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Karnataka High Court

Sri B A Bheemraj vs Sr N Subramani on 2 July, 2019

Equivalent citations: AIRONLINE 2019 KAR 1072, 2019 (4) AKR 635 (2020) 1 KCCR 622, (2020) 1 KCCR 622

Author: H.B.Prabhakara Sastry

Bench: H.B.Prabhakara Sastry

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 2ND DAY OF JULY 2019

                          BEFORE

 THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

                R.F.A.No.698 OF 2012

BETWEEN:

SRI B.A.BHEEMRAJ,
AGED 50 YEARS,
S/O LATE ARERANGAIAH,
RESIDING AT NO.955,
15TH A MAIN, 2ND CROSS,
1ST BLOCK, 3RD STAGE,
BASAVESHWARANAGAR,
BANGALORE-560 079.                       ...APPELLANT

(BY SRI ANIL KUMAR R, ADVOCATE)

AND:

SRI N.SUBRAMANI,
AGED ABOUT 41 YEARS,
S/O SRI V.NAGARAJAPPA,
RESIDING AT VENKATESHAPURA,
(KALLIPALYA), JAKKUR POST,
YELAHANKA HOBLI,
BANGALORE - 560 064.                   ...RESPONDENT

(BY SRI A.L.PREMKUMAR, ADVOCATE)

     THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF CPC., AGAINST THE JUDGMENT AND
DECREE DATED 11.04.2012 PASSED IN O.S.NO.10407/2005
                                          RFA.No.698/2012
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ON THE FILE OF THE XIV ADDL. CITY CIVIL JUDGE,
BANGALORE, DECREEING THE SUIT FOR RECOVERY OF
MONEY.

     THIS REGULAR FIRST APPEAL HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT ON 26.06.2019, COMING
ON FOR PRONOUNCEMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:

                      JUDGMENT

The present appellant was the defendant in the Court of XIV Addl. City Civil Judge at Bengaluru, (hereinafter for brevity referred to as 'trial Court'), against him the present respondent as a plaintiff had instituted a suit in O.S.No.10407/2005 for recovery of a sum of `7,50,000/- with costs.

2. The summary of the case of the plaintiff in the trial Court is that the plaintiff knew the defendant, who was working at Antharika Aarthika Salahegara Shake, "B" Inner Administration and Transport, IFAB Section, M.S.Building Part III, Bengaluru. Based on the representation made by the defendant to him that he RFA.No.698/2012 3 would get the agricultural land of the plaintiff converted into non-agricultural use, the plaintiff paid a sum of `10,00,000/- in the month of August 2003. The defendant failed to deposit the said amount in the Revenue Department and utilized it for his own use. When asked by the plaintiff for refund of the said amount, the defendant in September 2004 issued to him two cheques one for `7,50,000/- dated 09.09.2004 drawn on Karnataka State Co-operative Apex Bank Ltd., Vidhana Soudha Branch, Bengaluru and another cheque for `2,50,000/- dated 26.12.2004 drawn on Karnataka Bank Limited, Basaveshwara Nagar Branch, Bengaluru.

The plaintiff presented the cheque issued for a sum of `7,50,000/- for realisation. However, the same came to be dishonoured and returned with the endorsement 'insufficient funds'. When the same was brought to the notice of the defendant, he requested two months time RFA.No.698/2012 4 to make payment. The plaintiff got issued a legal notice dated 01.08.2005 to the defendant demanding him to pay the cheque amount within a month from the receipt of the notice. The defendant failed to receive the notice, as such, the same was returned to the sender. Since the defendant failed to pay the amount and having no other alternative, the plaintiff filed the suit.

3. In response to the summons, the defendant appeared through his counsel and filed his written statement, wherein he denied the plaint averments. He denied that the plaintiff was well acquainted with him. He denied that he had ever induced the plaintiff to pay him a sum of `10,00,000/- on the ground of alleged conversion of agricultural land into non-agricultural purpose. The defendant submitted that he is working in Transport Department and hence, there is no question of he being in acquaintance with the plaintiff or with the RFA.No.698/2012 5 people belonging to Revenue Department. He stated that he never assured the plaintiff in getting his land converted into non-agricultural use. He also stated that he neither asked the plaintiff to pay a sum of `10,00,000/- nor received any such amount from him.

On the other hand, the defendant contended that he knows the father of the plaintiff, who approached him and offered to buy sites for him, which was situated in Venkateshapura, believing the words of the father of the plaintiff and agreeing to buy the sites, he issued two cheques one for `7,50,000/- and another for `2,50,000/- without mentioning the name of the payee in them. He handed over those cheques to the father of the plaintiff Sri.V.Nagarajappa in the year 2003 i.e., much earlier to the alleged suit transaction. Later he came to know that the sites which he intended to buy from the plaintiff's father were already acquired by the Bengaluru Development Authority (hereinafter for brevity referred RFA.No.698/2012 6 to as `BDA'), and thereafter, he demanded from the father of the plaintiff for return of the cheques, instead of he returning the cheques to the defendant, the plaintiff has misused the same and plaintiff has presented those cheques and got the bank endorsements regarding dishonour of the cheques.

The defendant further contended that the plaintiff has misused the cheques and filed criminal case in C.C.No.8748/2005 before the competent Court with respect to the dishonour of cheque for a sum of `2,50,000/- and another case in C.C.No.20419/2005 with respect to dishonour of cheque for a sum of `7,50,000/-, both for the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter for brevity referred to as 'N.I.Act'). In one of those two cases, the defendant got acquitted; another case the plaintiff withdrew the same and filed afresh a criminal case in C.C.No.551/2005, which also later withdrawn by him. RFA.No.698/2012 7 Thus, the plaintiff, having failed in his attempt to criminally prosecute the defendant, has approached the Civil Court under the present suit.

4. Based on the pleadings of the parties, the trial Court framed the following issues:

1. Whether the plaintiff proves that he has paid sum of Rs.10 lakhs to the defendant in the month of August 2003 towards conversion charges and the defendant failed to deposit it to the Revenue Department?

2. Whether the plaintiff proves that towards discharge of debt of Rs.10 lakhs the defendant on 9.9.2004 issued cheque for Rs.7,50,000/- drawn on Karnataka State Co-operative Apex Bank Ltd., Vidhana Soudha Branch, Bangalore and that cheque returned dishonoured for insufficient funds?

3. Whether plaintiff is entitled to recover from defendant sum of Rs.7,50,000/- or any amount?

4. What order or decree?

5. In order to prove his case, the plaintiff got examined himself as P.W.1 and got produced and marked the documents at Exs.P-1 to P-7. The defendant got himself examined as D.W.1 and got produced and marked the documents at Exs.D-1 to D-3.

The trial Court after hearing both side, answered issue Nos.1 to 3 in the affirmative and by its impugned judgment and decree dated 11.04.2012 decreed the suit of the plaintiff holding him entitled to recover a sum of `7,50,000/- from the defendant. It is against the said judgment and decree, the defendant has preferred this appeal.

6. Lower Court records was called for and the same is placed before this Court.

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7. Heard the arguments of the learned counsel from both side.

8. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court.

9. Perused the material placed before this Court. The only point that arises for my consideration is whether the judgment and decree under appeal deserves to be set-aside and also the suit of the plaintiff deserves to be set-aside.

10. P.W.1 in his examination-in-chief in the form of affidavit evidence has reiterated the contention taken up by him in his plaint. He has stated that the defendant was the person known to him and at the representation of the defendant that he would get his agricultural land converted into non-agricultural purpose, he had paid a RFA.No.698/2012 10 sum of `10,00,000/- as conversion charges payable to the Revenue Department, in cash in August 2003. Later he came to know that the defendant utilized the said amount of `10,00,000/- for his personal use, as such, he demanded the defendant to return the said amount.It is in that regard, towards the repayment of the said amount, the defendant issued two cheques one for a sum of `7,50,000/- and another one for a sum of `2,50,000/-, which cheques when presented for realization, came to be dishonoured. Despite the legal notice sent to the defendant demanding him to pay the cheque amount of `7,50,000/-,since the defendant failed to pay the cheque amount, the suit was filed. He got marked the said cheque at Ex.P-1, a copy of the legal notice at Ex.P-2, the returned postal cover said to be containing the legal notice at Ex.P-3, the certified copy of the order sheet in C.C.No.551/2005 at Ex.P-4, the certified copy of the memo filed in C.C.551/2005 at Ex.P-5, the RFA.No.698/2012 11 certified copy of the order sheet and the memo in C.C.No.8748/2005 at Exs.P6 and P7 respectively. He was subjected to a detailed cross-examination from the defendant side, wherein he adhered to his original version.

11. The defendant as D.W.1 in his examination-in- chief in the form of affidavit also reiterated the contention taken up by him in his written statement. He specifically denied that the plaintiff was the person known to him and that he ever met him and paid a sum of `10,00,000/- towards alleged fee for conversion of land. On the other hand, he reiterated that the two cheques given by him for a sum of `7,50,000/- and `2,50,000/- respectively were not to the plaintiff, but to his father, who had agreed to sell sites to him. However, after coming to know that those sites were already acquired by the BDA, he demanded for return of those two RFA.No.698/2012 12 cheques. However, the father of the plaintiff instead of returning the cheques, has misused the same and the plaintiff by filling in those cheques his name, has produced them for realization and after dishonour of those two cheques, he had instituted the present suit for recovery of money towards one of those two cheque amount for a sum of `7,50,000/-. In his support, D.W.1 got produced and marked a copy of Karnataka State Gazettee notification dated 23.03.2004 part-III at Ex.D-

1. A certified copy of the deposition of present plaintiff as P.W.1 in C.C.No.20419/2005 as Ex.D-2 and certified copy of the judgment in C.C.No.20419/2005 in the Court of XII Addl. Chief Metropolitan Magistrate at Bengaluru City dated 11.06.2007 at Ex.D-3. He was subjected to a detailed cross-examination by the plaintiff side, wherein he adhered to his original version.

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12. Learned counsel for the appellant/defendant in his arguments submitted that when the alleged land required to be converted for non-agricultural purpose itself was not available and was acquired by the BDA, the question of its conversion or the defendant promising it to get converted would not arise. Further drawing the attention of the Court to some portion of the plaint and the evidence of P.W.1 as well the parts of deposition of P.W.1 at different places, learned counsel submitted that there are contradictions in the evidence of plaintiff at different places, as such, his evidence is totally unbelievable. He submitted that even though the presumption under Sections 118 and 139 of N.I.Act would be initially in favour of the plaintiff, however, the defendant could be able to rebut it. On the other hand, plaintiff has totally failed to prove his case. In his support he relied upon the judgment of Hon'ble Apex Court in the case of Vijay vs. Laxman and RFA.No.698/2012 14 another reported in (2013) 3 SCC 86, which would be considered hereafterwards at appropriate stage.

13. Learned counsel for the respondent/plaintiff in his arguments submitted that the presumption under Sections 118 and 139 of the N.I.Act stands in favour of the plaintiff and the defendant has utterly failed to rebut the said presumption. He further submitted that some discrepancies said to have been elicited in the cross- examination of P.W.1 cannot be made use of by the defendant to rebut the presumption that has formed in favour of the plaintiff. He also submitted that the act of the defendant in not taking any action either against the plaintiff or against the father of the plaintiff for recovery of the cheques from them would also go to show that the reason shown by the defendant for issuance of the cheque is false and that knowing himself that he is guilty party he has kept quite.

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14. It is the case of the plaintiff in the Court below that he had approached the defendant seeking his assistance for getting his agricultural land converted into non-agricultural purpose. It is in that regard at the demand made by the defendant as the payment to be made towards conversion charges, he had paid a sum of `10,00,000/- in August 2003. The contention of the defendant is that the plaintiff was not known to him, but the father of the plaintiff was the person known to him.

P.W.1 in his cross-examination has given the details as to how he came in acquaintance with the defendant. He has stated that through one Sri.Srinivas, a person working under him, he came to know a person by name Sri.Raju. The defendant being the friend of said Sri.Raju, it is through said Sri.Raju, the defendant was introduced to him. The said statement of the plaintiff in RFA.No.698/2012 16 his evidence has not been specifically denied from the defendant side.

Had really the intention of the plaintiff was to falsely establish that he was acquainted with the defendant, then it was not required of him to bring either Sri.Srinivas or Sri.Raju in between. He could have directly stated that the defendant was known a person or a relative of his employee i.e., one Sri.Srinivas. Therefore, it cannot be doubted that the defendant came in acquaintance with the plaintiff through an employee of plaintiff one Sri.Srinivas.

15. P.W.1 has also stated that he had lands at Venkateshapura, Bellalli and Kogilu villages and the lands were required to be got converted. He has also stated that it is in that connection he had handed over the documents including RTC, mutation documents to the defendant. However, he has further clarified that RFA.No.698/2012 17 the lands situated at Venkateshapura village in Sy.Nos.3/1, 2/1, 2/2, 4 and 21 were standing in the name of his father. Thus, his statement made earlier that he had lands at Venkateshapura, Bellalli and Kogilu Villages cannot be taken as contrary to his further statement in his evidence that the lands in Venkateshapura village was standing in the name of his father. As such, the argument of the learned counsel in this regard that there was contradiction in the said point is not acceptable.

16. P.W.1 in his evidence has further stated that he did not know how much would be the conversion fees and where the application was required to be submitted, but the said amount was paid in two installments of `5,00,000/- each, one in the month of January 2003 another in the month of February 2003 and the whole amount was paid in cash. No doubt, the plaintiff in his RFA.No.698/2012 18 plaint has stated that the said amount was paid in the month of August 2003, which varies from his evidence, wherein he has stated that it is paid in the month of January and February 2003. However, considering the entire circumstances of the case and after going through the entire evidence of P.W.1, the said discrepancy cannot be considered as a variation going to the root of the plaint.

17. From the defendant side contending that by the time the plaintiff was said to have approached the defendant seeking his assistance in getting the land converted, the land was notified for acquisition from the BDA, as such, there existed no land for conversion is also not acceptable for the reason that, P.W.1 has stated that when he approached the defendant he did not know that the Government had already issued a notification proposing acquisition of his lands. However, RFA.No.698/2012 19 it is not the case of the defendant that all the lands possessed by the plaintiff and his family were all notified under the notification, which is at Ex.D-1. Even though P.W.1 in his cross-examination has stated that their lands situated in the village Venkateshapura were notified for acquisition but the very same witness in the very same evidence has also stated that apart from the said land they had lands in the villages by name Bellalli and Kogilu. In the document marked by the defendant at Ex.D-2, which is the certified copy of the deposition of the present plaintiff as a complainant in C.C.No.20419/2005, the witness is shown to have stated that his family possessed 12 acres of land and it is in connection with the conversion of the entire 12 acres of land, he had paid a sum of `10,00,000/- towards conversion charges and expenses of the defendant. Therefore, there is no material to arrive at a conclusion that as on the day when the plaintiff is said to have RFA.No.698/2012 20 approached the defendant seeking his assistance for getting his land converted, all the lands standing in the name of their family were notified for acquisition.

Thus, the evidence of P.W.1 that he approached the defendant seeking a favour for getting his lands converted into non-agricultural purposes cannot be disbelieved.

18. Admittedly, there is no agreement or any other document in writing, to show that the plaintiff had paid a cash of `10,00,000/- to the defendant. It is only through the oral evidence, the plaintiff is trying to prove his case. However, the fact remains that the defendant has admitted that he had issued two cheques, one for a sum of `7,50,000/- and another for a sum of `2,50,000/-. Even though the defendant contends that those two cheques were issued in favour of one Sri.V.Nagarajappa, who is said to be the father of the RFA.No.698/2012 21 plaintiff, towards purchase of sites from him, but undisputedly, both the cheques bear the name of the plaintiff as payee. Once the issuance of cheque is established, the presumptions both under Section 118 of N.I.Act with respect to consideration for issuance of the said cheque and presumption under Section 139 of the same Act that the holder of the cheque received the cheque for the discharge, in whole or in part, of any debt or other liability will be automatically formed in favour of the plaintiff herein. Though the said presumptions are rebuttable, but rebutting the said presumption is upon the shoulders of the defendant.

The Hon'ble Apex Court in the case of Vijay vs. Laxman (supra) was pleased to observe that the standard of proof required for rebutting the presumption under Sections 118 and 139 of the N.I.Act is not as high RFA.No.698/2012 22 as that required of the prosecution and is rebuttable on the preponderance of probabilities. So long as the accused can make his version reasonably probable, the burden of rebutting the presumption would stand discharged. Whether or not it is so in a given case depends upon the facts and circumstances of that case. The Courts can take into consideration the circumstances appearing in the evidence to determine whether the presumption should be held to be sufficiently rebutted.

In the process of said rebutting the presumption, the defendant has taken a stand that he had issued those two cheques one for a sum of `7,50,000/- and another for a sum of `2,50,000/- in favour of the father of the plaintiff by name Sri.V.Nagarajappa for purchase of the sites in January 2003. However, after coming to know that the sites agreed to be sold to him were RFA.No.698/2012 23 acquired by the BDA, he demanded for return of those cheques, but said Sri.V.Nagarajappa did not return the cheques, on the other hand, the plaintiff presented them for realization and filed cases against him. The said contention of the defendant is in the form of his stand taken in his written statement as well as his evidence as D.W.1.

19. The defendant except taking such contention that he had issued those two cheques to Sri.V.Nagarajappa towards purchase of sites, has not produced any documents in that regard. Admittedly, the defendant is a Government Official, who according to the plaintiff, at the relevant point of time, working in Antharika Aarthika Salahegara Shake, "B" Inner Administration and Transport, IFAB Section, M.S.Building Part III, Bengaluru. Therefore, the defendant himself being working in the section of RFA.No.698/2012 24 Internal Financial Advisory in the Administration Wing of Transport Department is expected to have the minimum knowledge that when a huge sum of `10,00,000/- is given in the form of two cheques, then he has to necessarily collect some documents in that regard from the person to whom those cheques were issued, this the appellant has not done. Admittedly, there are no documents to show that those two cheques including Ex.P-1 was given not to the plaintiff but to his father Sri.V.Nagarajappa and also towards purchase of sites.

Secondly, no documents or copies of documents pertaining to the property/site, which the defendant was intended to purchase from said Sri.V.Nagarajappa has been produced by the defendant.

Thirdly and most interestingly, except stating that he had agreed to buy some sites from said Sri.V.Nagarajappa, nowhere the defendant has given RFA.No.698/2012 25 any details about the said sites including the numbers, measurement, location and total consideration agreed, etc. Fourthly, admittedly, the defendant has not taken any steps either against the plaintiff or against his father Sri.V.Nagarajappa for recovery of those two cheques from them. Had really the defendant issued those cheques towards advance amount of his alleged purchase of sites from Sri.V.Nagarajappa, then once the said deal could not materialize, the defendant ought to have asked for return of the cheques and in case of any failure by said Sri.V.Nagarajappa to return the same, then it was expected of the defendant to take appropriate action in accordance with law for recovery of those two cheques. Admittedly, the defendant has not taken any such steps, he has not even bothered to issue any notice to said Sri.V.Nagarajappa asking him to RFA.No.698/2012 26 return those two cheques or filed a police complaint against him.

Fifthly, the defendant even after coming to know that those two cheques were dishonoured from his account or atleast after receiving the legal notice sent by the plaintiff, he could have taken any action even against the plaintiff for recovery of those two cheques. Had really the defendant given those two cheques to Sri.V.Nagarajappa towards purchase of sites from him, then he would have definitely taken action for recovery of those two cheques from Sri V.Nagarajappa or from the plaintiff. Therefore, being a literate, educated, official working in a Government Department, that too, in financial advisory section, dealing with a stranger and giving him a cheque worth `10,00,000/- and with no documentation and thereafter also keeping quite without taking any action for its recovery, clearly go to show RFA.No.698/2012 27 that the defence taken by him against the contention of the plaintiff is not worth believable and does not even makes one to believe that his defence is probable to have taken place in the matter. As such, as rightly observed by the trial Court, the defendant has failed to rebut the presumption that was formed in favour of the plaintiff both under Sections 118 and 139 of N.I.Act.

20. The last point of the argument of the learned counsel for the appellant was that had really the defendant given the cheque to the plaintiff, then the plaintiff would not have filed criminal case against one Sri.Premaraj instead of Sri.B.A.Bheemaraj and also would not have withdrawn the criminal complaint filed by him. The said argument is also not acceptable for the reason that even according to the plaintiff the defendant was not a person know to him since a RFA.No.698/2012 28 longtime. It was only through a friend of his employee he came to know about the defendant and approached him for his assistance in getting conversion of his agricultural land. Still the plaintiff could have noticed the correct name of the defendant, however, mere filing a criminal case for cheque bouncing case against a wrong person by mistaking the name of the drawer, by that itself it cannot be inferred that the defendant was a stranger to the plaintiff and that cheques were not given to the plaintiff. Further it is because of the fact that the case was filed against a wrong person that the plaintiff has withdrawn his two criminal cases. Even though his third criminal case against the defendant has ended in acquittal, but the extent of proof that is required to prove an offence in a criminal case since is on the higher pedestal and varies from that of a civil litigation, by a mere acquittal RFA.No.698/2012 29 of the defendant in a criminal case cannot be held that even in civil litigation also the plaintiff should fail. Thus, the trial Court, after appreciating all these aspects in its proper perspective, has arrived at a finding holding that the plaintiff is entitled to recover a sum of `7,50,000/- from the defendant. Since the said judgment and decree is based on proper appreciation of the evidence placed before the trial Court and after proper application of law to the facts on hand, I do not find any reason to interfere in the said judgment and decree.

21. Accordingly, I proceed to pass the following order:

ORDER:

The appeal stands dismissed. The judgment and decree passed by the Court of XIV Addl. City Civil Judge at Bengaluru, in O.S.No.10407/2005 dated 11.04.2012 is hereby confirmed.

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The Registry is directed to transmit a copy of this judgment along with lower Court records to the trial Court without any delay.

Sd/-

JUDGE BSR