Karnataka High Court
Sri G L Jagadish vs Smt Vasantha Kokila on 19 February, 2021
Equivalent citations: AIRONLINE 2021 KAR 896
Author: H.P.Sandesh
Bench: H.P. Sandesh
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R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF FEBRUARY, 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL APPEAL NO.176/2011
BETWEEN:
SRI G.L. JAGADISH,
S/O SRI G.N. LINGAPPA,
AGED ABOUT 52 YEARS,
RESIDING AT NO.29, 3RD MAIN,
BASAVESHWARA HOUSING SOCIETY LAYOUT,
VIJAYANAGAR, NEAR BTS DEPOT,
BENGALURU-40. ... APPELLANT
[BY SRI H. RAMACHANDRA, ADVOCATE FOR
SRI H.R. ANANTHA KRISHNA MURTHY AND ASSOCIATES
- (THROUGH V.C.)]
AND:
SMT. VASANTHA KOKILA,
W/O LATE N.R. SOMASHEKHAR,
AGED ABOUT 58 YEARS,
RESIDING AT NO.322, 8TH MAIN,
3RD STAGE, 4TH BLOCK,
BASAVESHWARANAGAR,
BENGALURU. ... RESPONDENT
[BY SRI K.R. LAKSHMINARAYANA RAO, ADVOCATE]
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF
CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 06.07.2010
PASSED BY THE P.O. FTC-II, BENGALURU IN CRL.A. NO.470/2009
AND CONFIRMING THE ORDER DATED 27.05.2009 PASSED BY THE
XXII ACMM AND XXIV ASCJ, BENGALURU IN C.C.NO.17229/2004
CONVICTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 138 OF NI ACT.
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THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 06.02.2021 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
This appeal is filed praying this Court to set aside the judgment of acquittal dated 06.07.2010 passed in Crl.A.No.470/2009, on the file of the Presiding Officer, Fast Track Court - II, Bangalore, and to confirm the order dated 27.05.2009 passed in C.C.No.17229/2004, on the file of the XXII ACMM and XXIV ASCJ, Bangalore, for the offence punishable under Section 138 of the Negotiable Instruments Act ('NI Act' for short).
2. The factual matrix of the case is that the complainant/appellant herein had filed a private complaint under Section 200 of Cr.P.C. for the offence punishable under Section 138 of the NI Act alleging that the accused/respondent had availed hand loan of Rs.5,00,000/- and in turn, on demand gave the subject matter of the cheque and when the same was presented, it was dishonoured for want of sufficient funds. Hence, the complaint was filed. The complainant and the accused have led their evidence before the Trial Court and the Trial Court after considering the material on record, convicted 3 the accused for the offence punishable under Section 138 of the NI Act and sentenced her to pay Rs.6,00,000/-. Being aggrieved by the same, the accused filed an appeal before the Appellate Court and the Appellate Court reversed the finding of the Trial Court and acquitted the accused. Hence, the present appeal is filed by the complainant before this Court.
3. The learned counsel for the appellant in his arguments vehemently contend that the Appellate Court has given the finding while reversing the finding of the Trial Court that the complainant admitted that the son of the accused is looking after the business after the death of his father. Hence, the accused seeking the financial help does not arise. The other ground for reversal of the judgment is that the date of loan transaction is not specified. The complainant has also not produced the documents for having source of Rs.5,00,000/- and no other loan documents are produced before the Trial Court. The defence of the accused before the Trial Court is that she lost the cheque. The learned counsel in his argument vehemently contend that the reasoning given by the Appellate Court is erroneous. It is admitted that the complaint was given after 4 service of notice and D.W.1 in the cross-examination categorically admitted financial problems and constraints. Though, the accused denied the address, but admitted in the cross-examination and both the Trial Court and the Appellate Court have come to the conclusion that notice against the accused is served, inspite of no reply was given to the notice. When such being the case, the Appellate Court ought to have drawn the presumption in favour of the complainant and instead of the reasons was given they are not acceptable. The accused has not disputed the signature available on the cheque. Hence, it requires interference of this Court.
4. The learned counsel for the appellant in support of his arguments relied upon the judgment of the Apex Court in the case of N. HARIHARA KRISHNAN v. J. THOMAS reported in AIR 2017 SC 4125. Referring this judgment, the learned counsel would vehemently contend that the plea of payee that he was unaware of fact that cheque drawn on account and name of Company and no sufficient reason advanced by payee for condoning such delay, cannot be a ground and the said contention cannot be accepted.
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5. The learned counsel also relied upon the judgment of the Apex Court in the case of UTTAM RAM v. DEVINDER SINGH HUDAN AND ANOTHER reported in (2019) 10 SCC
287. Referring this judgment, the learned counsel brought to the notice of this Court that inconsistencies regarding the amount due, not made out, as amount due stood crystallized in written document against which cheque in question was issued. The defence that cheque book was lost/stolen or that cheque was misused was completely without basis. The acquittal judgment was reversed and directed the accused to pay twice of the amount of cheque as fine and cost of litigation of Rs.1,00,000/-.
6. The learned counsel also relied upon the judgment of this Court passed in Crl.A.No.1191/2011 dated 03.11.2020, wherein this Court also reversed the acquittal order. The same is applicable to the facts of the case on hand. Hence, it requires interference of this Court.
7. Per contra, the learned counsel for the respondent would vehemently contend that the case of the complainant is that the accused had availed hand loan of Rs.5,00,000/-. The 6 learned counsel would contend that there is lack of pleadings and the date of transaction is not mentioned either in the complaint or in the legal notice. It is admitted that no other documents are obtained while advancing the loan. The learned counsel would contend that the cheque is of the year 1990 and the same was given in 2004. The date of the cheque is also not mentioned in the complaint or in the notice. The FSL report is also in favour of the accused that the hand writing on the cheque are not in the hand writing of the drawer of the cheque. The learned counsel would contend that the accused had rebutted the case of the complainant and the Appellate Court has rightly reversed the judgment of the Trial Court.
8. The learned counsel for the respondent relied upon the judgment of this Court in the case of S. TIMMAPPA v. L.S. PRAKASH reported in 2010 (5) KCCR 3397, wherein it is held that the provision of Section 139 of the NI Act does not contemplate existence of debt as a matter of legal presumption. The Court held that the drawee of cheque has to prove the existence of debt or liability.
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9. The learned counsel also relied upon the judgment of this Court in the case of H. MANJUNATH v. SRI A.M. BASAVARAJU reported in ILR 2014 KAR 6572, wherein it is held that the complainant has merely mentioned the date of issuance of cheque without material particulars of the transaction and Ex.P.1 makes it manifest that except signature all other entries are in different handwriting.
10. The learned counsel also relied upon the judgment of the Apex Court in the case of JOHN K. ABRAHAM v. SIMON c. ABRAHAM AND ANOTHER reported in 2014 CRI.L.J. 2304, wherein it is held that for drawing presumption under Section 118 read with Section 139 of the NI Act burden is heavily upon the complainant. Complainant not sure as to who wrote cheque nor aware as to when and where existing transaction took place for which cheque was issued by accused.
11. The learned counsel relied upon the judgment of the Apex Court in the case of K. SUBRAMANI v. K. DAMODARA NAIDU reported in 2015 AIR SCW 64, wherein it is held that the complainant had no source of income to lend sum of Rs.14 lakhs to accused. He failed to prove that there is legally 8 recoverable debt payable by accused to him. It held that the acquittal is proper.
12. The learned counsel also relied upon the judgment of the Apex Court in the case of BASALINGAPPA v.
MUDIBASAPPA reported in (2019) 5 SCC 418, wherein the Apex Court held that the evidence adduced on behalf of the complainant does not prove source of income and only accused has to do preponderance of probability and inference can be drawn.
13. The learned counsel also relied upon the order of this Court passed in Crl.A.No.2784/2012 dated 11.11.2020, wherein this Court held that when a probable defence is set up by the accused, burden of explaining the same is on the complainant and standard of proof applicable for evaluating such explanation would be proved beyond reasonable doubt.
14. In reply to the arguments of the learned counsel for the accused, the learned counsel for the complainant would contend that in paragraph No.3 of the affidavit it is categorically mentioned regarding lending the loan and the accused also relied 9 upon the document Ex.D.5 and notice issued as against the accused was served and the signature is not disputed and no reply was given. When such being the case, the Appellate Court ought to have drawn the presumption and nothing has been discussed in the judgment of the Appellate Court with regard to the presumption is concerned. Hence, it requires interference of this Court.
15. Having heard the learned counsel for the complainant and the learned counsel for the accused, the point that arise for the consideration of this Court is:
(i) Whether the Appellate Court has committed an error in reversing the finding of the Trial Court and acquitting the accused for the offence punishable under Section 138 of the NI Act?
16. Keeping in view the contentions raised by both the learned counsel for the complainant and learned counsel for the accused, this Court has to re-appreciate the material available on record, since there are divergent findings before this Court. The Trial Judge after perusing both oral and documentary material available on record i.e., the evidence of P.W.1, the documents at Exs.P.1 to 8, the evidence of D.W.1 and the 10 documents at Exs.D.1 to 6, convicted the accused for the offence punishable under Section 138 of the NI Act. The Appellate Court has reversed the finding of the Trial Court mainly on three grounds that the complainant has admitted in the cross- examination that after the death of his father, son of the accused is looking after the business, the date of the loan transaction is not specified and no documents are produced for having the source of Rs.5,00,000/-. This Court has to evaluate the evidence available on record before forming its opinion.
17. On perusal of the records, particularly the complaint averments, no doubt it is clear that the date of loan transaction is not mentioned by the complainant. The complainant only says that he is a retired employee and the accused is a friend of the complainant. The family of the accused is running the transport business. The accused requested the complainant for financial assistance for transport business, as the accused was in financial difficulties. Hence, the complainant gave an amount of Rs.5,00,000/-. The accused though agreed to repay the amount, did not repay. But on persistent demand, issued the subject matter of the cheque. On perusal of the complaint, it is clear that for repayment of the amount, cheque dated 11 24.06.2004 was given and when the same was presented, it was dishonoured and the notice was sent. Though the accused denied her signature on the postal acknowledgement in the cross-examination, the complainant admits that the said signature is not that of the accused. But both the courts held that notice was served on her.
18. It is also pertinent to note that in the appeal memo and in the affidavit the very same address was given by the accused. Both the Courts relied upon the material on record and accepted the service of notice on the accused. The main reasoning given by the Appellate Court is that P.W.1 admitted in the cross-examination that the son of the accused is continuing the business after the death of his father. No doubt, in the cross-examination of P.W.1 it is admitted that the date of loan transaction is not mentioned either in the complaint or in the notice. It is admitted that the cheque is of the year 1990 series. It is also admitted that the cheque contains two signatures and if any corrections, normally small signature would be made. It is elicited that except the cheque, no other documents are collected for having lent the amount. It is also elicited that the 12 accused is having rental income. It is also admitted that the son of the accused is continuing the business of transport. It is elicited that from last 20 years, they are known to each other and both of them are visiting the respective houses. The document Ex.D.1 is also confronted to P.W.1 for having purchased the buses by the complainant in 2003. The son of the accused stood as surety for the said transaction. However, it is suggested to P.W.1 in the cross-examination that the cheque was given for clearing the loan of Rs.5,00,000/- and the said suggestion was denied by P.W.1. It is suggested that P.W.1 stole the cheque from the house of the accused and the complaint was given and the same was denied.
19. D.W.1 in her affidavit denied the case of the complainant. The accused disputed the address and claims that correct address is No.322, III Stage, IV Block, Basaveshwaranagar, Bangalore. The affidavit of the accused is in the line of the answers elicited from the mouth of P.W.1. The accused contended that the contents of the cheque in dispute is not in her hand writing and she has not approached the complainant for financial assistance.
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20. In the cross-examination, a suggestion was made that she has obtained the OD facility in Sri Matha Mahila Co- operative Bank by pledging the buses and the same was denied. However, she admits that her two sons are sureties for the said transaction, but gives an explanation that the same is for different purposes. When the document Form No.32 was confronted to her, she admits having availed OD facility. The document Ex.D.9 is marked. It is also admitted that she was due for an amount of Rs.5,00,000/- to Sri Matha Mahila Co- operative Bank on 28.06.2005 and the said document is marked as Ex.P.10. She also admits that when her son visited foreign, she availed OD facility, but she claims that the address mentioned in Ex.P.10 does not belongs to her. The witness was confronted with the appeal memo. She admits that the address mentioned in the complaint is also mentioned in the appeal memo and so also in the affidavit and the same is marked as Ex.P.11. But she claims that the contents in paragraph No.5 of Ex.P.11 are false. It is elicited that she gave the complaint for loss of cheque on 15.07.2004 after return of the cheque and in the complaint the subject matter of the cheque is not mentioned. 14 D.W.1 admits that one Sujay also has filed the complaint against her. In terms of Ex.D.2, the amount has been paid.
21. Having perused the material available on record, though the complainant has not mentioned the date of the loan transaction, but it is emerged in the evidence that both of them were cordial and having acquaintance for a period of 20 years. It is important to note that the cheque issued in favour of the complainant is of the year 2004. The accused counsel himself has got elicited in the cross-examination of P.W.1 that the complainant had purchased three buses in the year 2003 specifically mentioning the date 21.08.2003, 08.08.2003 and 07.07.2003 and also got marked the document Ex.D.1 confronting the same. P.W.1 admitted that the son of the accused stood as surety. Hence, it is clear that both the families were cordial and the very reasoning given by the Appellate Court that there is no loan document between the parties except the cheque is erroneous and failed to take note of the relationship between the parties. When such being the case, when the cheque was issued, the Appellate Court ought not to have come to the conclusion that not obtaining other documents from the 15 accused, is a ground for acquittal. The Appellate Court committed an error in coming to such a conclusion.
22. Insofar as the source of income of the complainant is concerned, it is the finding of the Appellate Court that no documents are produced. When P.W.1 was cross-examined, the accused counsel himself suggested with regard to the financial capacity of the complainant for having purchased three buses in 2003. The Appellate Court ought not to have come to such a conclusion that the complainant is not having source of income. It is important to note that the Appellate Court while reversing the finding of the Trial Court gave the reason that P.W.1 has admitted that the son of the accused has continued the business after the death of his father. The main case of the complainant is that the accused was having financial difficulties and hence the accused had approached the complainant. It is important to note that in the cross-examination of D.W.1 though the accused claims that they are having 35 buses and not having any financial constraint, in the cross-examination admitted that they have availed the loan from Sri Matha Mahila Co-operative Bank. Though at the first instance denied the suggestion that buses are pledged and OD facility was taken, on confrontation of the 16 document Ex.P.9, the accused admitted in the cross-examination that in 2005 D.W.1 was due for a sum of Rs.5,00,000/- in favour of Sri Matha Mahila Co-operative Bank. It is also admitted that while sending her son to Foreign, OD facility was taken. The Appellate Court failed to take note of the admissions elicited from the mouth of accused. Though the accused claims that they are financially strong, but the fact that they were financially having problems is not considered by the Appellate Court.
23. It is also important to note that the counsel appearing for the complainant brought to the notice of this Court that in the appeal memo filed before the Appellate Court, a ground was taken that there were financial transaction between the complainant and the accused and the cheque was given for different purpose. But in the cross-examination of P.W.1, a suggestion was made to P.W.1 that cheque was given for clearance of Rs.5,00,000/- and the same is available in paragraph No.4 of the cross-examination of P.W.1. Though P.W.1 denied the same, but the accused admitted the issuance of the cheque for clearing of Rs.5,00,000/-. All these materials have not been properly appreciated by the Appellate Court. No doubt, as contended by the learned counsel for the accused, 17 date of loan transaction has not been mentioned. I have already pointed out that it is the case of the complainant that when the accused was under financial constraints, the loan was taken and not disputed the fact that the cheque was given in 2004. Though contended that date of cheque has not been mentioned, the date of cheque is specific on the cheque.
24. The contention of the learned counsel for the accused is that FSL report is in favour of the accused, but the same is in respect of the remaining hand writings available on the cheque. The Apex Court in the judgment in the case of Uttam Ram (supra) has categorically held that if any contents are in different hand writing and if defence is taken as cheque was lost, the burden lies on the accused to prove the same. The Apex Court in the case of BIR SINGH v. MUKESH KUMAR reported in (2019) 4 SCC 197 held that even if other writings are in different hand writing, the same cannot be a ground to acquit the accused. In the case of Uttam Ram (supra), the Apex Court also held that if defence is taken that cheque was lost, the same has to be proved. But in the case on hand, it has to be noted that the complaint was given subsequent to the receipt of legal notice and not prior to the legal notice and also it 18 is categorically admitted that while lodging the complaint, the cheque number is also not mentioned. It is also suggested to D.W.1 in the cross-examination that one Sujay had filed a case against the accused and the accused admits the same. When such being the case, when the complaint was given subsequent to the receipt of legal notice, the very defence that cheque was lost cannot be accepted.
25. The principles laid down in the judgments referred by the accused counsel regarding no date of loan transaction and also presumption cannot be drawn in favour of the complainant cannot be accepted. In the case on hand, though answers are elicited from the mouth of P.W.1 for having not mentioned the date of transaction, the cheque was of the year 1990, that itself is not rebutting the evidence of the complainant. This Court does not find any preponderance of probabilities in favour of the accused having perused both oral and documentary evidence placed on record except non-mentioning of the date of loan transaction. This Court has already given the finding that the complainant and accused family are having acquaintance from the last 20 years and the transaction was taken place. Admittedly, between the complainant and the accused there 19 were financial transaction and the fact that the accused was having financial constraints for sending her son to foreign is admitted. The Appellate Court ought to have appreciated the evidence in a right perspective and the same has not been done. The reasoning assigned by the Appellate Court is erroneous and the same is not based on the material available on record. The judgments relied upon by the learned counsel for the accused are not applicable to the facts of the case in view of the ratio laid down by the Apex Court in the case of Uttam Ram (supra) and in the case of Bir Singh (supra). Hence, it requires interference of this Court.
26. In view of the discussions made above, I pass the following:
ORDER
(i) The appeal is allowed.
(ii) The impugned order of acquittal, dated
06.07.2010 passed in Crl.A.No.470/2009 is
hereby set aside.
(iii) The order of the Trial Court dated 27.05.2009 passed in C.C.No.17229/2004, is restored.
The accused is directed to pay the amount 20 within eight weeks and if she fails to make the payment, the Trial Court is directed to proceed in accordance with law.
Sd/-
JUDGE MD