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Judgment
Huluvadi G. Ramesh, J.—These two appeals have been filed by the complaint assailing the order passed by the XIII Addl.CMM, Bangalore in CC 26155/2005 and CC 5491/2006 on 13.11.2008.
Alleging dishonour of the cheques issued by the accused which were given towards the amount borrowed to the tune of Rs. 8 lakhs due to ''stop payment'' instruction, the complaint came to be filed. The cheques are issued during January 2003 for Rs. 5 lakhs and Rs. 3 lakhs each. The trial court on the complaint filed, after inquiry, having held that the complainant had admitted production of certain document like the loan application and having opined that no such application was produced, has dismissed the complaints against which, this appeal is filed.
Heard the counsel representing the parties.
It is seen, the trial court also noticed that there was a complaint filed by the accused alleging loss of cheques / theft of cheques but, however in this regard, B Report is said to have been filed by the police. According to the Appellant''s counsel, Respondents being relatives with the fond hope that the amount would be returned early and also having collected the cheques, complainant had made payment to establish business by the accused but, the accused have committed breach of trust.
According to the Respondents, there was no such correspondence and also they have not obtained the amount and it is for the complainant to produce documents, they have not produced as such, the trial court has dismissed the complaints.
What is noticed is, on the complaint filed by the accused regarding theft / loss of cheques, B Report came to be filed by the police. But, what is not in dispute is, the signature on the cheques issued by the accused. The contention of the complainant is, the loan application was obtained from the accused and it is available. Only on the ground that such an application has not been produced, the trial court has dismissed the complaint. However, the impugned order needs further elaboration and also, an opportunity has to be afforded to the complainant to have his say in the matter and if need be, to produce the document available with him.
The approach of the trial court is as if the burden is on the complainant to establish the case against the accused beyond doubt. However, as per Section 139 of the Negotiable Instruments Act, the initial presumption is in favour of the complainant and negative onus is on the accused to disprove the issuance of cheques towards a legally enforceable debt. Admittedly, the cheques do bear the signature of the accused. In the circumstances, taking a contention that the cheques are lost or stolen is not acceptable.
Accordingly, only for the limited purpose, the matter is remitted to the trial court, to know about the transaction and whether the accused had applied for loan or not. If the complainant produces such material, after affording opportunity to both the parties, trial court to dispose of the matter in accordance with law at the earliest. Parties are directed to appear before the trial court on 6th December, 2010 and thereafter within two months, trial court to dispose of the matter.
Appeals are allowed. Send back the records.