TMI Blog2020 (11) TMI 886X X X X Extracts X X X X X X X X Extracts X X X X ..... ross- examination when a specific question was put to him. He had admitted that he had availed loan of ₹ 50,000/- from the complainant. Suppression of fact of earlier transaction - HELD THAT:- In the case on hand no suppression as contended and the same is in respect of earlier transaction. The complaint is in respect of subsequent loan transaction and accused not paid the amount, hence the contention of the accused cannot be accepted. Accused is directed to pay an amount of ₹ 1,00,000/- in favour of the complainant within a period of 8 weeks from today. If accused fails to pay the amount of ₹ 1,00,000/- within 8 weeks, accused is sentenced to undergo Simple Imprisonment for a period of one year - Appeal allowed. - CRIMINAL APPEAL NO. 320/2011 - - - Dated:- 19-11-2020 - THE HON'BLE MR. JUSTICE H.P.SANDESH FOR THE APPELLANT : SRI UMESH MULIMANI, ADVOCATE SRI S.V. PRAKASH, ADVOCATE) FOR THE RESPONDENT : SRI N.R. KRISHNAPPA, ADVOCATE JUDGMENT This appeal is filed challenging the judgment of acquittal passed in C.C.No.56/2010 dated 10.01.2011 on the file of the Senior Civil Judge, JMFC, Soraba ('Trial Court' for short). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. The learned Trial Judge without considering the same has illegally held that the materials available on record would raise a doubt regarding the genuineness of the transaction. The said doubt made by the learned trial Judge is without any basis. It is also contended that the Trial Judge failed to notice that the respondent/accused during the pendency of the proceedings had paid a sum of ₹ 5,000/- towards the cheque amount on 12.08.2004 and the accused himself had produced the document before the Trial Court and in spite of the same the Trial Judge has not discussed anything regarding the admission made by the accused. The Trial Judge also failed to notice that there is presumption under Section 139 of the Negotiable Instruments Act and not drawn any presumption. Since the accused has not disputed the issuance of the said cheque but contended that the same is issued in respect of earlier loan transaction and not in respect of this loan transaction. 7. Learned counsel appearing for the complainant-appellant, in his argument, has vehemently contended that the Trial Court has committed an error in giving more importance to Ex.P9-Register and doubted the case of the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF URBAN DEVELOPMENT AND MUNICIPAL ADMINISTRATION OTHERS, with regard to the suppression of the facts before the Court . He has to approach the Court with clean hand and the same is not done by the complainant. 11. Having heard the arguments addressed by the learned counsel appearing for the complainant and so also learned counsel appearing for the accused and also on perusal of the material placed on record in keeping the contentions urged by the respective counsel, the point that would arise for consideration of this Court are: (1) Whether the Trial Judge has committed an error in acquitting the accused in coming to the conclusion that the very transaction between the accused and the complainant is doubtful and whether it requires interference of this Court? (2) What Order? Re - Point No.1: 12. Having heard the arguments of the respective counsel and also the grounds urged in the appeal and on perusal of the material available on record, this Court has to re-appreciate the material available on record. Firstly, this Court would like to refer to the contention of the complainant and in the complaint it is stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o admitted that the entries are in chronological order. Ex.P9 subjected to auditing. There is an entry in Ex.P.9, having shown the accused availed the loan in page No.58 and in the previous page at page No.57 on 04.01.2000, the amount was advanced and witness says that the same is not properly visible. It is suggested that he is intentionally denying the same and the same was denied. He admits that in Ex.P.9, there is no chronological order in mentioning the name of the borrower. It is suggested that Ex.P.9 is created for their convenience, the same was denied. He also admits that he has not produced any voucher and the same is in his custody. He also admitted that he cannot tell whether the surety signed the voucher or not. The counsel has made a specific suggestion that the cheque and promissory note were collected in respect of loan transaction dated 01.12.1999, were misused and the same was denied. 16. The accused in his evidence sworn to that he had availed a loan of ₹ 50,000/- on 01.12.1999 and not availed any loan on 01.12.2000 from the complainant. The accused in his evidence has narrated with regard to earlier transaction for having paid the amount of ₹ 5,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of P.W.1, it is elicited that they have collected the voucher at the time of availing loan and the same has not been placed before the Court and the same is in their custody. Even after the cross-examination also the said voucher is not produced before the Court. However, relying upon the cheque Ex.P.1 the accused admits that his signature is available in Ex.P.1 and there is no dispute regarding the signature available at Ex.P.1. The complainant also relied upon the notice sent to accused dated 27.12.2001 in terms of Ex.P5 and the accused in the cross-examination did not dispute the service of notice and also admits that he has not given any reply to the said notice. The promissory note is also marked as Ex.P.10. 18. On perusal of the evidence of D.W.1, in his evidence, he acknowledges availing loan on 01.12.1999 and not acknowledges the availment of loan on 01.12.2000, is total denial. In his evidence, he has sworn that he has not availed loan on 01.12.2000. D.W.1 in the cross-examination at page 5 categorically admits that notice was issued to him on 07.11.2001 and he has not given any reply. It is also pertinent to note that subsequent to dishonour of the cheque, notice wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments-Exs.D6 to D11 are the notices demanding payment in respect of earlier loan transaction dated 1.12.1999. The main contention of the accused is that there was a discrepancy in making an entry in Ex.P.9 about the loan transaction. No doubt, P.W.1 categorically admits with regard to discrepancy in entering availment of loan in Ex.P.9. The Trial Court also considered the material placed by the complainant as per Ex.P9 page 57 and 58 but trial Court failed to consider the admission given by D.W.1 in the cross examination and specific admission was given by the accused regarding availment of loan and also admitted that he made payment of ₹ 5,000/- during the pendency of the present case before the Trial Court. The Trial Court even not bothered to discuss anything about this admission. When there is an admission before the Court, there is no need to prove the same under Section 58 of the Evidence Act and the complainant need not prove the same. The Trial Court only carried away with the entries found in Ex. P.9 ledger regarding discrepancy. No doubt, there are transactions, where there is specific admission made in the cross examination by D.W.1 for having availed the loan and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 139 of N.I. Act. D.W.1 has given admission with regard to the transaction and also admitted the payment in respect of subject matter of cheque during the pendency of the case before the Trial Court. Hence, I am of the opinion that the Trial Judge has committed an error in acquitting the accused. 20. The learned counsel appearing for the accused has vehemently contended that the complainant has suppressed the fact of earlier transaction and also in order to substantiate his contention, he relied upon the judgment reported in ILR 2010 KAR 997 in the case of SRI. A.S. PARAMESHWARAIAH OTHERS, this Court had held that a person should approach the Court with clean hand and non disclosure of earlier transaction in the complaint is a suppression. In the case on hand no suppression as contended and the same is in respect of earlier transaction. The complaint is in respect of subsequent loan transaction and accused not paid the amount, hence the contention of the accused cannot be accepted. 21. It comes to the knowledge of this Court that during the pendency of the case, the accused has made payment of ₹ 5,000/- on 12.08.2004 in terms of D.12 and the same is not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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