Ms. Lakshmi vs Sri Kenchappa

N. Ananda, J.—The learned trial Judge has acquitted respondent (hereinafter referred as ''accused'') of an offence punishable u/s 138 of the Act. Therefore, appellant (hereinafter referred as ''complainant'') is before this court.

I have heard Sri N.J. Ramesh, learned counsel for accused.

It is the case of complainant that she had lent a sum of Rs. 5,00,000/- to accused. The accused had assured complainant that he would repay loan at the earliest. The accused issued a cheque dated 29.06.2006 for a sum of Rs. 5,00,000/- in favour of complainant to discharge the loan. On presentation, cheque was dishonoured. Therefore, legal notice was caused for which there was no response.

As could be seen from the tenor of cross-examination of complainant, accused has sought to establish that complainant was not known to him. The accused had not approached and borrowed a sum of Rs. 5,00,000/- from complainant, on the other hand, the mother of complainant was running a chit fund of which the wife of accused was a subscriber. The wife of accused had bid a chit, in that connection, the mother of complainant wanted a signed blank cheque from accused. The accused was working as a Police Constable. The accused had issued a signed blank cheque to the mother of complainant as a security for repayment of chit amount by his wife. The mother of complainant had instigated complainant to file the instant complaint against accused on the basis of signed blank cheque given by accused as a security for the chit transaction between the wife of accused and the mother of complainant.

It is seen from evidence of complainant that complainant did not have financial capacity to lend a sum of Rs. 5,00,000/- to accused. The complaint is silent as to when accused had met complainant and the date on which complainant had lent a sum of Rs. 5,00,000/- to accused. Even if it is assumed that complainant had financial capacity to lend a sum of Rs. 5,00,000/- to accused, she would not have lend the said amount, without obtaining any security and without charging interest. The complainant has admitted that she had lent a sum of Rs. 5,00,000/- to accused after getting money from her father and also by pledging her gold jewels. The complainant has not stated the compelling circumstances under which she had lent a sum of Rs. 5,00,000/- to accused, that too by raising loan. The evidence of complainant suffers from inherent improbabilities.

It is the case of complainant that she had lent money to accused to accommodate him for a period of six months, however she had presented cheque, the date on which it was drawn. The complainant has denied suggestion that her mother was running a chit fund and wife of accused had bid a chit. On the date of transaction, the wife of accused gave a signed blank cheque of accused as insisted by the mother of complainant.

The defence of accused appears to be probable. The complainant has failed to establish that she had financial capacity to lend a sum of Rs. 5,00,000/- to accused. The complainant has failed to establish the date on which she had lent a sum of Rs. 5,00,000/- to accused. The complainant has failed to establish that accused was known to her before the date of transaction.

In view of inherent improbabilities found in the evidence of complainant, presumption u/s 139 of the Act is not available to complainant.

The learned trial Judge has held that complainant has failed to prove existence of legally recoverable debt; complainant has failed to prove the case beyond reasonable doubt and acquitted accused.

On reconsideration of the matter, I do not find any reasons to interfere with the impugned judgment. The appeal is dismissed.