Subhash B. Adi
1. This appeal is by the complainant, questioning the judgment of acquittal in Criminal Appeal No.1183/2004 dated 24th February 2006 on the file of Fast Track Court-VI, Bangalore City, reversing the judgment of conviction passed by XVIII Addl.C.M.M., Bangalore City, in C.C.No. 16333/2003 dated 18th November 2004.
2. Case of the complainant is that, he is running a business in money lending Accused being a businessman known to the complainant, approached for loan of Rs. . 2,00,000/-in February'' 2002. On receipt of the said amount, accused agreed to pay the said amount with interest @ 18% per annum within one year. Even after lapse of one year, the accused did not make the payment and issued a cheque bearing No. 652861 dated 20th February 2003. The said cheque was presented to the baker, however, it was returned with an endorsement "insufficient funds". Complainant issued a legal notice to the accused calling upon him to make the payment, within 15 days. However, the accused did not make the payment within the stipulated period, as such, complainant was constrained to file complaint.
3. Before the trial court, complainant examined his G.P.A. Holder as PW-1 and produced the original cheque returned by the Bank, endorsement, certificate of posting and reply. On the other hand, the accused got himself examined as DW-1 and produced Exs.D1 to D3 viz., the complaint, acknowledgement and agreement.
4. The trial court on consideration of the evidence on record held that the accused had not. disputed the issue of cheque but has taken a defence that he has paid the amount, however, having failed to prove the payment, trial court accepted the case of the complainant and convicted the accused. As against the conviction accused filed an appeal. The appellate court relying on Ex.D3 - alleged agreement, held that, under the agreement the complainant could not have presented the cheque for encashment, as complainant had agreed to receive Rs. . 2,00,000/- on or before 30th July 2003 and remaining amount on or before 30th October 2003. However, even before the said date, he had presented the cheque and as such, the amount had not become due and complainant had failed to prove the offence punishable u/s 138 of the Negotiable Instruments Act and accordingly, acquitted the accused. As against the judgment, of acquittal, complainant'' is before this court in appeal.
5. Complainant has produced three cheques bearing Nos. 652861 for Rs. . 2,00,000/-. It is not in dispute that, as per endorsement dated 17.5.2003, all the three cheques were returned for want of sufficient fund. It is not in dispute that, as per Ex.P4. complainant had issued notice calling upon the respondent - accused to pay the amount mentioned in the cheque within 15 days from the date of receipt of the said notice by the accused. As against the same, a reply has been issued as per Ex.F9. In the reply, it is stated that the value of the cheque "would be decided on. 30th July 2003 and 30th October 2003 and it is only thereafter the accused will be in a position to tell how much money he has to pay.
6. The trial court convicted the accused on the ground that accused had not proved the payment in pursuance of the cheque, even Ex.D1 to D3 are also not proved, whereas, the appellate court has strongly relied on Ex.D3 to hold that the amount had not become due till 30th July 2003 and 30th October 2003.
7. To appreciate as to whether Ex.D3 would be binding on the complainant, complainant in the cross-examination has stated that, he knows the accused for the last 5-6 years and the cheque number is mentioned in the agreement are referred to in the complaint. As per the agreement, complainant had agreed to receive the amount on 31.10.2003.
8. However, accused in his evidence has not admitted the loan transaction, in turn, has stated that, on account of harassment by one Inayath and Shamanna, who had come to his house, demanding money, he had issued cheques. In this regard, he had filed a complaint on 5.4.2003 before the Peenya Police Station and the said complaint is acknowledged by the Police as per Ex.D2, He has also stated that, the said Inayath and Shamanna had forcibly taken the cheques, however, even before the cheques were taken by them, he had sold his car, site and had paid Rs. . 4,00,000/- once and Rs. . 2,00,000/-. Even then the cheques have not been returned. He further states that, the said Inayath and Shamanna forcibly have taken the cheques and he is not liable to pay the amount.
9. It is not the defence of the accused that he was in due of a sum of Rs. . 6.00,000/- stated in the cheque and that falls due either in July or October 2003. His case itself is that, he had already made the payment and cheque has been forcibly taken. Evidence of PW-1 shows that there is a financial transaction between the complainant and the accused. Evidence of accused also shows that he had taken money from the complainant, but states that he had already paid. To prove that he had already paid, no evidence is produced by the accused.
10. Ex.D3 is a xerox copy of the alleged agreement. Even the said Ex.D3, though it is not admissible, it refers to six cheques and amongst six cheques, three cheques relate to two complaints filed by the complainant. What is stated in the said agreement is that there is total loan of Rs. . 6,00,000/-, Rs. . 2,00,000/- would be paid on 30th July 2003 and the remaining amount would be paid on 30th October 2003. But there is no bar stipulated in the alleged agreement for presenting the cheque. If the accused had taken a defence that he is liable to pay the amount only in July and October and accordingly, he would pay the said amount, but in his evidence he has not admitted the liability, further, has stated that he has paid the amount. To prove that the agreement is binding on the complainant, the original copy is not produced nor it is shown as to how it is binding when the accused himself disputes the liability.
11. The appellate.-court relying on Ex.D3 alone has acquitted the accused without referring to the other evidence of the accused, who had disputed the liability on the ground that, he had already made the payment If the payments are already made, it was for the accused to prove as to how he had discharged his liability. Fact that he admits that he had already made the payment proves that there was a liability and it has been discharged, but accused has utterly failed to prove the alleged payment made by him. Hence the trial court has rightly held that the complainant has proved the offence punishable u/s 138 of the N.I.Act.
12. In my opinion, the lower appellate court has erred in reversing the judgment of the trial court particularly relying on Ex.D3 without reference to the other evidence of the accused himself. Hence, in these circumstances the appeal deserves to be allowed.
Accordingly, the appeal is allowed. The judgment of acquittal in Criminal Appeal No. 1183/2004 dated 24th February 2006 on the file of Fast Track Court-VI, Bangalore City, is hereby set. aside. The judgment of conviction passed by XVIII Addl.C.M.M., Bangalore City, in C.C.No. 16333/2003 dated 18th November 2004, is confirmed. The accused is convicted with sentence of fine of Rs. . 3,75,000/-, out of which, the complainant would receive Rs. . 3,50,000/- by way of compensation and the remaining Rs. . 25,000/- be appropriated towards fine in State'' account, in default, accused shall undergo imprisonment for a period of six months.
