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Karnataka High Court

Sri L Raman vs Sri Rajanna @ D.M.Raju on 30 January, 2024

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                                     CRL.A. No. 667 of 2014


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 30TH DAY OF JANUARY, 2024

                         BEFORE
       THE HON'BLE MR JUSTICE ANIL B KATTI
        CRIMINAL APPEAL No.667 OF 2014 (A)
BETWEEN:

    SRI.L.RAMAN
    S/O.LATE LAKSHMAN
    AGE 72 YEARS
    R/AT NO.2/1, M.M.ROAD CROSS
    MARAPPA GARDEN, BENSON TOWN
    BANGALORE-560 076
                                               ...APPELLANT
(BY SRI.SHANKARAIAH B., ADVOCATE)

AND:

    SRI.RAJANNA @ D.M.RAJU
    S/O.MARIYAPPA
    PROP. "NANDINI BAR AND RESTAURANT"
    LAKSHMIPURA CROSS
    VIDHYARANYAPURA POST
    BANGALORE-97

                                             ...RESPONDENT
(BY SRI.SHIVARUDRA, ADVOCATE)

      THIS APPEAL FILED U/S.378 (4) CR.P.C., PRAYING TO SET
ASIDE THE ORDER DATED 06.06.2014 PASSED BY THE XXI ADDL.
C.M.M., BANGALORE IN C.C.NO.13673/13- ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF
N.I.ACT.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
17.01.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
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                                          CRL.A. No. 667 of 2014


                           JUDGMENT

Appellant/complainant feeling aggrieved by judgment of Trial Court on the file of XXI Addl.Chief Metropolitan Magistrate, Bengaluru in C.C.No.13673/2013, dated 06.06.2014 preferred this appeal.

2. Parties to the appeal are referred with their ranks as assigned in the Trial Court for the sake of convenience.

3. Heard the arguments of both sides.

4. After hearing arguments of both sides and on perusal of Trial Court records with the impugned judgment under appeal, following points arise for consideration:

1) Whether the impugned order under appeal is perverse, capricious and legally not sustainable?

2) Whether any interference of this Court is required?

5. On careful perusal of oral and documentary evidence placed on record, it would go to show that accused approached complainant on 02.11.2012 and -3- CRL.A. No. 667 of 2014 requested the complainant for hand loan of Rs.1,66,000/-. Accused in order to discharge the legally enforceable debt issued cheque for Rs.1,66,000/- drawn on SBI Vidyaranyapura Branch, Bengaluru dated 03.12.2012 Ex.P.1. Complainant presented the said cheque for encashment and the same was dishonoured for want of sufficient fund in the account of accused vide bank endorsement Ex.P.2. When the complainant informed about dishonour of cheque to the accused, accused instructed to represent the same and by that time he will arrange for sufficient balance in his account. On such instruction complainant presented the said cheque on 27.02.2013 which came to be dishonoured vide Bank endorsement Ex.P.3. Complainant issued demand notice Ex.P.4 dated 01.03.2013 through RPAD and UCP, postal receipt is produced at Ex.P.5 and acknowledgement card at Ex.P.6. Accused has given reply to the demand notice Ex.P.7 dated 20.03.2013 by denying the claim of complainant. Complainant has filed the present complaint on 01.04.2013. If the above referred documents and the evidence of PW.1 are perused, then it would go to show -4- CRL.A. No. 667 of 2014 that complainant has complied the necessary legal requirements in terms of Section 138(a) to (c) of Negotiable Instruments Act, 1881(herein after for brevity referred as "N.I.Act"). Complainant has filed complaint on 01.04.2013 within a period of one month in terms of Section 142(b) of N.I.Act. When the complainant has discharged initial burden of proving the issuance of cheque for lawful discharge of debt and the same was dishonoured for want of sufficient fund in the account of accused and has complied the legal requirement, then statutory presumption in terms of Section 118 and 139 of N.I.Act will have to be drawn.

6. Learned counsel for appellant relied on the Co- ordinate Bench judgment of this Court in Rajendra Prasad Vs. M.Shivaraj reported in 2006 Cri.L.J. 3737. Wherein it has been held that when once issuance of cheque and signature of accused is either admitted or proved, then statutory presumption in terms of Section 138 and 139 of N.I.Act will have to be drawn.

CRL.A. No. 667 of 2014

7. In this context of the matter, it is useful to refer the judgment of Hon'ble Apex Court in APS Forex Services Pvt. Ltd. Vs. Shakti International Fashion Linkers and others reported in AIR 2020 SC 945, wherein it has been observed and held that once the issuance of cheque with signature on cheque is admitted, there is always a presumption in favour of complainant that there exist legally enforceable debt or liability. Plea by accused that cheque was given by view of security and same has been misused by complainant is not tenable.

8. It is also profitable to refer another judgment of Hon'ble Apex Court in P. Rasiya vs. Abdul Nazer and another reported in 2022 SCC OnLine SC 1131, wherein it has been observed and held that:-

" Once the initial burden is discharged by the complainant that the cheque was issued by the accused and signature of accused on the cheque is not disputed, then in that case, the onus will shift upon the accused to prove the contrary that the cheque was not for discharge of any debt or other liability. The presumption under Section 139 of N.I. Act is statutory presumption and thereafter, once it is presumed that the cheque is issued in whole or in -6- CRL.A. No. 667 of 2014 part of any debt or other liability which is in favour of the complainant/holder of the cheque, in that case it is for the accused to prove the contrary."

In view of the principles enunciated in the aforementioned two judgments of Hon'ble Apex Court, it is evident that when once issuance of cheque with signature of accused on the account maintained by him is admitted or proved then statutory presumption in terms of Section 118 and 139 of N.I. Act will have to be drawn. Now, it is up to the accused to place rebuttal evidence to displace the statutory presumption available in favour of the complainant.

9. It is the defence of accused that Ex.P.1 cheque is issued to the complainant as his commission for sale of property under agreement of sale dated 14.10.2011 from it's owner Muniraju s/o late Munivenkatappa. It is now up to the accused to probabilise his defence to displace the statutory presumption available in favour of complainant. In this context of the matter, it is useful to refer the judgment of Hon'ble Apex Court in Basalingappa Vs. Mudibasappa -7- CRL.A. No. 667 of 2014 reported in 2019 Cr.R. page No. 639 (SC), wherein it has been observed and held that:

"Presumption under Section 139 is rebuttable presumption and onus is on accused to raise probable defence. Standard of proof for rebutting presumption is that of preponderance of probabilities. To rebut presumption, it is open for accused to rely on evidence laid by him or accused can also rely on materials submitted by complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from materials brought on record by parties, but also by reference to circumstances upon which they rely. It is not necessary for accused to come in witness box in support of his defence. Section 139 imposed an evidentiary burden and not a presumptive burden".

10. The Hon'ble Apex Court in it's latest judgment in Rajesh Jain v/s Ajay Singh reported in 2023 SCC OnLine SC 1275, wherein it has been observed and held that, once issuance of cheque with signature of accused is either admitted or proved then, statutory presumption will have to be drawn in favour of the complainant. -8- CRL.A. No. 667 of 2014

In view of the principles enunciated in both the aforementioned judgment, it is evident that the accused to probabilise his defence can rely on his own evidence or also can rely on material submitted by complainant. It is not necessary for the accused to step into witness box to probabilise his defence.

11. In the present case accused apart from relying on the material evidence brought on record during the cross-examination of PW.1, also relied on the evidence of DWs.1 to 4 and the documents at Ex.D.1 to Ex.D.8. Whether the said evidence brought on record by accused by way of rebuttal evidence is sufficient to displace the statutory presumption available in favour of complainant or not is to be decided.

12. On careful perusal of complaint averments, it would go to show that complainant has only pleaded to the fact that accused has availed loan of Rs.1,66,000/- by way of cash on 02.11.2012. Accused in order to discharge legally enforceable debt issued cheque Ex.P.1. Whereas, it is the defence of accused that he has issued cheque in -9- CRL.A. No. 667 of 2014 question Ex.P.1 to the complainant as commission for sale of land bearing survey No.313/1 measuring 1 acres 38 guntas, out of 2 acres 18 guntas situated at Hesaraghatta village, Bengaluru North taluk from it's owner Muniraju s/o Late Munivenkatappa for total consideration amount of Rs.53,13,750. In respect of said transaction complainant has received the cheque Ex.P.1 as his commission and accused has not borrowed any loan amount from complainant. Complainant is also one of the signatory to the agreement of sale dated 14.10.2011 and also the signatory to the endorsement dated 28.02.2012.

13. Complainant PW.1 during his cross-examination admits that he knows Muniraju and he is owning land bearing survey No.313/1 measuring 2 acres. PW.1 though denies about the sale transaction of accused as claimed in the reply notice, but during the cross-examination admits his signature on the agreement of sale dated 14.10.2011. PW.1 though denies that he has arranged to sell the property of Muniraju to accused, but volunteers that he was holding agreement of sale earlier to the one claimed

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by accused. It means that complainant PW.1 admits about the transaction between Muniraju and accused.

14. Learned counsel for complainant has argued that complainant has disputed his signature on agreement of sale dated 14.10.2011 and the endorsement found in Ex.D.1. Accused has not taken any steps to prove the signature of complainant Ex.D.1, so as to hold that complainant is a consenting party to the agreement of sale in favour of accused Ex.D.1.

15. Per contra, learned counsel for accused has argued that complainant is consenting party to the agreement of sale Ex.D.1 and the evidence of owner of property DW.4 Muniraju substantiate the said fact and the same is also corroborated by the evidence of DWs.1 to 3. Complainant has not enforced the agreement of sale and the said fact demonstrates that complainant was consenting party to the agreement of sale in favour of accused Ex.D.1 dated 14.10.2011.

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16. Accused DW.1 during the course of his evidence has deposed to the effect that complainant has arranged for sale of property from it's owner under agreement of sale dated 14.10.2011 Ex.D.1. The complainant has signed as a witness to the said agreement of sale and identifies the signature of accused Ex.D.1(a) and Ex.D.1(b), so also identifies signature of the witnesses. DW.1 further deposed that he has issued cheque Ex.P.1 as a commission to complainant and requested the accused to present the same only when the sale transaction is completed. However, the complainant without waiting for completion of sale transaction has presented the said cheque and the same was dishonoured. The sale deed is not yet completed, since it was found that there is dispute between owner and other parties which is subject matter in O.S.No.254/2009. Complainant and the owner of the land did not disclose about the pendency of the suit while entering the agreement of sale with accused dated 14.10.2011. The certified copy of plaint and order sheet of the said suit are produced at Exs.D.2 and 3.

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17. DW.2 Rajanna is the witness to the agreement of sale dated 14.10.2011 in favour of accused and he has deposed to the effect that he was called as a witness for agreement of sale dated 14.10.2011. Complainant and accused talked among themselves about payment of commission and also in presence of Muniraju and accordingly agreement of sale came to be entered. The witness during the cross-examination, states that the earlier agreement of sale in favour of complainant was cancelled and the complainant was broker and his commission charge was paid by accused in the form of cheque Ex.P.1.

18. DW.3 Hemanth is the neighboring land holder covered under agreement of sale dated 14.10.2011 Ex.D.1. He has deposed to the effect that owner of the land Muniraju executed agreement of sale dated 14.10.2011 in his presence and he has signed as a witness to the agreement of sale. Accused has given cheque to the complainant with instruction to present the same after completing sale transaction.

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19. DW.4 Muniraju is the owner of land bearing survey No.313/1 situated at Hesaraghatta village, Bengaluru North taluk. He has deposed to the effect that complainant had brought the accused to him. Complainant had entered into agreement of sale about five years back and complainant has to give the amount to him. Complainant stated that he is having no money and asked to enter fresh agreement of sale with accused. Complainant after collecting money from the accused given cash of Rs.6,00,000/- to him. Complainant and accused talked themselves about the transaction and new agreement of sale dated 14.10.2011 was executed by him.

20. If the above referred evidence of DWs.1 to 4 are perused, then it would go to show that complainant was earlier holding agreement of sale with respect to the very same property from Muniraju. PW.1 has squarely admitted in his cross-examination about the earlier agreement in favour of complainant executed by Muniraju. PW.1 though denies the sale agreement dated 14.10.2011, but identifies his signature on the agreement

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of sale Ex.D.1. DW.1 during the course of his evidence has deposed to the effect that he has obtained the signature of complainant as a witness to the agreement of sale dated 14.10.2011. The witnesses to the agreement of sale DW.2 Rajanna and DW.3 Hemanth have also spoken about DW.4 Muniraju having entered into an agreement of sale dated 14.10.2011 in their presence and they have identified the signature of complainant, further accused has given cheque to complainant as his commission for the sale of property which was instructed to present the same after completion of the sale transaction. Indisputably, the sale transaction is not yet completed. The complainant being earlier agreement holder has not enforced his agreement of sale before the date of execution of agreement of sale dated 14.10.2011 Ex.D.1. Learned counsel for complainant during the course of arguments also submitted that he has not filed any suit enforcing agreement of sale in his favour. Whereas, the accused has produced certified copy of plaint and order sheet in O.S.No254/2009 which would go to show that there was dispute between owner of the land Muniraju and others even prior to the sale agreement

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dated 14.10.2011 in favour of accused. Therefore, the sale transaction is not yet completed and hence the question of payment of commission to complainant did not arise. The signature of complainant as a witness to the agreement of sale dated 14.10.2011 on Ex.D.1 is not only identified by the accused, but also by the witnesses DWs.2 and 3, so also the owner DW.4. When the complainant himself during the course of his cross-examination admits that his signature is appearing on Ex.D.1 14.10.2011, then it will have to be held that complainant was having knowledge about the agreement of sale dated 14.10.2011 in favour of accused Ex.D.1, since he was signatory to the said document and also the endorsement dated 06.11.2012. The owner of land bearing survey No.313/1 has also admitted about entering into agreement of sale dated 14.10.2011 with accused. On critical analysis of above evidence of DWs.1 to 4 and that of PW.1 during the course of cross-examination, it would go to show that complainant was having knowledge about agreement of sale dated 14.10.2011 in favour of accused Ex.D.1. Indisputably, complainant has not disputed his signature

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on agreement of sale and he was consenting party to the agreement of sale dated 14.10.2011 in favour of accused Ex.D.1. Complainant and accused were not known to each other earlier, so that he can ask for any hand loan from complainant, since PW.1 himself admits that accused is known to him for the last one year. DW.1 has stated that he know the accused from the date of transaction, since he was instrumental in arranging to sell the property from it's owner Muniraju.

21. Accused has issued reply to the demand notice Ex.P.7 dated 20.03.2013 by denying the loan transaction and make specific defence on the first available opportunity and made his stand very clear that complainant is instrumental in arranging the sale of property of Muniraju. Accordingly agreement of sale dated 14.10.2011 Ex.D.1 came to be entered between Muniraju and accused, so also the complainant being signatory to the agreement of sale Ex.D.1 as a witness was consenting party to the agreement of sale Ex.D.1 in favour of accused. However, in spite of such stand being taken,

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there is no any explanation offered by the complainant either in the complaint or in his evidence. Accused by virtue of above referred evidence on record has probabilised his defence and offered valid explanation as to how complainant came in possession of cheque of accused with his signature. It is settled position of law that accused need not prove his defence beyond all reasonable doubt. If the accused could able to place material evidence on record which would shatter cloud of doubt on the transaction claimed by the complainant, then it would be sufficient to displace the statutory presumption available in favour of complainant. In view of the aforementioned evidence on record, accused has probabilised his defence that cheque in question Ex.P.1 was not issued for lawful discharge of debt.

22. The Trial Court has rightly appreciated the oral and documentary evidence placed on record and was justified in holding that accused has probabilised his defence which would be sufficient to displace the statutory presumption available in favour of complainant. The

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findings recorded by Trial Court are based on material evidence placed on record and the same does not call for any interference by this Court. Consequently proceed to pass the following:

ORDER Appeal filed by appellant/complainant is hereby dismissed as devoid of merits.

Registry to send back the records to Trial Court with a copy of this order.

SD/-

JUDGE GSR