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2021 (1) TMI 439 - HC - Indian LawsDishonor of cheque - acquittal of accused - only defence taken is that the accused has given the said cheque in favour of one Krishnappa while availing loan of ₹ 30,000/- for him and the same has been misused - HELD THAT:-It is the specific case of the complainant that notice was sent through UCP was served and through out the cross- examination of PW.1, nothing is elicited with regard to non-service of notice sent through UCP. Though he denies the address, claiming that till 2004, he was residing in the address mentioned in the complaint but in the cross-examination, he categorically admits that his wife residing in the said address and any notice sent to that address his wife would intimate the same. The first contention that no notice was served on him cannot be accepted for the answer elicited from the mouth of DW.1 and notice sent to him was returned with an endorsement the notice is not claimed. With regard to the other defence is concerned, he has not handed over the cheque to the complainant. First of all nothing has been elicited in the cross-examination of PW.1 and also it is important to note that it is not his case that he has not filed the insolvency case marked at Ex.P.8 and also it is the contention that except the amount of ₹ 30,000/- borrowed from Krishnegowda, he has not received any amount. On perusal of Ex.P.8 in his own insolvency petition, he has listed out in the schedule including the name of this complainant. There is no any explanation with regard to the schedule where he mentioned the list of the creditors in his insolvency petition. It is specifically mentioned that the liability of ₹ 3,00,000/- in respect of this petitioner, it is also important to note that in the cross-examination, the accused was gone to the extent of denying his own signature and also same is not specific denial but he is having doubt about his signature. When all these materials are elicited from the mouth of this accused, the Trial Judge ought not to have come to the conclusion that he was not having the financial capacity to pay the amount. If the accused was not having any acquaintance with the complainant what made him to make him as party in the insolvency case and also what made him to list out the due payable to the complainant. The very documentary proof placed before the Trial Court is ignored by the Trial Court. It is nothing but perverse judgment and not considered the material on record and also the admissions elicited from the mouth of DW.1. When the cheque has been issued, when the notice has been issued and though the accused admits the signature and not disputed the same, the Trial Judge ought to have invoked the Section 139 of Negotiable Instrument Act, 1881 ('the N.I. Act' for short) to draw the presumption. No discussion in the judgment even for drawing the presumption under Section 139 of the N.I. Act. The findings given by the Trial Court is erroneous and the same is against the material available on record and hence, the judgment of the trial Court requires interference of this Court. Appeal allowed.
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