Karnataka High Court
Abhay Kumar Jain vs Pankaj R Makkanna on 17 February, 2018
Author: Ravi Malimath
Bench: Ravi Malimath
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 17TH DAY OF FEBRUARY, 2018
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
CRIMINAL APPEAL NO.1147 OF 2016 C/W
CRIMINAL APPEAL NOS.1148 OF 2016 AND 1146 OF 2016
CRIMINAL APPEAL NO.1147 OF 2016
BETWEEN:
ABHAY KUMAR JAIN
S/O LALITH KUMAR JAIN,
AGED ABOUT 25 YEARS,
RESIDING AT NO.773,
GANESHA SAW MILL ROAD,
T.DASARAHALLI,
BENGALURU-560057.
... APPELLANT
(By SRI.NITIN R., ADVOCATE FOR
SRI. HANUMANTHARAYA C. H., ADVOCATE)
AND
PANKAJ R MAKKANNA
S/O RAVIPRAKASH MAKKANNA,
AGED ABOUT 27 YEARS,
RESIDING AT NO.10,
I MAIN ROAD,
SRIPURAM,
SHESHADRIPURAM,
BENGALURU-560020.
ALSO AT:
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PANKAJ R. MAKKANNA,
C/O MAKKANNA JEWELLERS
NO.10, I FLOOR,
AGMP COMPLEX,
NEAR UNION BANK,
CT STREET,
BENGALURU-560002
... RESPONDENT
(By Sri.G S BHAT, ADVOCATE )
THIS APPEAL IS FILED UNDER SECTION 378(4) OF
CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE
THE JUDGMENT DATED 11.05.2016 PASSED BY THE XVIII
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,
BENGALURU IN C.C.NO.17562 OF 2013, ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS
ACT.
*****
CRIMINAL APPEAL NO.1148 OF 2016
BETWEEN:
ABHAY KUMAR JAIN
S/O LALITH KUMAR JAIN,
AGED ABOUT 25 YEARS,
RESIDING AT NO.773,
GANESHA SAW MILL ROAD,
T.DASARAHALLI,
BENGALURU-560057.
... APPELLANT
(By SRI.NITIN R., ADVOCATE FOR
SRI. HANUMANTHARAYA C. H., ADVOCATE)
3
AND:
PANKAJ R MAKKANNA
S/O RAVIPRAKASH MAKKANNA,
AGED ABOUT 27 YEARS,
RESIDING AT NO.10,
I MAIN ROAD, SRIPURAM,
SHESHADRIPURAM,
BENGALURU-560020.
ALSO AT:
PANKAJ R. MAKKANNA,
C/O MAKKANNA JEWELLERS
NO.10, I FLOOR,
AGMP COMPLEX,
NEAR UNION BANK,
CT STREET,
BENGALURU-560002
... RESPONDENT
(By Sri.G S BHAT, ADVOCATE )
THIS APPEAL IS FILED UNDER SECTION 378(4) OF
CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE
THE JUDGMENT OF ACQUITTAL AND ORDER DATED
11.05.2016 PASSED BY THE XVIII ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY IN
C.C.NO.17568 OF 2013, ACQUITTING THE RESPONDENT/
ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT.
*****
CRIMINAL APPEAL NO.1146 OF 2016
BETWEEN:
ABHAY KUMAR JAIN
4
S/O LALITH KUMAR JAIN,
AGED ABOUT 25 YEARS,
RESIDING AT NO.773,
GANESHA SAW MILL ROAD,
T.DASARAHALLI,
BENGALURU-560057.
... APPELLANT
(By SRI.NITIN R., ADVOCATE FOR
SRI. HANUMANTHARAYA C. H., ADVOCATE)
AND:
PANKAJ R MAKKANNA
S/O RAVIPRAKASH MAKKANNA,
AGED ABOUT 27 YEARS,
RESIDING AT NO.10, I MAIN ROAD, SRIPURAM,
SHESHADRIPURAM, BENGALURU-560020.
ALSO AT:
PANKAJ R. MAKKANNA,
C/O MAKKANNA JEWELLERS
NO.10, I FLOOR,
AGMP COMPLEX,
NEAR UNION BANK,
CT STREET,
BENGALURU-560002
... RESPONDENT
(By Sri.G S BHAT, ADVOCATE )
THIS APPEAL IS FILED UNDER SECTION 378(4)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED
11.05.2016 PASSED BY THE XVIII ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU IN
C.C.NO.17561/2013, ACQUITTING THE RESPONDENT/
ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT.
5
****
THESE CRIMINAL APPEALS COMING ON FOR
ADMISSION, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
At the request of both counsels, all three appeals are taken up for consideration together. Since a common order has been passed by the Trial Court in three different cases, these three appeals have been taken up together since they arise out of the same law and facts.
2. The case of the appellant is that the accused is known to him. His father lent a sum of Rs.32 lakhs to the complainant which in turn he gave to the accused. Once again, a request for Rs.10 lakhs was made which was given by the complainant. The same was given due to the enormous faith and trust the complainant and his father had in the accused and his family. The accused, subsequent to various demands being made for return of money, issued three cheques for a sum of Rs.42 lakhs in 6 all. When the cheques were presented for encashment, two cheques were dishonoured with an endorsement on the ground of insufficient funds and another that the payment has been stopped by the drawer. Notice was issued. Nothing came out of it. Thereafter, the present proceedings were initiated. By the impugned order, the accused was acquitted in all the three cases by a common order. Hence the instant appeals.
3. Sri. Nitin R., learned counsel for the appellant contends that the Trial Court committed an error in acquitting the accused. With regard to insufficiency of funds, the Trial Court considered the plea of the parties. The case of the complainant is that, he and his father are running a jewellary business. That the accused is known to them and therefore, an amount of Rs.42 lakhs in all was paid to him.
4. The Trial Court was of the view that the complainant has not given any explanation regarding the 7 non examination of his father with regard to payment of money. In the cross examination, PW-1 has stated that he has no documents to show that his father had given him cash of Rs.32 lakhs and Rs.10 lakhs and he advanced the said amount to the accused. Therefore, in the absence of any proof of material for payment of said amount, the Trial Court disbelieved the case of the complainant that he had a known source of income to lend the funds.
5. Furthermore, that the complainant had even threatened with criminal intimidation against the father and brother of the accused. That only out of fear of injury from the complainant, the accused had handed over 12 blank signed cheques to the complainant. In this regard his brother DW-2 has submitted a petition to the Sheshadripuram police station as per Exhibit D1 to the said effect. The accused has further stated that he has given an intimation to the bank for "stop payment" of these cheques on the ground that the complainant has forcibly taken 12 blank signed cheques from him.
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6. Keeping this in mind, the Trial Court was of the view that there is no material produced by the complainant to indicate his source of income. The exhibits produced by him do not support the said cause. Until and unless the complainant is able to show that he was in possession of such huge amount of cash, the accused could not have been convicted.
7. The consistent plea of the complainant appears to be that the accused and complainant are known to one another and therefore with good faith, amount was given. The question of knowing the accused, whether payments have been made in good faith has no relevance so far as the merit of the case is concerned.
8. The cash in the hands of the appellant is admittedly unaccounted. When the cash is unaccounted, it would mean non-compliance of the requirements of law. Therefore, the appellant cannot expect to seek protection 9 of the law in order to recover unaccounted amounts. The appellant cannot be permitted to violate the law as and when he chooses and consequently seek protection of the law for such violations.
Consequently, the appeals being devoid of merit, are dismissed.
SD/-
JUDGE Dvr: