Karnataka High Court
Nagappa S/O. Poonappa Lamani vs Durgappa @ Dyamappa H. Durgad on 2 September, 2021
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 2ND DAY OF SEPTEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO.2810 OF 2012
BETWEEN
NAGAPPA S/O. POONAPPA LAMANI
AGE: 48 YEARS,
OCC: ASST. TEACHER AND AGRICULTURE,
R/O. KARAGINKOPPA, MUNDGOD,
TQ: MUNDGOD, DIST: KARWAR
... APPELLANT
(BY SRI. F V PATIL, ADVOCATE)
AND
DURGAPPA @ DYAMAPPA H. DURGAD
AGE: 39 YEARS,
OCC: WORKING AS GANATIDAR,
TAHASILDAR OFFICE, SIRSI,
TQ: SIRSI, DIST: KARWAR
...RESPONDENT
(BY SRI. S R HEGDE AND SRI. S. S. HEDGE, ADVOCATES)
THIS CRIMINAL APPEAL IS FILED U/S 378(4) OF CR.P.C.
PRAYING TO SET ASIDE THE IMPUGNED JUDGEMENT/ORDER OF
ACQUITTAL PASSED BY THE JMFC COURT, MUNDGOD, IN
C.C.NO.203/2010, DATED 12.07.2012 DISMISSING THE
CRIMINAL CASE FILED BY THE COMPLAINANT/PETITIONER, AND
CONVICT THE ACCUSED/RESPONDENT FOR THE ALLEGED
OFFENCE P/U/S 138 OF THE N.I. ACT, 1881 BY ALLOWING THIS
APPEAL, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
23.08.2021, COMING ON FOR 'PRONOUNCEMENT OF
JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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JUDGMENT
This appeal is filed under section 378(4) of Cr.P.C. by the appellant-complainant for setting the judgment and order of acquittal passed by the learned JMFC, Mundargi in CC No.203/2010 dated 12.07.2012 whereby he has acquitted the respondent-accused for the offence punishable under Section 138 of the N. I. Act and sought for allowing this appeal by convicting the accused- respondent.
2. For the sake of convenience, parties herein are referred with original ranks occupied by them before the Trial Court.
3. The brief factual matrix leading to the case is that the accused is in cordial relationship with the complainant and they are good friends from several years. That, the accused is in the habit of receiving financial assistance from the complainant as per his need and on 16.06.2007, accused came to Mundgod and received Rs.3,00,000/- from the complainant for his financial -3- difficulties. The complainant has paid Rs.3,00,000/- in presence of witnesses and accused executed letter attested by two witnesses by undertaking to repay the said hand loan amount within a period of 1½ year from 16.06.2007. That, thereafter, accused did not make any payment and on several occasions the complainant requested him for repayment of hand loan and the accused in order to discharge the said liability has issued a cheque on 25.03.2010 of Karnataka Bank, Sirsi Branch and when the said cheque was presented on 03.04.2010 for collection, it was dishonoured. The said fact was brought to the notice of the accused by issuing legal notice. But accused did not respond to the notice and has not repaid the said amount. Hence, he has filed complaint under Section 200 of Cr.P.C., against the accused. After recording the sworn statement, the learned Magistrate found that there is sufficient material evidence to proceed against the accused and hence, he has issued process. The accused appeared before the learned Magistrate and was enlarged on bail. He denied the accusation made against -4- him. Then, the complainant was examined as PW1 and he placed reliance on 20 documents marked at Ex.P1 to Ex.P20. He also got examined two witnesses on his behalf, who were alleged to be attesting witnesses to Ex.P9 hand loan documents. The accused in defence, got examined himself as DW1 and one witness was also examined on his behalf as DW2. He placed reliance on six documents marked at Ex.D1 to Ex.D6. Thereafter, the learned Magistrate heard the arguments and found that the complainant has failed to bring home the guilt of the accused beyond all reasonable doubt and hence, acquitted the accused. Being aggrieved by the judgment of acquittal, the complainant filed this appeal.
4. Heard the arguments advanced by the learned counsel for appellant and also the learned counsel appearing for respondent-accused. I have also meticulously perused the records as well as the evidence led by the parties.
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5. The learned counsel for the appellant would contend that the judgment of acquittal passed by the Trial Court is erroneous and contrary to the evidence and the Trial Court has erred in considering the variances in the name of accused ignoring Ex.P9, wherein the signature is in the name of Durgappa Durgad and the signature on Ex.P1 is also admitted. That the finding of the Court regarding service of notice is also improper and the Trial Court has failed to draw inference regarding service of notice. That the Trial Court has also committed error in giving benefit under Section 269(SS) of the Income Tax Act and the presumption under Section 139 of the N. I. Act in favour of the accused. Hence, he would contend that the Trial Court is not justified in acquitting the accused and it has led to miscarriage of justice.
6. Per contra, learned counsel appearing for respondent-accused has contended that the name of the accused is Dyamappa and not Durgappa and identity card as well as passbook produced clearly establish the name of -6- the accused. He would contend that it is hard to accept the version of the complainant that he do not know the name of the accused though he was dealing with him to the tune of Rs.3,00,000/- having close acquaintance, being good friends. He would also contend that the name of the accused is shown as Dyamappa in Ex.P15 of Ex.P18 and he would also invite the attention of the Court that there is improper service and there is no legally enforceable debt. He would also contend that there was no financial capacity of the complainant to pay such a huge amount to the accused, he being a teacher. Hence, he would contend that the evidence on record establish that presumption is rebutted and hence, sought for dismissal of the appeal.
7. Having heard the arguments, now the following point would arise for my consideration:
"Whether the Trial Court has erred in
acquitting the accused for the offence
punishable under Section 138 of N.I. Act and the judgment of acquittal is erroneous, -7- capricious as well as illegal so as to call for any interference?"
8. Having heard the arguments and perusing the records, it is evident that the Trial Court has acquitted the accused on certain grounds. On of them is regarding non- service of notice. However, in this context, it is evident that the notice was issued on a proper address as the accused was working as a Ganatidar in Tahasildar office. Ex.P6 discloses that the notice was sent to Tahasildar office and admittedly the accused admitted that in Tahasildar office, except him no other person by name Durgappa is working. Hence, the service of notice is not a proper ground for rejecting the claim. In this context, the learned counsel for appellant has placed reliance on following decisions.
1. 2007 AIR SCW 3578 (C.C.Alavi Hani v.
Palapetty Muhammed and another)
2. 1999 Crl.L.J. 4606 (K. Bhaskaran v.
Sankaran Vaidhyan Balana and another) -8-
3. 2008 AIR SCW 7436 (M/s. Indo Automobiles v. Jai Durga Enterprises and others)
9. Hence, it is evident that when the notice is issued to proper address, it is deemed to be a proper service and notice is only issued to save the prosecution of the drawer. Hence, the ground urged on behalf of the respondent and taken up by the Trial Court regarding non- service of notice, holds no water and it is again supported by the above cited decisions. Hence, service is required to be held as proper.
10. The other ground urged is name of the accused. It is to be noted here that the name of accused is referred before the Trial Court as Durgappa H. Durgad. The accused claimed that his name is Dyamappa Durgad. The learned counsel for appellant-complainant contended that the accused by using a wrong name and using his initial as D.H. has cheated the complainant and other persons. It is contended that accused has cheated other persons also. The complainant has placed reliance on -9- Ex.P15 to Ex.P18. But on perusal of these documents, no doubt it is evident that accused was prosecuted and sued in the name of Dyamappa. What is the outcome of these litigations is not at all forthcoming so as to come to a conclusion that the accused has cheated public by using duel names. However, the complainant, all along, claims that he is acquainted with accused since long time. In that event, he should be knowing the accused. Further, when he claims that accused himself has brought Ex.P9 and he accepted it, but it is his duty to verify and ascertain the name of the accused. Very interestingly, the allegations made in the complaint lodged by one Martin Sanketh are similar in nature, which is produced at Ex.P16. Further, the accused has not disputed his signature on Ex.P9. Hence, it is for him to explain under what circumstances, he has disclosed his name as Durgappa in place of Dyamappa and even Ex.P1 he did not dispute his signature and hence, initial presumption is in favour of complainant under Section 139 of the N.I. Act. The statutory presumption is rebuttal presumption.
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11. It is to be noted here that the complainant is claimed to be a school teacher. He claims that he has advanced hand loan of Rs.3,00,000/- to the accused. The alleged loan is said to have been advanced on 16.06.2007. The accused has disputed the financial status of the complainant to advance this much of amount. No doubt complainant has produced Records of Rights of his lands to show that he also owned agricultural lands. But Ex.P12 discloses that he acquired this land in the year 2010-2011 and the loan is of the year 2007. Ex.P13 discloses that the complainant acquired the said land by virtue of relinquishment in the year 2008-09 but the loan was alleged to have been advanced prior to that itself. Similarly, Ex.P14 discloses that he inherited the property on 15.09.2008. He is not he exclusive owner. Hence, the burden is on the complainant to establish his financial status. The complainant who is examined as PW1 claimed that accused demanded hand loan in order to clear his debt. He claimed that on 2-3 occasions, he paid Rs.5,000/- to Rs.10,000/-. He is a teacher and he claims that -11- Rs.5,000/- to Rs.10,000/- is a small amount for him. He claimed that in May-2010, he had cash amount of Rs.1,60,000/- by way of agricultural income and Rs.1,40,000/- he availed loan from KDCC Bank. He has improved his version by claiming that initially he availed loan of Rs.1,40,000/- from his friend Dinesh Banasode and later on he availed loan and repaid it to Banasode. He would also admit that he had availed loan on the basis of interest but claimed that he did not advance loan of Rs.3,00,000/- to the accused on any interest. Ex.P9 is also silent regarding the interest part but the period fixed for repayment was 1½ year. It is surprise to note here that the complainant availed a loan from bank on interest, however he advanced hand loan to the accused for 1½ year without any interest. This conduct creates a doubt. If at all he had availed loan from Banasode, he could have examined the said person. He has only examined PW2 and PW3 in whose presence Rs.3,00,000/- is alleged to have been paid to the accused. But admittedly, both these witnesses admit that they are belonging to the caste of the -12- complainant and they are from same native. Apart from that, complainant is serving as a government teacher and he should have obtained permission from his higher authorities to advance a loan to third person, but no such attempt has been made by the complainant. No doubt, the income tax rules may not be applicable as complainant is also an agriculturist but considering the fact that he being a public servant, he is required to declare his assets and liabilities and no document has been produced to disclose that he was having such a huge income in the year 2007 that too for advancing the loan without any interest to person, who is not closely acquainted with him. Further, the complainant also does not know the full and proper name of the accused, which also creates a doubt regarding his conduct. No doubt the other documents disclose that accused is also known as Dyamappa and he was involved in number of litigations but that does not establish that the complainant has discharged his burden of proving his financial capacity to advance a loan that too when he is a public servant working as a teacher. Rs.3,00,000/- is not a -13- small amount in the year 2007 and the complainant being a teacher, hardly was getting Rs.5,000/- to Rs.7,000/- as a monthly salary. Though he claims that his home take salary was Rs.9,000/-, no document is produced to substantiate this contention. Hence, the complainant has also not discharged his burden to prove his financial capacity. When the accused has challenged the financial capacity of the complainant, the burden is on the complainant to establish his financial capacity, but he has not produced his salary certificate or his statement of bank account. The only document he produced is Ex.P.11, which discloses that Rs.1,40,000/- was credited by way of term loan on 19.06.2007 but the present loan transaction is of 16.06.2007. Though he claimed that he had availed hand loan from his friends, that was not established and further regarding agricultural income, no other material evidence is placed. The complainant has not declared his agricultural income also in his assets and liability statement and all these circumstances clearly establish that the complainant has failed to establish the existing legally enforceable debt -14- so as to come to a conclusion that the cheque Ex.P1 is issued in discharge of legally enforceable debt. Though signature on the cheque is admitted, the accused by cross- examining the complainant and on the basis of available material itself has exposed the complainant regarding his financial status. No doubt, accused has also taken a defence that he is not in conversation with the complainant and he had availed loan from Siddaling Choori and handed over Ex.P1 to Siddaling Choori etc., but that was not proved. However, Ex.D1 discloses that complainant had availed loan from teachers' society and as on 30.11.2011 there was due for an amount of Rs.99,488/-. When the complainant was in due to the Teachers' Society to the tune of more than Rs.99,000/- in the year 2011 itself pertaining to loan of the year 2004, it is hard to accept that he had advanced a loan of Rs.3,00,000/- in the year 2007 to the accused. Hence, the accused has established that the complainant had no financial status to advance huge amount and as such, the presumption under Section 139 of N. I. Act stands rebutted. As such, burden shifts on -15- the complainant to prove his financial status but he has not led any evidence to substantiate this aspect. Hence, the complainant has failed to prove that the cheque was issued in discharge of legally enforceable debt. Though the Trial Court has acquitted the accused on different grounds on technicality aspects, that may not be proper, but acquittal order is just considering the financial status of the complainant. The citations relied by the learned counsel for the complainant would come to his aid regarding only service of notice, but that itself is not sufficient to establish the financial status of the complainant to advance the hand loan of Rs.3,00,000/- to the accused. As such, the complainant has failed to establish that the accused has committed offence punishable under Section 138 of the N.I. Act. Looking to the facts and circumstances of the case in hand, it is evident that the appeal is devoid of merits, though the judgment is not sustainable on the reasons referred in the judgment, but on other grounds, the appeal is bound to fail and the judgment can not be said to be illegal or -16- capricious so as to call for interference. Hence, I answer the point under consideration in negative and proceed to pass the following:
ORDER The appeal is dismissed.
The judgment of acquittal passed by the learned JMFC, Mundargi in CC No.203/2010 dated 12.07.2012 is hereby confirmed.
In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are dismissed accordingly.
Sd/-
JUDGE yan