Karnataka High Court
Thippeswamy vs Gopalashetty K.Shettar @ G.K.Shettar on 2 January, 2017
Author: S.N.Satyanarayana
Bench: S.N. Satyanarayana
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 2ND DAY OF JANUARY 2017
BEFORE
THE HON'BLE MR. JUSTICE S.N. SATYANARAYANA
Crl.A. No.2789/2009
BETWEEN:
THIPPESWAMY, SON OF GIRIYAPPA AGADI,
AGED ABOUT 49 YEARS,
RESIDING AT DEVIKRUPA, 5TH CROSS,
RAJARAJESHWARI NAGAR, RANEBENNUR,
HAVERI DISTRICT.
.. APPELLANT
(BY SRI.N.R.KUPPELUR, ADV.)
AND:
GOPALASHETTY K.SHETTAR @ G.K.SHETTAR,
FATHER'S NAME NOT KNOWN TO THE PETITIONER,
AGED: MAJOR, RESIDING AT MAIN ROAD,
BANASHANKARINAGAR, (UMASHANKARI NAGAR),
NEAR BANASHANKARI KALYANA MANTAPA,
OPPOSITE TO POOJA GENERAL STORES,
RANEBENNUR, HAVERI DISTRICT.
...RESPONDENT
(BY SRI.N.SHANKAR RANGAREJI, ADV. (ABSENT))
THIS APPEAL IS FILED UNDER SECTION 378 (4) CR.P.C.
SEEKING TO SET ASIDE THE ORDER DATED 05.08.2009
PASSED BY THE ADDL. CIVIL JUDGE (JR.DN.) & II ADDL.
JUDICIAL MAGISTRATE FIRST CLASS, RANEBENNUR IN
C.C.NO.215/2006 AS PER ANNEXURE-A AND ALLOW THE
CRIMINAL APPEAL.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
Complainant in C.C.No.215/2006 on the file of the Additional Civil Judge (Jr.Dn.) and II Additional JMFC, Ranebennur has come up in this appeal impugning the judgment dated 05.08.2009 in dismissing his complaint filed under Sections 138 to 142 of Negotiable Instruments Act r/w Section 420 of IPC.
2. The sum and substance of the transactions between the appellant and the respondent herein are as under:
The appellant herein who is the complainant in the Court below would state that the respondent is his friend and that on 15.10.2005 he has sought for hand loan of Rs.2,50,000/- with a promise to repay the same within three months therefrom. Accordingly, a sum of Rs.2,50,000/- was paid to the respondent by way of hand loan on 15.10.2005. It is stated that towards repayment of the said loan amount, the respondent is said to have given a cheque bearing No.177708, which is dated 3 17.01.2006 drawn on State Bank of India, Ranebennur Branch. According to the appellant herein, the said cheque was deposited for realization through his banker, namely, Sri.Basaveshwar Urban Co-Op Bank Ltd., on the same day, i.e., on 17.01.2006, which has returned with an endorsement that the account on which the said cheque was drawn is already closed.
3. Thereafter, a legal notice is issued by the appellant on 21.01.2006 calling upon the respondent to repay the alleged loan amount of Rs.2,50,000/-, for which, a reply is sent by the respondent on 03.02.2006, which is at Ex.P8, wherein there is clear denial of any monetary transaction between the respondent and the appellant with reference to hand loan of Rs.2,50,000/- said to have paid on 15.10.2005. Subsequent to the reply notice dated 03.02.2006 was received, private complaint was initiated under Section 200 of Cr.P.C. for the offence punishable under Sections 138 to 142 of N.I.Act r/w Section 420 of IPC.
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4. It is seen that in the said proceedings respondent entered appearance through his counsel and the matter went into trial, where the appellant herein was examined as P.W.1 and he was duly cross-examined by the counsel for the respondent. In addition to the cross- examination which is conducted, no defence evidence is led. Based on the material available on record, the Court below dismissed the complaint holding that the issuance of cheque bearing No.177708 dated 17.01.2006 is not established, which is said to have been issued towards repayment of hand loan of Rs.2,50,000/- and accordingly, dismissed the complaint. Being aggrieved by the same, the present appeal is filed.
5. In this proceeding, though respondent is represented through counsel, he is not present before the Court. In the meanwhile, this Court secured the LCR in C.C.No.215/2006 from the Court of Additional Civil Judge and II Additional JMFC, Ranebennur.
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6. Heard the learned counsel for the appellant, perused the judgment impugned along with the LCR. On going through the same, it is seen that the appellant herein besides being an agriculturist as stated by him is also a businessman. Though he has stated that he is an agriculturist, there is nothing on record to show that he owns agricultural lands and he has agricultural income. However, he admits that he is running a financial business along with his brothers and also doing other business under the name and style of "Sri Vinayaka Weekly Share Company" and also the business of "Apsara Dresses". Therefore, what is established by him is that he is a businessman and there is no proof that he being an agriculturist. In the evidence which is rendered by him, which was subjected to cross-examination by the counsel for the accused would indicate that he is an assessee for income tax in his individual capacity, wherein he would indicate that he has filed returns for the years 2005-06 and 2006-07 and he would admit that in the said returns he has not reflected financial transaction between himself 6 and the respondent and the said amount which is lent to the respondent is not shown in his personal income tax returns. Similarly, there is nothing on record to show that such transaction is reflected in the business account of the appellant either in the Vinayaka Weekly Share Company or in the Apsara Dresses.
7. Per contra, a document is produced and marked to show that the respondent herein was having an account with M/s Vinayaka Weekly Share Company, where he was depositing certain amounts in the weekly share scheme and in that behalf, it is stated that a cheque was issued to the said company, which is a blank cheque. In this background, the Court below after assessing the pleadings and evidence available on record has come to the conclusion that the transaction as stated by the complainant is not proved. When the said evidence is reassessed, the appellant who is P.W.1 would state that the hand loan was paid by him on 15.10.2005 on a condition that, it shall be returned within three months. 7 According to him, one day prior to completion of three months, he went and requested the accused to repay the amount and in response to that, the present cheque was paid, which is dated 17.01.2006 and it is presented to the bank on the same day. If this evidence is appreciated on the basis of pleadings, three months would complete from 15.10.2005 on 15.01.2006 and not prior to that. If the evidence of appellant is to the effect that one day prior to loan transaction coming to an end, he went and requested for repayment of loan and the said cheque was issued, the same cannot be believed inasmuch as three months would conclude on 15.01.2006 and not on 17.01.2006.
8. If the transaction is assessed from this background and also in the background that the appellant being a businessman, he could not have lent the loan without taking any document for having lent the money. If he has lent the money by taking documents, he should have produced the same while pursuing the complaint filed under Sections 138 to 142 of N.I.Act. The very fact that he 8 has not produced any such document would indicate that possibility of hand loan or whatever loan transaction between the appellant and respondent cannot be believed at any point of time. Moreover, there is inconsistency between the pleadings and evidence with reference to the time within which the respondent is required to repay the amount and also the entries in Ex.D1, which is produced by the counsel for the respondent at the time of cross- examination of P.W.1.
9. When all these things are reassessed, it is clearly seen that no error is committed by the trial Court while considering the complaint filed by the appellant herein against the respondent herein for the offence punishable under Sections 138 to 142 of N.I.Act. Therefore, in the facts situation, it is clearly seen that the complaint, which is initiated in C.C.No.215/2006 is on the basis of a document, which was available with the appellant with reference to some other transaction. Therefore, this appeal is dismissed by accepting the 9 judgment rendered by the Court below. While dismissing this appeal, this Court feel that cost is required to be imposed for unnecessarily wasting the time of the Court below and as well as this Court in launching a false criminal prosecution by making use of a cheque, which was available with the appellant. Therefore, while dismissing this appeal, cost of Rs.25,000/- is imposed on the appellant herein for launching the false criminal prosecution. The appellant is directed to deposit Rs.25,000/- towards cost in this Court within four weeks from today. If the cost is not paid, registry shall ensure that the appellant herein is arrested and sent to civil prison for a period of 30 days for non-compliance of the order of this Court to pay the cost of Rs.25,000/-. With such observation, this appeal is dismissed.
Sd/-
JUDGE MBS/-