Karnataka High Court
Shree Bhagawati Saree And Redaymade ... vs Basantsingh @ Vasantsingh @ ... on 23 August, 2017
Author: R.B Budihal
Bench: R.B Budihal.
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IN THE HIGH COU RT OF KARNA TAKA
DHARWAD BENCH
DATED TH IS THE 23 R D DAY OF AUGUST 2017
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL. R.B
CRIMINAL APPEAL NO.2809 OF 2010
C/W
CRIMINAL APPEAL NO.2810 OF 2010
IN CRL.A.NO . 2809 OF 2010
BETWEEN:
SHREE BHAGAWATI SAREES &
READYMADE STORES,
GALAGALI, REPRESENTED
BY ITS PROPRIETOR,
SHRI. DESARAM S/O BHERARAMAJI
PRAJAPATI
AGE: MAJOR, R/O: GALGALI,
TQ: BILAGI. DIS T: BAGALKOT.
.....APPELLANT
(BY SRI.N.D.GUNDE, ADVOCATE.)
A N D:
BASANTSINGH @ VASANTSINGH @
VIJAYKUMAR,
S/O. LAL S INGH RAJPUROHIT,
PROPRIETOR MAHA SURYA TEXTILE.
MISS HIRA PANNA CENTRE GALLI,
A/O: BAILO TRA, TQ: BALI, D T: PALI.
RAJASTHAN S TA TE.
..... RESPONDENT
(NOTICE S ERVED) (ABSENT)
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THIS CRIM INAL A PPEAL IS FILED U/S.378 OF
CRIMINAL PROCEDURE CODE SEEKING TO SET ASID E
THE JUDGEMENT AND ORDER OF ACQUITTAL DATED
18.06.2010 PASS ED IN C.C.NO.136/2007 BY TH E
JMFC, BILAGI, & CONVICT THE RESPONDNET/
ACCUSED FOR THE OFFENCES PUNISHABLE UNDER
SECTUION 138 OF N.I.ACT.
IN CRL.A.NO . 2810 OF 2010
BETWEEN:
SHREE BHAGAWATI SAREE &
READYMADE STORES,
GALAGALI, REPRESENTED
BY ITS PROPRIETOR,
SHRI. DESARAM
S/O BHERARAMAJI PRAJAPATI
AGE: MAJOR, R/O: GALGALI,
TQ: BILAGI. DIS T: BAGALKOT.
.....APPELLANT
(BY SRI.N.D.GUNDE, ADVOCATE.)
AND:
BASANTSINGH @ VASANTSINGH @
VIJAYKUMAR,
S/O. LAL S INGH RAJPUROHIT,
PROPRIETOR MAHA SURYA TEXTILE.
MISS HIRA PANNA CENTRE GALLI,
A/O: BAILO TRA, TQ: BALI, D T: PALI.
RAJASTHAN S TA TE.
..... RESPONDENT
(NOTICE S ERVED.)
THIS CRIM INAL A PPEAL IS FILED U/S.378 OF
CRIMINAL PROCEDURE CODE SEEKING TO SET ASID E
THE JUDGEMENT AND ORDER OF ACQUITTAL DATED
18.06.2010 PASS ED IN C.C.NO.241/2008 BY TH E
JMFC, BILAGI, & CONVICT THE RESPONDNET/
ACCUSED FOR THE OFFENCES PUNISHABLE UNDER
SECTUION 138 OF N.I.ACT.
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THESE APPEALS COMING ON FOR FINAL
HEARING THIS D AY, THE COURT, DELIVERED THE
FOLLOWING:
JUDGMENT
These two appeals are in between the same parties and similar facts and legal aspects are involved in both these appeals. They were taken together to dispose of them by this common judgment to avoid repetition of facts and the legal aspects.
2. The appeal in Criminal Appeal No.2809/2010 is preferred by the appellant/complainant, being aggrieved by the judgment and order dated 18.06.2010 passed by the JMFC Court at Bilagi in CC.No.136/2007 thereby acquitting the respondent/accused for the offence punishable under Section 138 of Negotiable Instruments Act.
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3. The appeal in Criminal Appeal No.2810/2010 is also preferred by the appellant/complainant being aggrieved by the judgment and order dated 18.06.2010 passed in CC.No.241/2008 by the JMFC Court at Bilagi thereby acquitting the respondent/accused for the offence punishable under Section 138 of Negotiable Instruments Act.
4. Brief facts of the case of the complainant before the trial Court as per the complaint so far as the first appeal in respect of CC.No.136/2007 challenged in the Criminal Appeal No.2809/2010 is concerned, the brief facts as averred in the complaint that, complainant is doing business of selling sarees and readymade garments under the name and style of "Shree Bhagawati Saree and Readymade Stores" at Galagali, Taluka Bilagi. The respondent/accused is the customer of :5: complainant's shop and he was having the transaction with the complainant/accused, had issued the cheque for Rs.20,000/-bearing No.0248255, dated 20.04.2006 drawn on the Balotra Urban Co-operative Bank Ltd., branch at Bilagi in favour of the complainant towards part payment of the purchased clothes goods from complainant's shop. The complainant presented the said cheque for realization to the complainant's bank i.e., Syndicate Bank, Branch Galagali. But the said cheque was returned on 13.5.2006 by the said bank as insufficiency of funds in the account of the accused in the said bank. Accordingly the same was dishonoured. The further averments in the complaint, the complainant sent a registered notice dated 5.6.2006 through his lawyer within one month from the date of receipt of the information from the bank regarding return of cheque, calling upon the accused for payment of the said amount :6: covered under the cheque, to be paid within 15 days from the date of receipt of notice. Accused has deliberately avoided to take notice and the same was returned to the complainant's counsel on 19.6.2006, which is a deemed service upon the accused. The accused failed to make payment within 15 days on receipt thereof. The accused has issued the cheque knowing fully well that the funds are insufficient in his account and its consequences. Therefore the accused committed the offence punishable under Section 138 of the Negotiable Instruments Act ('the Act' for short) and he is liable to be punished.
5. So far as another case in C.C.No.241/2008 in respect of which Crl.A.No.2810/2010 is preferred, the factual aspects of the case of the complainant before the trial Court in brief are that, the complainant is in business of selling sarees and readymade :7: garments in the name and style of Sri Bhagavati Saree and Readymade Stores at Galagali, Tq: Bilagi; accused is the customer of the complainant's shop and is having transaction with the complainant's shop. Accused received a cheque for Rs.2,80,000/- bearing No.0248254 dated 1.5.2006 drawn on the Balotra Urban Co- operative Bank Ltd., main branch Balotra, in favour of the complainant towards part payment of the purchase of the cloth goods from the complainant's shop. Complainant presented the said cheque for realization to the complainant's bank namely Syndicate Bank branch Galagali. But the said cheque was returned on 13.5.2006 by the said bank as unpaid due to insufficiency of funds in the account of the accused. Complainant sent a registered notice dated 5.6.2006 to the accused, through his lawyer within one month from the date of receipt of information from the bank regarding return of the cheque unpaid, calling :8: upon him for payment of the said amount covered under the dishonoured cheque to be payable within 15 days from the date of receipt of said notice. The accused has deliberately avoided to take the notice and the same is returned to the complainant's counsel on 19.6.2006 which is a deemed service upon the accused. In spite of that the accused failed to make payment within 15 days from the date of receipt of the said notice. The accused issued cheque knowing fully well that the amount in his account is insufficient and knowing its consequences. Therefore the accused committed an offence punishable under Section 138 of the Act as amended by the Act No.55 of 2002 and he is liable to be punished.
6. In respect of both the cases plea of accused was recorded and the matter was posted for evidence. On the side of the complainant, he has been examined as PW.1. His earlier affidavit :9: filed before the Court was also considered as his examination-in-chief and further he deposed before the Court, documents are marked in his favour. PW.1 has been cross examined by the counsel appearing for the accused. On the side of accused no evidence was led by the accused on his behalf, in both the cases.
7. Looking to the evidence of the complainant and after considering the entire merits of the case, both oral and documentary, ultimately the learned JMFC Court held that complainant failed to prove his case and accordingly acquitted the accused in both the cases for the offence punishable under Section 138 of the Act. Being aggrieved by the judgment and order of acquittal passed in both the cases, the complainant- appellant is before this Court. He has challenged the judgment and order of acquittal in both the matters on the grounds as : 10 : contended in the respective memorandum of appeals.
8. Though the appeal notice was served on the respondent-accused in both the cases, he remained absent and he is unrepresented.
9. Heard the learned counsel appearing for the appellant-complainant in both the matters.
10. Learned counsel appearing for the appellant during the course of arguments made submission that looking to the contents of the private complaint and the documents produced on the side of the complainant and oral evidence of the complainant, he has made out a case that there was a transaction of purchase of clothes by the respondent-accused from the shop of the complainant and he used to make part payment by issuing cheques. Learned counsel also made submission that even looking to the examination- : 11 : in-chief and as well as the cross examination, PW.1 consistently deposed about the transaction between himself and the accused person and the factum of accused issuing cheque towards part payment of debt, which was outstanding in connection with the purchase of clothes. He made submission that accused was in the habit of making his signatures in different shapes in order to avoid the liability.
11. Learned counsel submitted that prior to filing of the complaints before the Court, legal notice was also issued. But purposely the accused avoided service of said notice on him. Therefore the learned counsel submitted that as per Section 27 of the General Clauses Act, it is to be taken as deemed service of notice on the accused person. He made submission that, when it is contended by the complainant before the trial Court, that the accused person in order to avoid liability, in the : 12 : habit of putting his signatures in different fashion, the learned JMFC without taking into consideration these aspects of the matter, while making comparison of the signature on the receipts Ex.P.5 to P.18 and comparing the said signature with the signature on Ex.P.1, wrongly comes to the conclusion that the signatures are not similar. Therefore the complainant has not established that they are the receipts executed by the respondent-accused.
12. Learned counsel further made submission that, even looking to the materials produced on the side of the complainant, he clearly deposed that in respect of the due amount only and as a part payment, the accused issued the cheque. Therefore it is his contention that, initially there is a presumption in favour of the complainant under Section 118 and Section 139 of the Act, which this respondent-accused has to : 13 : rebut, which is not done in these cases. It is the contention of the learned counsel for the appellant, in view of the materials placed by the complainant by way of pleading, oral and documentary evidence, the trial Court ought to have convicted the accused person holding him guilty for the offence punishable under section 138 of the Act. Therefore acquitting the accused person holding that the complainant failed to prove his case is patently illegal and this finding is not supported by any material. He has also made submission that, the judgment and order of acquittal passed by the trial Court is perverse and capricious and not in accordance with the materials placed on record. But however the learned counsel made submission that there are some admissions during the course of cross- examination of PW.1 but those admissions will not go to the root of the matter in order to hold the accused person is not guilty.
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13. The learned counsel further made submission that the respondent-accused also disputed his identity. The learned counsel made submission that he used to be called by different names. Accordingly in the cause title of the complaint presented before the trial Court, the other names are also mentioned in respect of the respondent-accused. Learned counsel submitted that he was being called by name Basantsingh @ Vasantsingh @ Vijaykumar S/o.Lalsingh Rajapurohit. Hence he submitted that when he was called by these names, and when he is admitted in the evidence that his name is Vijaykumar, that itself is sufficient to hold that it is the respondent-accused himself who issued the cheque in both the cases. Therefore the complainant established even the identity of the person who issued the cheque by cogent and satisfactory evidence before the trial Court. Hence he submitted in both the matters, the appeals are : 15 : to be allowed, the judgment and order of acquittal passed by the trial Court is to be set aside by convicting the respondent-accused in both the appeals.
14. Perused the grounds urged in both the memorandum of appeals, judgment and order of acquittal passed by the trial Court in both the matters documentary and oral evidence produced by the complainant and also considered the oral submission made by the learned counsel for the petitioner during the course of hearing the arguments.
15. Now coming to the oral evidence, in the first case i.e., C.C.No.136/2007, so also the evidence adduced in C.C.No.241/2008 in respect of the second appeal, looking to the evidence of complainant in both the matters, it is substantially one and the same. Except the cheque number, amount of cheque Ex.P.1 in both : 16 : the matters, all other things are one and the same. Coming to the oral evidence of PW.1, wherein he deposed that on 17.5.2007 the complainant has been examined as PW.1 wherein on oath he has stated that he has already filed the affidavit by way of examination-in-chief and the contents of the said affidavit are true and correct. He has produced the cheque as per Ex.P.1 and signature of the accused is Ex.P.1(a). The endorsement issued by the bank is Ex.P.2. Office copy of the legal notice issued to the accused is Ex.P.3 and the notice which was returned back is marked as Ex.P.4. Hence he requested to take action as against the respondent-accused. He has been cross examined by the learned counsel appearing for the respondent-accused, wherein he has stated that since 20 years he is doing the clothes business. Accused was due to pay him Rs.20,000/- in the first matter and in respect of : 17 : another matter he was due to pay the amount of Rs.2,80,000/-.
16. He further deposed that except the cheque Ex.P.1 in both the matters, he has not produced any other documents and when the question was put to the witness that the notice he has sent to the accused was not served on him, the witness answered that the accused purposely avoided to receive the notice. In the next sentence he deposed that, it is true, in the endorsement on the said cover Ex.P.4 it is mentioned that the address is not correct; he has sent two notices to the accused person but he has produced only one notice copy before the Court and he has denied the suggestion that except Ex.P.4 he has not at all served any other notice on the accused. In Ex.P.1 the signature of the accused is mentioned as Vijaykumar. When it was told to the witness that accused name is not Vijaykumar but his name is : 18 : Vasantkumar, for that PW.1 answered that, he is having 4-5 names. In Ex.P.1 the firm Mahasurya Textile Mills Balotra is in Rajasthan State. The accused personally issued the cheque Ex.P.1 and he has written the contents of Ex.P.1 in his own handwriting. He denied the suggestion that accused has not written the cheque Ex.P.1. He does not know who is the proprietor of Mahasurya Textile Mills at present. He denied the suggestion that when the cheque Ex.P.1 was issued, the accused was not working as a proprietor in the said mill. He denied the further suggestion that at the time of doing the cloth business, whatever the cheque accused has given for security purpose, he has misused those cheques and unnecessarily filed the criminal case as against the accused person.
17. In the further cross-examination in the first matter C.C.No.136/2007, PW.1 deposed, it is : 19 : true that accused was doing business with the complainant's firm in the name of Vasant Textile Agency. When it was put to the witness PW.1 that in his complaint he mentioned the name as Mahasurya Textile Mill and accused was transacting through Mahasurya Textile, the witness answered, the accused person was transacting in different names in different villages. He further deposed that he has not produced any documents to show that accused was transacting with the shop in the name of Mahasurya Textile Mill. He admitted as true, accused has not given the said cheque on behalf of the Mahasurya Textiles. In Ex.P.17 he signed as per Ex.P.17(b) and accused signed on the receipt through red ink pen, he has mentioned the date below his signature, but he admitted that the accused has not mentioned the date below his signature; from 2003 to 2005 there was a transaction in between the complainant and the : 20 : accused. He cannot say the due amount is pertaining to which year. But in 2005 the accused issued the cheque towards the balance amount. Ex.P.17 receipt is pertaining to 2004-05.
18. He denied the suggestion that there was no transaction between the complainant and the accused person and the documents Ex.P.5 to P.17 are not pertaining to the complainant. The said suggestion has been denied by the witness. He denied the suggestion that he is falsely deposing that accused was staying at the address as shown in Ex.P.18. He also denied the suggestion that the address shown in Ex.P.18 so also the address mentioned in Ex.P.19 cover are different. He denied the further suggestion that by furnishing false address he falsely claiming that notice has been served on the accused. But he admitted that in his complaint he has not mentioned that he sent the notice on two times. There is a Court : 21 : question as to whether he has produced invoices or bills for supply of the clothes to the accused. The witness answered, he has not produced invoices or bills.
19. In the further examination-in-chief PW.1 deposed on 15.4.2010 that, on behalf of Mahasurya Textiles the accused signed on the receipts and the certified copy of those receipts are as per Ex.P.20 and P.21. The same were marked subject to objection of the learned counsel for the respondent-accused. In the further cross- examination he deposed that 2-3 months earlier to presentation of the complaint before the Court the accused executed Ex.P.20 and P.21 receipts in his favour. He further deposed that on the date of issuance of receipts itself the date was mentioned. The handwriting in Ex.P.20 and P.21 are his own handwriting (complainant). When he presented the : 22 : complaint before the Court, Ex.P.20 and P.21 documents were with him.
20. In his complaint he has not mentioned that the accused transacted with the complainant's shop for purchase of sarees. He has not mentioned in the complaint, in that regard he has executed the receipts by putting his signature. He denied the suggestion, in the legal notice issued, he has not mentioned about Ex.P.20 and P.21. Ex.P.20 and P.21 receipts are given to him on the date when the cheques were issued. He admitted the suggestion as true that after issuance of cheques there is no transaction between the complainant and the accused and even there is no issuance of receipts also. On the date when he sent the sarees to the accused, the accused has issued the cheque in favour of the complainant. Except Ex.P.20 and P.21, there are no other receipts in connection with the : 23 : transaction. He denied the suggestion that by forging the signature on Ex.P.20 and P.21 he has created those two documents. Two years earlier to presenting of the complaint before the Court, there was a difference of opinion between himself and the accused in connection with their business. He admitted the suggestion as true that during these two years period there is no transaction between the complainant and the accused.
21. Looking to the oral evidence of PW.1, he based his claim on the receipts Ex.P.20 and P.21 which receipts are said to have been executed by the accused 2-3 months earlier to presenting the complaint before the Court. But another breath he himself has admitted the suggestion as true, that since 2 years, there is a difference of opinion between himself and the complainant in connection with their business transaction. When : 24 : that is so, it cannot be accepted that when such difference are there and as admitted by the PW-1 himself no such transactions took place within this period of 2 years, the question of respondent/accused executing the documents Ex.P-20 and P21 does not arise at all. Apart from that as observed by the trial Court, that the signatures on Ex.P5 to P17, when compared with the signature with Ex.P1 also they were not tallying with each other. When Court put the question in connection with the business transaction, whether he has produced any vouchers and receipts, he answered no. Admittedly, he claims that there was a transaction in between himself and the accused person and looking to the document Ex.P1 said to have been issued, it is for Mahasurvya Textile Mills, Proprietor/Manager. But during the course of his evidence this PW-1 admitted in a clear terms, it is not on behalf of the transaction done by : 25 : Mahasurvya Textile. When that is so the question of holding the respondent/accused responsible for the alleged offence under 138 of the N.I.Act, does not arise at all. At one breath PW-1 deposed that this cheque is on behalf of Mahasurvya Textile and at another breath he has also deposed that it is on behalf of the Vasant Textile. Even with regard to issuance of the notice to the accused prior to filing of this complaint before the Court, it is an admitted fact that notice was not served on the respondent/accused. For that the complainant deposed before the Court on oath that purposely he evaded receipt of the notice. But he admitted during the evidence, that there is an endorsement by the postal authorities on Ex.P4 cover that the address mentioned on the cover is not correct, this suggestion is admitted by PW-1 during the course of cross-examination. Not only that he claims that two times he issued notice to the accused person and so far as Ex.P20 and P21 : 26 : is concerned, in his evidence he admitted that those two documents were with him, when he presented complaint before the Court. Therefore looking to his evidence, even in respect of Ex.P20 and P21 also there is no consistency in the evidence of PW-1.
22. Therefore perusing the judgment and order of acquittal passed by the Trail Court, the Trial Court taken these aspects into consideration and it has made a detail discussion in its judgment and order of acquittal, in paragraph No.22 of the judgment it has been observed by the Trail Court, that PW-1 in his cross-examination clearly admitted that, there is no document with him to establish that the accused has purchased the cloths from his shop in the name and style of Mahasurvya Textile. Further admitted that, prior to two years from the date of filing of the complaint, there is a strained relationship : 27 : between himself and the accused person towards the business transaction. Hence in the above stated two years period no transaction had taken place. In paragraph No.20, it is observed by the Trial Court in respect of both appeals, on perusal of Ex.P17 and P20 receipts dated 15.12.2005 an amount of Rs.2,80,000/- and Rs.20,000/- has been mentioned. The Ex.P1 cheque numbers are also mentioned in the receipt. But Ex.P1 has been issued on 20.04.2006 by the Proprietor/Manager of Mahasurvya Textile Mills. Therefore, after the lapse of five months from the date of passing of Ex.P17 and 20 receipts, the Ex.P1 cheque dated 20.04.2006 has been issued. The PW-1 either in his examination-in-chief or in his cross- examination nowhere stated that, accused has issued the post dated cheque to him. In paragraph No.19 of the judgment, it is observed, that the PW-1 in his examination-in-chief stated that, accused has issued the cheque bearing : 28 : No.0248255 dated 20.04.2006, drawn on Balotra Urban Co-operative Bank Ltd., Main Branch Balotra for Rs.20,000/- in his favour towards part payment of purchase of cloth goods from his shop. PW-1 in his cross-examination has admitted that, on the date of purchase of the goods itself the accused person has issued cheque in his favour and further admitted that, on the date of issuance of Ex.P17 and P20 receipts itself, the accused person has issued cheque in his favour. After issuance of cheque no transaction had taken place between himself and the accused person and also no receipts have been passed. If this portion of the evidence of PW-1 which have been discussed by the Trial Court in paragraph No.19,20 and 22 of its judgment this clearly goes to show that there is no consistency in the case of the complainant PW-1 and the observation made by the Trail Court in paragraph No.23 are most material, wherein the Trial Court made a mention, : 29 : that complainant has not produced the receipt books, stock register, account books, sale tax receipts etc., to establish that accused was having the transaction with him. Hence, there is no sufficient evidence to hold that, as on the date of issuance of the cheque the accused person was liable to discharge the legally recoverable debt. I have already made a mention, even PW-1 admitted in his cross-examination he does not know the due amount pertains to which period.
23. Under such circumstances I don't find any illegality in the judgments and order of acquittal passed by the Trial Court in respect of both appeals. The judgment and order of acquittal passed by the Trial Court are referring to each and every aspect of the matter, considered extensively and the trial Court rightly comes to the conclusion, that the complainant PW-1 failed : 30 : to prove his case that accused committed the alleged offence.
24. Hence, there are no valid and justifiable grounds for this Court to interfere into the judgments and orders of acquittal in respect of both the above appeals, either to set-aside the judgment and order or to modify the same. Hence, both the appeals are hereby dismissed.
Sd/-
JUDGE CKK/MRK/RHR/-