Judgment:
K.N. Keshavanarayana, J.
1. This appeal filed under Section 378(4) of Cr.P.C. by the complainant is directed against the Judgment, and Order dated 1 1.02.2009 passed by the learned Civil Judge (Jr.Dn.) and JMFC. Turuvekere in C.C. No. 107/2007. acquitting the respondent-accused of the offence punishable under Section 138 of Negotiable Instruments Act. (for short 'the N.I. Act').
2. The appellant filed private complaint under Section 200 of Cr.P.C. against the respondent alleging the offence punishable under Section 138 of N.I. Act inter-alia contending that about one year prior to the date of the complaint the accused borrowed a sum of Rs. 1.50.000/- from her as hand loan and towards repayment of the said amount, the accused issued a cheque dated 30.11.2006 for a sum of Rs. 1.50.000/- drawn on Karnataka Bank. However when she presented the said cheque for encashment, the same was returned unpaid with banker's endorsement dated 4.12.2006 'funds insufficient'. Immediately the complainant issued a notice dated 08-12-2006 to the accused informing him about dishonoring of the cheque and calling upon him to pay the amount covered under the cheque within the period allowed under the law. However in spite of seivice of notice, the respondent failed to pay the amount, as such the accused has committed the offence punishable under Section 138 of the N.I. Act.
3. The learned Magistrate who took cognizance of the offence alleged in the complaint, alter recording the sworn statement of the complainant issued summons to the accused. Upon service of summons the accused appeared before the learned Magistrate and pleaded not guilty for the accusations made against him and claimed to be tried. During the trial, the complainant examined herself as PW. 1 and three more witnesses>as PW.2 to JPW.4 and Exs.P1 to P4 were marked on her behalf.
4. During his examination under Section 313 of Cr.P.C. the accused denied all the incriminating circumstances appearing against him in the evidence of the complainant. In defence the accused examined himself as DW. 1. It was the defence of the accused that there was no monitory transaction between him and the complaint and at no point of time he had borrowed money much less Rs. 1.50.000/- from the complainant nor he had issued any cheque to the complainant, for discharge of any debt or other liability due by him to the complainant. It was his further defence that the son-in-law of the complainant one Ravi was running a chit of which he was a member and in connection with the said chit business, he had delivered a signed blank cheque to said Ravi and the same has been misused by the complainant by filling up the fanciful amount though she had not lent any money to the accused.
5. The learned Magistrate after hearing both sides, on assessment of the oral and documentary evidence, by the Judgment and Order under appeal, acquitted the accused holding that the complainant has failed to prove the existence of debt or other liability, therefore question of drawing any presumption under Section 139 of the N.I. Act did not arise. The learned Magistrate also noticed that there is inconsistency in the evidence of the complainant with regard to the quantum of alleged loan and also the date of issue of the cheque in question. The learned Magistrate also noticed that in the absence of any evidence placed by the complainant with regard to the existence of debt or any other liability, the defence of the accused that the cheque in question had been delivered while it was blank to the son-in-law of the complainant in relation to chit transaction is highly probable and acceptable In that view of the matter the learned Magistrate acquitted the accused. Being aggrieved by the said judgment of the acquittal, the complainant has presented this appeal along with Misc.Cri.2296/2009 seeking special leave under Section 378(4) of Cr.P.C. to tile the appeal.
6. Though notice of this application and the appeal regarding admission was served on the respondent-accused, he remained absent and unrepresented. I have heard the learned Counsel for the appellant. Perused the judgment under the appeal.
7. As could be seen from the judgment under appeal, it is the simple case of the complainant that about one year prior to the filing of the complaint, the accused had borrowed hand loan of Rs. 1.50.000/- from him and towards repayment of said amount cheque dated 30.11.2000 was issued by the accused which came to be dishonoured and in spite of service of notice the accused failed to pay the said amount. However the learned Magistrate has noticed that neither in the complaint nor in her evidence before the court the complainant has stated the exact date on which the amount was given to the accused as hand loan. Admittedly except the cheque in question there is no other contemporary document evidencing lending of Rs. 1.50.000/- by the complainant and receipt of the same by the accused. When a substantial amount of Rs. 1.50.000/- is lent, it is highly difficult to accept that no document was obtained from the borrower for having received the said amount. The complainant as observed by the learned Magistrate has not produced any evidence to show her financial capacity to lend a sum of Rs. 1.50.000/-. If really Rs. 1.50.000/- had been paid as hand loan about one year prior to the complaint, the complainant would not have received the cheque only for Rs. 1.50.000/- without demanding for payment of interest. There is absolutely no material on record to indicate that there was any agreement for payment of interest. This would also raise great amount of doubt about the monetary transaction between the complainant and the accused. In addition to this, as noticed by the learned Magistrate in para 12 of the judgment, in the cross examination. PW. 1 has stated that she has paid Rs. 1.90.000/- to the accused and immediately when she paid the amount the accused issued the cheque. This fact has not been stated lo either in the complain; or in her examination in chief. If Rs. 1.90.000/- had been paid there is no explanation as to why in the complaint she has stated the amount lent by her was Rs. 1.50.000/-. If according to the complainant on the same day of lending of the amount the cheque had been issued, there is no explanation as to how the cheque in question bears date as 30.11.2006. The learned Magistrate has also noticed that PW.4 examined by the complainant is none other than her own brother and he had gone to the extent of falsely stating before the court that his name is Raju though his real name is Hombcgowda. Therefore the learned Magistrate has rightly disbelieved the testimony of PW. 4. It is also in the evidence of PW. 1 that the contents of the cheque have been filled up by her and they are in her handwriting. From this also ii is clear that the cheque when delivered was blank and later the blanks have been filled up. This probabalises the defence theory that signed blank cheque was delivered to the son-in-law of the complainant in relation to chit transaction.
8. Under these circumstances, this Court is of the considered opinion that the learned Magistrate is justified in holding that the complainant has failed to prove existence of debt or any other liability. Mo doubt under Section 139 of the N.I. Act. the Court is required to raise a presumption that the holder of the cheque received the same towards discharge of a debt or other liability. However, the Hon'ble Supreme Court in the case of Krishna Janardhan Bhat v. Dattatraya G. Hegde reported in AIR 2008 SCW 738 has clearly held that presumption under Section 139 of N.I. Act do not extend to the existence of debt of other liability. The existence of debt or liability can not be presumed under Section 139 of the N.I. Act and the same will have to be proved by complainant as any other factor. It is only upon the complainant proving debt or other liability, presumption under Section 139 of the N.I. Act that a cheque has been issued towards discharge of such debt or other liability can be drawn. In the case on hand the circumstances noted above clearly indicates that the complainant has not produced any material on record to show existence of debt or other liability. On the other hand the defence theory is shown to be highly probable and acceptable. In that view of the matter, the learned Magistrate is justified in acquitting the respondent-accused. No error has been committed by the learned Magistrate in recording judgment of acquittal. Therefore there are no grounds to interfere with the said judgment as such no grounds are made out to grant of special leave to file the appeal.
9. Accordingly, the application Misc.Crl. No. 2296/2009 as well as the appeal are rejected.
10. The amount of Rs. 10.000/- deposited by the appellant pursuant to the order of this Court dated 02.09.2009 is ordered to be returned to the appellant, since the said amount was directed to be deposited towards the cost for the respondent and the respondent having remained absent in spite of service of notice.