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2021 (8) TMI 39
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....by the respondent who was the complainant in the Trial Court. The Sessions Judge's Court in its order dated 10-07-2019 dismissed the appeal, confirming the judgment of conviction and order on sentence passed by the Trial Court dated 26-03-2016 in C.C. No. 14016/2013. Aggrieved by the said judgment, the accused has preferred this revision petition. 2. The summary of the case of the complainant in the Trial Court is that, the complainant is a proprietary concern, carrying on business of Automation Solutions and connected business. Accused is running a Paying Guest Home. During first week of April-2012, the accused approached the complainant for financial assistance to expand his paying guest business. In pursuance of the request made by the accused, the complainant agreed to lend a sum of Rs. 10,00,000/- to the accused. Accused is known to the complainant since five years and the accused promised the complainant to pay back the loan amount within six months. The complainant deposited Rs. 5,00,000/- through RTGS UTR No. VIJBH 12109020945 dated 18-04-2012 into account No. 0220T81776050 of Best Ladies PG, with INDUSIND Bank, Marathahalli Branch and Rs. 5,-00,000/- through RTGS UTR....
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.... called for and the same are placed before this Court. 7. Learned counsel for the revision petitioner/accused and learned counsel for respondent/complainant are appearing physically in the Court. Though this matter was listed for orders on I.A., however, as desired by the learned counsels from both side, the arguments on the main matter itself were heard from both side. Perused the materials placed before this Court including the Trial Court and Sessions Judge's Court's records. 8. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the Trial Court. 9. After hearing the learned counsels for the parties, the only point that arise for my consideration in this revision petition is: Whether the judgments under revision are perverse, illegal and erroneous, warranting interference at the hands of this Court? 10. It is not in dispute that the complainant and accused were known to each other. Apart from the complainant taking the stand in his complaint, in his evidence as PW-1, but it is also the contention of the accused through the argument addressed by the learned counsel for the petitioner (accused) that, the complainant,....
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....l in existence and in the said Partnership Deed, there exits an Arbitration clause, as such, the present complaint was not sustainable. Learned counsel for the petitioner/accused also contended that, in the Partnership Deed, even for the alleged return of the capital amount, sixty months' time has been prescribed, as such, the presentation of the cheque in the present case was highly premature. Learned counsel for the petitioner/accused further stated that, there are contradictions in the stand taken by the complainant, who, in his notice, has stated that, the loan was for business purpose, whereas in his cross-examination, he has stated that, it was for income-tax purpose, as such, the case of the complainant is highly suspicious. 12. Learned counsel for the respondent/complainant in his argument submitted that, the alleged Partnership Deed is, in no way concerned with the present transaction between the parties. The present petitioner, as an accused, has got many establishments in Bengaluru at different places including Gandhi Bazaar, Malleswaram, and Marathahalli, under the same name and style as "Best Ladies PG". The alleged Partnership agreement, if at all in existence,....
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....cy on 18-04-2012 is further confirmed by the statement of account of the complainant-firm produced by PW-1 at Exhibit P-9. 15. The evidence of PW-1 that, promising to repay the said loan of Rs. 10,00,000/- back to the complainant, the accused had also executed an On-Demand Promissory Note along with a consideration receipt on 19-04-2012 and also had given an undertaking (by way of agreement of even date), is corroborated by the documents, i.e. Promissory Note, Consideration Receipt and the Agreement produced at Exhibits P-3, P-4 and P-5 respectively. Further, DW-1-Sri. M.S. Prakash, who was examined on behalf of the accused, in his examination-in-chief, has stated that, he is the scribe of Exhibits P-3 and P-4 and he has written those documents at the specific request of the accused. Same was the evidence of PW-1 also. DW-1 has also stated that, after getting the documents at Exhibits P-3 and P-4 written by him, the accused told him that he would get that document duly signed by his wife. According to the learned counsel for the respondent/complainant, the witness No. 1 shown in the Consideration Receipt at Exhibit P-4 is the said wife of the accused. 16. The accused, from his ....
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....nt and also issuing a cheque to the complainant. Therefore, it is not a mere through presentation of the cheque and presumption under Section 139 of the N.I. Act, the inference of existence of a legally enforceable debt in favour of the complainant can be drawn, but, by leading cogent evidence also, the complainant has shown that, there existed a legally enforceable debt in his favour which was payable by the accused and in that regard, the cheque in question was given to him. 19. Learned counsel for the petitioner/accused also submitted that, there is discrepancy in the purpose of the loan. According to him, in the legal notice at Exhibit P-6, the purpose of the loan is shown as 'for the improvement of business of the accused', whereas, in the cross-examination, the witness has stated that, the loan was given since the accused pleaded some problem with the income-tax. However, the said alleged discrepancy is too minor and can be ignored, in the light of the other reliable and strong evidence, both oral and documentary, produced by the complainant, which are as analysed above. 20. The accused in the cross-examination of PW-1 has also produced a certified copy of the two d....