TaxTMI 
TaxTMI 
TaxTMI 
2022 (6) TMI 1207
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.... the complainant demanded the accused for the return of the loan amount, the accused issued him a cheque bearing No.338349 dated 3.1.2009, drawn on State Bank of Mysore, Turuvekere branch, for a sum of Rs.50,000/- in favour of the complainant. On the same day, complainant presented the cheque for its realization, however, it returned unpaid with the banker's endorsement of ""funds insufficient" in the account of the drawer. The complainant thereafter got issued a legal notice to the accused demanding the payment of the cheque amount. Since the accused failed to make payment of the cheque amount, the complainant was constrained to file a criminal case against him in C.C.No.378/2009 in the Court of the Civil Judge and JMFC, Turuvekere for the offence punishable under Section 138 of the N.I.Act. 4. The accused appeared in the Trial Court and contested the matter through his counsel. He pleaded not guilty and claimed to be tried. Accordingly, the Trial Court by its judgment dated 18.05.2011, held the accused guilty for the alleged offence punishable under Section 138 of the N.I. Act and convicted him for the said offence and sentenced him accordingly. 5. Aggrieved by the said jud....
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.... documents were marked as exhibits from the accused side. The accused both in the cross- examination of PW1 and in his evidence as DW1, has taken a contention that at no point of time, he had availed any loan of Rs.50,000/- from the complainant, however, on 6.10.2008, he had taken a loan of Rs.20,000/- from the complainant, at which time, the complainant had collected three blank but duly signed cheques from him as security. Even though the said loan amount of Rs.20,000/- was repaid to the complainant on 20.12.2008, however, the complainant did not return the cheques collected by him as security on the pretext that those cheques are in his house at Tumakuru and that he would get them back within a week. However, he failed to return those cheques. On the other hand, he misused one among those cheques by presenting to the bank, which cheque is the subject matter of the present case. However, PW1 did not admit those suggestions made to him in his cross-examination, as true. Further, he made denial suggestions to DW1 in his cross-examination. 13. In the light of the above, it was the argument of the learned counsel for the petitioner/accused that the alleged loan of Rs.50,000/- said t....
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....rebut the presumption, the accused has taken a defence of non-existence of alleged legally enforceable debt of a sum of Rs.50,000/- alleged to have been given by the complainant in his favour on 6.6.2008. On the other hand, he has taken a contention that he had availed a loan of only a sum of Rs.20,000/- from the complainant on 6.10.2008, at that point of time, the accused had collected three blank duly signed cheques from him as a security. Even after the repayment of the said loan amount of Rs.20,000/- to the complainant in Crl.R.P.No.1155/2012 December 2008, he did not return those three cheques but misused one among them in the present form. 17. The said defence of the accused was first taken in the cross-examination of PW1 in the form of several suggestions made to PW1 in that regard. However, PW1 did not admit those suggestions except stating that he knows three persons by name Sri.Aslamsab, Sri.Kantha and Sri.Mahalingappa. The witness specifically denied a suggestion that the accused had availed a loan of a sum of Rs.20,000/- from him and in that regard as a security, three blank but duly signed cheques of State Bank of Mysore, Turuvekere branch, were given by the accused t....
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....sses in their cross-examination have expressed their ignorance about the alleged loan transaction dated 6.6.2008 of a sum of Rs.50,000/- between the complainant and the accused. Thus, according to DW1 to DW4, the three blank cheques were given to the complainant by the accused while he availed a loan of Rs.20,000/-. 21. Even though DW2, DW3 and DW4 in their cross- examination have admitted as true that they were not aware of alleged loan transaction between the complainant and the accused dated 6.6.2008, however, by that itself, it cannot be concluded that the complainant has shown that there was any such loan transaction dated 6.6.2008 where under the accused availed a loan of Rs.50,000/- from him. It is for the reason that throughout in his cross-examination, PW1 has contended that there was no loan transaction dated 6.10.2008 and that he had not given any loan on the said day much less of a sum of Rs.20,000/- to the accused. If that is the contention of the complainant, then he has to show as to what happened to three blank signed cheques said to have been collected by him from the accused on the said date of 6.10.2008. Merely because PW1 denies the loan transaction dated 6.10.....
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....0/- to the accused on 6.6.2008. On the other hand, it further makes more probable to believe the evidence of DW1 to DW4 who have uniformly stated that the complainant had collected three blank cheques from the accused on the date 20.12.2008 while lending a sum of Rs.20,000/- to the accused and that even after repayment of the said loan amount of Rs.20,000/- to the complainant, he on some false pretext, did not return those cheques to the accused and has misused one among them in the form of the present complaint. This is more than sufficient to hold that accused has successfully rebutted the presumption formed in favour of the complainant. 23. The learned counsel for the respondent also canvassed a point in his argument that accused has not denied taking of loan of Rs.50,000/- from the complainant. A careful reading of the cross-examination of PW1 go to show that it was suggested to the witness that without giving any loan to the accused of a sum of Rs.50,000/- and only giving Rs.20,000/- as loan, the complainant had collected three cheques as security. Though PW1 did not admit the said suggestion as true but by making the said suggestion, the accused has specifically suggested to....
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....idered as typographical error. Further, had it been a typographical error, the witness should have brought the same to the notice of the learned Presiding Officer of the Court who recorded the said evidence when the said evidence was read over to him before the Presiding Officer subscribing his signature to the deposition and also obtaining the signature of the witness himself to the said depositions. Now since those statements made by PW1 were proved to be detrimental to the case of the petitioner, more particularly after examining the said Sri.Aslamsab as DW4, the petitioner through his learned counsel in this Revision Petition, has come up with the contention that the statement with respect to Sri.Aslamsab made by PW1 in his cross- examination are mere typographical error. Thus, the said argument of the learned counsel for the respondent also is not acceptable. 27. From the analysis made above, it is clearly established that though the complainant attempted to show that there existed a legally enforceable debt and attempted to encash the benefit of presumption formed in his favour but the accused could able to rebut the said presumption successfully. Needless to say that as ob....