Karnataka High Court
Smt. Shashiskala T W/O. Sri. Shankar ... vs Smt. Usha S Prabhakar W/O. Sri. S ... on 10 April, 2013
1 Crl.A 1349/10
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 10TH DAY OF APRIL, 2013
BEFORE:
THE HON'BLE MR. JUSTICE A.S.PACHHAPURE
CRIMINAL APPEAL No.1349 OF 2010
BETWEEN:
Shashikala T.,
W/o. Sri. Shankar Naik B,
Aged 46 years,
Bank Employee,
R/at No.2954/3, 5th Main,
5th Cross, MCC 'B' Block,
Davanagere. ... APPELLANT/S
[By Sri. C.N. Keshava Murthy, Adv.]
AND:
Usha S. Prabhakar,
W/o. Sri. S. Prabhakar,
Aged 41 years,
R/at No.5241,
Janapriya Apartments,
Magadi Road, Sunkadakatte,
Bangalore. ... RESPONDENT/S
[By Sri. T. Srinivasan, Adv.]
***
2 Crl.A 1349/10
This Crl.A is filed u/Section 378(4) Cr.P.C
praying to set aside the Judgment dated 1.1.10 in
C.C. No.508/2009 on the file of the III Addl.
Senior C.J. & JMFC., Davangere - acquitting the
respondent/accused for the offence P/U/S.138 of
N.I. Act and convict the respondent.
This Crl.A having been heard and reserved for
Judgment, this day the Court pronounced the
following:
JUDGMENT
The appellant has challenged the Judgment and Order, acquitting the respondent for the charge under Section 138 of the Negotiable Instrument Act [hereinafter referred to as "the Act" for short] on a trial held by the JMFC., Davanagere.
2. The facts relevant for the purpose of this appeal are as under:
The appellant filed a complaint under Section 200 Cr.P.C. in the trial Court alleging that the respondent approached her in the third week of March 2006 for hand-loan of Rs.1,00,000-00 and she paid the said sum. The respondent is said to have 3 Crl.A 1349/10 agreed to pay the same within 3 months and to discharge the liability issued a cheque dated 22.06.2006 for a sum of Rs.1,00,000-00 on the same day and when it was presented on 22.06.2006 it returned with endorsement of "insufficient funds".
She issued a notice and as the respondent did not comply the demand, approached the trial Court with a complaint on these facts to initiate action against the accused for the offence punishable under Section 138 of the Act.
On appearance of the respondent, the complainant examined herself as P.W.1, her husband-P.W.2 and in their evidence Exs.P1 to 8 were marked. Statement of the respondent was recorded under Section 313 Cr.P.C. She has taken the defence of total denial, but no defence evidence is led.
The trial Court after hearing learned counsel for the parties and on appreciation of the 4 Crl.A 1349/10 material on record, acquitted the respondent for the charge. Aggrieved by the Judgment and Order, the present appeal is filed.
3. I have heard learned counsel for both the parties.
4. The point that arises for my consideration is;
Whether the appellant has made out any grounds to warrant interference in the Judgment and Order acquitting the respondent for the charge under Section 138 of the Act?
5. It is the submission of learned counsel for the appellant that the signature on the cheque is not in dispute and therefore, he contends that under the provisions of Section 118 and 139 of the Act, a presumption arose in favour of the appellant and as there is no circumstances on record to rebut the said presumption, the trial 5 Crl.A 1349/10 Court committed an error in acquitting the respondent.
On the other hand, learned counsel for the respondent has supported the Judgment and Order of the Trial Court and contends that the cross- examination and the material placed on record is sufficient to rebut the presumption. He also contends that the trial Court has rightly granted an Order of acquittal.
6. Reliance is placed on the decision of the Apex Court reported in AIR 2001 Supreme Court 2895 [K.N.Beena Vs. Muniyappan and another]; wherein it is held;
"The burden of proving that the cheque had not been issued for any debt or liability is on the accused and that the denial of the averments in reply by the accused are not sufficient to shift the burden of proof onto the complainant."
6 Crl.A 1349/10It is also held;
"The accused has to prove in trial by leading cogent evidence that there was no debt or liability."
The Apex Court in the decision reported in AIR 2001 - Kant. H.C.R. 2154 [M/s. Devi Tyres Vs. Nawab Jan]; held;
"The cheque is adequate proof of the fact that the debt or claim is enforceable and is liable to be discharged and if there is evidence to the contrary, then it is for the defence to place such evidence before the Court."
The Apex Court in the decision reported in AIR 2010 Supreme Court 1898 [Rangappa Vs. Mohan] held:
"There is a presumption under
Section 139 of the Act about the
existence of the legally recoverable
7 Crl.A 1349/10
debt or the liability and that the
cheque has been issued towards payment of the said debt."
7. The appellant/complainant is a bank employee and in lieu of her cross-examination, she has filed an affidavit, wherein she states that hand loan of Rs.1,00,000-00 was paid to the respondent/accused to fulfill her urgent personal family commitments i.e., to help her husband, who was facing financial crisis in his business. She also states that on the date itself the respondent had issued a post-dated cheque dated 22.06.2006 and the said cheque was presented on 22.06.2006 and it returned with an endorsement of insufficient funds. Though in the chief- examination, the appellant does not say about the presence of any of the person while advancing the loan amount, she examined P.W.2-her husband, who speaks of his presence at the time of the transaction. Ex.P1 is the cheque. The perusal of 8 Crl.A 1349/10 the cross-examination of P.Ws.1 and 2 reveals the admission of the respondent and her signature on the cheque-Ex.P1. So, from this material, a presumption could be raised under Section 139 of the Act relating to the existence of the debt and issuing of the cheque-Ex.P1 towards repayment of the dues.
8. In view of the presumption raised as aforesaid, it is necessary to scan the evidence of P.Ws.1 and 2 to find out as to whether the respondent has made out any grounds to rebut the said presumption.
The Apex Court in the decision reported in AIR 2009 Supreme Court 1518 [M/s. Kumar Exports Vs. M/s. Sharma Carpets]; wherein it is held;
"The rebuttal need not be by proof of defence beyond reasonable doubt and that he can either show that the consideration and debt did not exist or 9 Crl.A 1349/10 that under the particular circumstances of the case the non existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed."
Anyhow, the perusal of the Judgments of the Apex Court in the decisions referred to above would make it clear that the presumption is rebuttable and it is sufficient in case if the accused brings on record the circumstances which make a transaction improbable and if, to this extent there is evidence on record that itself is sufficient to rebut the presumption.
9. The cross-examination of P.W.1 reveals that one Vimala is the sister of the complainant, who is a friend of the accused. It is the defence of the respondent/accused that she had asked Vimala a loan of Rs.40,000-00 and deducting the commission, Vimala had issued a D.D. for a sum of Rs.37,715-00 and towards the security for 10 Crl.A 1349/10 repayment, she had issued two blank cheques and one cheque given to the said Vimala is misused by the complainant, on the basis of which the present false complaint has been filed. The complainant admits in the cross-examination that towards the total sum of Rs.1,00,000-00, she had issued a D.D. for a sum of Rs.37,715-00 and remaining amount of Rs.60,000-00 was paid in cash to prove the cash payment, there is no other material. So, from this admission in the cross-examination, an inference could be drawn that the complainant had issued a D.D. for a sum of Rs.37,715-00 deducting the commission and the remaining amount of Rs.60,000-00 was paid in cash. This version of P.W.1 is for the first time during the trial and either in the complaint or in the chief- examination, the complainant never said that out of Rs.1,00,000-00 said to have been paid a D.D. was also given to the accused for a sum of Rs.37,715-00. So, in the absence of an evidence 11 Crl.A 1349/10 in the complaint and the statement in the chief- examination and her first time admission in the cross-examination reveals a different version, which is not disclosed in the complaint. When there was no difficulty for the complainant to make a specific allegation in the complaint that a D.D. was also given to the accused. So, from this admission of the complainant, a serious doubt arises about the nature of transaction. It is no- doubt true that a cheque given as security itself is not a ground to exempt the respondent and though learned counsel for the appellant placed reliance on the decision reported in 2006(3) KCCR 1948 [M/s. S.T.P. Limited Vs. M/s. Usha Paints and Decorators and Another], wherein this Court has held that it makes little difference of the cheque given as security is dishonoured. But it would be a circumstance to probablise the defence and it will have weighed with other circumstances. 12 Crl.A 1349/10
Further more, when the complainant states both in the complaint and the evidence that the accused came to her house on a particular day for hand loan of Rs.1,00,000-00 and she paid the sum on the day, the conduct of the appellant in giving a D.D. for a sum of Rs.37,715-00 and paying the cash of Rs.60,000-00 also does not stand to reason. When on the said day, the accused asked for hand loan, the complainant keeping a D.D. ready for Rs.37,715-00 and also a cash of Rs.60,000-00 itself leads to unnatural conduct and it raises a doubt about her evidence. That apart, when the accused came to the complainant for a hand loan of Rs.1,00,000-00, she issuing the cheque for a sum of Rs.1,00,000-00 under her signature and the contents of the cheque having been written in some other hand also raise a strong doubt to disbelieve the version of P.W.1. In the normal course, when a person is to issue a cheque for a sum of Rs.1,00,000-00 and the said 13 Crl.A 1349/10 cheque is signed, the contents will also be written by the person, who is issuing the cheque. So, when there was no other person present at the time of the transaction except the compliant and the husband of the accused, the fact that the contents of the cheque are in different hand, raises further doubt. So, the circumstances stated above probablise the defence of the respondent that she had issued the blank cheque as security to the sister of the complainant, who had given her a D.D. for a sum of Rs.37,715-00 after deducting the commission.
10. This Court in a decision reported in 2012(3) KCCR 2057 [Veerayya Vs. G.K.Madivalar] took into consideration the facts that except the cheque, there were no other documents, the complainant had no financial ability to advance the loan, the bank balance was not more than Rs.50,000-00 and this Court held that these 14 Crl.A 1349/10 circumstances are sufficient to rebut the presumption.
11. In the decision reported in 2009(2) Kar.L.J. 98 [Shiva Murthy Vs. Amruthraj], the complainant was person below the poverty line, there were no documents for lending the money and considering the other circumstances, held that the presumption that arises under Section 139 and 118 of the Act stood rebutted.
In the similar set and circumstances, in the decisions of this Court reported in 2009(4) Kar.L.J. 26 [Smt. H.R.Nagarathna Vs. Smt. Jayashree Prasad] and 2011(5) KCCR 4223 [M.B.Rajasekhar Vs. Savithramma] the accused were acquitted. Therefore, in the absence of a specific averment in the complaint, that apart from the D.D. a cash of Rs.60,000-00 was paid and when it is the defence of the accused that she had received a sum of Rs.40,000-00 under the D.D. from 15 Crl.A 1349/10 the sister of the complainant and that she had given two cheques as security, her defence stands proved from the circumstances aforesaid. That apart, this is an appeal against acquittal, the Appellate Court will be slow in interfering with such an order. Even if a second view is possible the one accepted by the trial Court cannot be disturbed. Hence, looking to the material placed on record and under the aforesaid principle, I do not find any ground to warrant interference in the Judgment and Order of acquittal.
In the result, the appeal fails and it is dismissed.
Sd/-
JUDGE.
Ksm*