N. Shrihari vs Babu Shetty

N. Ananda, J.—The learned Trial Judge convicted respondent (hereinafter referred as ''accused'') for an offence punishable u/s 138 of the

Negotiable Instruments Act, 1881 (for short, ''the Act''). Therefore, accused was before First Appellate Court. The learned Judge of First

Appellate Court on reappreciation of evidence has acquitted accused. Therefore, appellant (hereinafter referred as ''complainant'') is before this

Court. I have heard Sri Cyril Prasad Pais, learned Counsel for complainant and Sri Rahul Rai, learned Counsel for accused.

The gist of averments of complaint and the evidence adduced by complainant are stated thus:

The complainant was a wholesale liquor dealer and he had supplied liquor to accused, who was a retail dealer. As on 3-2-2001, accused was due

in a sum of Rs. 75,682/- to complainant. In order to discharge the same, accused issued a cheque in favour of complainant, On presentation,

cheque was dishonoured. There was no reply to legal notice issued by complainant. Therefore, instant complaint was initiated.

The complainant has relied upon several documents, including ledger extract (Ex. P. 8). From the tenor of cross-examination of complainant, we

find that accused has contended that he was not the Proprietor of M/s. Keerthi Wines, on the other hand, he was a worker in M/s. Keerthi Wines,

of which one Sudhir Kumar was the Proprietor. The agents of complainant came for collection. At that time, Proprietor of M/s. Keerthi Wines

namely Sudhir Kumar was absent. Therefore, accused issued cheque. The accused has contended that he had no liability to discharge in favour of

complainant. There was no legally recoverable debt and cheque was not issued to discharge legally recoverable debt.

The parties have adduced oral evidence and produced several documents. In my considered opinion, ledger extract produced by complainant

(Ex. P. 8) has direct bearing on decision of the case.

As per the contents of ledger extract (Ex. P. 8), one Sudhir Kumar, Proprietor of Keerthi Wines used to purchase liquor from complainant on

credit basis and he had a running account with complainant. As on 3-2-2001, Sudhir Kumar was due in a sum of Rs. 75,682/- to complainant.

The accused had issued dishonoured cheque as an agent of Sudhir Kumar.

The complainant has maintained books of accounts to fasten liability on Sudhir Kumar and he has pressed cheque into service to contend that

accused was liable to pay a sum of Rs. 75,682/- to complainant.

The learned Counsel for complainant taking me through oral evidence of complainant would submit that accused has admitted the issuance and

contents of cheque. Therefore, Court has to presume the existence of legally recoverable debt and cheque was issued to discharge legally

recoverable debt, which I am not persuaded to accept for the following reasons:

The complainant has produced documentary evidence (ledger extract-Ex. P. 8), wherein one Sudhir Kumar is shown as Proprietor of M/s. Kirthi

Wines and he had a running account with complainant and he used to purchase liquor on credit basis. As on 3-2-2001, Sudhir Kumar was due in

a sum of Rs. 75,682/- to complainant. In the circumstances, complainant cannot rely upon oral evidence to contradict the documentary evidence.

The presumption u/s 139 of the Act can be raised if basic facts necessary to raise presumption are established by complainant. The accused can

rebut presumption either depending upon evidence adduced by complainant or depending on his evidence. If evidence adduced by complainant is

inherently weak, the Court cannot raise presumption u/s 139 of the Act.

The learned Judge of First Appellate Court on proper appreciation of evidence has held that complainant has failed to prove existence of legally

recoverable debt.

The accused has contended that as an employee of Mr. Sudhir Kumar, he had issued the cheque. The complainant has contended that accused

was running wine shop on behalf of Sudhir Kumar.

In order to run a wholesale/retail liquor shop, one has to obtain necessary licence/permit from Excise Department. There cannot be transfer of

licence, except in accordance with the relevant provisions of the Karnataka Excise Act, 1965. The complainant has not produced documents to

show that there was transfer of licence by Sudhir Kumar in favour of accused. Therefore, complainant cannot be heard to say that accused was

running M/s. Keerthi Wines and in that connection, he had purchased liquor from complainant and he became due in a sum of Rs. 75,682/- to

complainant. The complainant has failed to prove that accused was under legal obligation to discharge the debt which was due to complainant from

Sudhir Kumar, Proprietor of M/s. Keerthi Wines.

The learned Counsel for complainant has relied on the following decisions in the cases of:

I. Swathi Industries and Others v Hitesh Traders ILR 2001 Kar. 4079;

II. G. Rukkumani Vs. K. Rajendran, ;

III. I.C.D.S. Ltd. Vs. Beena Shabeer and Another, ;

IV. J. Ramaraj Vs. Iliyaz Khan, ;

V. Gowri Containers Vs. S.C. Shetty and Another, ;

VI Geetha Vs. State of Karnataka and others, .

After going through the aforestated decisions, I find that what has been held in the aforestated decisions has no bearing on facts of the instant

case.

On reconsideration of the matter, I do not find any reasons to interfere with the impugned judgment. In the result, I pass the following:

ORDER

The appeal is dismissed.