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Judgment
A.S. Pachhapure, J.—The appellants have challenged the Judgment and Order acquitting the respondent for the charge under Section 138 of the Negotiable Instruments Act [hereinafter referred to as "the Act" for short] on a trial held by the learned JMFC, KGF.
The facts in Crl. A. No. 615/10 reveal that the appellant is the husband of the appellant in the other appeal and said to have advanced a sum of Rs. 2,00,000-00 to the respondent in the month of January 2006 and towards repayment of the said sum, post-dated cheques dated 07.02.2006 for a sum of Rs. 50,000-00 and dated 12.02.2006 for a sum of Rs. 1,50,000-00 of Andhra Bank, Bangalore, were issued by the respondent. As the respondent did not pay the amount, cheques were presented to the banker for encashment and the same were returned with endorsement of "insufficient funds". Therefore, the appellant issued notice. There was no compliance and hence, a complaint came to be filed by the appellant in C.C. No. 900/2006.
During the trial, the appellant was examined as P.W. 1 and in his evidence documents Exs. P1 to 9 were marked. The statement of the accused was recorded under Section 313 Cr.P.C. There is no defence evidence. Hence the trial Court heard counsel for the parties and on appreciation of the evidence, under the impugned Judgment and Order, acquitted the respondent for the charge under Section 138 of the N.I. Act. Aggrieved by the said Judgment and Order of acquittal, the present appeal has been filed.
The facts in Crl. A. No. 614/10 reveal that the appellant is said to have advanced a loan of Rs. 4,00,000-00 to the respondent in the first week of April, 2006 on the assurance that it would be repaid before 30.04.2006. Towards security, the respondent had issued two post dated cheques. One dated 13.04.2006 for a sum of Rs. 2,00,000-00 and another dated 06.05.2006 for a sum of Rs. 2,00,000-00 of UCO bank, Indiranagar branch, Bangalore. As the respondent did not repay the said sum, the cheques were presented and they returned with endorsement of "insufficient funds". The appellant issued notice. There was no compliance and therefore, a complaint came to be filed by the appellant in C.C. No. 857/2006.
During the trial, the appellant was examined as P.W. 1. In her evidence, documents Exs. P1 to 7 were marked. After recording the statements, as the respondent did not lead any evidence, the trial Court heard the counsel for the parties and on appreciation of the evidence, under the impugned Judgment and Order, acquitted the respondent of the charge under Section 138 of the N.I. Act.
I have heard learned counsel for the appellant. Learned counsel for the respondent though served is absent.
It is the contention of learned counsel for the appellants that the signature on the cheques are not in dispute and that there is a presumption under Section 139 and 118 of the N.I. Act having issued the cheques towards repayment of the dues and therefore, he submits that in the absence of any rebuttal evidence, the trial Court ought not to have granted an order of acquittal. It is his submission that mere discrepancies are insufficient to reject the evidence of the complainant and in the absence of the witness having entered the witness-box, the trial Court should not have granted an order of acquittal.
In Crl. A. No. 615/2010: The cheques have been produced at Exs. P1 and 2. Ex. P1 is dated 07.02.2006, Ex. P2 is dated 12.02.2006, Ex. P3 is the notice, Ex. P4 is an endorsement for having received the cheque, Exs. P5 and 6 are the endorsement issued by the bank, Exs. P7 and 8 are the returned envelopes sent by registered post and Ex. P9 is the postal receipt. The appellant was examined as P.W. 1 and though in the chief-examination he states that he had advanced a sum of Rs. 2,00,000-00 during the last week of January 2006, in the cross-examination he admits that a sum of Rs. 50,000-00 was advanced by him on 07.02.2006 and another sum of Rs. 1,50,000-00 was advanced on 12.02.2006. It is towards repayment of these two cheques the cheques at Exs. P1 and 2 were said to have been executed.
As could be seen from the admissions in the cross-examination, there are two different transactions, one dated 07.02.2006 and another dated 12.02.2006. But, in the complaint, the appellant states that the loan was advanced in the last week of January 2006. So, there is material discrepancy in the evidence of the appellant so far as the date of transaction. In the complaint it is stated that there is only one transaction. But, in the evidence there are two transactions on different dates, different months and the cheques are also for two different amounts. One for a sum of Rs. 50,000-00 and another for a sum of Rs. 1,50,000-00. In that view of the matter, if really there were two transactions, one complaint cannot be maintained. Furthermore, when the appellant pleads that there are only one transaction in the last week of January, 2006, he cannot state there is transactions one on 07.02.2006 and another on 12.02.2006.
That apart, in the complaint he did not say anything with regard to getting the money of Rs. 5,00,000-00 from his sister. It is for the first time in the evidence he stated so. He is said to be an income tax assessee as admitted by the appellant. But, no document regarding payment of tax is produced. Apart from the cheques, there are no other documents to endorse the loan transaction. Even he has not stated his capacity to make the payment of Rs. 2,00,000-00. It is for this reason that the trial Court has granted an Order of acquittal. The appeal is against the Judgment and Order of acquittal by the trial Court. Even if a second view is possible, the one accepted by the trial Court cannot be disturbed. Therefore, the appeal deserves to be rejected as it has no merits.
In Crl. A. No. 614/2010: The appellant herein was examined as P.W. 1, who is the wife of the appellant in the other case. She is stated to have advanced a sum of Rs. 4,00,000-00 to the respondent in the first week of April, 2006. It is necessary to mention here that in the other appeal, where the appellant is the husband, the amount of loan was advanced in the month of January 2006. The cheques were issued to the respondent/accused on 07.02.2006 and 12.02.2006 and the said cheques were bounced when the second transaction by the wife in this appeal for a sum of Rs. 4,00,000-00 was entered into. When the husband had received the cheques bounced prior to the date of this transaction, the question of his wife entering into another transaction for a sum of Rs. 4,00,000-00 itself appears to be improbable and unacceptable.
That apart, the appellant has not stated anything with regard to her financial capacity of advancing a huge sum of Rs. 4,00,000-00. It is not accepted by the trial Court in the aforesaid circumstances. So, taking into consideration the facts, appreciation of the material placed on record and in the context of the circumstances, I do not think any necessity to the respondent to enter the witness-box. The discrepancy is so much material, which goes to the root of the case.
For the aforesaid reasons, both the appeals have no merit and they are accordingly dismissed.