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TMI Blog2020 (11) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... was the accused and respondent was the complainant in C.C.No.1393/2012. For the purpose of convenience, the parties will be referred to henceforth with their ranks before the Trial Court. 3. The complainant presented the cheque Ex.P1 dated 31.12.2009 for a sum of Rs. 2,50,000/- drawn on Canara Bank, Main Branch, Madikeri for realization. The Bank returned the cheque as per the memo Ex.P2 dated 02.06.2010 with an endorsement "funds insufficient", "payment stopped by drawer". 4. The complainant issued notice as per Ex.P3 dated 15.06.2010 to the accused claiming that the accused in all borrowed loan of Rs. 4,40,000/- from him on 04.05.2009 and out of that he repaid only Rs. 1,90,000/- on 25.10.2009. He further claimed in Ex.P3 that towards d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 010 to prosecute the accused for the offence punishable under Section 138 of the Negotiable Instruments Act. The learned Magistrate took cognizance of the offence and registered the case in C.C.No.1393/2012 and summoned the accused. On appearance, the accused denied the substance of accusation and claimed trial. Therefore, trial was conducted. 8. In support of his case, the complainant got himself examined as PW.1 and two witnesses as PWs.2 and 3 and got marked Exs.P1 to P6. The accused after his examination under Section 313 of Cr.P.C., got himself examined as DW.1 and two witnesses as DWs.2 and 3. He got marked Exs.D1 to 25. 9. The Trial Court on hearing the parties, by the impugned judgment and order dated 20.06.2015 in C.C.No.1393/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns. iv) The accused has failed to rebut the presumption available to the complainant under Sections 118 and 139 of the Negotiable Instruments Act. 11. The accused challenged the said order of conviction and sentence before the I Additional District and Sessions Judge, Kodagu, Madikeri in Crl.A.No.52/2015. The First Appellate Court by the impugned judgment and order concurred with the trial Court and dismissed the appeal. The accused has challenged the said order before this Court in the above revision petition. 12. Sri.Madhvachar M., learned counsel for the petitioner submits that the cheque was issued regarding a loan borrowed for a purpose of buying a car which is a contractual liability relating to such transaction the accused cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rference in the matter is very limited. Unless it is shown that the impugned orders suffer perversity, glaring illegality, impropriety or incorrectness, this Court in the revisional jurisdiction cannot interfere with the matter. 15. Firstly it was contended that the cheque was dishonoured as the accused had issued the stop payment instructions and not for want of sufficient funds, but Ex.P2 - the cheque return memo states that the cheque was returned for the reasons "funds insufficient" and "payment stopped by drawer". PW.2 - the Manager of the Canara Bank spoke to that effect. Though in his cross-examination it was suggested that he has no personal knowledge of Ex.P2, he denies the said suggestion. Further, he stated that the Cheque was r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the vehicle loan transaction were totally distinct from each other. He claimed that his relative was surety to the vehicle loan and since accused failed to discharge the said loan, to relieve his relative, the complainant himself cleared the out standing vehicle loan and therefore, he retained the vehicle. 20. Accused/DW.1 himself in his cross-examination admits that there was financial transaction between him and the complainant and he has not cleared the loan lent by the complainant. He further admitted that he purchased the car availing the loan from the Bank and the Bank has filed the suit against him for recovery of the said loan amount. Though he claims that he cleared the Bank loan under Exs.D2 to 24 - receipts, he admits that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates that the said loan was borrowed approximately in April 2008 i.e., proximate to the date of lending alleged by the complainant. 25. Admittedly, the accused neither issued any notice to the complainant for returning the cheque and the car nor initiated any legal proceedings prior to the complainant issuing notice Ex.P3. He admits that he had no impediment to do so. 26. DW.1 in his cross-examination admitted that the complainant's relative was the surety to the car loan borrowed by him, but he does not know his name and his residential address. That supports the contention of the complainant that to relieve his relative from the car loan liability and he intervened and paid the car loan and that they were two distinct transactions. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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