Karnataka High Court
Sri Mallappa Gangappa Halingali vs Sri Basavaraj Murigeppa Gani on 29 October, 2013
Author: Jawad Rahim
Bench: Jawad Rahim
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 29 T H DAY OF OCTOBEAR, 2013
BEFORE
THE HON'BLE Dr.JUSTICE JAWAD RAHIM
CRIMINAL APPEAL No.2558/2009
BETWEEN:
SRI MALLAPPA GANGAPPA HALINGALI
S/O GANGAPPA HALINGALI
AGED ABOUT 38 YEARS
R/O MANGALWAR PETH, BANHATTI
JAMKHANDI TALUK
BAGALKOT DISTRICT
... APPELLANT
(By Sri.S.C.BUTI, ADVOCATE)
AND:
SRI BASAVARAJ MURIGEPPA GANI
S/O MURIGEPPA GANI
AGED ABOUT 49 YEARS
R/O BASAVA COMPLEX
MUDHOL, MUDHOL TALUK
BAGALKOT DISTRICT
... RESPONDENT
(By Sri.MRUTYUNJAY TATA BANGI, ADVOCATE)
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THIS APPEAL IS FILED UNDER SECTION
378(4) OF CR.P.C. BY THE ADVOCATE FOR THE
APPELLANT PRAYING THAT THIS HON'BLE COURT
MAY BE PLEASED TO SET ASIDE THE JUDGMENT
AND ORDERS IN CRL.APPEAL NO.107/2007
DT.29.11.2008 ON THE FILE OF THE FAST TRACK
COURT AT JAMKHANDI AND CONFIRM THE ORDER
PASSED IN CC NO.832/2005 ON THE FILE OF THE
JMFC, BANHATTI AND PASS SUCH OTHER ORDER
OR ORDERS AS THIS HON'BLE COURT DEEMS FIT
TO GRANT IN THE CIRCUMSTANCES OF THE CASE.
THIS APPEAL COMING ON FOR HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T
The complainant is in appeal under Section 378(4) of Cr.P.C. against the judgment passed in CRl.A.107/2007 by which the learned Appellate Judge has set aside conviction of the respondent for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the N.I. Act' for short), as recorded by the learned JMFC in C.C.832/2005.
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2. Heard Sri. S.C. Bhuti, learned counsel appearing for appellant and Sri Mrutyunjay Tata Bangi, learned counsel for the respondent and perused the records in supplementation thereto. Which reveals the following contextual facts:
Mallappa Gangappa Halangali-appellant herein initiated prosecution of the respondent for the offence punishable under Section 138 of the Act on the assertive contention that the respondent had borrowed Rs.1,00,000/- from him for expansion of his business, agreeing to repay the same within two weeks. However, the respondent failed to keep the promise and on demand made by the appellant issued the impugned cheque dated 26/07/2005, assuring it would be encashed. The cheque on presentation was dishonoured for "insufficient :4: funds" necessitating issuance statutory notice on 23.08.2005 which was duly served on the accused, but he failed to comply with the demand made.
Learned Magistrate took cognizance for the offence indicted above and issued process against the respondent, who entered context denying the liability.
In the trial that ensued, the complainant tendered evidence as P.W.1 and relied on 9 documents, while the respondent-accused also tendered the evidence as DW.1 and placed reliance on 17 documents.
3. The learned trial Judge, on analyzing the evidence, opined complainant's evidence outweighs the defence and thus convicted him :5: and pass the conviction sentencing and directing him to pay Rs.1,50,000/-.
4.Assailing it he was in Crl.A.102/2007. Learned Appellate Judge on re-appraisal of evidence, found evidence in defence, negates the case of the complainant about the alleged offence under Section 138 of the Act. Thus the appeal was allowed recording acquittal against which, the complainant is in appeal.
5.Learned counsel for the appellant was at his best in contending accused had admitted the issuance of cheque, his signature thereon and therefore, the burden on the complainant had eased substantially. The burden had shifted on the accused to explain under what circumstance the cheque was issued. He submits, the complainant in his ocular :6: testimony and documentary evidence, which includes impugned cheque-Ex.P.1, the bank endorsement-Ex.P.2, copy of the advocate notice by him as-Ex.P.5 and postal acknowledgement- Ex.P.7, has proved that the accused had issued the impugned cheque, which was dishonoured and despite issuance of statutory notice, he had failed to clear liability. He submits the proof so laid by the complainant established all the ingredients of the offence under 138 of the Act. Thus the Appellate Judge was in serious error in acquitting the respondent.
6.In negation of the grounds urged by the learned counsel for the appellant, counsel for the respondent would submit that the complainant had failed to establish, firstly the monatory transaction of loan and secondly, :7: that Ex.P.1 was issued by the accused to him (complainant) towards any existing debt or legal liability. The respondent counsel draws my attention to Exs.D.3 to D.6 which are the counter foils of cheque issued by the accused to a person called T.K.Rawal. He submits appellant herein and T.K.Rawal were in joint business venture. They had floated Sree Veerabhadreshwar Enterprises and offered several schemes to supply domestic appliances and Hero Honda Motor Cycle. Under the scheme the prospective purchasers had to make payment periodically, each month which would be held in credit by the enterprises run by the appellant and T.K.Rawal. On completion of payments or the cost of the vehicle, the subscriber will be entitled to product. However, during this period, if the subscriber :8: wanted to withdrawn the subscription he will be entitled to have advance money from and out of the money paid. But he had to furnish security either in the form of cheque or any other security. He submits that T.K.Rawal, who was incharge of Veeerbhadreshwar Enterprises, had prevailed upon the accused to contribute to the chit scheme for Hero honda Motorcycle and towards that scheme, the accused was making payments. However, he wanted to withdraw the amount as per the terms he issued cheques out of which three were blank. In proof of this submission, he has produced Exs.D.4 to D.6, which are the counter foils of cheque bearing Nos. 295938, 295939 and 295940.
7.I have perused the said documents and I am satisfied Exs.D.4 to D.6 are :9: undoubtedly, the counter-foils of the cheques drawn on the account of the accused. It is also seen from the counter foils one T.K.Rawal has signed acknowledging the receipt of the cheque.
8.In this case, the complainant-Mallappa has sought to enforce Ex.P.1 cheque bearing No.295940. Therefore, it was incumbent upon the complainant to establish that the said cheque was issued by the accused in relation a bilateral transaction with him. The complainant has admitted Ex.D.6 it contains signature of T.K.Rawal on the counter file which establishes the defence fully that the cheque marked as Ex.P.1. was not issued by the accused to the complainant Mallappa but it was issued in blank to T.K.Rawal who has signed the counter foils acknowledging the cheques. : 10 :
9.Of course a holder in course of a Negotiable Instrument can also enforce the cheque and seek prosecution of the drawer if the cheque has been dishonoured. But in this case that is not the plea of the complainant. Complainant has sought prosecution of the Respondent on the specific contention that The respondent-accused had borrowed loan of Rs.1,00,000/- and in discharge of it he issued Ex.P.1. He did not take up the plea that the accused had borrowed money from T.K.Rawal and he had passed on the cheque to him to treat him as holder in due course. Thus T.K. Rawal should have instituted the prosecution, but not the complainant-Mallappa. That leads the reasonable conclusion, the complainant has failed to establish the transaction of loan between him and the accused and : 11 : Consequently, he failed to establish the cheque was issued in discharge of existing debt or legal liability.
10. In view of such fact situation, merely because cheque-Ex.P.1 was dishonoured will not raise cause of action in favour of the complainant to seek prosecution of the accused.
11.Learned counsel for the appellant has placed reliance on following decisions to contend the accused was liable to be prosecuted:
1 1993 STPL (LE) 18514 SC Anil Kumar Sahney Vs. Gulshan Raj
2. 1999 STPL (LE)_ 26778 SC K. Bhaskaran Vs. Sankaran Vaidhyan Balan and another
3. AIR 2001 SC 3897 : 12 : Hiten P Dalal Vs. Bratindranath Banjerjee
4. (2002)6 SCC 426 ICDS LTD., Vs. Beena Shabeer & another
5. 2006(4) KCCR 2008 Sri K. Balachandra Vs. Sri. Dinesh Prabhu
6. 2010 AIR SCW 2946 Rangappa Vs. Mohan
12.The judgment of the Appex Court in the case of Anil Kumar Sahney Vs. Guishan Raja laid down law that when a post-dated cheque is presented for encashment and if it is dishonoured the period for presentation has to be deemed to be six months from the date of which the cheque is dated. That issue is not under consideration in this case. Hence, this decision is not applicable.
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13.The judgment in the case K.Baskar Vs. Sankaran Vaidhyan Balan and another lays down the principle, that if signature of the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally raised that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the Court to presume it was insured in discharge of any debt or liability. The burden was on the accused to rebut the aforesaid presumption.
14. Applying this preposition of law to the facts of the law, it could be held the accused has rebutted the presumption by his ocular and documentary evidence, particularly Ex.D.6. Therefore, even after applying the principle : 14 : enunciated in the decisions on facts I am satisfied, the accused had successfully rebutted the presumption. The last decision relied upon is in this case of Rangappa Vs. Mohan reported in AIR 2010 (SC) 1898. No doubt the decision is latest in sequences of the decision of the Apex Court. But even in that decision there is emphasis the accused has right to rebut the presumption under Section 139 of the Act, I have already recorded in this order that accused has successfully rebutted this presumption and therefore, his conviction was not warranted. In the resultant position the reasons by the Appellate Judge in Para Nos. 6, to 8 of the judgment being the result of correct appreciation of evidence on record calls for no interference.
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15.The judgment dated 29.11.2008 passed in Crl.A.No.107/2007 by the Fast Track Court is confirmed.
16.This appeal fails.
Sd/-
JUDGE Rms