Karnataka High Court
Sri Wilson Marcelin Carvalho vs Sri Krishna Budhaji Patil on 6 November, 2012
Equivalent citations: 2013 ACD 1261 (KAR), 2013 (4) AKR 754
:1:
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 6TH DAY OF NOVEMBER 2012
BEFORE
THE HON'BLE MR.JUSTICE K.N.KESHAVANARAYANA
CRIMINAL APPEAL No.609/2007 (A)
BETWEEN:
Sri.Wilson Marcelin Carvalho,
Aged about 42 years,
Occ:Business,
R/o 4818/12, Subhash Nagar,
Belgaum. ... Appellant
[By Sri.Jagadish Patil, Advocate]
AND:
Sri.Krishna Budhaji Patil,
Aged about 56 years,
Occ: Agriculture,
R/o Banakanahalli,
Tq. & Dist. Belgaum. ... Respondent
[By Sri.Srinand A. Pachhapure, Advocate]
This Criminal Appeal is filed under Section 378(4) of
Cr.P.C. praying to set aside the judgment and order of
acquittal passed by the learned Judicial Magistrate First
Class-IV Court, Belgaum in C.C.No.724/2006, dated
23.2.2007.
This Criminal Appeal coming on for dictating the
judgment this day, the Court delivered the following:
:2:
JUDGMENT
This appeal by the complainant in C.C.No.724/2006 on the file of the JMFC-IV Court, Belgaum is directed against the judgment and order dated 23.2.2007 passed in the said case acquitting the respondent - accused of the charge leveled against him for the offence punishable under Section 138 of the Negotiable Instruments Act (for short "the Act").
2. The appellant filed complaint under Section 200 of Cr.P.C. alleging offence under Section 138 of the Act against the respondent - accused inter alia contending that the accused for discharge of certain liability due by him to the complainant, issued two cheques each for Rs.50,000/- on 8.6.2005 and when the said cheques were presented for encashment, they were returned unpaid on the ground of insufficiency of funds in the account and in spite of service of statutory notice, the accused failed to pay the amount covered under the cheques as such he has committed the aforesaid offences. The accused appeared before the learned Magistrate and pleaded not guilty for the accusation made against him. The :3: complainant examined himself as PW1 and relied on documentary evidence Ex.P.1 to P.4. The accused during his examination under Section 313 Cr.P.C., denied all the incriminating circumstances appearing against him. By way of defence though the accused did not lead any oral evidence, he relied on two documents marked as Exs.D.1 and D.2. The defence of the accused was that the cheques in question were not issued on 8.6.2005 for discharge of debt or any liability. According to him, these two cheques along with few other cheques were delivered to the complainant as per the terms of the settlement deed dated 25.8.1999 copy of which is marked as Ex.D.1 and they bore date as 25.6.2000 and 26.6.2000 and subsequently though he discharged the liability, later the complainant has misused those two cheques by altering the dates. It was also his defence that since the cheques were not presented within the date of validity, no offence under Section 138 of the Act is committed. He also contended that as on the purported date of the cheques, the alleged debt was time barred, therefore, assuming for the purpose of argument that the cheques were issued on 8.6.2005, they could not have been termed as having issued for :4: discharge of legally enforceable debt to constitute an offence under Section 138 of the Act.
3. After hearing both sides, the learned Magistrate on assessment of oral as well as documentary evidence, by the judgment under appeal, acquitted the accused of the charge leveled against him principally on the ground that there has been alteration of the date of the cheques in question as is evident from contents of Ex.D.1, therefore the cheques were materially altered without the authority of the drawer as such the accused is not guilty of the offence under Section 138 of the Act. The learned Magistrate also held that as is evident from Ex.D.1, the two cheques bore dates as 25.6.2000 and 26.6.2000 and since admittedly the cheques were presented for encashment in the year 2005, the presentation of the cheques for encashment was beyond the period of its validity, therefore, the offence under Section 138 of the Act is not made out. The learned Magistrate also held that as on the purported date of the cheques, the debt had become time barred and therefore, the cheques in question cannot be held as having issued for discharge of :5: legally enforceable debt to attract offence under Section 138 of the Act. In this view of the matter, the learned Magistrate dismissed the complaint and acquitted the accused. Aggrieved by the said judgment the complainant has presented this appeal.
4. The respondent - accused has appeared through his counsel on service of notice of this appeal.
5. I have heard both sides. Perused the records secured from the trial court.
6. Learned counsel for the appellant contended as under:
that the judgment under appeal is highly perverse and illegal inasmuch as the findings recorded by the learned Magistrate that as on the date of the cheques, the debt had become time barred and therefore cheques cannot be termed as one issued for discharge of legally enforceable debt is opposed to the law laid down by the Apex Court and this Court. In this regard, reliance was placed on the decisions of the Apex Court in the case of A.V.Murthy Vs. B.S.Nagabasavanna reported in AIR 2002 :6: SCW 694 and judgments of this Court in the case of H.Narasimha Rao Vs. R. Venkataram reported in 2007 Crl.L.J 583 and in the case of Ganesh Enterprises Vs. D.R.Sarala reported in 2007 Crl.L.J 583.
He further contended that the finding of the learned Magistrate that there has been alteration of the date of the cheques is without any basis and in the absence of any acceptable evidence in this regard, the learned Magistrate has committed serious error in coming to the said conclusion. In this regard, learned counsel by drawing attention of this Court to the two cheques marked as Ex.P1 contended that even to the naked eye there has been no alteration of the dates of the cheques, therefore, the findings recorded by the learned Magistrate in this regard are highly perverse. He further contended that in view of the fact that the cheques in question bore apparent date as 8.6.2005, they have been presented for encashment, within the period of validity and since admittedly these cheques relate to the account held by the accused with the banker and bore his signature and since admittedly the cheques have been returned unpaid on the ground of insufficiency of funds, presumption under :7: Section 139 of the Act ought to have been drawn to the effect that these cheques have been issued for discharge of debt due by the accused to the complainant and in the absence of any rebuttal evidence by the accused, the learned Magistrate ought to have held the accused guilty of the offence.
Therefore, he sought for setting aside the judgment of acquittal by allowing the appeal and for conviction of the accused for the aforesaid offence.
7. Per contra, learned counsel for the respondent sought to justify the judgment under appeal contending as under:
that the judgment under appeal does not suffer from any perversity or illegality for the reason that the complainant having accepted the contents of the Ex.D.1as true and correct is estopped from contending that the cheques in question were not bearing date as 25.6.2000 and 26.6.2000 as stated in Ex.D.1 and since the cheques in question apparently bear a different date than the one mentioned in Ex.D.1, the learned Magistrate is justified in holding that there is material alteration of the date of the :8: cheuqes; that the contents of Ex.D.1 admitted by the complainant itself is sufficient to show the material alteration of the cheques in question and in the light of the same no expert evidence was necessary in proof of the said fact; that the contention of the complainant that there is no alteration in the dates of the cheques, has not been substantiated; that the learned Magistrate having regard to the contents of Ex.D.1 is justified in holding that the cheques were not presented within the period of its validity and therefore, the offence under Section 138 of the Act is not attracted; that since admittedly as on the purported date of the cheques, the debt or liability had become time barred, the cheques in question cannot be termed as having issued for discharge of legally enforceable debt within the meaning of Section 138 of the Act, therefore, the learned Magistrate is justified in acquitting the accused; that the Apex Court in the case referred to supra has not laid down any principle of law to the effect that the cheque issued in respect of time barred debt could be termed as a cheque issued for discharge of a legally enforceable debt within the meaning of Section 138 of the Act, therefore, no sustenance can be drawn from the :9: said decision; that the two other decisions of this Court relied on the judgment of the Apex Court does not also laid down any law. Therefore, he sought for dismissal of the appeal.
8. In the facts and circumstances of the case and in the light of the submissions made on both sides, the points that arise for consideration in this appeal are:
(1) Whether the judgment under appeal suffers from any perversity or illegality warranting interference by this Court?
(2) Whether the learned Magistrate is not justified in acquitting the respondent -
accused?
9. Having heard the learned counsel on both sides and on perusal of the evidence on record and also the legal position, I am of the considered opinion that the judgment under appeal does not suffer from any perversity or illegality warranting interference by this Court.
10. Certain admitted facts are as under:
that the accused along with 3 other persons as owners of land bearing Survey No.67/1/2 measuring 4 : 10 : acres 20 guntas and land bearing Survey NO.87/2A mesuring 3 acres 30 guntas situated in Ganeshpur, Benkanhalli, Belgaum, entered into an agreement of sale with one Devadas A. Pillay and 16 others jointly represented by their power of attorney holder Wilson M. Carvalho, complainant in the case. Subsequently, for some reasons, the transaction could not be completed and the parties entered into an agreement which was reduced into writing on 25.8.1999 as per the original of Ex.D.1 wherein the accused representing for himself and on behalf of other joint owners agreed to pay in all, Rs.4,75,000/- to the complainant representing himself and as power of attorney holders of other purchasers.
For discharge of said liability, the accused issued ten cheques. Though it was contended by the complainant in the complaint that the cheques in question bearing Nos.35053 and 35054 were issued on 8.6.2005 for Rs.50,000/- each for discharge of liability due by him as per the agreement, the contents of Ex.D.1 indicates that these two cheques bearing dates as 25.6.2000 and 26.6.2000 were delivered to the complainant on the date of execution of Ex.D.1. PW.1 in his cross-examination, has : 11 : categorically admitted the correctness of the contents of Ex.D.1. Of course, in his examination-in-chief filed by way of affidavit, the complainant sought to contend that though in the agreement it is stated that the cheques have been issued, but those cheques were not issued on that day but they were issued on 8.6.2005. Having accepted the correctness of the Ex.D.1, the complainant was estopped from contending that two cheques in question were not bearing date as 25.6.2000 and 26.6.2000 as recited in Ex.D.1.
11. As could be seen from Ex.D.1, towards the payment of agreed sum of Rs.4,75,000/- ten cheques were issued. Among them 9 cheques were for Rs.50,000/- each and one cheque was for Rs.25,000/-. The cheques referred to in Ex.D.l starts from cheque NO.35045 and ends with cheque No.35054. The dates mentioned on the cheques have been stated in Ex.D.l. As per the contents of Ex.D.l, cheque bearing No.34053 drawn for Rs.50,000/- bears date as 25.6.2000 and cheque bearing No.35054 bears the date as 26.6.2000. Thus from the contents of Ex.D.l, it is clear that two cheques in question were bearing the dates : 12 : as 25.6.2000 and 26.6.2000. However, the cheques produced before the court and marked as Ex.P.l bear apparent date as 8.6.2005. Of course, to the naked eye perusal of Ex.P1 does not indicate any alteration. However, on this basis, it cannot be said that there was no alteration. If one compares the contents of Ex.D.l with Ex.P.1, it leaves no doubt in the mind of any one that the dates of the cheqes have been altered.
12. As noticed supra, the complainant in his evidence has categorically admitted the correctness of the contents of Ex.D.l. In the light of the same and in the light of the contents of Ex.D.l, in my opinion, the learned Magistrate is justified in holding that the dates of the cheques in question have been materially altered to suit the convenience of the complainant. In the light of the admitted contents of Ex.D.l it was not necessary for the accused to have subjected the two cheques for examination by an expert to report that there was material alteration of the date. The admitted evidence on record clearly indicates the material alteration of the dates of the cheques. It is not the say of PW.1 that the drawer of the : 13 : cheque namely, the accused consented for alteration of the dates. Therefore, the alteration as pointed out by the learned Magistrate was without authorisation of the drawer of the cheques. No doubt, as per the contents of Ex.D.l, the two cheques were issued for discharge of liability due by the accused to the complainant. However, the cheques were payable on or after 25.6.2000 and 26.6.2000. To attract offence under Section 138 of the Act, the cheques issued will have to be presented for encashment within the period of its validity or within six months, whichever is earlier. The cheques in question were presented for encashment on 14.6.2005. The validity of the cheques at the relevant point of time was six months.
13. Thus from the above, it is clear that the two cheques were not presented within the period of its validity from 25.6.2000 and 26.6.2000. Therefore, the learned Magistrate is justified in holding that since the cheques were not presented for encashment within the period of its validity, offence under Section 138 of the Act is not attracted. The complainant having materially altered : 14 : the date of the cheque without authority of the darwer cannot derive any right to present the cheques and on the basis of return of such cheques unpaid, the drawer cannot be held guilty of the offence under Section 138 of the Act. Therefore, the finding recorded by the learned Magistrate in this regard is sound and reasonable and it is in accordance with law and it does not warrant interference by this Court.
14. Yet another ground on which the learned Magistrate acquitted the accused was that as on the purported date of the cheques, the debt had become time barred, therefore, the cheques could not be termed as the one issued for discharge of legally enforceable debt. One of the ingredients to attract the offence under Section 138 of the Act is that the cheque must be one issued for discharge of a debt. Explanation to Section 138 of the Act states that for the purpose of this Section debt or other liability means legally enforceable debt or other liability. Therefore, the cheques based on which the prosecution is launched for the offence under Section 138 of the Act should be shown to have been issued for discharge of a : 15 : legally recoverable debt or liability. Even according to the admitted case of the parties, settlement was arrived at between the parties and terms of the settlement was reduced into writing as per original of Ex.D.1 dated 25.8.1999. Thus the liability on the part of the respondent
- accused was crystalised on 25.8.1999 and the accused as per the terms of the said document agreed to pay in all a sum of Rs.4,75,000/- to the complainant. For the discharge of the said amount he issued 10 cheques bearing different dates. The complainant sought to contend that the two cheques in question were issued only on 8.6.2005. It is not the say of the complainant that at any point of time, after 25.8.1999 the accused acknowledged his liability to the complainant. Thus it is not the case of the complainant that there was acknowledgment of liability by the accused. As on 8.6.2005, admittedly, the liability alleged to be due by the accused to the complainant was barred by time and the complainant could not have enforced the same under law. Therefore, the question to be considered is, " since as on the purported date of the cheques, the debt or liability having become time barred whether the cheques so issued : 16 : could be termed as the one issued for discharge of legally recoverable debt or liability? "
15. The Apex Court in A.V.Murthy's case referred to supra, had an occasion to consider this very question. The facts of the said decision were, prosecution was launched by the complainant therein for the offence under Section 138 of the Act against the accused in respect of a cheque returned unpaid for a sum of Rs.7.5 lakhs. The learned Magistrate took cognizance of the offence alleged and issued summons to the accused. The said order of taking cognizance and ordering issue of summons was challenged by the accused before the learned Sessions Judge, Mysore principally on the ground that even as on the purported date of the cheque the debt had become time barred, therefore, the cheque was not the one issued for discharge of legally recoverable debt. The learned Sessions Judge accepted the said contention and quashed the prosecution launched. The said order was affirmed by this Court. The matter was carried to the Apex Court. The reading of the reported decision indicates that the Apex Court did not express any opinion on the question : 17 : raised for consideration. In fact in the opening sentence of paragraph 5 of the judgment, Their Lordships have stated that they do not propose to express any opinion on the question as the matter is yet to be agitated by the parties. Nevertheless Their Lordships referred to the provision of Sections 118 and 139 of the Act and also Section 25(3) of the Indian Contract Act. Reference was also made to the averment made by the complainant that the accused in his balance sheet as on the particular date had acknowledged the debt due by him to the complainant which may amount to acknowledgement of debt and since such acknowledgement of debt was within the period of limitation, Their Lordships felt that it is not necessary for expressing any final opinion on any of these aspects and since Their Lordships felt that the entire matter is required to be considered by the trial court , set aside the orders passed by the learned Sessions Judge and this Court and remanded the matter to the learned Magistrate for adjudication.
Thus from the above, it is clear that the Apex Court in the said decision has not laid down any principles of : 18 : law as to the question raised therein. Hence no sustenance can be drawn from the said decision.
In H.Narasimha Rao case referred to supra, this Court relying on the decision of the Apex Court in the case of A.V.Murthy has held that a cheque issued towards discharge of a time barred debt would be one issued for discharge of legally enforceable debt. As noticed supra, the Apex Court has not laid down any law.
In Ganesh Enterprises's case referred to supra, this Court has not laid down any law in this regard. Therefore, no sustenance can be drawn from the said decisions.
16. Having regard to the discussions made above on the point that the cheques issued were bearing date as 25.6.2000 and 26.6.2000 and later the same has been altered as 8.6.2005, as such there was material alteration of the cheques and that the cheques were not presented within the period of its validity from its original dates, it is not necessary for this Court to express any opinion on the question as to whether the cheques issued for discharge of time barred debt could be considered as one issued for : 19 : discharge of legally enforceable debt within the meaning of Section 138 of the Act.
17. Having regard to the discussions made above, I am of the opinion that the judgment of the acquittal recorded by the learned Magistrate is sound and reasonable and it does not suffer from any perversity or illegality warranting interference by this Court. In that view of the matter, I find no merit in this appeal.
Accordingly the appeal is dismissed.
Sd/-
JUDGE RS/*