Karnataka High Court
Sri Raje Gowda vs Sri N Shivaprakash on 5 November, 2018
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF NOVEMBER, 2018
BEFORE
THE HON'BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL APPEAL No.891 OF 2010
BETWEEN:
Sri. B. Raje Gowda
S/o Basave Gowda,
Aged about 45 years,
Residing at No.1447/2,
Akshatha Nilaya, 2nd Cross,
Behind St. Mary's School,
T. Dasarahalli, Bengaluru. ...Appellant
(By Sri. H.C. Shivaramu, Advocate)
AND:
Sri. N. Shivaprakash
S/o Late Nagappa,
Aged about 46 years,
Residing at No.538,
15th main, Saraswathipuram,
Mysuru. ...Respondent
(By Sri. A.K. Vasanth and Sri. M.K. Girish,
Advocates)
This Criminal Appeal is filed under Section 378(4) of
the Cr.P.C., praying to set aside the judgment of acquittal
dated 3.6.2010 passed by the P.O., FTC-V, Bengaluru in
Crl.A.No.172/2009 - acquitting the respondent/accused for
the offence punishable under Section 138 of N.I. Act.
Crl.A.No.891/2010
2
This Criminal Appeal having been heard and reserved
for orders on 30.10.2018, this day the Court delivered the
following:
JUDGMENT
The present appellant as a complainant had instituted a private complaint against the present respondent in the Court of the learned XII Additional Chief Metropolitan Magistrate, Bengaluru (hereinafter referred to as the "trial Court" for the sake of brevity), which later came to be numbered as C.C.No.31765/2006 for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the "N.I. Act" for the sake of brevity).
2. the summary of the case of the complainant in the trial Court was that the present respondent/accused had availed a loan of a sum of `1,00,000/- from him, towards repayment of which he had issued a cheque. Since the said cheque came to be Crl.A.No.891/2010 3 dishonoured when presented for realisation, the complainant had filed a private complaint against the accused for the offence punishable under Section 138 of N.I. Act, which came to be numbered as C.C.No.19502/2005 by the trial Court. However, based on an application filed by the complainant under Section 257 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "Cr.P.C." for the sake of brevity), wherein the complainant has stated that he would like to withdraw the case as the accused has promised to pay the money through cheque No.13276 drawn on HDFC Bank, the complaint came to be dismissed as withdrawn and the accused was acquitted by order dated 15.06.2006.
According to complainant, thereafter the accused gave him a cheque bearing No.132759 for a sum of `1,36,000/- drawn on HDFC Bank, Saraswathipuram Crl.A.No.891/2010 4 Branch, Mysuru. The said cheque also included a sum of `36,000/- towards compensation. The complainant when presented the said cheque for its realisation on 20.06.2006, came to be returned with banker's endorsement dated 06.07.2006 stating that the account was closed. After serving legal notice to the accused as required under Section 138 of the N.I. Act and since the complainant did not get the amount demanded in the notice, instituted a complaint against the accused in the trial Court, which came to be registered in C.C.No.31765/2006 for the offence punishable under Section 138 of the N.I. Act.
3. In support of his contention, the complainant got examined himself as PW.1 and got marked documents from Exs.P-1 to 16. The accused got himself examined as DW-1 and got marked documents from Exs.D-1 to 12.
Crl.A.No.891/20105
4. After hearing both side, the trial Court by its judgment dated 05.02.2009, convicted the accused for the offence punishable under Section 138 of the N.I. Act and sentenced him for payment of fine of `1,48,000/- and in default of payment of fine, to undergo simple imprisonment for a period of six months.
5. Challenging the said judgment of conviction of the trial Court dated 05.02.2009, the accused preferred an appeal in Crl.A.No.172/2009 in the Court of Fast Track (Sessions) Judge-V, Bengaluru City (hereinafter referred to as the "lower Appellate Court"
for the sake of brevity), which after hearing both side, by its judgment dated 03.06.2010, allowed the appeal and set aside the judgment of conviction challenged before it and acquitted the accused for the offence punishable under Section 138 of N.I. Act. Being Crl.A.No.891/2010 6 aggrieved by the same, the complainant has preferred this appeal.
6. Learned counsel for the appellant while reiterating the contention of the appellant taken up in his memorandum of appeal, submitted that the lower Appellate Court failed to notice that the cheque in question was issued to the complainant by the accused by virtue of withdrawal of C.C.No.19502/2005 by the complainant. The lower Appellate Court also ignored the fact that the memo filed by the complainant in the trial Court under Section 257 of Cr.P.C. has not been challenged by the accused, as such, the issuance of cheque in question stands proved. He further submitted that the lower Appellate Court proceeded in the matter with an erroneous belief that the burden of proving the debt is always upon the complainant. In that process, it has failed to give the benefit of legal presumption under Crl.A.No.891/2010 7 Section 139 of the N.I. Act in favour of the complainant/appellant.
7. Learned counsel for the respondent in his argument submitted that the very first cheque, against the dishonour of which C.C.No.19502/2005 was filed, has not been issued by the accused. Contending the same, when the accused prepared to file an application seeking his dischargal from the matter, the complainant had withdrawn the said case by filing an application under Section 257 of Cr.P.C., which infact was not a compromise petition. In such a circumstance, the accused issuing another cheque bearing No.132759 in favour of the complainant does not arise. Learned counsel also submitted that in the year 2003 itself, the accused had lodged a police complaint stating that he had lost two cheques bearing No.132759 and 132760, Crl.A.No.891/2010 8 as such, also the question of issuing a lost cheque in the year 2006 in favour of the complainant does not arise.
8. The complainant who got himself examined as PW.1, has reiterated the contention of his complaint even in his affidavit evidence also. According to him, the accused was his friend and that he had filed a case against the accused in C.C.No.19502/2005 and after having arrived at a compromise, he received another cheque in substitution of the original one from the accused. He had also withdrew the complaint in C.C.No.19502/2005 on 15.06.2006, however, the cheque subsequently given by the accused bearing No.132759 was also came to be dishonoured when presented for realisation, which made him to issue a legal notice to the accused. Since, the reply received by him was not tenable, he proceeded to file a case against the accused for the offence punishable under Section Crl.A.No.891/2010 9 138 of N.I. Act. He was subjected to a detailed and surged cross-examination from the side of the accused, wherein the PW.1 adhered to his original version.
9. The accused also got himself examined as DW.1, wherein the accused stated that the complainant was a stranger to him, as such, the question of he availing any loan from him does not arise. He has also stated that he had lost two signed blank cheque leaves bearing Nos.132759 and 132760 of HDFC Bank, Saraswathipuram, Mysuru, along with a cash of `300/- on 19.03.2003. In that regard, he had lodged a complaint with jurisdictional Police under C.Mis.No.79/2003 for which the police have given a NCR endorsement to him. He has also stated that the alleged cheque which was the subject matter of C.C.No.19502/2005 was not belonging to him and the signature found therein was also not his signature, as Crl.A.No.891/2010 10 such, the question of he issuing another cheque, muchless, in question would not arise. He was also subjected to a detailed cross-examination from the complainant's side.
10. In order to overcome the contention of the accused that the complainant was a stranger to him, the complainant got produced a photograph at Ex.P-14 and two cash bills of a lodge at Bengaluru at Exs.P-15 and 16, stating that those two bills bears the signature of the accused and that one among the person shown in the photograph at Ex.P-14 was the accused, who is found sitting along with the complainant in a line for lunch in a ceremony. The accused as DW.1 has categorically denied the alleged signatures at Exs.P- 15(a) and 16(a). Though admitted that he was found sitting in a line along with the complainant for lunch in a ceremony, but he has stated that it does not mean that Crl.A.No.891/2010 11 the complainant sitting next after another person in the middle becomes his friend by merely sitting for lunch in a function. Therefore, in the absence of any material to show that the accused was a person known to the complainant, the first contention of the complainant that accused was a person known to him cannot be believed.
11. Secondly, according to complainant, the cheque in question, i.e., cheque bearing No.132759, was given to him by the accused when the complainant withdrew the earlier case filed by him in C.C.No.19502/2005, said to be filed against the accused for the offence punishable under Section 138 of the N.I. Act. In that regard, both the complainant as well the accused have got produced a copy of the alleged application under Section 257 Cr.P.C. at Ex.P-7 and Ex.D.10 respectively. The said application shown to have been filed under Section 257 Cr.P.C., only says Crl.A.No.891/2010 12 that in view of the intervention of the elders and well-wishers, the complainant would like to withdraw the case, as such, the accused had compromised to pay the amount through cheque No.13276. Stating so, the complainant had prayed the Court for dismissal of his complaint as not pressed and for return of original documents to the complainant. As could be seen from the certified copy of the order sheet of the learned judge of the trial Court, before whom the application at Ex.P-7 was filed, has passed an order on 15.06.2006 as below:
"Counsel for the complainant filed application under Section 257 of Cr.P.C.
Heard.
The complaint is dismissed as withdrawn. The accused stands acquitted." From the said order it is clear that the said application at Ex.P-7/Ex.D-10 filed by the complainant Crl.A.No.891/2010 13 under Section 257 of Cr.P.C. was unilaterally considered and disposed of by the concerned Court and there is no mention about the accused who was contesting the matter submitting his no objection to the said application. According to the accused, on 15.06.2006, when the said application came to be considered, neither he was present in the Court nor his counsel. The said fact also has come in the cross-examination of PW.1, as such, it is clear that the said application at Ex.P-7/Ex.D-10 was considered and disposed of by the respective Court without hearing on the said application from the side of the accused. It is in the said application at Ex.P-7/Ex.D-10, the complainant has stated that the accused has promised to pay the money through cheque bearing No.13276. Admittedly, the cheque in question which is the subject matter of the present appeal, is not the cheque bearing No.13276, but the said cheque number is 132759. In the cross-examination of PW.1, Crl.A.No.891/2010 14 the complainant has stated that the said cheque bearing No.13276 was actually issued to him by the accused, however, within three days thereafter collected the said cheque back and issued him another cheque i.e., cheque bearing No.132759. The said statement has been specifically denied by the accused. In that situation, it was required to produce any material to show that cheque bearing No.13276 referred to in Ex.D-7 was issued to him by the accused.
12. Learned counsel for the accused while relying upon the judgment of the Hon'ble Apex Court in the case of Rangappa Vs. Sri. Mohan reported in {(2010) 11 SCC 441}, submitted that mandatorily there is a presumption in favour of the complainant about the issuance of cheque, as such, it has to be presumed that there was a legally enforceable debt and it is in said Crl.A.No.891/2010 15 connection the cheque in question was issued to the accused by the complainant.
No doubt in the said Rangappa's case (supra), the Hon'ble Apex Court though has observed that there would be a presumption in favour of the complainant, under Section 139 of the N.I. Act about the existence of legally enforceable debt or liability, but the same Court has further observed in the same case that the said presumption is rebuttable presumption. Therefore, if the accused could able to rebut the presumption successfully, then the burden of proving the legally enforceable debt or liability would shift upon the complainant.
13. In the instant case, the complainant neither in his complaint (a copy of which is marked at Ex.P-10), nor in his evidence as PW.1 stated as to when and where the accused is said to have borrowed a sum of Crl.A.No.891/2010 16 `1,00,000/- from him in respect of which he is said to have issued a cheque, which was the subject matter of C.C.No.19502/2005. According to the complainant, the accused compromised the matter with him in C.C.No.19502/2005, according to which, the accused promised to pay money through cheque No.13276 drawn on HDFC Bank. The complainant neither in his complaint, nor in his evidence as PW.1 has stated about the accused issuing the said cheque No.13276 drawn on HDFC Bank.
14. On the other hand, he has not disclosed about the said cheque No.13276 both in the complaint as well in his examination-in-chief as PW.1. It was only in his cross-examination at the specific question put to him from the side of the accused, he has come up with a plea that the alleged cheque No.13276, within three days from the date of its alleged issuance was collected Crl.A.No.891/2010 17 back by the accused and replaced with the cheque in question i.e., cheque bearing No.132759. However, there are no materials placed by the complainant to show that the said cheque No.13276 was ever in existence or that it was given to him by the accused. He could have obtained a certificate from the said banker to the effect that the said cheque was issued by the said bank to the accused, so that the possibility of accused issuing the said cheque could have been further considered. However, the complainant has not made any effort in that regard. It is also difficult to believe the say of the complainant that when the earlier cheque said to have been issued to him by the accused, which was the subject matter of C.C.No.19502/2005, came to be dishonoured, for which the said criminal case came to be filed by the complainant, still how come the very same complainant from the very same accused has Crl.A.No.891/2010 18 accepted another cheque bearing No.13276 instead of insisting for a banker's cheque or demand draft, etc.
15. According to accused, the cheques bearing No.132759 and 132760 were lost by him along with cash of `300/- on 19.03.2003, when he had been to a locality called Boti Bazaar in the city of Mysuru. In that regard, he had lodged a complaint with the jurisdictional police on 20.03.2003, who issued to him an endorsement in C.Mis.No.79/2003, a copy of which is produced at Ex.D-12 by the accused. Admittedly, the accused also issued 'stop payment' order to his banker and also closed his bank account, as such, the cheque return memo issued in connection with dishonour of the cheque in question, which the complainant has produced and got it marked at Ex.P-2 shows an endorsement that account was closed.
Crl.A.No.891/201019
16. The evidence of DW.1 that he had issued instruction to his banker and stopped the payment of the said cheque is not denied by the complainant. Therefore, the document produced by the accused that three years prior to the alleged date of issuance of the cheque in question, which is dated 20.06.2006, the accused had already stopped the payment of the said cheque and closed his account and also lodged a complaint with the police alleging the loss of two cheques including the one at Ex.P-1, creates a serious doubt in the case of the complainant that the cheque was issued by the accused in return of a legally enforceable debt said to have been in existence between them.
17. The most important aspect that cannot be lost sight of is the fact that, as already observed, neither in his complaint nor in his evidence as PW.1, the Crl.A.No.891/2010 20 complainant has stated about the account details of the cheque and the cheque number, which is said to be the subject matter of C.C.No.19502/2005. In his evidence as PW.1, the complainant has not even stated that it was the accused who had issued cheque with respect to which he (complainant) filed CC.No.19502/2005. PW.1 has only stated that he had filed a case against the accused before the trial Court which came to be numbered as C.C.No.19502/2005. However, the accused has produced a copy of the said cheque along with a memorandum of unpaid cheque issued by the banker and got it marked at Ex.D-3. The said cheque is shown to have been drawn on Canara Bank, Thonachikoppal, Saraswathipuram, Mysuru, with Account No.13631 for a sum of `1,00,000/-. The banker has returned the said cheque with an endorsement that funds insufficient and also the drawer's signature differs from specimen given. According to the accused, neither the said cheque, nor Crl.A.No.891/2010 21 the account number shown in the said cheque pertains to him, as such, the question of he giving the said cheque to the complainant never arises.
18. The accused as DW.1, has given his evidence specifically and categorically on the said term that the cheque at Ex.D-3, was no in no way connected to him and he was not the account holder. The said evidence of the accused has remained undenied and undisputed. Therefore, it has to be held that there are no materials to believe that the cheque at Ex.D-3, which was the subject matter of the previous case between the parties i.e., C.C.No.19502/2005 was issued by none else than the present accused.
19. May be for the said reason, the complainant filed a unilateral application under Section 257 of Cr.P.C. as at Ex.P-7 and Ex.D-10 and got his criminal case dismissed as not pressed. Further, even though in the Crl.A.No.891/2010 22 said application at Ex.P-7 and Ex.D-10, the complainant has shown that the accused has promised him to pay money through cheque No.13276 drawn on HDFC Bank, as already observe above, in the absence of any material to show that any such cheque was issued to him by the accused or that the said HDFC Bank had issued the cheque book containing the said cheque number to the accused, the contention of the accused as DW.1 that he had never agreed to compromise the matter, muchless, for issuance of cheque No.13276 or that he had issued said cheque to the accused is required to be believed. Since the very contention of the complainant about the existence of legally enforceable debt is the alleged hand loan of `1,00,000/- towards the payment of which the accused is said to have issued to him a cheque (which the accused has got marked at Ex.D-3) has found not proved, the subsequent alleged development of the very same Crl.A.No.891/2010 23 accused said to have issued another cheque bearing No.13276 and the present cheque in question i.e., cheque No.132759 would not arise.
20. There is a missing in the link of the chain from the alleged first cheque at Ex.D-3 to the second cheque referred to in Ex.D-10 with the present cheque at Ex.P-1. The origin of the transaction of loan which was required to be proven through the cheque in C.C.No.19502/2005 since has proved to be not issued by the present accused, and also the said account also not pertaining to the accused, the question of accused issuing subsequent cheque in return of said alleged cheque at Ex.D-3 does not arise.
21. Therefore, the accused has successfully rebutted the legal presumption that was available in favour of the complainant under Section 139 of the N.I. Act. When such legal presumption has been successfully Crl.A.No.891/2010 24 rebutted by the accused, it was for the complainant to establish the existence of legally enforceable debt or liability under Section 138 of the N.I. Act. As already observed, except stating in his complaint, that the accused had borrowed a sum of `1,00,000/- from him, the complainant neither has given any further detail including the day and the place when the said loan is said to have been given to the accused.
22. Further, the complainant in his evidence as PW.1, nowhere in his evidence has stated that the accused had borrowed loan of `1,00,000/- from him. As such, his averment of alleged loan said to have been given to the accused has been confined only to his allegation in the complaint and has not traveled beyond it. Therefore, it has to be held that the accused has successfully rebutted the presumption available in favour of the complainant under Section 139 of the N.I. Crl.A.No.891/2010 25 Act. On the other hand, the complainant has failed to discharge his burden of proof of establishing the existence of legally enforceable debt or liability against the accused.
23. The trial Court without considering these aspects has blindly proceeded further accepting the alleged existence of a legally enforceable debt without giving its thought on Ex.D-3 and the police complaint lodged by the accused and also undenied evidence of the accused as DW.1 to the effect of disowning the alleged earlier cheque at Ex.D-3, which was the subject matter of C.C.No.19502/2005. As such, the said judgment of the trial Court being erroneous, was rightly set aside by the lower Appellate Court. However, the reasoning given by the lower Appellate Court for such a finding though was not a sound reasoning and that it proceeded on the notion that the primary burden of Crl.A.No.891/2010 26 proving the existence of legally enforceable debt was upon the complainant himself, but the analysis made above go to show that even after giving the benefit of the presumption under Section 139 of the N.I. Act in favour of the complainant, he could not succeed, as such, the finding given by the lower Appellate Court does not warrant any interference at the hands of this Court.
Accordingly, the Appeal stands dismissed.
Sd/-
JUDGE BMC