Karnataka High Court
J Kalegowda vs K Venkatesh on 26 November, 2013
Author: N.Ananda
Bench: N. Ananda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26TH DAY OF NOVEMBER 2013
BEFORE
THE HON'BLE MR.JUSTICE N. ANANDA
CRIMINAL APPEAL No.1640/2007
BETWEEN:
J KALEGOWDA
S/O JAVAREGOWDA
AGED ABOUT 59 YEARS
R/AT H 128, KARASAVADI
HOSAHALLI CIRCLE, MANDYA CITY. ... APPELLANT
(BY SRI M SIVAPPA & ASSTS, ADVS.)
AND:
K. VENKATESH
S/O. KALASETTY
AGED ABOUT 59 YEARS
UMA TRADERS (CEMENT DEALER)
V.V. ROAD MANDYA CITY, MANDYA. ... RESPONDENT
(BY SRI M S RAJENDRA PRASAD ASSTS, ADVS.)
THIS APPEAL IS FILED UNDER SECTION 378(4) CR.P.C.,
PRAYING TO SET ASIDE THE JUDGMENT DATED 29.03.2007,
PASSED BY THE PRINCIPAL SESSIONS JUDGE AT MANDYA IN
CRL.A.NO.50/2006, ACQUITTING RESPONDENT-ACCUSED FOR
AN OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I.ACT &
ETC.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
2
JUDGMENT
The learned Judge of I-appellate court has reversed the judgment of conviction of respondent (hereinafter referred to as 'accused') for an offence punishable under section 138 of the Negotiable Instruments Act, 1881 (for short, 'the Act'). Therefore, appellant (hereinafter referred to as 'complainant') is before this court.
2. I have heard learned counsel for complainant.
3. It is alleged in complaint that accused who was due in a sum of Rs.5,10,930/- to complainant, in order to discharge part of liability, had issued a cheque dated 10.06.2002 for a sum of Rs.70,000/- in favour of complainant. On presentation, cheque was dishonoured. The learned trial Judge convicted accused by raising presumption under section 139 of the Act and also taking into consideration admission made by accused regarding issuance of cheque.
4. The learned Judge of I-appellate court reversed judgment of conviction for the following reasons:- 3
The complainant has not stated circumstances under which accused was due in a sum of Rs.5,10,930/- to complainant.
During cross-examination, complainant has admitted that he has given his care of address as M/s.Chethan Traders, though he is the resident of Gandhinagar at Mandya. The complainant has admitted that he is running a recreation club and he had suffered loss and he had borrowed a sum of Rs.20,000/- from a financial institution and a sum of Rs.20,000/- from private persons. The accused has deposed; on 10.02.2002, he had lent a sum of Rs.5,10,930/- to accused, however he has not maintained any document and he has not obtained any document as security from accused. The complainant has not produced any document to show that as on 10.02.2002, he had financial capacity to lend a sum of Rs.5,10,930/-. The learned Judge of I-appellate court has held that it is not the case of complainant that he had lent a sum of Rs.5,10,930/- to accused on 10.02.2002. It is also not made clear to court 4 as to how accused had issued a cheque for a sum of Rs.70,000/- on 10.06.2002 when it is alleged, he was due in a sum of Rs.5,10,930/-.
During cross-examination, DW1 has denied that he has filled the contents of cheque. During cross-examination of DW1, it was suggested that accused had borrowed a sum of Rs.1,10,000/- from one Jayaram and complainant was the surety for said transaction. The complainant on behalf of accused has paid a sum of Rs.1,10,000/- to said Jayaram. Similarly, accused had borrowed a sum of Rs.15,000/- from one Shivaram and complainant had discharged said loan on behalf of accused to said Shivaram. Similarly, accused had borrowed a sum of Rs.35,000/- from said Shivaram and complainant has discharged loan on behalf of accused. It was also suggested to accused that he had borrowed a sum of Rs.1,70,000/- from complainant and in order to discharge loan, he had issued two cheques for a sum of Rs.25,000/- each, one cheque for a sum of Rs.50,000/- and another cheque for a sum of Rs.70,000/-. Thus, averments of 5 complaint and suggestions put to DW1 are entirely inconsistent.
5. The learned counsel for complainant would submit that under section 139 of the Act, there is a presumption regarding legally recoverable debt and cheque was issued to discharge legally recoverable debt.
6. The law is fairly well settled, in order to avail benefit of presumption, complainant has to prove basic facts before court. If evidence adduced by complainant is highly improbable and inherently weak, presumption under section 139 of the Act will not come to the aid of complainant.
In the case on hand, complainant has stated that accused was due in a sum of Rs.5,10,930/-. In the complaint, it is not stated the circumstances under which accused became due in a sum of Rs.5,10,930/- to complainant. It is not the case of complainant that accused and complainant had business transactions. On the other hand, it is stated that complainant was running a recreation 6 club. The complainant has deliberately given his address as if he was under the care of one H.M.Chandrashekhar, Chethana Traders, V.V.Road in Mandya City. In the complaint, it is not stated the date on which accused became due in a sum of Rs.5,10,930/- to the complainant.
7. The law is fairly well settled that one of the essential ingredients of an offence punishable under section 138 of the Act is proof of existence of legally recoverable debt, which excludes time barred debt. Therefore, it is essential for complainant to state that cheque was issued to discharge legally recoverable debt before the debt was barred by time.
During cross-examination, for the first time, complainant has deposed; he had lent a sum of Rs.5,10,930/- to accused; complainant had not maintained any records; complainant had not taken any document as security when he lent money to accused; except complainant and accused, none else was present. The complainant has deposed; he had made an entry in a diary. Apart from this 7 entry, nothing else was entered in diary. The complainant has admitted that he suffered loss while running a recreation club. In the circumstances, it was the duty of complainant to prove that he had financial capacity to lend a sum of Rs.5,10,930/- to accused.
8. The learned Judge of I-appellate court on appreciation of inherent improbabilities in the evidence adduced by complainant has held that complainant has failed to prove essential ingredients of section 138 of the Act and acquitted accused. There are no reasons to interfere with the impugned judgment.
9. In the result, I pass the following:-
ORDER The appeal is dismissed.
Sd/-
JUDGE SNN