Y. Chennamma vs T. Laxman Rao

Budihal R.B., J.—This is the petition filed by petitioner-Accused being aggrieved by the judgment and order of conviction passed by the trial Court dated 20.11.2012 in CC No. 944/2012, which was confirmed in the appeal by the 1st Appellate Court by order dated 30.10.2013 in Crl. Appeal No. 42/2013.

Brief facts leading to filing of the criminal case by the respondent-complainant before the trial Court are that the complainant and accused are known to each other, since several years. After voluntary retirement the complainant has received service benefits from N.E.K.R.T.C. department. Out of acquaintancy, the accused approached the complaint for financial assistance on 23.06.2010 and received a sum of Rs. 1,80,000/- from the complainant for construction expenses and other family expenses, agreeing to repay the said loan with interest at the rate of 24% p.a. Further the accused has also promised the complainant to repay the said loan amount within a short period. When the accused failed to repay the loan amount, the complainant has approached the accused on several occasions for seeking repayment of loan. The accused postponed the same on one or the other pretext. The accused lastly has issued a cheque bearing No. 27143 drawn on State Bank of India, dated 07.10.2011, for a sum of Rs. 1,80,000/- in favour of the complainant and requested the complainant to present the same on or after 07.10.2011. As per the request of the accused, on 07.10.2011 the complainant has presented the cheque for encashment through his banker Syndicate Bank. But the said cheque was returned uncashed with an endorsement "funds insufficient". Then, he got issued legal notice calling to the accused to repay the loan amount within 15 days from the date of receipt of notice. In spite of service of notice, the accused has not paid cheque amount within the time stipulated. Therefore, he filed a private complaint before the trial Court alleging the offences committed by the petitioner herein.

Heard the arguments of the learned counsel for the petitioner-Accused and also the learned counsel appearing for the respondent-complainant.

Learned counsel for the petitioner/accused made the submission that at the time of borrowing loan, the complainant has obtained three blank cheques from the accused persons as security and subsequently when the accused made the payment and requested to return of the cheque, the complainant did not return the cheques. Learned counsel further made the submission that the accused got issued a legal notice to the complainant asking him to return the cheques which were given as a security and in spite of such legal notice also the complainant has not at all returned the said cheques and he proceeded to present the cheques for encasement. Hence, the learned counsel submitted that this aspect has not been properly considered and appreciated by the Courts below. Hence, she submitted that there was nothing due under the cheque that was produced before the trial Court. Hence, it is her contention that the trial Court as well as the 1st Appellate Court wrongly read the evidence and wrongly proceeded to convict the accused for the alleged offence. Hence, she submitted that, the matter requires consideration in this petition.

Per contra, learned counsel appearing for the respondent-complainant made the submission that the contention taken up by the accused was appreciated and considered by both the Courts below. It is also his submission that there is inconsistency in the defence taken by the accused and for that reason the Courts below rejected the said contentions. Hence, he submitted that there is no merit in the petition as there are concurrent findings with regard to the loan transaction and the accused borrowing the loan and issuing the cheques. Hence, he submitted to reject the petition.

I have perused the grounds urged in the petition and also perused the judgment and order of the conviction passed by the trial court, which is confirmed by the 1st Appellate Court.

Regarding the defence of the accused that he has not disputed his signature on the cheque, which was produced in the case. But the contention of the petitioner-accused that the complainant obtained the said cheques as a security for the repayment of the earlier loan and when the loan was repaid, the documents were not returned. It is no doubt true, the legal notice was issued by the petitioner to the complainant, asking return of the cheques said to have been furnished as security, in the said notice, cheque numbers were not mentioned. It is also relevant that in the cross-examination that while putting the suggestion to the complainant, it was suggested that three cheques were given as security, but while giving the evidence by the accused, it was stated two cheques and one promissory note were taken by the complainant. This aspect was taken into consideration by the Courts below and appreciated that there is no consistency in the defence taken by the accused. Apart from that it is the contention of the accused that legal notice was issued, but subsequently, no action was taken either by filing the complaint or in any proceedings against the accused for the return of the cheques. There are concurrent findings with regard to the factual aspects of the matter. Therefore, I do not find any illegality in the judgment of the Courts below. There are no justifiable or valid grounds to interfere in the matter and there is no merit in this petition. Accordingly, the same is hereby rejected at the admission stage itself.

The amount deposited by the petitioner-accused may be paid to the complainant and the complainant is permitted to move the concerned trial Court.