Cheque bounce – Stop payment – civil disputes – No offence in the absence of proof of hand loan

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 = CRIMINAL APPEAL NO. 1522 OF 2014 ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) NO. 278 OF 2013 RAMDAS S/O KHELUNAIK … APPELLANT VERSUS KRISHNANAND S/O VISHNU NAIK … RESPONDENT = 2014 July. Part – http://judis.nic.in/supremecourt/filename=41784

ADVMMOHAN ⋅ AUGUST 2, 2014 ⋅ 

FILED UNDER  COMPLAINANT

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

the

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

expenses (bhatta).

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.

There was

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.

The

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)

fully

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

his presence.

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

Rs.5,00,000/- .

It is also noteworthy that the complainant has not

rebutted the evidence of D.W. 2 in the cross examination. 

Further, the

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/-.

Looking

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

impugned judgment.

11. For all the aforesaid reasons, the appeal deserves to be

allowed and is accordingly allowed.