Shri. K. Eswar Rao v. Shri. K. G. Sam Kutty
IN THE HIGH COURT AT CALCUTTA
CIRCUIT BENCH AT PORT BLAIR ...
CRA/1/2017 Shri K. Eswar Rao ... Appellant Vs.
Shri K. G. Sam Kutty ... Respondent Mr.V.D.Sivabalan, Advocate ... for the appellant Mr. Anil Chakraborty, Advocate ... for the respondent December 8, 2021 [GNC] Item No.16 The appellant is aggrieved by a judgement of acquittal dated November 30, 2016 passed by the learned Judicial Magistrate First Class in C.R. Case No.52 of 2014/T.R. No.248 of 2014.
Learned advocate appearing for the appellant submits that the learned Court mis-appreciated the evidence. The finding of the learned Court with regard to the receipt of payment of a sum of Rs.30,000/- by the appellant from the respondent is perverse. It is contrary to the documentary evidence on record. In support of his contention, he draws the attention of this Court to the cheque of Rs.30,000/- issued by Shopping Malaysia in favour of a person named Eswar Rao. He also draws the attention of the Court to the evidence of Defence Witness No.4 who is the Branch Manager of the Bank on which the cheque for Rs.30,000/- dated January 10, 2014 was issued. He submits that the DW No.4 in cross-examination stated that he did not have any personal knowledge regarding the person named Eswar Rao. Learned advocate appearing for the appellant submits that the appellant is not required to have a licence for money lending.
In support of such contention he relies upon a decision reported in 2002 2 CalLJ 169 ( Arpit Impex Private Limited Vs. Arunodaya Plantations Limited).
Learned advocate appearing for the respondent submits that the appeal is directed against an order of acquittal. He submits that when two views are possible, the Court should not substitute its own views with that of the view taken by the learned Trial Court. He submits that there is no perversity in the impugned judgment.
According to learned advocate for the respondent, the Judge disbelieved the case of the appellant at the trial since the appellant did not adduce any evidence with regard to the receipt of the sum of Rs.30,000/- by cheque dated January 10, 2014 issued by the company belonging to the respondent namely Shopping Malaysia.
Both the private parties agree that there was a loan transaction between them whereby and whereunder the appellant lent and advanced a sum of Rs.1,96,000/- to the respondent. According to the appellant apart from the sum of Rs.4,000/- the respondent did not pay the appellant any other portion of the loan amount. Therefore according to the appellant a sum of Rs.1,92,000/- remains outstanding. According to the appellant, a cheque for a sum of Rs.50,000/- was issued to by the respondent towards the part payment of such outstanding amount. Such cheque when presented was dishonoured. Consequently, the appellant approached the learned Court under Section 138 of the Negotiable Instruments Act, 1881.
According to the respondent, the entirety of the loan amount of Rs.1,96,000/- was repaid. According to the appellant a sum of Rs.30,000/- was paid by the cheque dated January 10, 2014 issued to by Shopping Malaysia and that another sum of Rs.20,000/- was paid in cash constituting the entire amount of Rs.50,000/- involved in the dishonoured cheque. In fact, as noted above, according to the appellant, the entirety of the loan amount stands repaid.
At the trial, the appellant in his evidence-in-chief did not allude to the cheque of Rs 30,000/- at all. His complaint is also silent on such score. However, in cross-examination he admitted that he received a sum of Rs.30,000/- through cheque dated January 10, 2014 drawn by Shopping Malaysia in his favour. The respondent produced the relevant Branch Manager of the Bank as a witness. In his evidence the Branch Manager identified the cheque for Rs. 30,000/-. The Branch Manager also identified the computer generated statement of account of Shopping Malaysia for the month of January, 2014 which was marked Ext.B. In his evidence, the Branch Manager stated that on January 13, 2014 a transaction took place between Shopping Malaysia and the appellant through cheque No.51 for an amount of Rs.30,000/-. He produced the original cheque which was marked as Ext.C. In cross-examination, the Branch Manager as DW.4 stated that he did not have personal knowledge regarding the person named, Eswar Rao although the cheque was named as Eswar Rao.
At the trial, the appellant did not produce any statement of account to establish that the appellant did not receive the proceeds of cheque bearing No.51 dated January 10, 2014 drawn by Shopping Malaysia for a sum of Rs.30,000/- Neither in his complaint nor in his evidence-in-chief did the appellant speak about the cheque for Rs. 30,000/-. It is only on cross-examination that the appellant came forward with the statement that he received the proceeds of such cheque. Consequently upon appraisal of the evidence led by the learned Judge thought it prudent not to believe the evidence of appellant as the complainant.
I find no infirmity in such finding being arrived at by the learned trial Judge. The impugned judgment is well reasoned. It deals with all the contentions raised. It also decides the issue as to whether a sum of Rs. 50,000/- being the amount of the dishonoured cheque was legally payable by the respondent as the drawer of the cheque or not. It apprises the evidence on record in details and returns a finding that, the appellant cannot be believed in view of his suppression of the receipt of the proceeds of the cheque for Rs. 30,000/-. The appellant came with unclean hand to Court. The learned Trail Judge did not err in disbelieving a complainant who was guilty of not placing the entire transaction before the Court upfront.
So far as the issue of money lending is concerned, the same need not be gone into in this appeal, inasmuch as, this Court in appeal is unable to take a different view than the
learned trial Judge returned in the impugned judgment on the merits of the case itself.
Consequently, CRA/1/2017 is dismissed.
(Debangsu Basak, J. )