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TMI Blog2021 (1) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... r returning of the cheque, the complainant got issued legal notice dated 09.01.2006 through registered post as well as certificate of posting. The notice sent through registered post to the first address of the accused which is stated in the cause-title was returned with the postal endorsement as 'information delivered and not claimed' on 18.01.2006 and notice sent to the second address was returned with an endorsement 'addressee shifted" on 18.01.2006. The notice sent through certificate of posting 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 prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d acquaintance, the accused for his financial difficulty, had borrowed a small term loan of Rs. 3,00,000/- agreeing to repay the same within one month but he did not repay the amount, on his persistence, he issued the cheque dated 19.12.2005. When the same was presented, it was dishonored with an endorsement 'funds insufficient'. Legal notice was sent to both residential addresses as well as office address and notice was also sent through registered post and was 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 Rs. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcept the amount of Rs. 30,000/- which he borrowed from Krishnegowda, he has not taken any amount as mentioned in Ex.P.8. He also claims that he is having doubt insofar as the signature found in Exs.P.8, P.9 and P.10 further says that he has also not signed the affidavit before the Notary. It is also his evidence that when Krishnappa assaulted him, one Anilram collected Rs. 15,000/- and obtained signature on eight (8) green paper in the year 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 Rs. 30,000/- from Krishnappa and at that time, he gave three ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso 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 Rs. 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 Rs. 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 er ..... X X X X Extracts X X X X X X X X Extracts X X X X
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