TMI Blog2021 (1) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 complaina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing is duly served on the accused on 18.01.2006. In spite of service of notice, accused has not complied with the demand and hence, the complainant was forced to file the complaint. 4. The accused was secured by issuing summons after taking the cognizance of the offence and the accused did not plead guilty and he claims the trial. Hence, the complainant examined as PW.1 and got marked the documents as Exs.P.1 to P.10. The accused was subjected to recording the statement under Section 313 of Cr.P.C., thereafter, the accused was also examined himself as DW.1. 5. The Trial Judge after hearing the arguments of both the respective parties, acquitted the accused and hence, the present appeal has filed before this Court. 6. In this appeal, the complainant has urged the grounds that the accused admitted his signature which is available in the cheque-Ex.P.1 and the 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. In order to substantiate the same in the said defence, except examining himself as DW.1, the accused has not probabalized his defence. However, the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... returned with an endorsement 'not claimed' and in respect of the office address is concerned, it was returned with 'addressee left'. However, the notice sent through under certificate of posting was served on the accused and no reply was given. 11. The complainant in order to substantiate his case examined himself as PW.1. The complainant in his affidavit reiterated the averments of the complaint and got marked the documents Exs.P.1 to P.7(a). He was subjected to cross-examination. In the cross- examination, he admits that for lending an amount of ₹ 3,00,000/-, he has not obtained any document from the accused, however, he volunteers that he gave the amount only on belief. It is also his evidence that both accused and wife came to his house and so also the accused came and gave the cheque in his residence. He only filled up the cheque and brought the said cheque. It is also elicited that in 2005, he was having income of ₹ 25,000/- to 30,000/- per month by doing real estate business from last 15 years but he has not having any documents to show that he is having income of ₹ 25,000/- to 30,000/- per month so also he is not having any documents to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 2007. He also admits that he has not given any notice to the counsel who filed the insolvency case. He also admits that he has not taken any legal action against Anilram, who collected the signature on eight (8) green papers. It is suggested that in order to escape from the liability, he is falsely deposing that Anil Ramu has taken signature on the blank green papers and the same is denied. 13. Having perused both oral and documentary evidence, the accused does not dispute the signature available in Ex.P.1 and he admits the signature but his contention is that the said Ex.P.1 was given to the Krishnappa and not to the complainant. It is also his defence that he borrowed an amount of ₹ 30,000/- from Krishnappa and at that time, he gave three cheques to said Krishnappa and the said cheques were misused. In the cross-examination of PW.1, except eliciting the answer with regard to the complainant has not obtained any documents when the transaction was taken place, nothing is elicited. No doubt in the cross- examination of PW.1, he says that he was earning ₹ 25,000/- to 30,000/- but he is not having any document to show the same. It is suggested that he was not having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. The other observation is that the cheque is also given to him in part payment and he was not having any acquaintance. The very observation of the Trial Judge in the paragraph Nos.13 and 14 of the judgment is erroneous and the same is contrary to the material available on records and the Ex.P.8 clearly discloses that he was due for an amount of ₹ 3,00,000/- in favour of the complainant. The Trial Judge ought not to have doubted the capacity of the complainant and he specifically pleaded in the insolvency petition and also the other ground that while acquitting the accused it is observed that he was not having the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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