Karnataka High Court
Mruthyunjay S/O Shivanand vs Rajakumar S/O Laxmanrao Verenekar on 27 March, 2024
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NC: 2024:KHC-D:5831
CRL.A No. 100133 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 27TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL NO. 100133 OF 2017 (A)
BETWEEN:
MRUTHYUNJAY S/O SHIVANAND BUDIHALMATH,
AGE: 47 YEARS, OCC: BUSINESS,R/O HUBBALLI.
SINCE DECEASED BY HIS LRS
1A) SMT. MAHALAXMI,
W/O LATE MRUTHYUNJAY BUDIHALMATH,
AGE: 53 YEARS, OCC: ADVOCATE,
2) MISS. SUMATHI,
D/O LATE MRUTHYUNJAY BUDIHALMATH,
AGE: 19 YEARS, OCC: STUDENT,
BOTH ARE RESIDENTS OF EKADANTA ,
PLOT NO. 4142, MANJUNATH COLONY,
SANGOLLI RAYANNA NAGAR, DHARWAD-580002.
- APPELLANTS
(BY SRI R H ANGADI, ADVOCATE)
AND:
Digitally signed by
SAROJA RAJAKUMAR S/O LAXMANRAO VERENEKAR,
HANGARAKI
AGE: 50 YEARS, OCC: BUSINESS,
Location: HIGH
COURT OF R/O TADAS. TQ. SHIGGAON,
KARNATAKA
DHARWAD BENCH DIST: HAVERI-581212.
DHARWAD
- RESPONDENT
(BY SRI SUNIL S DESAI, M/S GOULAY ASSOCIATES)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (4) OF
CR.P.C., SEEKING TO SET ASIDE THE IMPUGNED JUDGMENT AND
ORDER OF ACQUITTAL PASSED IN C.C.NO. 262 OF 2017, DATED
01.03.2017 PASSED BY I ADDL.CIVIL JUDGE AND JMFC, DHARWAD
AT DHARWAD AND CONSEQUENTLY ALLOW THE APPEAL AND
CONVICT UNDER SECTION 138 OF N.I. ACT & ETC.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:5831
CRL.A No. 100133 of 2017
JUDGMENT
Appellant/complainant feeling aggrieved by the judgment of trial Court on the file of Ist Addl. Civil Judge and JMFC, Dharwad in C.C. No. 262/2007 in acquitting the accused for the offence punishable U/s 138 of Negotiable Instruments Act (hereinafter referred to as 'N.I. Act' for brevity), preferred this appeal.
2. Parties to the appeal are referred with their ranks as assigned in the trial Court for the sake of convenience.
3. Heard the arguments of both sides.
4. After hearing the arguments of both sides and on perusal of the trial Court records, so also the impugned judgment under appeal, the following points arise for consideration.
1) Whether the impugned judgment of trial Court in acquitting the accused for the offence punishable U/s 138 of N.I. Act is perverse, capracious and legally not sustainable?
2) Whether interference of this Court is required?
5. On careful perusal of the oral and documentary evidence placed on record, it would go to show that in the month of -3- NC: 2024:KHC-D:5831 CRL.A No. 100133 of 2017 June, 2004 accused has asked for Rs.2,00,000/- as hand loan since he was going to Mumbai for business. Complainant looking to the business friendship with the accused has agreed to give loan of Rs.1,59,000/-, the available funds with him. Accused agreed to repay the same within 4 to 5 months. Accused for lawful discharge of said debt issued post dated cheque No. 0441035 drawn on Karnataka Bank Ltd., New Cotton Market Branch, Hubballi-Ex.P.1. Complainant presented the said cheque through his banker Indian Bank, Dharwad, on 01.12.2004, the same was dishonoured with an endorsement "Account Closed" vide bank endorsement dated 01.12.2004- Ex.P.2. Complainant issued demand notice dated 15.12.2004- Ex.P.3 through RPAD. The postal receipt for having sent the demand notice through RPAD is produced at Ex.P.3(a). The demand notice is duly served to the accused vide acknowledgement card-Ex.P.3(b). Accused inspite of due service of notice has neither replied the demand notice nor paid the amount covered under the cheque. Complainant has filed complaint on 17.01.2005. Complainant has complied all the necessary legal requirements in terms of Sec. 138(a) to (c) of N.I. Act. The complaint is also filed within a period of one -4- NC: 2024:KHC-D:5831 CRL.A No. 100133 of 2017 month from the date of accrual of cause of action in terms of Sec. 142(1)(b) of N.I. Act. Therefore, the statutory presumption in terms of Sec. 118 and 139 of N.I. Act will have to be drawn in favour of complainant.
6. In this context of the matter, it is useful to refer the judgment of Hon'blel Apex Court in APS Forex Services Pvt. Ltd. Vs. Shakti International Fashion Linkers and others reported in AIR 2020 SC 945, wherein it has been observed and held that once the issuance and signature on cheque is admitted, there is always a presumption in favour of complainant that there exist legally enforceable debt or liability. Plea by accused that cheque was given in view of security and same has been misused by complainant is not tenable.
7. It is also profitable to refer another judgment of Hon'ble Apex Court in P. Rasiya vs. Abdul Nazer and another reported in 2022 SCC OnLine SC 1131, wherein it has been observed and held that:-
"Once the initial burden is discharged by the complainant that the cheque was issued by the accused and signature of accused on the cheque is not disputed, then in that case, the onus will shift -5- NC: 2024:KHC-D:5831 CRL.A No. 100133 of 2017 upon the accused to prove the contrary that the cheque was not for discharge of any debt or other liability. The presumption under Section 139 of N.I. Act is statutory presumption and thereafter, once it is presumed that the cheque is issued in whole or in part of any debt or other liability which is in favour of the complainant/holder of the cheque, in that case it is for the accused to prove the contrary."
In view of the principles enunciated in the aforementioned two judgments of Hon'ble Apex Court, it is evident that when once issuance of cheque with signature of accused on the account maintained by him is admitted or proved then statutory presumption in terms of Section 118 and 139 of N.I. Act will have to be drawn.
8. It is now upto the accused to place rebuttal evidence to displace statutory presumption available in favour of complainant. In the present case the accused apart from relying on the materials produced by the complainant, also got himself examined as DW1 and one witness on his behalf as DW2. So also, got marked Exs.D.1 and D.2 on his behalf.
9. It is the defence of the accused that he has issued the cheque to his friend Mahalinga Yaliwal about 20 to 22 years -6- NC: 2024:KHC-D:5831 CRL.A No. 100133 of 2017 back as a security for loan of Rs.5,000/- taken from him. The accused has repaid the said amount but the said Mahalinga Yaliwal did not return the signed cheque to accused and after 18 years the said cheque has been misused by the complainant to file this false case.
10. Accused got himself examined as DW1 and deposed to the effect that he do not know the complainant and has not taken any hand loan from the complainant. He has issued one signed blank cheque to his friend Mahalinga Yaliwal as a security of loan of Rs.5,000/- taken by him. He has repaid the said amount, but the said Mahalinga Yaliwal did not return the blank signed cheque to the accused as it was misplaced. He has further deposed to the effect that he has closed the account of Karnataka Bank, Neeligen Road, Hubballi about 18 years back and therefore there is no question of issuing cheque to complainant in the year 2004.
11. DW2-Malatesh Kulkarni is the Senior Branch Manager of Karnataka Bank, Hubballi, has deposed to the effect that accused was having bank account in Karnataka Bank, Hubballi from 1991 to 2000 under S.B. A/c No. 5763. Thereafter the -7- NC: 2024:KHC-D:5831 CRL.A No. 100133 of 2017 said account was closed by the accused in the year 2000. It has been elicited in the cross examination that as per the RBI Rules whenever the account holder closes the account, has to return the pass book and unused cheque/s and the said Rules are followed in the Bank. Whether the accused has returned the bank pass book and unused cheque/s to the Bank at the time of closing the account, can be stated only on verifying the records and he further states that such documents will be kept only for a period of eight years and thereafter it will be destroyed. The bank has issued endorsement-Ex.D.1 on 21.02.2013 that the account of the accused is closed. The account statement is produced at Ex.D.2. The witness has further stated that bank will receive only the cheque returned by the accused and will not enquire regarding the remaining cheque/s. If the said evidence of DW2 is perused and appreciated with the documents at Exs.D.1 and D.2, coupled with the Bank endorsement-Ex.P.2, then it would go to show that accused has closed his S.B. A/c No. 5763 in Karnataka Bank Ltd. on 12.05.2000. The Bank statement of accused- Ex.D.2 would go to show that accused has no any transaction -8- NC: 2024:KHC-D:5831 CRL.A No. 100133 of 2017 after the year 1996 till before he closes the account on 12.05.2000 vide Bank Account statement-Ex.D.1.
12. It is the case of the complainant that the accused has demanded loan of Rs.2,00,000/-, but the complainant could only arrange Rs.1,59,000/-, the cash available with him and he has paid the said amount to accused in the month of June, 2004. Complainant alleges that accused has issued cheque in question-Ex.P.1 on 29.11.2004 for lawful discharge of debt which he has taken as a hand loan in the month of June, 2004. It means, the entire transaction even according to the case of the complainant took place in the month of June, 2004 and the post dated cheque-Ex.P.1 was issued for lawful discharge of said debt on 29.11.2004. If the said cheque-Ex.P.1 is perused then it would go to show that the space meant for mentioning the date and month is left blank and thereafter the numbers, i.e., "19_ _" is printed so as to mention the complete year of the cheque on which it was issued. It means that the cheque- Ex.P.1 was related upt the year 1999. It is true that there is no any bar for the accused to make use of the unused cheque issued for the earlier period for discharge of lawful debt in the subsequent year. However, there must be some nexus -9- NC: 2024:KHC-D:5831 CRL.A No. 100133 of 2017 between the transaction and issuance of unused old cheque and it must be issued in a reasonable time. In the present case the unused cheque for the year "19_ _" has been used nearly after four years, i.e., on 29.11.2004, for the alleged lawful discharge of debt of accused. This is the first circumstance which creates serious doubt of accused having issued cheque- Ex.P.1 for lawful discharge of debt said to have been taken as hand loan in the month of June, 2004.
13. Accused has contended that he has issued blank signed cheque to his friend Mahalinga Yaliwal for lawful discharge of debt of Rs.5,000/- about 20 to 22 years back and though he has discharged the said debt, the blank signed cheque was not returned by Mahalinga Yaliwal as it was misplaced. Learned counsel for complainant has argued that the said contention of the learned counsel for the accused cannot be accepted since Mahalinga Yaliwal is not examined and the accused has not made any basic foundation by replying to the demand notice that he has issued blank signed cheque to Mahalinga Yaliwal and the same has been misused by the complainant. Therefore, the said defence of the accused is unsustainable in law.
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14. Accused has subjected the cheque-Ex.P.1 for FSL examination by the order of the Court. The report of FSL is received and the same is marked with consent of both sides as Ex.C.1. The FSL report would go to show that the FSL Examiner has recorded the following finding.
"On examinations of writings marked as ExP1 and signature marked as ExP1A found on the Cheque using software Matlab R 2014, the average RGB values of the writings marked as ExP1 is 90:84:126, whereas the average RGB values of the signature marked as ExP1A is 110:106:164 and hence with the observations of RGB values variations and so also physical view of the image of them, I am of the opinion expressed above."
On such observation, the opinion is recorded as:
"The writings marked ExP1 were found to have been executed on the document with prior signature marked ExP1A at a different time with different ink."
15. If the findings recorded and the opinion given by the FSL Examiner are taken into consideration, then it is evident that the writings marked in Ex.P.1 were found to have been executed on the document with prior signature marked Ex.P.1A at a different time with different ink. It means that the writings on the cheque other than the signature of accused are made by
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NC: 2024:KHC-D:5831 CRL.A No. 100133 of 2017 some other person other than the accused. It is for the complainant who was the holder of cheque-Ex.P.1 in due course to explain as to who has written remaining contents of the cheque-Ex.P.1. The complainant by virtue of the evidence placed on record has not explained as to how and who has written remaining contents of Ex.P.1.
16. It is not the case of complainant that accused has issued blank signed cheque as a security for the loan of Rs.1,59,000/- availed by him and he himself has written the remaining contents of the cheque-Ex.P.1. If that was to be the case of the complainant then in terms of Section 20 of N.I. Act, it can be accepted that the accused has authorized the complainant who was holder in due course of cheque to write remaining contents of the cheque, in case if the accused fails to repay the amount as agreed upon by him. On the other hand, it is the case of complainant that accused has issued post dated cheque for discharge of the loan availed by him in the month of June, 2004 and issued cheque-Ex.P.1 by mentioning date as 29.11.2004. However, the said fact has not been proved by the complainant out of the material evidence placed on record. Therefore, non examination of Mahalinga Yaliwal by accused to
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NC: 2024:KHC-D:5831 CRL.A No. 100133 of 2017 substantiate his defence cannot be a valid ground to out rightly reject the defence of accused, since the initial burden is on the complainant to prove that cheque-Ex.P.1 was issued for lawful discharge of debt. This is second circumstance which would create doubt that accused has issued cheque-Ex.P.1 for lawful discharge of debt.
17. It is the case of the complainant that complainant and accused are business friends for the last 4 to 5 years. Whereas complainant-PW1 in the cross examination admits that he do not know what business the accused is doing and he do not know the family members of the accused and also the education of the accused. Complainant has not produced any reliable evidence to show that accused is known to him because of his business friendship. Therefore, the contention of complainant that the accused has taken hand loan of Rs.1,59,000/- for his business purpose as he was going to Mumbai for business cannot be accepted without there being any evidence to prove the said fact. Therefore reasonable doubt arises as to why the complainant to give hand loan of Rs.1,59,000/- to an unknown person and issuance of cheque by accused for lawful discharge of debt.
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18. If the above referred circumstances brought on record by the accused with the document at Exs.D.1 and D.2 are perused and appreciated then it would go to show that accused has closed his S.B. Account on which Ex.P.1 was drawn on 12.05.2000 itself. Secondly, cheque-Ex.P.1 was meant to be used upto the year 1999, but the same has been used in the year 2004, after more than four years for the alleged lawful discharge of debt and no explanation has been offered by the complainant. Thirdly, undisputed expert opinion that writings marked-Ex.P.1 were found to have been executed on the document with prior signature marked Ex.P.1A on a different time with different ink would suggest that the accused has not made the writings on the cheque-Ex.P.1 other than his signature. Fourthly, complainant has failed to establish the nexus between the issuance of cheque-Ex.P.1 which was related to the year 1999 for the lawful discharge of debt in the month of June, 2004. These circumstances brought on record by the accused would probabalize his defence that accused has not issued cheque-Ex.P.1 for lawful discharge of debt.
19. It is settled position of law that accused need not prove his defence beyond all reasonable doubt. It is sufficient if he
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NC: 2024:KHC-D:5831 CRL.A No. 100133 of 2017 could able to bring some material evidence on record which would create shadow of doubt on the transaction then it would be sufficient evidence to displace the statutory presumption available in favour of complainant.
20. In the present case, accused by virtue of the evidence placed on record has successfully rebutted the statutory presumption available in favour of the complainant and demonstrated by evidence that the cheque in question, Ex.P.1, was not issued for lawful discharge of debt. The trial Court has rightly appreciated the oral and documentary evidence on record and has arrived to a just and proper conclusion in holding that complainant has failed to prove that the cheque- Ex.P.1 was issued for lawful discharge of debt. The said finding recorded by the trial Court is based on the material evidence placed on record and the same does not warrant any interference by this Court. Consequently, proceed to pass the following order.
ORDER Appeal filed by the complainant is hereby dismissed as devoid of merits.
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NC: 2024:KHC-D:5831 CRL.A No. 100133 of 2017 Registry is directed to send a copy of this order to the trial Court along with the trial Court records, forthwith.
Sd/-
JUDGE BVV CT:GSM List No.: 1 Sl No.: 42