TaxTMI 
TaxTMI 
TaxTMI 
2020 (11) TMI 886
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....001 the accused met the complainant and after calculating the outstanding principal and interest issued a cheque for a sum of Rs. 59,000/- dated 06.12.2001. When the cheque was presented, the same was dishonoured and again notice was issued on 27.12.2001. In spite of service of notice, he has not given any reply and did not comply with the demand made in the notice. Hence, a complaint has been filed. 4. The Trial Court has taken the cognizance and thereafter accused denied accusation made in the complaint. Hence, complainant examined himself as P.W.1 and got marked the documents as Exs.P.1 to P10. Statement of the accused under Section 313 of the Code of Criminal Procedure was recorded and thereafter accused examined himself as D.W.1 and documents Exs.D.1 to 12 confronted to the witness P.W.1 and got marked. The Trial Court after considering the oral and documentary evidence, acquitted the accused. Hence, the present appeal is filed before this Court. 5. The grounds urged in the appeal are that the Trial Judge has not properly appreciated the material available on record, particularly, when it is admitted from the mouth of D.W.1 regarding the loan transaction. The Trial Judge has....
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....rial Court he himself paid Rs. 5,000/- towards this loan transaction cheque. In spite of this admission, the Trial Judge made the observation doubting the transaction between complainant and accused. Hence, it requires the interference of this Court. 9. Per contra, learned counsel appearing for the accused in his argument vehemently contended that the Court cannot consider stray admission given by D.W.1 during the course of cross-examination. Learned counsel also submitted that there is a discrepancy with regard to the entries made in the record maintained by Ravi Finance Firm, which has been marked as Ex.P.9. The learned counsel also brought to the notice of this Court that in page Nos. 57 and 58 of ledger-Ex.P.9 and would contend that there cannot be a subsequent entry in respect of earlier loan transaction and the trial Judge comes to the conclusion that there was no such loan transaction and also submitted that the accused availed a loan in the year 1999 and no loan was availed in the year 2000. The learned Counsel also submitted that nothing has been stated in the complaint with regard to the earlier loan transaction between the complainant and the accused and the complainant....
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....fter gave a cheque dated 6.12.2001 for an amount of Rs. 59,000/-. The said cheque was presented and the same was dishounoured on 12.12.2001. Hence, notice was sent on 27.12.2001, the same was served on the accused and accused did not choose to give any reply or comply with the demand. Hence complaint was filed. 14. The complainant in order to substantiate his contention, he himself examined as P.W.1 and reiterated the contents of the complainant. The complainant also reiterated that on 12.08.2004 accused has made payment of Rs. 5,000/- through his counsel. To that effect, the complainant had issued a receipt. 15. P.W.1 was subjected to cross-examination. In the cross-examination, P.W.1 admits that he is running a Finance Firm from the year 1994 in the name and style of "M/s.Ravi Finance". He has also submitted that he used to collect the loan amount every day from the borrowers and also they used to issue pass book. He also admits that when the loan amount was repaid he used to issue the receipt to that effect. Ex.D.1 confronted to witness and admits the same and he says the same is in respect of loan transaction dated 01.12.1999 for having received a sum of Rs. 50,000/-. He also....
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.... 07.11.2001 for demanding the amount that he had not paid. He had not given any reply to the notice. He categorically admits that he went to enquire with the financier. He also admits that he has not given any reply to the notice. It is suggested that he had given the cheque dated 6.12.2001 and the said suggestion was denied. However, he admits that while availing loan on 01.12.1999, apart from promissory note he had given blank cheque and admits the signature available on the cheque-Ex.P.1 as Ex.P.1A. He also admits that the notice was given on 27.12.2001 and the same was served on him. It is suggested that there is an entry in Ex.P.9 ledger at page 58 for having availed the loan of Rs. 50,000/- and the said suggestion was denied. He also admitted that after filing the complaint in respect of this cheque he is not having any document to show that he made remaining payment. It is suggested that he had not repaid the remaining loan amount and the said suggestion was denied. He further admitted the receipt of Ex.D.11, the same had given by the complainant. 17. Having considered the oral and documentary evidence, it is the case of the complainant that the accused has borrowed a sum o....
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....x.D.4. This Court would like to refer to the judgment of the Apex Court in the case of Rangappa vs. Sri Mohan reported in 2010 (4) Supreme 169, the Apex Court has categorically held that when the cheque was not disputed and the notice was issued and the same was not replied the Court should draw the presumption under Section 139 of the N.I. Act. In the case on hand accused not denied the signature available in Ex.P.1 cheque. The only contention is that the said cheque was given at the time of getting the loan on 1.12.1999. If he has not borrowed loan on 1.12.2000 what prevented him to give any reply when two notices were issued to him with regard to payment of loan amount and subsequently on bouncing of cheque, which has not been explained by the accused to rebut the evidence. He denied the availment of loan on 1.12.2000 and there is no answer with regard to the admission made by him during the course of cross- examination when a specific question was put to him. He had admitted that he had availed loan of Rs. 50,000/- from the complainant. 19. The learned counsel appearing for the accused would submit that the Court cannot take stray admission and comes to the conclusion that the....
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....y at the first instance itself instead of that during the course of cross-examination only he took total denial of the loan transaction and the trial Court has committed an error in coming to the conclusion that the transaction between the complainant and accused is doubtful in spite of a categorical admission given by the accused during the course of cross- examination, availing loan and as well as making part payment during the pendency of the case. Hence, it is clear that the findings recorded by the trial Court is perverse and the said finding is a mistake apparent on the face of the record. Firstly, not discussing anything about admission of availment of loan and payment and given more importance to the entries made in Ex.P.9. The Trial Court doubted the transaction between the complainant and the accused and proceeded erroneously. It is also important to note that the Trial Court has observed that the complainant has not stated anything in the complaint with regard to earlier loan transaction and the very approach of the trial court is erroneous. No doubt in the cross examination of P.W.1. It was elicited with regard to the earlier loan transaction that itself is not a ground....