Karnataka High Court
Shashidhar Swamy vs R. Badrinath S/O R.Shivayya on 21 February, 2018
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 21ST DAY OF FEBRUARY 2018
BEFORE
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
CRIMINAL APPEAL No.100068/2016
BETWEEN:
SHASHIDHAR SWAMY
S/O: AYYASWAMY,
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O; JAYANAGARA, TQ: GANGAVATHI,
DIST: KOPPAL.
... APPELLANT
(BY SRI. LINGARAJ MARADI, ADVOCATE)
AND:
R. BADRINATH S/O: R.SHIVAYYA
AGE: MAJOR, OCC: BUSINESS PARTNER
OF SHANTHI ENTERPRISES, C.B.S. GUNJ,
R/O; 5TH CROSS, JAYANAGAR,
TQ: GANGAVATHI, DIST: KOPPAL.
... RESPONDENT
(BY SRI. GURUDEV GACHCHINAMATH, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) OF CR.P.C., SEEKING TO SET ASIDE THE
JUDGMENT AND ORDER OF ACQUITTAL DATED
14.01.2016 PASSED BY PRL. CIVIL JUDGE AND JMFC.,
COURT AT GANGAVATHI, IN C.C.NO.186/2013, IN FAVOUR
OF ACCUSED/RESPONDENT FOR THE OFFENCE P/U/S.
138 OF NEGOTIABLE INSTRUMENT ACT AND TO CONVICT
AND SENTENCE AND ETC.
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THIS APPEAL COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment dated 14.01.2016, rendered in C.C.No.186/2013, by the learned Principal Civil Judge and JMFC, Gangavathi, wherein the proceedings under Section 138 of N.I.Act, commenced on the complaint by one Shashidhar Swamy, which came to be rejected in the form of accused being acquitted. The said Shashidhar Swamy is the appellant and challenges the order passed by the learned Prl. Civil and JMFC, Gangavathi.
2. For the purpose of convenience, the parties are referred to as per their ranking before the trial Court.
3. It is stated that the accused requested the complainant for financial assistance of Rs.7,00,000/- with a promise of repayment of the same with interest @ 1.5% per month. The complainant was closely associated with the accused. He lend the same on the :3: very day. The accused said to have committed default in repayment of the said amount.
4. The complainant presented a Cheque bearing No.0085950, dated 21.01.2013 drawn in Shri Channabasavswamy Urban Co-operative Bank Limited but it was dishonored and returned, since the account was inoperative along with endorsement. As provided under the procedural aspects the complainant got issued the legal notice to accused on 05.02.2013 which is served on the accused on 06.02.2013.
5. The accused stated not to have complied with the terms of notice, the present case came to be filed on 06.03.2013, well within the due date provided under the statute. The complainant has filed the document Ex.P1 and got examined himself as PW.1.
6. Learned counsel for the appellant/complainant would submit that the trial Judge erred in concluding to hold that there was no monitory liability by the accused in favour of the complainant. It is also submitted that :4: the learned JMFC Court, asks reasoning regarding the financial capacity of the complainant, non-receipt of consideration and there was no necessity of borrowing the said amount. It is further submitted that the complainant believed the words of the accused, who had asked to help and he did and the consensus was that the amount of Rs.1,50,000/- to be repaid within one month along with interest @ 1.5%. It is in this background the complainant claims the liability on the accused.
7. Per contra, learned counsel for the accused would submit that there was absolutely no necessity for the accused to borrow money nor there was financial defined capacity of complainant to lend such an amount. It was repeatedly submitted by the learned counsel for the appellant that the defense forwarded by the accused are ex-facie unbelievable and he was on contradicting stand. However, his sole point programmed agenda is to absolve the liability to get relief through making representations. :5:
8. He further submits that he had paid the interest of Rs.3,60,000/- and no acknowledging documents were issued by the complainant. He is said to have suffering from Kidney problem, Diabetes and Hyper Tension. It is also submitted that the complainant has not issued receipt for having received a sum of Rs.3,60,000/-. It is also submitted that he had not paid interest during the year 2012.
9. The points which were attempted to be driven by the learned counsel are, there was no liability and the signature was disputed. Further it is stated that cheque was lost and he had duly signed the same. Incidentally, in the said case though the complaint was filed for the offence including Section 420 of IPC, it is registered for the offence punishable under Sections 504 and 506 of IPC and not regarding the offence connecting forgery, cheating, falsification of accounts or making illegal claim and the accused has gone not questioning the same. However, the said document is :6: filed in the context as a step taken against the complainant.
10. However, to a question asked to learned counsel for the accused, about the status of the said complaint, it was submitted that he has to check out from the accused as he does not have personal knowledge. Regard being had to the fact, that it is produced by the accused. Incidentally, for several questions the same answer has been given by the counsel.
11. Thus, another submission made by the learned counsel for the accused is that duly signed cheque was lost and complaint was lodged. However, on going through the complaint dated 06.10.2015, it is seen that it is not against the theft or misplacing of duly signed cheque. On the other hand, it is stated that the complainant is an habitual money lender and carried on the money lending business with exorbitant rates of interest ranging from 40% to 45 % interest and swindling the public. It is also stated that five years :7: back (during the year 2010) accused had borrowed a sum of Rs.1,00,000/- and as a security he had issued cheque bearing No.0085950, which was collected by him along with blank promissory note. In the said complaint, of course, which is the document relied upon by the accused and wherein it operates estoppel against contending contrary under the doctrine documentary estoppel.
12. In the context and circumstances, the accused has stated regarding subscribing signature of a cheque but stated to be obtained by the complainant as a security. One of the claim made by the accused is that the complainant misused cheque and filled the amount in a sum of Rs.7,00,000/- and has filed a complaint to that effect.
13. Accused claims that his signature on the document was misused to convert the cheque into a valuable security. Further regarding the relevant queries made by the Court, the way in which the accused :8: answers did not appear to be proper or suitable. It was the submission on behalf of the accused that the accused had an account as a partner which consists of three persons viz., Shantaveerappa, Hanumanthappa, Amareshappa.
14. It was the initial submission that the bank account was closed in the year 2003. Further, the accused was available in the Court and would submit that he was in a partnership that also has come to an end and the cheque book relates to the period when the account was in force ( this according to the accused the cheque that was issued when the business was in force ought to be earlier to 2003).
15. It was submitted that the complainant has played fraud and secured the forged documents including cheque book and claims that earlier he had already paid an amount of Rs.1,00,000/- and had paid interest @ 15% per month for two years amounting to Rs.3,60,000/- which presupposes a minimum gap of :9: two years prior to the date of prosecution as the accused claims that he had paid such an amount of interest and no documents are provided as to regarding the payment.
On perusal of the records available, the accused is not a illiterate and insofar as the cheque is concerned, the Court has exercised its power under Section 73 of IPC regarding the signatures on the cheque and they are in subsistence and tallied with signatures on the cheque which is marked as Ex.P-1.
The accused has not chosen to get himself examined or any of the partner as stated by him, more particularly, Amareshappa, either examined or produced document.
It was submitted that accused is in a partnership firm but has not produced not even a single paper regarding existence of partnership firm. : 10 :
It is also submitted by the learned counsel for the accused that the custody of the cheque book connecting the account No.65 was used to be handled by Parameshwarappa.
16. In this connection, no details were furnished whether there was another account either a surviving or joint account or a sole account. Thus, on perusal of cheque Ex.P-1 and signature at Ex.P-1(a), notice, examination of the plaintiff, it is loud and clear that the stand of the accused is diagonally opposed in the matter of signature, consideration, account, custody of cheque, issuance, status of business.
On perusal of the records in question, I am of the confirmed finding that the accused issued Cheque to the complainant in discharge of his debt and generated false defence to escape from his liability and the learned JMFC appears to have swayed away in the submissions made on behalf of the accused resulting in acquittal of the accused in C.C.No.186/2013.
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17. Thus, I am of the considered and firm finding that the judgment passed by the learned Prl. Civil Judge & JMFC, Gangavathi, in C.C.No.186/2013 is liable to be set aside. Accordingly, the appeal is allowed. The order dated 14.01.2016 passed by the Prl. Civil Judge & JMFC, Gangavathi, in C.C.No.186/2013 is hereby set aside.
It is also seen the Xerox copy of the letter said to have been given by the accused is marked as Ex.D-1. However, Ex.D-1 is the certified copy.
The trial Judge enquiring and verifying the circumstances of the defence between non-mentioning of the date in Ex.D-1 when it is mentioned in Ex.P-2. Though it may not be a matter controlling the case over the subsistence of the cases the transparency requires each and every grievance and questions to be answered.
Learned counsel for the accused would submit that leniency be shown on the accused who is having : 12 : nephrological problems apart from diabetes and hyper tension.
The theory of losing cheque that was only signed by the accused is not believable.
It appears to be just and proper to impose the total fine of Rs.8,00,000/-. Out of which, Rs.7,75,000/- is payable to the complainant. Remaining amount shall be paid as fine to the State Account. In case, the accused fails to pay within one month from the date of obtaining certified copy, he shall undergo simple imprisonment for six months.
Sd/-
JUDGE msr/naa