Karnataka High Court
M/S Shakti Pharmaceuticals vs Santoji Jairam Pavale on 3 April, 2018
Equivalent citations: AIRONLINE 2018 KAR 1421
Author: John Michael Cunha
Bench: John Michael Cunha
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 03RD DAY OF APRIL, 2018
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL NO.2580/2010
BETWEEN:
M/S SHAKTI PHARMACEUTICALS,
BY ITS PROPRIETOR,
RUPRAM PANNARAM CHOUDHARY,
NO.1643, BHAGIRATHI COMPLEX,
ANSURKAR GALLI, BELGAUM-590 002.
... APPELLANT
(BY SRI.SANJAY S. KATAGERI, ADV.)
AND:
SANTOJI JAIRAM PAVALE,
AGED ABOUT 52 YEARS, OCC:BUSINESS,
R/O PROPRIETOR OF JAYALAXMI
MEDICALS AND GENERAL STORES,
HONAGA, TQ & DIST:BELGAUM.
... RESPONDENT
(BY SRI.D.M.MANJUNATH, SRI.R.G.PATIL &
SRI.R.M.GHORPADE, ADVS.)
THIS CRIMINAL APPEAL IS FILED U/S 378 (4) OF CR.P.C.
SEEKING THAT THE JUDGEMENT AND ORDER OF ACQUITTAL
DATED 12.01.2010, IN C.C.NO.1/2006, PASSED BY THE III-
ADDITIONAL CIVIL JUDGE (JR.DN.) AND ADDITIONAL JUDICIAL
MAGISTRATE FIRST CLASS, III COURT, BELGAUM, WHEREIN
THE COMPLAINT FILLED BY THE APPELLANT U/S 138 OF THE
NEGOTIABLE INSTRUMENTS ACT, BE KINDLY SET ASIDE BY
ALLOWING THIS APPEAL, BY CONVICTING AND SENTENCING
THE ACCUSED/RESPONDENT HEREIN U/S 138 OF N.I. ACT.
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THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The order passed by the III Additional Civil Judge (Jr.Dn.) & Additional JMFC., Belgaum in C.C.No.1/2006, acquitting the respondent/accused of the offence punishable under Section 138 of Negotiable Instrument Act (hereinafter referred to as the 'N.I. Act') is questioned in this appeal.
2. The facts leading to the appeal are as follows:
The appellant (complainant) is a businessman dealing in pharmaceuticals. Towards the purchases made by the respondent-accused, he issued a cheque bearing No.083220 dated 11.08.1999 for Rs.4,33,395/- drawn on Chikkodi Urban Co-operative Bank Limited, Kakati Branch. The said cheque when presented for encashment was returned for the reason of 'insufficient funds'. The complainant caused a statutory notice dated 26.08.1999. The accused though issued a reply thereto, failed to 3 comply with the demand. Hence, the complainant sought action against the accused under Section 138 of N.I. Act.
3. The complainant examined himself as PW.1 and produced in evidence the original cheque as per Ex.P.1, the memo of dishonour as per Ex.P.2, office copy of the notice as per Ex.P.4, postal acknowledgment as per Ex.P.6 and the reply notice as per Ex.P.7. The accused did not chose to examine himself or to produce any documents in support of his defence. However, he presented a written synopsis denying the claim of the complainant.
4. On considering the above evidence, by the impugned judgment, the trial Court acquitted the accused of the above offence. The trial Court was of the opinion that the complainant failed to establish that the accused made purchases worth Rs.4,33,395/- from the complainant. In arriving at this conclusion the learned Magistrate took into consideration the application moved 4 by the accused under Section 91 of Cr.P.C. directing the complainant to produce the documents relating to the alleged transactions, namely the licence, income tax assessment, sales tax assessment and delivery challans for the period from 1993 to 1999. Even though the complainant produced notarized copies of the invoice bill No.333 to 336 dated 11.08.1999, he failed to produce the original thereof. Hence, the trial Court was of the opinion that the entire transaction pleaded by the complainant is doubtful and consequently the learned Magistrate was of the view that there was no subsisting debt in discharge of which the accused could have issued the cheque in question. Further, relying on the decision of the Hon'ble Supreme Court in the case of Krishna Janardhan Bhat Vs. Dattatraya G. Hegde 2008 AIR SCW-738 and other decisions the Trial Judge was of the opinion that the initial burden was on the complainant to establish the transaction as well as the legally enforceable debt. That complainant having failed to substantiate the transaction and the 5 subsisting debt, the learned Magistrate found it proper to acquit the accused of the above charge.
5. Feeling aggrieved by the impugned judgment, the complainant has preferred this appeal inter alia contending that the approach adopted by the trial Court is contrary to the provisions of Section 138 of N.I. Act and the settled legal position enunciated by the Supreme Court.
6. Learned counsel for the appellant would submit that the accused has not disputed the issuance of the cheque. Except taking up a plea that the complainant used a blank cheque received from the accused and that by forging and manipulating the blank cheque he has laid a false claim, the accused has not probabalised the said defence by adducing any acceptable evidence. Learned counsel further submitted that the learned Magistrate has wrongly observed that on account of the conduct of the complainant the matter has been dragged on for years, but the records indicate that at every stage of the proceedings, 6 the accused carried the matter in revision before the Revisional Court and on account of the conduct of the accused, the matter was dragged on for years, therefore, the learned Magistrate has committed grave error in acquitting the accused.
7. Learned counsel for the respondent has not addressed any argument.
8. I have considered the submissions made by the learned counsel for the appellant and have carefully scrutinized the materials on record.
9. The complainant has examined himself as PW1 and has stated in his evidence that on 11.8.1999, the accused purchased general items from him in respect of which he issued the subject cheque for Rs.4,33,395/- and the same has been dishonoured for want of funds in the account maintained by the accused. In the course of cross- examination of PW.1, the accused has suggested to PW.1 that there was no transaction whatsoever between 7 them and that he did not purchase any articles from the complainant. He has also cross-examined PW.1 with reference to the notarized copies of invoice bill No.333 to 336 produced by him.
10. Though the accused has denied the transaction but in the course of the cross-examination of PW.1, it is elicited that in respect of the transaction carried on by the accused with the complainant, on 11.08.1999, the accused has issued another cheque for Rs.4,42,870/- and in view of the dishonour of the said cheque, the complainant has presented another complaint before the Court and the same is pending before the III Additional Civil Judge (Jr.Dn.) and Additional JMFC, Belgaum. Further, it is suggested that the complainant had taken two blank cheques from the accused and the same has been made use of by him to institute the above two proceedings against him.
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11. If the above defence taken up by the accused is analysed in the light of the reply notice issued by him as per Ex.P.7, it is relevant to note that in the said reply notice the accused did not dispute the fact that he was purchasing general items from the complainant. In this regard, in para No.2 of the reply notice he has specifically stated that:
"My client whenever purchased the medicine and also the general items from your client has paid the outstanding dues from time to time and at any time the dues in respect of any purchase from your client has been made regularly within one month from the date of purchases made."
This reply completely falsifies the contention urged by the accused during the trial that there was no transaction between him and the accused whatsoever. Further, in the said reply he has stated that during the aforesaid business transaction, some times he used to give blank cheques and also bonds to the complainant for raising loans from various financial institutions. This 9 statement further indicates that the accused had issued blank cheques to the complainant.
12. It is not the case of the accused that the complainant has made use of any such blank cheques to lay a claim for Rs.4,33,395/-. On the other hand, as already stated above, during the cross-examination of PW.1 it was suggested to PW.1 that there was absolutely no transaction whatsoever between the accused. Further in the reply notice he has stated that the amount which was alleged to be shown in the cheque and the figures and the words in respect of the said amount and the date are not in his handwriting and he did not issue the said cheque on 11.08.1999. The accused has not entered into the witness box to state that the cheque in question was not in his handwriting nor has taken up a contention that it did not bear his signature. On the other hand, in the reply notice he has taken up a plea that the cheque has been forged and manipulated by the accused. This plea is contrary to the suggestion made to PW.1 in the course of cross- 10 examination which itself is sufficient to hold that the accused has taken up inconsistent pleas apparently to avoid his liability.
13. Though the learned Magistrate has made much of the fact that the complainant has failed to produce original bills to prove the transaction, in my view, the reply notice issued by the accused itself is sufficient to establish the transaction between the accused and the complainant. As already extracted above, in the reply notice the accused has unequivocally admitted the fact that he was purchasing general items from the complainant. In view of the said admission, production of the license, income tax assessment and sales tax assessment are uncalled for. In view of the specific provisions of Section 138 of N.I. Act, the complainant having established the fact that the cheque in question was issued by the accused in discharge of the amount of Rs.4,33,395/- due to him towards the purchases made by the accused, the burden is on the accused to show that there was no such debt or 11 transaction in respect of which he could have issued the said cheque. As already stated above, the accused has not entered into the witness box nor has been able to rebut the positive evidence adduced by the complainant in proof of the transaction and the debt in respect of which the cheque was issued by him. The trial Court has failed to consider these aspects of the case.
14. A perusal of the impugned judgment reveals that the trial Court was prejudiced mainly on the ground that the complaint was pending on the file for more than 11 years. In para No.13 of the impugned judgment the trial Court has even made a remark against the complainant stating that for almost two years the complainant after filing the complaint has kept quiet which raises a serious doubt as to the genuineness of the case of the complainant. The said observation is contrary to the records maintained by the trial Court. The order sheet reveals that the accused has also contributed for the said delay by making repeated applications even after the closure of the evidence of the 12 complainant. In any event, the said fact cannot be a reason to doubt the genuineness of the transaction between the parties. The approach adopted by the trial Court in my view is contrary to the settled principles of law.
15. On careful consideration of the entire evidence on record, I am of the view that the complainant has convincingly established the ingredients of the offence under Section 138 of N.I. Act. The accused has failed to rebut the presumption attached to the cheque. Therefore, the findings recorded by the trial Court being contrary to the evidence on record and opposed to the settled principles of law enunciated by the Apex Court with regard to the proof of the cheque and the burden cast on the accused, the impugned findings cannot be sustained. As a result, the appeal deserves to be allowed. Hence, the following:
ORDER The criminal appeal is allowed.13
The impugned judgment dated 12.01.2010 passed by the III Additional Civil Judge (Jr.Dn.) and Additional JMFC, Belgaum is set aside.
The respondent/accused is convicted for the offence punishable under Section 138 of N.I. Act and is sentenced to pay a fine of Rs.6,00,000/- (Rupees Six Lakhs Only). In default to pay the said fine amount, he shall undergo simple imprisonment for a period of one year.
On deposit or realization of the fine amount of Rs.6,00,000/-, a sum of Rs.4,75,000/- (Four Lakhs Seventy Five Thousand Only) shall be paid to the appellant/complainant by the accused/respondent by way of compensation and the rest of the fine amount of Rs.1,25,000/- shall be remitted to the state.
Sd/-
JUDGE Sh/Hmb