Karnataka High Court
Sri M C Puttegowda vs Sri M C Krishnappa on 4 August, 2023
1 Crl.A.No.40/2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.40 OF 2011
BETWEEN:
SRI. M.C. PUTTEGOWDA
S/O. LATE NEELAGIRI CHENNEGOWDA,
AGED ABOUT 58 YEARS,
RESIDENT OF NO.79/1, 2ND FLOOR,
JOGUPALYA MAIN ROAD,
ULSOOR,
BENGALURU - 560 008.
...APPELLANT
(BY SRI. A. LOURDU MARIYAPPA, ADVOCATE)
AND:
SRI. M.C. KRISHNAPPA,
S/O. LATE NEELAGIRI CHENNEGOWDA,
AGED ABOUT 57 YEARS,
RESIDING AT NO.208, NAGARBHAVI
II STAGE, 12TH BLOCK,
BENGALURU - 560 002.
.....RESPONDENT
(BY SRI. A.S.MAHADEVA SWAMY AND
SRI. S.ANIL KUMAR, ADVOCATES)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF CODE OF CRIMINAL PROCEDURE PRAYING TO SETTING
ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED
26.11.2010 PASSED BY THE HON'BLE XXII-ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE AND XXIV ADDITIONAL
SMALL CAUSES JUDGE, BENGALORE IN C.C.NO.24936/2007
ACQUITTING THE ACCUSED PERSONS FOR THE OFFENCE
PUNISHABLE UNDER SECTION 138 OF THE NEGOTIABLE
INSTRUMENTS ACT AND CONVICT THE ACCUSED/
2 Crl.A.No.40/2011
RESPONDENT UNDER SECTION 138 OF THE NEGOTIABLE
INSTRUMENTS ACT OR BE PLEASED TO REMAND THE MATTER
TO THE TRIAL COURT IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED ON 14.06.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by complainant challenging the acquittal of respondent/accused for the offence punishable under Section 138 of Negotiable Instrument Act (for short, 'N.I. Act').
2. For the sake of convenience, the parties are referred to by their rank before the trial Court.
3. It is the case of the complainant that he and accused are real brothers. For his legal necessity, accused borrowed a sum of Rs.15,21,250/- and towards repayment of the same issued cheque for a sum of Rs.15,21,250/-. When complainant presented it for realization, it was dishonored for want of sufficient funds in his account. Complainant got issued a legal notice and 3 Crl.A.No.40/2011 it is duly served on the accused. However, he has sent an evasive reply and hence the complaint.
4. After due service of summons, accused has appeared and contested the matter. He pleaded not guilty and claimed trial.
5. In support of his case, complainant examined himself as PW1 and got marked Exs.P1 to 8.
6. During the course of his statement U/sec.313 Cr.P.C. accused has denied the incriminating evidence.
7. Infact, accused has examined himself as DW1, the Manager of State Bank of Mysore on which the cheque in question was drawn as DW2. He relied upon Exs.D1 to 11.
8. Vide the impugned judgment and order, the trial Court dismissed the complaint.
9. Being aggrieved by the same, complainant has come up with this appeal contending that the impugned judgment and order is illegal, perverse, 4 Crl.A.No.40/2011 capricious and as such, liable to be set aside. The trial Court has failed to appreciate the oral and documentary evidence placed on record and come to a wrong conclusion that the charge leveled against the accused is not proved. The trial Court has wrongly placed the burden on the complainant despite presumption U/section 118 and 139 of N.I. Act. Though the complainant has filed detailed objections, the trial Court has erred in accepting the report of the handwriting expert and failed to provide opportunity to the complainant to subject the handwriting expert to cross- examination. The trial Court has erred in holding that there is insertions in the cheque. It has also erred in holding that the complainant had no financial capacity to lend Rs.15,21,250/-. Though the accused has failed to rebut the presumption U/sec. 139 of N.I. Act, the trial Court has erred in accepting his defence and acquitting the accused.
10. Heard arguments of both sides and perused the record.
5 Crl.A.No.40/2011
11. Thus, complainant prosecuted the accused on the allegations that he borrowed hand loan of Rs.15,21,250/- for his legal necessity and issued the subject cheque towards repayment of the same. However, it was dishonored for want of sufficient funds in his account and after issuing statutory notice and getting an evasive reply, he has filed the complaint.
12. Though accused admit his relationship with the complainant and that the subject cheque belongs to him drawn on his account maintained with his banker, he has disputed that he borrowed hand loan of Rs.15,21,250/- from the complainant and issued the subject cheque towards repayment of the same. He has taken up a specific defence that during February, 2000 when his relationship with complainant was cordial, he was in need of Rs.52,250/- and towards payment of same, complainant issued him a cheque for Rs.52,250/- and in turn, he i.e. accused issued the subject cheque specifying the amount Rs.52,250/- in figure leaving remaining entries blank. However, accused did not 6 Crl.A.No.40/2011 encash the cheque issued by complainant as he was able to get the money elsewhere and by misusing the subject cheque which he had issued to the complainant and adding numerical '1' before '5' and in between '2', complainant has made the cheque for Rs.15,21,250/- and presented it to the bank.
13. The accused has also taken up a defence that he had issued stop payment instruction to the bank on 14.06.2002 itself and despite the same, complainant has managed to get a false endorsement from the bank that the subject cheque was dishonored for insufficient funds instead of 'stop payment instructions'. The accused has also contended that on 05.11.2003, he got converted his individual account into joint account with his wife and the cheques subsequent to the said date are required to be signed by both himself and his wife. Despite the same, the bank has illegally dishonored the cheque on the ground of insufficient funds instead of stop payment instructions as well as for cheque not bearing the joint signature of his wife.
7 Crl.A.No.40/2011
14. Accepting the defence of the accused, the trial Court has dismissed the complaint, also on the ground that the complainant has failed to prove the legal necessity of the accused and also his financial capacity to advance huge sum of Rs.15,21,250/-.
15. At the outset, it is relevant to note that complainant and accused are real brothers. Both of them were employees of NGEF Factory. A partition suit was pending between them. Since the accused admit that cheque in question belongs to him drawn on his account maintained with the banker, presumption under Section 118 and 139 of NI Act is attracted to the effect that cheque in question was issued towards repayment of legally recoverable debt or liability. Consequently, the burden shifts on the accused to prove that cheque was not issued towards repayment of any debt or liability and to establishes the circumstance in which the cheque it reached the hands of the complainant.
16. To discharge this burden the accused has entered the witness box and reiterated the defence taken 8 Crl.A.No.40/2011 by him. It is pertinent to note that accused has produced the original blank cheque issued by complainant for sum of Rs.52,250/- drawn on his account. Infact during his cross examination at page No.3, complainant has admitted that he has issued the said blank cheque to the accused and it is marked as Ex.D.1. However during the examination in chief of D.W.1 accused, instead of marking the documents from Ex.D.2 onwards, once again the documents are marked Ex.D.1 onwards. Thus two documents have marked as Ex.D.1 i.e. deposition of complainant given before the Civil Court in suit filed for partition and the blank cheque issued by complainant for sum of Rs.52,250/-.
17. The amounts specified in Ex.D.1 cheque issued by the complainant to the accused match the amount claimed by the accused for which he had issued Ex.P.2-cheque to the complainant. The complainant is not having any explanation as to why he issued Ex.D.1 cheque to the accused. The issue of Ex.D.1 cheque by the complainant to the accused and the fact that accused 9 Crl.A.No.40/2011 has not enchased it probabilize the defence of accused that after arranging the said sum from other source he did not chose to present it for encashment and in lieu of same accused had issued Ex.P.2 cheque to the complainant.
18. Now coming to the defence of the accused that he had issued a blank cheque for Rs.52,250/- and complainant has inserted numeral "1" twice i.e. before "5" and in between "2" and made it as Rs.15,21,250/-. Infact he has got the said cheque examined by the hand writing expert who has given report that said insertions are not in the same hand writing as that of remaining writing. The complainant has not filed objections to the said report. He has also not chosen to examine the hand writing expert, though he has made allegations that trial Court did not provide him opportunity to file objections and also to examine the hand writing expert.
19. It appears after anticipating some mischief on the part of complainant, accused has given representation to his bank as per Ex.P.9 dated 10 Crl.A.No.40/2011 14.06.2022 stating that he has issued a cheque for Rs.52,500/- to his brother M.C.Puttegouda i.e. complainant and instructed the bank that if the said cheque is presented for encashment, payment should be stopped. Though he has not specifically noted the cheque number, he has given the series of the numbers of the said cheque. Despite such instructions, the bank instead of stopping payment has returned it dishonored for want of sufficient fund.
20. Infact after the subject cheque was dishonored, accused has written a letter to manager as per Ex. D.7 as to why his instructions were not carried out and on the other hand the said cheque was dishonored for want of sufficient fund.
21. Infact as per Ex.D.10 the accused has requested the bank to convert his individual account No.1922, on which subject cheque is drawn as joint account in the name of himself and his wife and that the said account to be managed by both of them requiring their signatures for passing cheques. Ex.P.11 is the 11 Crl.A.No.40/2011 application for conversion of said single account as joint account. It contains the specimens signature of accused and his wife.
22. In fact the evidence of D.W.2-Tayyanna manager SPM NGEF branch supports the defence of the accused that he had given stop payment instructions and also requisition to convert the individual account of accused as joint account along with his wife. During course of his evidence D.W.2 has specifically deposed that the said account is converted into joint account. During his cross examination he has deposed that the same cheques which were issued in respect of the individual accounts could be utilized for dealing with joint account. Despite the fact that accused has instructed the bank to stop payment, got his individual account converted into joint account requiring signature of accused and his wife, the bank has erred in dishonoring the cheque on the ground of insufficient funds, instead of giving endorsement as payment stopped by the drawer 12 Crl.A.No.40/2011 and also that the cheque requires joint signature of accused and his wife.
23. After the cheque was dishonored and complainant sent statutory notice, as per Ex.D.7 the accused has addressed a letter to the manager confronting him as to why the payment was not stopped for want of signature of his wife and stop payment instructions were given by him. The manager has sent an evasive reply. It appears since complainant was an employee of NGEF factory for nearly 30 years and had transactions with said bank, he has managed to get an endorsement to file complaint against the accused, or else there is no explanation for the bank to dishonored the cheque on the ground of funds insufficient instead of returning it for stop payment instructions or atleast for want of joint signature of his wife.
24. As rightly contended by the accused, even for naked eye, the insertion made in the figures by changing the amount in Ex.P.2 from Rs.52,250/- to Rs.15,21,250/- is visible. Ofcourse there is evidence of hand writing 13 Crl.A.No.40/2011 expert to that effect. Moreover the complainant has failed to prove the legal necessity for which accused borrowed huge sum of Rs.15,21,250/- and also his capacity to lend the said amount.
25. Considering the overall oral and documentary evidence placed on record by the complainant as well as the accused the trial Court has come to the correct conclusion that by preponderance of probabilities, the accused has rebutted the presumption under Section 118 and 139 of N.I.Act, but the complainant has failed to prove the allegations made against accused beyond reasonable doubt and acquitted him. The findings of the trial Court is based on legal evidence placed on record and this Court finds no perversity and there are no justifiable reasons to interfere with the said findings. In the result appeal fails and according the following:
ORDER i. Appeal filed by the complainant is dismissed.
ii. The impugned judgment and order of the trial Court is confirmed.14 Crl.A.No.40/2011
iii. Registry is directed to send back trial court records along with copy of this judgment forthwith.
Sd/-
JUDGE RR