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TMI Blog2022 (9) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... nt were dishonoured, the latter initiated action for the offence under section 138 of the Negotiable Instruments Act. The learned Magistrate, having found that the evidence adduced by the complainant established that the respondent had borrowed money and for discharging same, he issued the cheques which were dishonoured for insufficiency of funds in his bank account, convicted him and sentenced to fine of Rs. 4,000/- and directed him to undergo simple imprisonment for two months in case he failed to pay the fine amount. The learned Magistrate directed the respondent to pay Rs. 2,60,000/- towards compensation. Aggrieved by judgment of conviction, the respondent preferred an appeal to the Court of II Additional District and Sessions Judge, Da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Magistrate has not accepted the defence. It is held by the Magistrate that if really this was the transaction, the respondent could have issued reply to the legal notice sent by the complainant after dishonour of the cheques. The respondent could have taken action against the complainant for misusing the cheques. He could have also intimated the bank that he issued blank cheques towards security. Magistrate has also raised a question as to how the accused could take the responsibility of complainant's appointment in his school being made permanent and to this effect there are no materials also. Therefore rejecting the defence and raising the presumption available under section 139 of the Negotiable Instruments Act, the Magistrate convic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PW1 remained unassailed, the appellate court should not have reversed the findings of the learned Magistrate. He further argued the trial court came to right conclusion that the respondent issued the cheques for discharging his legal liability and to attach presumption available under section 139 of Negotiable Instruments Act. 8. Sri V. B. Siddaramaiah, learned counsel for the respondent, argued that the appellant has admitted in the cross-examination that he was working in the school being run by the respondent. The appellant was a temporary teacher, the respondent demanded for regularizing his appointment. Since there was delay in obtaining approval, the appellant insisted on some security and therefore for this reason the respondent is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examination. Appellant admitted that the respondent had sent a proposal to the Block Education Officer for approving his (appellant's) appointment in the school and there was delay in processing of the recommendation for approval. Appellant has also admitted that he asked the respondent for giving security for regularizing his appointment, but he denied the suggestion that the respondent gave two cheques at that time by way of security. Same was the evidence given by respondent when he adduced evidence as DW1. 11. In the light of the evidence available on record, if the findings of the courts below are examined, it may be stated that the trial court is justified in coming to conclusion that the respondent issued the cheques Exs.P1 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condition of the complainant. Therefore in that view, the coordinate Bench of this court held that complainant had to prove his financial capacity. In the case on hand, it is not the defence of the respondent that the appellant had no capacity to lend Rs. 2,25,000/- to him. When such a defence was not taken by the respondent, it was impermissible for the appellate court to give a finding to that effect for upsetting the judgment of the Magistrate. Indeed it is incumbent on the part of the complainant to prove that the dishonoured cheque was issued by the accused for discharging in full or part of legally enforceable debt. If according to the accused, the complainant had no capacity to lend money, he must introduce a specific defence to tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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