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2020 (12) TMI 509 - KARNATAKA HIGH COURTDishonor of Cheque - rebuttal of presumption or not - allegation that the complainant has proved beyond reasonable doubt that the accused have committed an offence punishable under Section 138 of N.I.Act as alleged in the complaint - HELD THAT:- The evidence of DW-2, DW-3 and DW-4 are on line with the evidence of DW-1 and they have fully supported the evidence of DW-1. All these four witnesses though were subjected to a detailed cross- examination from the complainant side, but, nothing could be elicited in their cross-examination favouring the complainant. On the other hand, even in their cross- examination, they have given some more details of the alleged transaction and how they were cheated by Mr.Mohammed Fayaz and Mr.Haji Pyare Jan Sab and the complainant. In the cross-examination of PW-1-the complainant, he has clearly stated that accused were not known to him earlier and he had not seen them on any day prior to the date of registration of the Sale Deed. Though it was suggested to him that even on the date of alleged Sale Deed also, he has not seen the accused, but, the witness has denied the said statement. However, the fact remains that, even according to the complainant, the accused were strangers to him till the date of the Sale Deed. That being the case, even without knowing the accused, how could he came to enter into an agreement of sale with the said accused and with Smt.Lokamatha Seshadri, is not understandable. The complainant, as PW-1, rather than placing his case more effectively and rather than standing by in support of his contention, has in his cross-examination, admitted several of the suggestions favouring the accused and also has made several statements which not only has weakened his case, but, also strengthened the contentions of the accused. To the height of it, the very same PW-1 in his cross- examination has also stated that, in the dishonoured cheques at Exs.P-2 to P-4, it is himself who has filled the name of the `payee' in it. This also supports the contention of the accused that they had never issued the cheques in favour of the complainant, rather, they had issued the cheques in favor of vendors Mr.Mohammed Fayaz and Mr.Haji Pyare Jan Sab until their agreement with them stood rescinded. The evidence since clearly go to show that to claim any benefit under those instruments, neither the complainant nor the said Mr.Mohammed Fayaz and Mr.Haji Pyare Jan Sab have not passed any consideration to the accused and there being no legally enforceable debt as on the date of presentation of the cheques, none of them were entitled for the cheque amount. Thus, the presumption under Section 139 of N.I.Act has been successfully rebutted from the accused side. Since the complainant could not able to prove the legally enforceable debt in his favour, he fails in his action against the accused for the offence punishable under Section 138 of N.I.Act - Since the trial Court has rightly come to the said finding and acquitted the accused from the alleged offence, there are no reason to interfere in the said finding. The order acquitting the respondents/accused for the offence punishable under Section 138 of N.I.Act, is confirmed - appeal dismissed.
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