Karnataka High Court
Nandi Agro Fertilizers vs D Satish S/O D Jayanna on 7 January, 2013
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 7TH DAY OF JANUARY, 2013
BEFORE
THE HON'BLE MR.JUSTICE A.S.PACHAPURE
CRIMINAL APPEAL NO.1190/2007
BETWEEN:
NANDI AGRO FERTILIZERS
CHITRADURGA, BY ITS PARTNER
P.B.BASAVARAJ, S/O.BASAPPA
AGE: 53 YEARS, MEDIHALLI RD.,
CHITRADURGA TOWN, SINCE
DECEASED BY HIS LRs
P.B.RAJASHEKAR,
S/O.P.V.BASAVARAJAPPA
AGE: 51 YEARS ...APPELLANT
(BY SRI.CHANDRAKANTH R.PATIL, FOR M/S.JAYAKUMAR
S.PATIL, ADVS.)
AND:
D.SATISH
S/O.D.JAYANNA
AGED: 43 YEARS, VINAY TRADERS,
B.BLOCK, RMC YARD,
CHITRADURGA. ...RESPONDENT
(BY SRI.B.M.SIDDAPPA, ADV.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) CR.P.C. BY THE ADVOCATE FOR THE APPELLANT
PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO
SET ASIDE THE JUDGMENT DT. 5.5.2007 PASSED BY 1ST
ADDL. C.J.(JR.DN.) & JMFC, CHITRADURGA, IN
C.C.NO.38/2004 AND ALLOW THE C.C.NO.38/2004.
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THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T
The appellant has challenged the judgment and order acquitting the respondent for the charge punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter called as an 'Act' for short) on a trial held by the JMFC, Chitradurga.
2. The relevant facts for the propose of this appeal are as under:
The respondent is said to be the customer of the appellant and had purchased seeds, fertilizers and pesticides worth Rs.11,19,496/- due for the period from 30.06.2000 to 07.11.2001 on credit basis. The respondent had said to have agreed to pay interest at 2% per month on the outstanding dues. He is said to have issued two post dated cheques on 15.04.2000 towards the amount due 3 inclusive of interest. One cheque was dated 10.11.2002 for a sum of RS.11,00,000/- drawn on Sri. Sampige Siddeshwara Urban Cooperative Bank and another cheque dated 05.10.2002 is for Rs.3,62,000/- drawn on Merchants Cooperative Bank Ltd. The cheques were presented to the banker on 25.11.2002 for encashment. They returned with an endorsement of insufficient funds and account was closed respectively. The appellant issued statutory notice calling upon the respondent to make the payment and as the payment was not made within time, the appellant approached the Trial Court and submitted his compliant under Section 200 Cr.P.C. to initiate action for the offence punishable under Section 138 of the Act.
3. In the course of the trial, the appellant was examined as PW-1 and the documents, Exhibits P-1 to P-13 were marked. The statement of the respondent was recorded under Section 313 4 of Cr.P.C. The respondent was examined as DW-1 and the documents, Exhibit D-1 to D-51 were marked. The Trial Court after hearing the counsel for the parties and on appreciation of the materials on record, granted an order of acquittal. Aggrieved by the same the present appeal has been filed.
4. I have heard the learned counsel for the parties.
5. The point that arises for my consideration is:
"Whether the appellant has made out any grounds which warrant interference in the judgment and order acquitting the respondent for the charge under Section 138 of the Act?.
6. It is a submission of the learned counsel for the appellant that the signature on the 5 cheques is not in dispute and that the respondent has not replied the statutory notice issued by the appellant and therefore he claims that the presumption arises under Section 139 of the Act. His further contention is that the respondent has not brought on record any material to rebut the presumption that arises under aforesaid provision. It is also his contention that the appellant has produced the balance sheets i.e., Exhibits P-10 to P-12 and therefore he claims that considering Exhibit P-6, the letter said to have been issued by the respondent and the cheques produced at Exhibits P-1 and P-2, the order of acquittal will have to be set aside by granting an order of conviction.
7. On the other hand, the learned counsel for the respondent submits that from the material placed on record, he has rebutted the presumption that arises under Section 138 of the Act and 6 therefore he contends that the Trial Court was justified in granting an order of acquittal.
8. So far as the transactions are concerned, it is the case of the appellant that the amount due pertains to the transactions for a period from 30.06.2000 to 07.11.2001, but at the same time the defence of the respondent reveals that there were business transactions between the parties only for the period from 1993 to 1996 and he claims that since 1997 to till date there are no business transactions between the appellant and himself and it is his submission that the cheques were given as security towards the payment of price relating to the transaction and the said cheques have been issued by the appellant. The said cheques issued in the year 1997, as security have been utilized by the appellant by filling in the blanks.
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9. To prove that there were transactions between the parties, the appellant relies upon Exhibits P-9 to P-12, the balance sheets related to the year 2000-01, 2001-02, 2002-03 and 2003-04. As could be seen from the balance sheets produced by the appellant they bear the signature on behalf of partner of the appellant firm and also signature of the Chartered Accountant, though PW-1 admits in his evidence that he has been paying the income tax and the balance sheet having been produced before the Income Tax Authorities, no endorsement of the Income Tax Authorities is seen in these balance sheets.
10. Furthermore, he admits in the evidence that other than the balance sheets there are many other documents to prove the transactions between the parties for the year 2000-01 and the said documents have not been produced by the appellant. In the course of the trial, even as regards the 8 balance sheets are concerned, it is only after the cross-examination of PW-1 these documents were produced. As the said documents do not contain the signature of Income Tax Authorities, I think it is not proper to accept these documents as proof of transactions and the possibility of creating such documents cannot be overruled.
11. The doubt arises with regard to these documents solely for the reason that as defended by the respondent and according to him he was transacting with the appellant for the period 1993-96. His specific case is that after the year 1996 till this date he never entered into any transactions with the appellant. As could be seen from Exhibits P-1 and P-2, the cheques which have been produced by the appellant, the contents of the cheques are in different handwriting, though the signatures on these cheques are admitted by the respondent, as could be seen from the 9 counterfoils produced by the respondent, Exhibit D-38 to D-43. Exhibit P-1, the cheque bearing Sl.No.30339 was issued by the respondent from a cheque book given by the bank in the year 1997. The subsequent serial numbers after the cheque Exhibit P-1 have been given by the respondent to different persons and the dates mentioned in Exhibit D-38 would reveal that the remaining cheque leaves in the cheque book have been issued by the respondent in the year 1997 and 1998. So far as Exhibit P-2 is concerned it bears Sl. No.53196 and the cheque book containing this leaf is of the year 1997 and subsequent to this cheque, the respondent has issued many cheques in the year 1997 and 1998.
12. In this context if the cheques at Exhibit P-1 and P-2 are looked into, the doubt arises as to respondent could retain these cheques till the year 2002 for giving the same to the 10 appellant towards the repayment of alleged due. There is no explanation on behalf of the appellant on this aspect of the matter. It is no doubt true that the respondent has not replied the notice issued by the appellant and though it is a strong circumstance in his favour, but the doubt with regard to the issuance of the cheques Exhibits P-1 and P-2 from a cheque book of the year 1997, in the year 2002 is not explained by the appellant and therefore, the defence put forth by the respondent that he had issued blank cheques as security for the transactions in 1996-97 appears were probable. It is his further contention that these two cheque leaves were retained by the appellant in the year 1996. To endorse this defence of the respondent, if the cross- examination of DW-1 is perused, there is a suggestion by the appellant to the effect that after the payment of the transactions, the cheques were being returned to the respondent. This 11 suggestion put forth by the appellant in the cross-examination of DW-1 also probabilise for defence of the respondent, having issued the cheque in the year 1996-97.
13. The learned counsel for the appellant has placed reliance on the decision of High Court of Andhra Pradesh in 2006 Crl. L.J. 1 (Gorantla Venkateswara Rao V. Kolla Veera Raghava Rao and Anr.) wherein the facts reveal that there was loss of promissory note and it was not produced. The High Court of Andhra Pradesh held that this itself is not on a ground to hold that there is no legally enforceable debt. Further in the judgment reported in 2010 SC 1898 (Rangappa V. Mohan), the Apex Court held that the existence of legally recoverable debt or liability and in the matter of presumption and the standard of proof for doing so is that of 'preponderance of probabilities' and therefore the Apex Court held that the accused is 12 able to raise probable defence which creates doubt about the existence of a legally enforceable debt or liability, and the prosecution fails. He has also placed reliance on the decision of the Apex Court reported in 2001 Crl. L.J. 4745 (K.N.Beena V. Muniyappan and Anr.) wherein it has been held that averments in the reply notice issued are not sufficient to shift burden of proof to the complainant and that there was no debt or liability. He has also placed reliance on the judgment reported in 2002 Crl. L.J. 4392 the High Court of Kerala has held that there is no burden on the complainant to prove before the Court entire details of the transaction resulting in issuance of cheque and it further held that there is a presumption that the cheque was issued by the other legal liability.
14. From the principles laid down in the decisions referred to supra, it is relevant to 13 note that though a notice has not been replied by the respondent, though it could be a circumstance in favour of the appellant, but at the same time despite this circumstance in favour of the appellant, the doubt which arise stands unexplained. Further more the Apex Court in the decisions referred to supra has held that the respondent has to raise a probable defence and if there are circumstances to prove the probable defence that itself is sufficient to dismiss the complaint. The scrutiny of the decisions and the principles laid down are not applicable to the facts of this case and the probable defence that has been put forth by the respondent creates serious doubt with regard to the genuineness of the appellant. In such circumstance, I am of the opinion that the appellant has not made any grounds warrant interference in the order of acquittal.
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15. The learned counsel for the appellant would further contend that matter may be remanded by giving him an opportunity to contest the case. It is relevant to note that the matter was pending before the Trial Court for about 3 years and sufficient time was given to the appellant and an additional opportunity cannot be granted in law and hence I find that the ground put forth for remand is not acceptable. In that view of the matter, the appeal fails and it is accordingly dismissed.
Sd/-
JUDGE DR