Karnataka High Court
Pkn Caps And Polymers Pvt. Ltd. Rep. By ... vs Sri K. Vishnu Prasad S/Of K. Jagannatha ... on 22 November, 2006
Equivalent citations: 2008(2)KARLJ276, 2008 CRI. L. J. (NOC) 70 (KAR.) = 2007 (6) AIR KAR R 164, 2007 (6) AIR KAR R 164 2008 (1) ABR (NOC) 139 (KAR.) = 2007 (6) AIR KAR R 164, 2008 (1) ABR (NOC) 139 (KAR.) = 2007 (6) AIR KAR R 164
Author: K. Ramanna
Bench: K. Ramanna
JUDGMENT K. Ramanna, J.
1. This appeal is filed against the order of acquittal dated 20.1.2005 passed by XXII Addl. C.M.M., Bangalore, city in C.C. NO. 14649/2003 for an offence punishable under Section 138 of the Negotiable Instruments Act. The appellant (hereinafter referred to as the 'complainant') filed a complaint under Section 200 Cr.P.C. against the respondent alleging that the respondent (hereinafter referred to as the 'accused') had committed an offence punishable under Section 136 of the N.I. Act.
2. The facts of the case, in brief, are as follows. The accused made a representation that he was the sole and absolute owner of the property in Survey Nos. 39/1A, 39/1-A2 and 40/3 to the extant of 2 Acres of land situated at Talaghattapura village, Uttarahalli Hobli. He entered into an agreement of sale on 6.7.2002 with the appellant-complainant and the appellant- complainant agreed to purchase the same for a total sum of Rs. 17,00,000/- and the complainant paid Rs. 10,20,000/-. Accordingly the appellant-complainant paid a total sum of Rs. 17,00,000/-through three cheques for Rs. 10,20,000/-, Rs. 2,30, 000/- and Rs. 4, 50, 000/- and the respondent has acknowledged the said sum of Rs. 17,00,000/- as sale consideration in respect of the said lands. Later the appellant-complainant came to know that the accused had created a charge on the said three items of property with M/s. Viswaswaraiah co-operative Bank by depositing the original title deeds and ha has created equitable mortgage in respect of the same property and the preliminary notification was issued for acquisition of the land by the B.D.A. for the said property. Since the respondent-accused did not transfer or execute the sale deed, therefore the appellant-complaint called upon the respondent to cancel the agreement of sale dated 6.7.02. Accordingly the agreement to cancel the agreement was executed on 2.12.02 and the accused promised to repay the said amount of Rs. 17,00,000/- with interest. Therefore, he gave a cheque dated 17.12.2002 for Rs. 5,00,000 and promised to pay the balance of Rs. 12,00,000/- by the and of March 2003 and issued two cheques for the amount of Rs. 5,00,000/- each dated 31.3.03 and promised to pay the balance of Rs. 2,00,000/- on or before 30.6.03 and the claque dated 17.12.2002 for Rs. Five Lakhs was encased and the two cheques i.e. Exs.P-2 and P-3 came to be dishonoured when it was presented for encashment on 30.6.2002 and returned with an endorsement 'insufficient funds'. Therefore, demand notice came to be issued on 7.7.02. Demand notices was duly served on 9.7.02 but the accused sent a reply dated 1.8.02 taking untenable and totally false contentions. Therefore, the appellant filed a complaint under Section 200 Cr.P.C. before the II Addl. C.M.M., Bangalore.
3. After appearance of the accused, the trial Court framed the charge and recorded the plea of the respondent and both parties adduced evidence. After considering the materials placed on record, the trial. Court dismissed the complaint only on the ground that neither the agreement of sale dated 6.7.02 or the cancellation dead dated 2.12.02 ware not properly stamped, which are inadmissible in evidence. Therefore, the trial Court acquitted the respondent on that ground only. Hence, this appeal.
4. Heard the arguments of learned Advocate for the appellant Smt. M.D. Anuradha v. and Sri Subramanya for Upasana Associates for the respondent.
5. It is argued by the learned Counsel for the appellant that when a complaint filed under Section 200 Cr.P.Cr., it is for the trial Court to examine whether the cheque issued by the respondent is for legally enforceable debt or otherwise but the trial Court without discussing the purpose for which the complaint is filed dismissed the complaint on the ground that the agreement of sale was written on a white paper which ought to have been written on a stamped paper and the documents namely, the agreement and the cancellation deed were not duly stamped and that the said document is inadmissible in evidence. Therefore, the complaint came to be dismissed by acquitting the respondent which is wholly illegal and. perverse. It is argued by the learned Counsel for the appellant that the point raised by the trial Court in deciding the matter has not been answered. It is for the complainant to satisfy the ingredients of the alleged offence punishable under Section 136 of the N.I. Act. It is argued that since the respondent has entered into an agreement of sale to sell the three items of his landed property for Rs. 17,00,000/-. But fails to pay the said amount in full and fails to execute the sale deed. Later the complainant came to know that the respondent-accused executed equitable mortgage in favour of M/s. Vishveswarayya Co-operative Bank and also deposited the original titles. Later he came to know that the said three items of lands were proposed for acquisition by the B.D.A. Therefore, the appellant cancelled the agreement dated 6.7.02 entered into between the parties and at the time of agreement of cancellation, the respondent agreed to repay the same. Therefore the three cheques have been issued for repayment of the refund of the amount taken by him from the appellant. When the two cheques ware presented for encashment, they were dishonoured. Therefore, the trial Court is wrong in coming to the conclusion that the agreement of sale and the cancellation deed written on a white paper were not duly stamped. It is argued that the respondent has not raised any objection at the time of marking Ex.P-11. It is not proper on his part to file an application by the appellant for impounding of the documents that too after trial was over and the matter was listed for arguments. It is argued that the trial Court is wrong in holding that the appellant has not filed any objections to the I.A. filed by the respondent. The objection filed by the appellant has been duly noted in the order sheet but come to erroneous conclusion in dismissing. Therefore even if any agreement or document is written on a white paper not duly written on a stamped paper and which is admissible in the evidence, the trial court is totally wrong in holding that EX.P-11 and the cancellation deed are not properly stamped or required to be impounded.
6. It is argued by the learned Advocate for the appellant that the complainant has placed sufficient material to show that the cheques issued by the respondent are for legally enforceable debts. When the respondent has not rebutted the presumption available in favour of the complainant under Section 139 of the N.I. Act and under Section 118 of the Evidence Act, therefore, the respondent has not discharged his burden to prove that the cheques issued by him were not for legally enforceable debt or otherwise.
7. In support of the aforesaid contentions, learned Counsel for the appellant relied on the following decisions:
(a) 1992 (2) KLJ 650 (Sakamma v. Pavadi Gowda and Ors., this Court has held as follows:
Sections 34 proviso (a) and 35-Stamp objection -Document insufficiently stamped admitted in evidence-Such document cannot be rejected in evidence when law provides for recovery of deficit stamp duty with penalty and same has in fact bear, recovered- stamp Act is a fiscal measure enacted to secure revenue for state and not enacted to arm litigant with weapon of technicality to meet case of his opponent - Court is not required to consider admissibility of document in evidence from stand, point of stamp law- Once Court, rightly or wrongly, admits document in evidence, admission cannot be called in question at any stage of suit or proceedings on ground that document is insufficiently stamped.
(b) 2001 (7) Supreme page 810 (K.N. Beena v. Muniyappa and Anr.) wherein it to been held as follows:
The respondent not having discharged the burden of proving that the cheque was not issued for a debt or liability as required under Section 139 of Negotiable Instruments Act, 1881, the conviction as awarded by the Magistrate under Section 138 was correct. High Court erroneously and set aside that conviction.
The respondent not having discharged the burden of proving that the cheque was not issued for a debt or liability, the conviction as awarded by the Magistrate was correct.
(C) (Kashinathsa Yamosa Kabadi v. Narasingsa Bhaskarsa Kabadi Etc.) wherein it has been held that the documents were admitted in evidence by the trial Court and no question of admissibility of those documents can be raised at a later stage of the suit or in appeal.
(d) (Hiten P. Dalal v. Brathindranath Banerjee) wherein it has been held that:
Section 139 provides that "it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or any liability. The effect of these presumptions is to place evidentiary burden on the accused of proving that the cheque was not received by the complainant towards discharge of the liability because both Sections 138 and 139 requires that court shall presume the liability of the drawer of the cheques for the amounts for which the cheques were drawn. It is obligatory on the part of a Court to raise this presumption. Raising of the presumption has been established. it is an exception to the rule as to the burden of receiving onus on the accused.
(e) (Krishna v. Sanjeev) Wherein this Court has held as follows:
HEAD NOTE E(D):
Meaning of production of document/ admitting the said document in evidence, marking of the said document which is admitted in evidence and proof of such document. Held at the time of admitting the document in evidence it is open to the opposite party to raise objection regarding the admissibility of the document and if objections are raised, the court is under an obligation to decide the said, objection. It is after the said objection is decided by the Court and if it decides to receive the document in evidence, the said document is marked, for the purpose of identification. Thereafter the proof of said document would arise. After the evidence if adduced at the final hearing, it is open to the parties to address arguments regarding the admissibility of the document, to the relevancy of the document and proof of the said document and the Court will decide all these questions in the course of its judgment.
Therefore, the trial Court has wrongly appreciated the evidence and has come to a perverse finding on the ground that the documents were not duly stamped. Hence, she prays for getting aside the judgment and order of acquittal and convict the respondent for an offence punishable under Section 136 of the N.I. Act.
8. On the other hand, learned Counsel for the respondent submitted that the trial Court is right in acquitting the respondent on the ground that the agreement of sale and the cancellation of the agreement entered into between the parties are not duly stamped and the trial Court rightly dismissed the complaint by acquitting the respondent on the basis of the defence taken by the respondent-accused. The trial Court has not considered his application filed for impounding of a document and, therefore, the matter requires to be remanded to the lower Court, I.A. which is pending as on the date of judgment and order. It is further argued that there is no legally enforceable debt. The cheques issued by the respondent are not for legally enforceable debt. It is for some other transaction. Though the respondent offered to sell the other lands belonging to the respondent at Ooty, but he has not purchased. Therefore, as per the terms of the agreement the appellant has taken possession of the properties subsequently and started refunding the amount with advance of Rs. 17 Lakhs received from the respondent. Therefore, it is not for legally enforceable debt for which the respondent is not liable to be convicted for an offence under Section 13B of the N.I. Act. In this behalf, the counsel for the respondent relied on a decision in case of Bipin Shahthilal Panchal v. State of Gujarat and Anr. reported in A.I.R 2001 SC page 1158 wherein it has been held as follows:
Whenever an objection is raised during evidence taking stage regarding the admissibility of any matter or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case for record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. There is no illegality in adopting such a course. The court however made it clear that if the objection relates to deficiency of stamp duty of a document the Court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.
Hence he prays for dismissal of the appeal.
9. Having heard the arguments of the learned Counsel for the appellant and the respondent and having examined the materials both oral and documentary evidence placed on record, now I proceed to see whether the judgment and order of acquittal passed by the trial Court is on the basis of the legal evidence? or whether the judgment and order of acquittal is perverse, illegal and incorrect?
10. It is an undisputed fact that the respondent herein entered into an agreement of sale with the appellant in respect of three items of the immovable property, in all measuring 2 Acres situated at Talaghattapura village in Uttarahalli Hobli. Ex.P-11 is the agreement of sale entered into on 6.7.02 and a sum of Rs. 17 Lakhs has been received by the respondent. In fact, reply sent by the respondent after 15 days, admitting the above execution of agreement of sale and receipt of Rs. 17 Lakhs from the appellant but the contention taken at the initial stage was that on the very same day the property was delivered to the appellant and there is no material as such to show that the appellant has taken possession of three items of the land. It is also an admitted fact that on the date of agreement the respondent hag not delivered the original documents. The original documents were deposited with the M/s. Viswashwara co-operative Bank and also executed equitable mortgage. The B.D.A. has issued Section 4 (1) notification to acquire the said three items of the land. Therefore, the agreement entered into between the appellant and the respondent on 6.7.02 was cancelled on 2.12.02 and accordingly the respondent promised to refund, the amount of Rs. 17 Lakhs received by him towards sale consideration. Therefore, ha issued a cheque dated 17.12.2000 for Rs. Five. Lakhs and the same has been encashed by the appellant tout the two cheques for Rs. Five Lakhs each issued by the respondent has not been disputed. It is not the case of the respondent that the cheques were issued by him on account of threat or coersion and the two cheques Exs.P-1 and P-2 when presented for encashment were returned with endorsement "insufficient funds". Therefore, the appellant after complying with the mandatory provisions issued a demand notice well in advance and the said notice was duly served on the respondent. The respondent has not paid the amount but sent a reply. Therefore, the trial court has not considered all these aspects. The trial court has not considered the issuance of the cheques by the respondent, whether the cheque issued was for legally enforceable debt or otherwise. The respondent herein has not disputed the date and signature mentioned in Exs.P-1 and P-2 and also the amount mentioned therein but the trial Court when once admitted the document Ex.P-11 through a witness i.e. the complainant, when the respondent has not objected, for marking or raised his little finger while marking the documents, now he cannot contend either before the trial Court or this Court, that Ex.P-11 was not duly stamped. When the opposite party objects for marking of the document, it is the duty of the Court to record, its objection and mark the document tentatively. When once the respondent has not objected for marking of the document, he has no voice to say that the document namely, agreement of sale entered into is inadmissible evidence and the Court need not look into the document cannot be accepted. In the very same decision referred by the learned Counsel for the respondent i.e. A.I.R. 2001 SC 1150 (Bipin Shantilal Panchal v. States of Gujarat and Anr.) wherein it has been held that:
Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case for record the objected part of the oral evidence subject to such objections to be decided at the last stage in the final judgment.
When the respondent has not objected or insisted the Court to make a note of his objection and to mark the document, he cannot raise or canvass before the trial Court or this Court that the Courts have no right to consider the contents of the document in the judgment. Therefore, the question of remanding the matter for fresh disposal does not arise. Of course, the application filed by the respondent before the trial Court has not been disposed of but the trial Court in its judgment has observed that the appellant hag not filed, any objection to I.A. No. I filed, in fact, the order sheet disclosed that the statement of objection has been filed on 26.5.2004 before the disposal of the case. The respondent herein filed the I.A. after recording the evidence of parties i.e. at a belated stage. The appellant herein filed a detailed objection. In fact, the objection filed by the appellant disclose a that the complaint filed for an offence punishable under Section 136 of the N.I. Act. Therefore, when once the documents are admitted in evidence, without the objections of the opposite party when once the court rightly or wrongly admits the documents, the admissibility of these documents cannot be questioned. Therefore, it could be said that the respondent fails to place proper rebuttal evidence to hold that the cheques issued by him was not for legally enforceable debt or otherwise. When the respondent admits about the issuance of the two cheques and the receipt of the demand notice and dishonour of the cheques, he cannot now contend and say that it is not for legally enforceable debt. During the course of cross-examination PW.1 i.e. appellant-complainant admitted about the receipt of Rs. 5,00,000/- during the pendency of the criminal case. The trial court without considering the ingredients of Section 139 of the N.I. Act and Section 118 of the Evidence Act acquitted the respondent which is illegal, incorrect, perverse and liable to be sat aside.
11. For the foregoing reasons, the appeal its allowed. The judgment and order of acquittal dated 20.1.2005 passed by the XXII Addl. C.M.M., Bangalore, in C.C. No. 14649/2003 for an offence punishable under Section 138 of the Negotiable Instruments Act is hereby set aside and the respondent/accused is convicted for an offence punishable under Section 136 of N.I. Act.
The respondent-accused shall suffer sentence till raising of the court and he shall pay a fine of Rs. 5,20,000/-. In default of payment of fine amount, he shall undergo simple imprisonment for six months. The respondent accused shall deposit the said sum of Rs. 5,20,000/- before the trial court within four weeks from date of receipt of the copy of the judgment failing which he shall undergo default sentence of simple imprisonment for six months. After the deposit of fine amount by the respondent -accused, the same shall be paid to the appellant-complainant as compensation.
The respondent -accused shall surrender before the trial Court and suffer sentence till raising of the Court.