TMI Blog2016 (4) TMI 1423X X X X Extracts X X X X X X X X Extracts X X X X ..... de and consequently, accused is acquitted for the offences alleged against her. The illegality so committed by both the Courts is writ large and hence revisional jurisdiction vested under Section 397 of Cr.P.C. is to be invoked. Revision petition is allowed. - Criminal Revision Petition No. 662/2010 - - - Dated:- 6-4-2016 - A.V. Chandrashekara, J. For the Appellant: Shantappa, Adv. for Vijaya S. Naregal, Adv. For the Respondent: Sachin V.R., Adv. ORDER A.V. Chandrashekara, J. 1. The present revision petition is filed under Section 397 Cr.P.C., challenging the Judgment of conviction and sentence of fine imposed on the petitioner by the learned 16th ACMM., Bangalore in C.C. No. 2542/2008 and affirmation of the same by the first Appellate Court in Crl. A. No. 967/2008. The petitioner was accused in C.C. No. 2542/2008, in a case instituted by the respondent/complainant for the offence punishable under Section 138 of the Negotiable Instruments Act [hereinafter referred to as the N.I. Act for short]. 2. The parties will be referred to as the complainant and the accused, as per their rank given in the trial Court. 3. The facts leading under the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner is that the presumption available under Sections 118 and 139 of the N.I. Act has been effectively discharged by effective cross-examination of P.W. 1. It is argued that the complainant has thoroughly failed to prove that the accused had received a sum of Rs. 4.6 lakhs as financial assistance. It is argued that the evidence placed on record would probablize that the accused had received a sum of Rs. 1.9 lakhs only as financial assistance and the same was repaid and the cheque marked at Ex. P2 was not returned by the complainant. Per contra, learned counsel for the complainant has vehemently argued that the presumption available under Sections 118 and 139 of the N.I. Act is not effectively discharged and that the accused has thoroughly failed to probablize the defence taken up on her behalf in regard to receipt of Rs. 1.9 lakhs only as financial assistance and the cheque marked at Ex. P2 was given only as a security for availing Rs. 1.9 lakhs. It is argued that there is no perversity or illegality found so far as invoking the provisions under Section 397 Cr.P.C. Hence, he has requested this Court to dismiss the revision petition. 6. After going through the records and af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for consideration. 10. Section 139 of N.I. Act enables the Court to presume, unless contrary is proved, that the holder of the cheque received the cheque of the nature referred to in Section 138 for discharge, in whole or in part, of any debt or other liability. 11. The presumption available under Sections 118 and 139 of N.I. Act is rebuttal nature. The accused can rebut the same by either entering into the witness box or effectively cross examining the complainant and her witness. 12. Therefore, it is useful to scan the evidence of PW-1 - the complainant. In the affidavit filed in lieu of examination in chief, she has deposed that accused had borrowed hand loan of Rs. 4.6 lakhs and agreed to repay the same. For prompt repayment of the said amount, accused issued a cheque dated 29.09.2007 for Rs. 4.60 lakhs drawn on Canara Bank, D.V.G. Road, Bangalore. The defence set up on behalf of the accused is she had received financial assistance of Rs. 1.9 lakhs from the complainant and had given cheque marked as Ex. P2 as security and infact she had not availed financial assistance of Rs. 4.6 lakhs as averred by the complainant. 13. During the course of cross examination, PW-1- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Court and upheld the opinion of the trial Court that complainant had no source of income to lend to the accused. The facts of the present case are almost identical. PW-1 has not placed any material to show that she had sufficient gold and had pledged the same to avail the loan with a specific purpose of financially assisting the accused. 16. The complainant is thoroughly examined in regard to the source of her income. She has admitted that her husband is a retired employee and she has got two sons. Out of two sons, one is staying in abroad and another one is working in Taluk Office, Bangalore and admitted that she had no personal income. According to her, her son who is staying in Germany was sending Rs. 5,000/- - 6,000/- per month and except that income, she had no other source of income. If really her son was sending Rs. 5,000/- -Rs. 6,000/- per month from Germany, it would have been credited to her savings bank account and nothing came in her way to produce relevant bank document. She has admitted that she has bank account in SBI and there is no difficulty for her to produce the SBI Bank statement for the past 10 years. When she was cross examined on 10.11.2008 she did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 1.33 lakhs and another cheque of which the amount is not mentioned. 22. At one stage, the complainant has deposed that she had sufficient amount at her disposal, in view of the amount being sent to her by her son from Germany every month. At another instance, she has deposed that she raised loan from 3 persons for the specific purpose of financially supporting the accused. This appears to be wholly inconsistent and improbable. 23. Though accused is not able to probablise the return of Rs. 1.9 lakhs to the complainant, the complainant herself has admitted that accused had paid entire amount of Rs. 1.9 lakhs, when she was cross examined on 10.11.2008. There are serious inherent inconsistencies in the very deposition of PW-1 in regard to her capacity in advancing the amount of Rs. 4.6 lakhs during April 2007. If really accused had approached her in the month of April 2007, nothing would have come in her way to have mentioned in the very complaint marked as Ex. P1. Even in the legal notice got issued vide Ex. P1, there is no reference about the amount of Rs. 4.6 lakhs being paid to the accused in the month of April 2007 and accused issuing post dated cheque putting the date ..... X X X X Extracts X X X X X X X X Extracts X X X X
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