Karnataka High Court
Sri Prakash vs Sri Ramanath M Hegde S/O Manjunath K ... on 17 March, 2020
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF MARCH, 2020
BEFORE:
THE HON'BLE MR.JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL No.970 OF 2014
BETWEEN
SRI. PRAKASH,
S/O. MUTHAPPA REDDY,
AGED ABOUT 28 YEARS,
ARALEPET,
BANGALORE-560 053.
... APPELLANT
(BY SRI. K.P. BHUVAN, ADVOCATE)
AND
SRI. RAMANATH M. HEGDE,
S/O. MANJUNATH K. HEGDE,
AGED ABOUT 44 YEARS,
PROPRIETOR,
M/S. PACTEC INDIA,
NO.14 AND 15,
GOODS SHED ROAD,
(DR.T.C.M. RAYAN ROAD)
NEAR B.J.P. OFFICE,
BANGALORE-560 053.
... RESPONDENT
(BY SRI. D.P. PRASANNA, ADVOCATE)
***
THIS CRIMINAL APPEAL IS FILED U/S 378(4) CR.P.C.,
PRAYING TO SET ASIDE THE ORDER DATED 01.08.2014 PASSED
BY THE XV ADDL. CHIEF METROPOLITON MAGISTRATE,
BANGALORE IN C.C. NO.33585/11 ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I.
ACT.
2
THIS CRIMINAL APPEAL COMING FOR FINAL HEARING ON
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the complainant against the judgment and order of acquittal passed by the trial court, acquitting the accused of the offence punishable under Section 138 of the N.I. Act.
2. Heard the learned counsel appearing for the appellant-complainant and the learned counsel for the respondent-accused.
3. The case of the complainant is that the accused is a tenant under him and he is a chronic defaulter in paying the rent. The complainant terminated the tenancy and filed a suit for ejectment and recovery of rent. In the last week of July 2011, accused issued two cheques to the complainant towards portion of arrears of rent. Out of two cheques, one cheque was honoured and another cheque was dishonoured. The accused issued cheque towards arrears of rent namely cheque bearing No.847672 dated 3 03.08.2011 for a sum of Rs.1,00,000/- drawn on the National Cooperative Bank Limited, B.S.K. II Stage, Bangalore - 560 070 and also promised to pay the balance of rent within a short period. When the aforesaid cheque was presented with his banker Syndicate Bank, Balepet Branch, Bengaluru, it was dishonourred with an endorsement "funds insufficient" on 19.08.2011. Thereafter, a legal notice was issued on 26.08.2011 and in spite of service of notice, the accused failed either to reply to the notice or to make payment within the statutory period. Hence, he committed an offence punishable under Section 138 of N.I. Act.
4. The trial court by its judgment dated 01.08.2014 in CC No.33585/2011, acquitted the accused, aggrieved by which the present appeal is preferred.
5. The contention of the learned counsel for the appellant is that the accused has not disputed the issuance of cheque and his signature on the cheque. The trial court has come to the conclusion that the accused 4 has received the statutory notice. There is a legal presumption available in favour of the complainant which has not been rebutted by the accused. Though the appellant has complied with the requirements envisaged under Section 138 of N.I. Act, the trial court has erroneously acquitted the accused. The trial court ought to have raised a presumption that the cheque was issued in discharge of legally recoverable debt. The accused being a tenant under the complainant is not disputed. He is a defaulter in payment of rent. Towards the arrears of rent he issued the cheque in question. The trial court has not appreciated that the cheque in question was issued in respect of arrears of rent payable by the accused and therefore, the trial court came to a wrong conclusion by placing reliance on the defence evidence that the entire arrears of rent was paid in the execution case. He contends that the trial court has failed to see that once if the complainant has fulfilled the requirement under Section 138 (a) to (c) of the N.I. Act and if he has discharged the initial burden, then, the burden is shifted on the accused to disprove that the cheque was not issued towards a 5 legally enforceable debt. Therefore, he submits that the reasons assigned by the trial court is not in accordance with law and accordingly, he seeks to allow the appeal.
6. Per contra, the learned counsel for the respondent has contended that the accused has not disputed that he was a tenant under the complainant. However, the cheque was issued to the complainant towards security. He contends that the complainant has not stated specifically as to what was the monthly rent payable by the accused as there are two different premises wherein the accused and his wife are the tenants under the complainant. He contends that the complainant has not stated as to what was the arrears as on the date of issuance of cheque by the accused. He submits that the complainant filed two suits numbered as O.S.No.1841/2011 and O.S.No.1842/2011 on 09.03.2011. The complainant claimed arrears from 05.03.2011 to 05.06.2013 and he has admitted in the Execution Petition that the entire arrears of rent have been paid by the accused. He has not disputed the payment of entire rent of 6 Rs.7,10,000/- by the accused, as such there was no arrears payable as alleged by the complainant as on the date of issuance of cheque. Even otherwise, the arrears of rent has been paid by the accused and therefore, it cannot be said that the amount mentioned in the cheque was legally recoverable debt. He submits that the trial court having appreciated the entire evidence on record has rightly acquitted the accused and this being an appeal against an order of acquittal, there are no justifiable grounds to interfere with the findings recorded by the trial court. Accordingly, he seeks to dismiss the appeal.
7. It is the case of the complainant that the accused is a tenant under him and he is a chronic defaulter in payment of rent. In the last week of July 2011, he issued two cheques towards partial payment of arrears of rent. Out of the said two cheques, one cheque was honoured and another cheque was dishonoured. The case of the complainant is that the cheque in question dated 03.08.2011 bearing No.847672, issued for a sum of Rs.1,00,000/- towards arrears of rent came to be 7 dishonoured with an endorsement "funds insufficient" and the accused failed to pay the amount in spite of service of notice. Therefore, he committed an offence punishable under Section 138 of N.I. Act.
8. In so far as the service of notice is concerned, according to the complainant, a demand notice was issued on 26.08.2011 and since acknowledgement was not received, he filed a complaint before the Postal Authority on 29.09.2011. The Postal Authority in turn issued a reply notice stating that on 10.10.2011, the notice was duly served on the accused. Hence, service of notice has been held sufficient on the accused.
9. It is the defence of the accused that he is a tenant under the complainant in one of the portion. The cheque in question was given to the complainant as a security and he has not filled the amount mentioned in the cheque. He has stated that the complainant filed two suits for ejectment and also for recovery of rent against the accused and his wife in respect of two premises. In the 8 said suit, the accused has paid a sum of Rs.7,10,000/- towards entire arrears of rent and therefore the cheque in question cannot be said to be a cheque issued by the accused towards legally enforceable debt.
10. To establish the case of the complainant, he has got examined himself as PW1 and got marked Exs.P1 to P4. The accused has got examined himself as DW1 and got marked Exs.D1 to D3. The complainant has reiterated the complaint averments. In the cross-examination, it is elicited from him that he filed O.S.No.1841/2011 and O.S.No.1842/2011 on 09.03.2011 and both the suits have been decreed. He has admitted that in the said suit, the accused paid the balance arrears of Rs.7,10,000/-. He has denied that the accused has paid the entire arrears of rent. He has admitted that in O.S.No.1841/2011, it is mentioned that the arrears of rent was Rs.68,875/- and in O.S.No.1842/2011, the arrears of rent mentioned was Rs.1,92,375/-. Both the suits were decreed on 07.06.2013. He has admitted that on 18.07.2013, the accused paid a 9 sum of Rs.7,10,000/-. He has admitted that the accused has paid the entire arrears as claimed in the original suits.
11. In the complaint filed, the cheque in question is dated 03.08.2011. PW1 has admitted in the cross- examination that he filed the suits about four months prior to filing of the complaint. However, in the complaint, he has not mentioned regarding filing of suits for ejectment and recovery of rents against the accused. It is also not stated in the complaint as to what was the monthly rent payable by the accused and as to what was the arrears as on the last week of July 2011. It is clear from the cross- examination of PW1 that in O.S.No.1841/2011, the arrears of rent was Rs.68,875/- and in O.S.No.1842/2011, arrears of rent was Rs.1,92,375/-.
12. In the evidence given by the accused, he has admitted that a signed cheque was issued by him. However, he has stated that the same was issued towards security. He has admitted that the ejectment suits were filed and subsequently execution petitions were filed by the 10 complainant. He has produced Exs.D1 to D3. Exs.D1 and D2 are the certified copies of the execution petitions. Ex.D3 is the certified copy of the affidavit filed in Ex.P.No.1511/2013. He has stated that he has paid a sum of Rs.7,10,000/- to the complainant in the court. Though the accused has categorically stated that the disputed cheque was issued by him towards security and he has only signed the said cheque and the other contents are not filled by him, the same was not denied by the complainant in the cross-examination.
13. The learned counsel for the appellant would contend that the accused has admitted in the cross- examination that he has not mentioned about the disputed cheque and the amount mentioned in the execution petition. Therefore, he submits that the amount mentioned in the cheque is not part of the arrears paid by accused in Execution Petition. However, in the cross-examination, the complainant has specifically admitted that the accused has paid the entire arrears of rent as claimed in the original suit. It is relevant to see that the arrears of rent claimed in 11 the suit by the complainant is from 05.03.2011 to 05.06.2013 and it is admitted by the complainant that the amount for the said period was fully paid by the accused. Therefore the question of issuing cheques towards arrears of rents on 03.08.2011, 18.08.2011 and 19.08.2011 in respect of two premises does not arise. The arrears of rent for the period mentioned in the suit would include the dates mentioned in the cheques. Hence, it cannot be said that the amount mentioned in the cheque was towards arrears of rents and it was legally recoverable from the accused.
14. The learned counsel for the appellant has placed reliance on a decision of the Hon'ble Apex Court in the case of T.P. Murugan (dead) thr. Lrs. Vs. Bojan Posa Nandhi rep. thr. POA Holder reported in AIR 2018 SC 3601 to contend that the accused has admitted his signature on cheques and therefore the presumption under Section 139 would operate against him. He has contended that the same itself proves the existence of legally enforceable debt and issuance of cheque towards discharge 12 of such debt. However, in the present case, in view of the discussion made supra, this court do not find any reasons to interfere with the orders passed by the trial court. Though there is a legal presumption available in favour of the complainant, the said presumption has been rebutted by the accused by adducing oral as well as documentary evidence. The trial court having appreciated the entire evidence on record, has held that the accused has succeeded in rebutting the presumption. I do not see any illegality in the findings recorded by the trial court. Accordingly, I pass the following:
ORDER The appeal is dismissed.
Sd/-
JUDGE Snc