal of the presumption and further contended that the burden was heavily upon the complainant to have shown that he had the funds for having advanced the money to the accused; that the issuance of the cheque in support of the said payment advanced was true and that the accused was bound to make the payment as had been agreed while issuing the cheque in favour of the complainant, the same has not been done by the complainant. Hence, the learned counsel would submit that the Judgment is aptly applicable to the case on hand.
The learned counsel also relied upon the judgment in the case of K. Subramani v. K.Damodara Naidu reported in
(2015) 2 SCC 99, and referring to this Judgment brought to the notice of this Court in paragraph No.9 of the Judgment with regard to source of the complainant and the complainant failed to prove that there is legally recoverable debt payable to the accused. Hence, this Judgment also aptly applicable to the case on hand.
The learned counsel also relied upon the judgment reported in Basalingappa v. Mudibasappa reported in (2019) 5 SCC 418, and referring to this Judgment brought to the notice of this Court in paragraph Nos.25.3, 26 and 29 submits that the Apex Court though discussed with regard to the presumption under Section 139 of the NI Act held that the presumption is rebuttable and in order to rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought
16 on record by the parties but also by reference to the circumstances upon which they rely.
The learned counsel has referred to this Judgment with regard to the contention of the complainant counsel that the accused did not choose to enter into the witness box. The learned counsel also brought to the notice of this Court in paragraph Nos.26 and 29 with regard to financial capacity as well as contradictions and would contend that in the cross- examination of PW.1, the accused has disputed the financial capacity of the complainant and also answers elicited from the mouth of PW.1 clearly shows that the accused has made out the preponderance of probability of the case.
The learned counsel also relied upon the Judgment on par with the complainant’s Counsel in APC FOREX SERVICES PVT. LTD’s case (supra), and brought to the notice of this Court in paragraph No.20 with regard to the financial capacity and also would submit that the Court has to satisfied that the accused had a probable defence and consequently in the absence of complainant having failed to prove his financial capacity, this Court acquitted the accused. The learned counsel
17 referring to this Judgment would contend that this Judgment is helpful to the accused and not to the complainant.
The learned Counsel also relied upon the unreported Judgment of this Court passed in Criminal Appeal No.2784/2012 and would submit that with regard to the capacities is concerned, this Court discussed the Judgment of the Apex Court in the case of BIR SINGH v. MUKESH KUMAR reported in
(2019) 4 SCC 197 and assigned the reasons in paragraph No.17 of the Judgment and come to the conclusion that the complainant fails to prove the case.
The learned counsel also relied upon the judgment in the case of K. PRAKASHAN v. P.K. SURENDERAN reported in
(2008) 1 SCC 258, and referring to this Judgment, the learned counsel would submit that in order to interfere with the Judgment of the Trial Court, there must be perversity or illegality, then only the Court can reverse the Judgment of acquittal. When two views are possible, Appellate Court cannot reverse the findings of the Trial Court and benefit of doubt goes in favour of the accused.
18 28. The learned counsel relied upon the Judgment of the Apex Court in the case of ANSS RAJASHEKAR V. AUGUSTUS JEBA ANANTH reported in 2019 SCC OnLine SC 185, and referring to this Judgment, the learned Counsel brought to the notice of this Court in paragraph No.11 with regard to, it is necessary to consider whether the presumption under Section 139 stands rebutted by the accused or not.
Having heard the arguments of learned counsel appearing for the appellant/complainant and the learned counsel appearing for the respondent/accused and also on perusal of the grounds urged in the appeal memo and considering the material available on record, the points that would arise for consideration of this Court are: (i) Whether the Trial Judge has committed an error in dismissing the complaint and whether it requires an interference of this Court?
(ii) What order?
Point Nos.(i) and (ii)
Having heard the submissions of both the Counsel and also considering the material available on record, i.e.,
19 pleadings as well as the documents produced and also the answers elicited from the mouth of the witness-P.W.1, this Court has to re-appreciate the material. The complainant in support of her cases, she examined herself as PW.1 and got marked the documents as Exs.P1 to P5. The accused did not choose to lead any defense evidence rebutting the evidence of the complainant. Before re-appreciating the material available on record both oral and documentary evidence, firstly, this Court would like to consider the evidence of the complainant, who has been examined as PW.1.
PW.1 in the affidavit in view of the chief evidence reiterated that the accused owes a sum of Rs.2,04,000/- to the complainant and in discharge of the said legally enforceable liability, accused had issued four cheques for an amount of Rs.51,000/- each. It is also her case that notice was issued and inspite of service of notice, he gave an untenable reply. He was subjected to cross-examination. In the cross-examination, it is elicited that she has been acquainted with the accused for the last eight years since the accused office is also located near her house and the accused is also working as a driver in Fire Service
20 Department. It is elicited that she is having acquaintance with the accused since she is doing cloth business from the last ten years. It is elicited that she is not having any bills for doing cloth business, but she claims that she is having the accounts. It is also elicited that from 2003 to 2004, he was purchasing the clothes. Thereafter, from the last 2 to 3 years, he is not coming to purchase the clothes. It is also elicited that this transaction is not in respect of purchasing of clothes and she can produce the books of accounts in respect of her cloth business. The complainant also admits that she has paid the tax from 2003 to 2004 and she can produce those documents before the Court. It is elicited that she did not inform her advocate about her cloth business. The complainant admits that her husband is a Railway Police and she is not having any other document that the accused had purchased the clothes from her. The witness volunteers that she can produce those documents. It is elicited that she has given two more complaints other than this complaint. It is elicited that the accused had borrowed the amount in the month of October 2006 and she has not given the instructions to her Counsel while issuing the notice. It is elicited that she gave the money in cash and the said amount was in her
21 residence and she used to keep the amount to the extent of Rs.1 Lakh to Rs.2 Lakhs and the said amount was kept for her business. It is elicited that she has filed five cheque bounce cases against Naveen, Mallesh, Balakrishna, Ramesh Kumar and Chandran. Naveen and Mallesh were also working in the same Fire Service Department. Ex.P1-Cheques are given in the month of April 2007 and the same were given since the accused had availed the loan in the year 2006. In all the cheques the dates are also mentioned and he brought those cheques after writing the same and in her presence he has not signed and she cannot tell in whose hand-writing those cheques are written. It is elicited that the accused has demanded Rs.2,25,000/-, but she gave only an amount of Rs.2,04,000/-. It is further elicited that she gave an amount of Rs.1 Lakh earlier and thereafter she gave Rs.1,04,000/- and the accused had requested her in the year 2006 for loan and does not remember the date and month. The said amount was given within 3 days of request made by the accused. Firstly, an amount of Rs.1 Lakh and thereafter within 2 to 3 days remaining amount of Rs.2,04,000/- was given. As security, she did not collect any cheque or any document. It is elicited that the accused has borrowed the loan to construct his
22 house since she claimed that she has not seen the construction of his house at Ekkur and also she did not visit the said place. It is elicited that she is having the Bank account in Syndicate Bank and also at Vijaya Bank and she can produce her Bank account. It is elicited that except this transaction no other transactions took place between them. It is further elicited that the accused requested to return all the four cheques which were in her custody. It is further elicited that the amount of Rs.1 Lakh was given in the first week of October 2006 and the remaining amount of Rs.1,04,000/- was given in the month of December 2006. It is further elicited that the accused himself wrote the cheques and handed over the same to the complainant. Now, this Court has to consider the material available on record in keeping the respective contentions urged by both learned counsel for the complainant and also learned counsel for the accused.
Having perused the Judgments referred by both learned counsel for the complainant and also learned counsel for the accused, it is settled law that if the cheque is admitted, the
23 Court has to draw the statutory presumption under Section 139 of the NI Act.
The learned counsel appearing for the accused also relied upon the Judgments of the Apex Court in the case of KRISHNA JANARDHAN BHAT v. DATTATRAYA G. HEGDE reported in 2008 (2) SCC (Cri) 166 and in RANGAPPA’s case (supra) with regard to the presumption of legally recoverable amount is concerned held that the principles laid down in KRISHNA JANARDHAN BHAT’s case (supra), regarding legally recoverable amount is concerned, held that, it is not a correct law in page-14 of the Judgment. The judgments referred by the accused Counsel are also with regard to the financial capacity and also with regard to inconsistency in the evidence of the complainant and also with regard to the presumption is rebuttable presumption. It is clear that the presumption under Section 139 of the NI Act is a rebuttable presumption. It is also settled law that the presumption is rebutted either by leading the evidence i.e., entering into the witness box or effectively cross-examining the complainant with regard to the transaction. There are two modes to rebut the same.
The learned counsel appearing for the accused also referred to the Judgment of Basalingappa’s case (supra) with regard to the source and financial capacity. The Apex Court also recently held that if the complainant makes out a case that the accused has given the cheques in discharge of legally recoverable debt, the source is not the criteria. The question before this Court is whether the case of the Complainant is rebutted or not.
Learned counsel appearing for the Complainant would submit that the Trial Judge has culled out an unimportant material and come to an erroneous conclusion that the accused has made out a probable case. Now, this Court has to examine whether there is any plausible evidence before the Court to accept the case of the complainant and also to examine whether the accused has made out the case by probabilising his defense. The main defense of the accused is that he borrowed only an amount of Rs.20,000/- and he gave four cheques as security. The accused also claims that he repaid that amount with interest and the complainant did not return the cheques in spite of the demand. It is pertinent to note that in the cross-examination of
25 PW.1, she categorically admits that the cheques four in number, which are in her custody, the accused requested her to return the same. The first defense of the accused is probabilised that after making the payment he requested the complainant to return the cheques. The admission of PW.1 is clear that there was a demand by the accused to return the cheques. It is also important to note that in the cross-examination of PW.1, it is categorically admitted that she is having acquaintance with the accused in connection with her cloth business and this accused used to purchase the clothes from her. In order to show that he used to purchase clothes, no document is placed and also in order to substantiate her claim that she is doing the cloth business also, no document is placed by her. Though she admits that she is having documents for paying the tax, no document is produced in this regard also. PW.1 has categorically admitted that her husband is working as Railway Police. It is also important to note that on perusal of the complaint except mentioning that this accused owes an amount of Rs.2,04,000/- nothing is stated with regard to the purpose for which the accused had availed the loan. The nature of the transaction also has not been stated and the complaint is very bald. On perusal
26 of Ex.P3-notice also, it is stated that the accused owes a sum of Rs.2,04,000/-; no where and on what date the transaction took place between the complainant and accused has not been stated. In the cross-examination of PW.1 in one breadth, she says that the accused demanded a loan of Rs.2,25,000/-, but she was able to pay the amount of Rs.2,04,000/-. In one breadth, PW.1 claims that an amount of Rs.1 Lakh was paid immediately in the month of October and within 3 to 4 days, she paid the remaining amount of Rs.1,04,000/-. But in the further cross-examination in one breadth, she says that the amount of Rs.1 Lakh was paid in the month of October and the remaining amount of Rs.2,04,000/- was paid in the month of December. The answer elicited from the mouth of PW.1 is contrary to her own admission given earlier. No doubt, the Court can draw the presumption under Section 139 of the NI Act and the Court also to examine whether the accused has rebutted the evidence of the complainant. The answer elicited from the mouth of PW.1 regarding the very lending of an amount of Rs.2,04,000/- to the accused is very doubtful. Though she claims that she is having the amount from the cloth business, no document is placed. For having lent the money also to the accused is also doubtful.
27 PW.1 claims that the amount was given in cash and she was having the said cash in her residence, keeping the same for her business. First of all for doing the business of clothes, she has not placed any material before the Court and also though she claims that she is having an account in Syndicate Bank and Vijaya Bank, she did not place any material before the Court though, she claims that she can produce the passbook. It is also important to note that except this transaction no other transactions with the complainant and the accused. It is also elicited from the mouth of PW.1 that she had filed five criminal cases against different persons since she lent the money to five persons and out of that two persons belong to the accused office. It is also pertinent to note that she claims that she lent the money without any interest and it is rightly pointed out by the learned counsel appearing for the accused that the same is unnatural. When the complainant lent the money to this accused and also to several persons, the very claim of the complainant that she lent that amount without interest was also doubtful. When the accused has made out the ground that he demanded to return the cheques, which are in the custody of the complainant. When there is a specific admission on the part of
28 the complainant that he has demanded to return the cheque why he demanded to returned the cheque, there is no explanation. Hence, this Court can draw an inference that the amount which was paid to the accused was returned. Hence, the accused has demanded to return the cheques, which were in the custody of the complainant.
The very contention of the complainant’s counsel is that the accused has not led any evidence cannot be accepted even in the absence of leading the evidence entering into the witness box the accused can rebut the evidence of the complainant.
The other contention is that no plausible evidence to believe the defense of the accused also cannot be accepted and the answers elicited from the mouth of PW.1 creates a doubt with regard to lending of money of Rs.2,04,000/- that too by a wife of Railway Constable. Though, PW.1 claims that she is having her own independent income out of her cloth business nothing is placed before the Court.
29 38. The Trial Judge while considering the case of the complainant and the accused in detail discussed the evidence available on record and particularly in paragraph Nos.14 to 18 culled out the answers elicited from the mouth of PW.1 and dis- believed the evidence of the complainant from lending an amount of Rs.2,04,000/- not only in respect of the transaction and also with regard to the financial capacity to lend the money of Rs.2,04,000/-. It is rightly pointed out by the learned counsel appearing for the accused that referring to the Judgment of the Apex Court in K. PRAKASHAN’s case (supra), that the Appellate Court while reversing the finding take note of the perversity if any and if no perversity, two views are possible, the benefit of doubt goes in favour of the accused.
In the case on hand to reverse the finding of the Trial Court, I do not find any error committed by the Trial Court in appreciating the evidence. First of all the very lending amount of Rs.2,04,000/- that too by a wife of Railway Police is doubtful. The accused also did not dispute the fact that he availed the loan, but he claims that he availed the loan of Rs.20,000/- and the same was re-paid. It is also important to
30 note that PW.1 herself has categorically admitted that the cheques are four in number, which were in her custody, the accused demanded to return those cheques.
I have already pointed out that no explanation on the part of the complainant regarding what made the accused to demand her to return those cheques if the amount has not been paid. It is also important to note that PW.1 categorically admits that when the amount of Rs.2,04,000/- was lent to the accused and not collected either the cheques or any documents and this transaction is the only one transaction without any document of cheque or any documentary proof for lending the money also cannot be accepted and the same is also un-natural.
Having taken note of all these answers elicited from the mouth of PW.1, the accused has made out the plausible defense and the trial Judge also appreciated the same in detail discussing the evidence of PW.1. This Court has already held that the case of the complainant can be rebutted by two modes i.e., by effective cross-examination and also entering into the witness box. Though, the accused did not choose to enter into the witness box and in the cross-examination of PW.1 effectively
31 cross-examined with regard to creating a doubt with regard to lending money to the tune of Rs.2,04,000/-. Hence, I do not find any grounds to interfere with the findings of the Trial Court and there is no material to reverse the finding of the Trial Court. The very contention is that the Trial Court has culled out the unimportant answers elicited from the mouth of PW.1 in her cross-examination and passed an erroneous Judgment cannot be accepted.
In view of the discussions made above, I proceed to pass the following: ORDER The appeals are dismissed.
Sd/-
JUDGE MD/cp*