Cheque bounce – Stop payment – civil disputes – No offence in the absence of proof of hand loan – Hand loan – No calculations for arriving for total sum for which the cheque was issued – Non- enquiry about the sufficient funds in the account of accused – complainant is a worker – accused is a employee – suppression of actual deal – Trial court dismissed the case – High court reversed it – Apex court held that when the actual saving of complainant for annum is of Rs.10,000/- only and when is a worker under the complainant , it not believable that he gave hand loan about 4 years back to the employer by borrowing amount from Bank – in absence of rebuttal in cross examination of DW 2 mediator – clearly shows the cheque was stopped due to civil disputes =
whereby the High
Court set aside the Judgment and Order of the J.M.F.C. (II-Court),
Karwar acquitting the appellant herein of the offence punishable
under Section 138 of the Negotiable Instruments Act, 1881 (for short
‘the Act’). =
The case of the complainant
was that he had given a hand loan of Rs.1,50,000/- to the accused-
appellant and three and half years thereafter he had again given
Rs.25,000/- as hand loan, thus in all, the accused-appellant owed him
Rs. 1,75,000/- and to discharge this liability the cheque for
Rs.5,00,000/- was drawn, but the same stood dishonoured at the
instructions of the accused-appellant. =
Cheque for Rs.5,00,000/- issued by the appellant in favour of the
respondent was dishonoured by the Bank when it was presented for
realization by the respondent, as the appellant had instructed the
Bank to stop the payment.
After receiving such information from the
Bank, the respondent served a legal notice calling upon the appellant
to pay the Cheque amount.
Upon failure of the respondent to obey
the legal notice warranting him to pay the Cheque amount of
Rs.5,00,000/-, the respondent filed Complaint Case against the
appellant for the offence punishable under Section 138 of the Act=
Whereas, the case of the
appellant before the Trial Court was that he had entered into an
agreement with the complainant to purchase 3 acres of land
belonging to the complainant for a total consideration of
Rs.10,00,000/- and for that purpose, an advance of Rs.30,000/- in
cash was paid and the Cheque in question for Rs.5,00,000/- was
handed over to the complainant in presence of B.S. Pai (DW 2).
When the complainant failed to execute the sale agreement and not
even willing to return the advance amount of Rs.30,000/- and the
Cheque of Rs.5,00,000/-, he had to instruct the Bank to stop payment
against the said Cheque. =
Apex court held that
We find from the record that
admittedly, the accused appellant
deals with sale and purchase of landed properties and
respondent-complainant works as a Lorry Driver under him with a
salary of Rs.2,500/- p.m. and Rs.20/- per day towards miscellaneous
Admittedly, the Cheque in question was for
Rs.5,00,000/- and all the way the stand of the complainant was that
he had given a hand loan of Rs.1,75,000/- to the accused-appellant.
We find no material on record in support of the claim of the
complainant giving hand loan to the accused-appellant.
also no calculation of account or stipulation of any interest on the
alleged loan amount to show as to how the amount of Rs.5,00,000/-
was figured, in return of a hand loan of Rs.1,75,000/-, if at all taken by
the appellant from the complainant.
It is also not on record whether
there was sufficient balance amount or not in the bank account of the
accused when the Cheque was dishonoured by the Bank.
complainant himself stated in the cross-examination that after the
Cheque was returned without payment, he has not made any enquiry
with the Bank as to whether sufficient funds were available or not in
the account of the accused.
In the absence of any authenticated and
supporting evidence, we can not believe that the complainant-respondent
who is employed under the appellant -accused, has raised an amount of Rs.
1,75,000/- that too by obtaining loan of Rs.1,50,000/- from Bank, only to give
a hand loan to his employer.
As the complaint himself admitted that his net savings
in a year comes to about Rs.10,000/- ,it is not trustworthy that he was in a position to
extend hand loan of such big amount to the appellant
10. Whereas, the evidence of Mr. B.S. Pai (D.W. 2)
corroborates the version of the appellant.
He deposed that the talks
of sale/purchase of 3 acres of land were held between the parties in
The appellant agreed to purchase 3 acres of land
belonging to the complainant and the appellant had paid an amount
of Rs.30,000/- as advance and handed over a Cheque for
It is also noteworthy that the complainant has not
rebutted the evidence of D.W. 2 in the cross examination.
firm and unshaken evidence of Mr. D.R. Bhat,
a member of the
Karwar Bar Association (D.W. 6) also corroborates the sale purchase
deal between the parties.
It is evident from the record that DW 6 has
clearly and categorically deposed that the appellant stated to him
about four years back that he had entered into an agreement with the
complainant in presence of B.S. Pai (DW 2) to purchase 3 acres of
land belonging to the complainant and also paid Rs.30,000/- in cash
as advance money and issued a Cheque for Rs.5,00,000/-.
at the corroborative evidence adduced by the defence witnesses and
more particularly, in the absence of any material evidence in support
of the claim of the respondent-complainant, we cannot uphold the
11. For all the aforesaid reasons, the appeal deserves to be
allowed and is accordingly allowed.