Karnataka High Court
B.M. Umesh vs S.B.Muniyappa on 25 June, 2015
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JUNE, 2015
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP D. WAINGANKAR
CRIMINAL APPEAL No.74/2014
BETWEEN:
B.M.UMESH,
S/O LATE SRI MUTTHARAYAPPA,
AGED ABOUT 34 YEARS,
RESIDING AT NO.12/3-1,
9TH CROSS, MAGADI ROAD,
BANGALORE - 560 023. ...APPELLANT
(BY SRI. G.SHANKAR, ADVOCATE)
AND:
S.B.MUNIYAPPA,
S/O SRI BYCHAPPA,
AGED ABOUT 62 YEARS,
RESIDING AT NO.15, HAF POST,
10TH CROSS, LAKSHMAIAH BLOCK,
GANGANAGAR,
BANGALORE - 560 024. ...RESPONDENT
(BY SRI. P.RAJU, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED U/S. 378(4) OF CR.P.C.
PRAYING TO SET ASIDE THE ORDER DTAED: 19.3.10 PASSED BY
THE XII ADDL.C.M.M., BANGALORE IN C.C.NO.7045/2008 - IN SO
FAR AS THE ORDER AND OBSERVATION MADE ON POINT NO.2
WITH REGARD TO CHEQUE NO.182953 DATED:6.1.2008 FOR
RS.5,00,000/- HOLDING THE SAME AS NOT PROVED: CONVICT THE
ACCUSED/RESPONDENT; AWARD COMPENSATION AMOUNT TO
THE APPELLANT.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY,
PRADEEP D. WAINGANKAR J., PRONOUNCED THE FOLLOWING:-
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JUDGMENT
Though this appeal is posted for admission, by the consent of the counsel appearing for the appellant and the respondent, it is taken up for final hearing.
2. This appeal is directed against the judgment dated 19.03.2010 in C.C.No.7045/2008 on the file of XII Additional Chief Metropolitan Magistrate, Bangalore City, whereby the respondent-accused has been convicted for the offence punishable under section 138 of NI Act.
3. The facts in brief which gave rise to this appeal are as under:
The appellant (who shall hereinafter called as 'the complainant') advanced a hand loan of Rs.50,000/- to the respondent (who shall hereinafter called as 'the accused') who was working in the Police Department in the month of July 2006, as he was in financial difficulty. Out of the total 3 amount of Rs.50,000/-, Rs.42,500/- was paid by way of cheque and Rs.7,500/- by way of cash. The accused assured to repay the loan amount with interest at 2% p.a. The accused himself calculated the interest and issued a cheque for a sum of Rs.64,000/- dated 13.12.2007 drawn on State Bank of Mysore, Gangenahalli Branch, Bangalore towards repayment of the loan of Rs.50,000/-. Again in the first week of January, 2008, the accused approached the complainant stating that he has been suspended from the service and he is in need of hand loan of Rs.5,00,000/- in order to get back his property documents from the financier. He informed the complainant that he has applied for bank loan and soon after the Bank loan is sanctioned to him, he would repay the said amount of Rs.5,00,000/-. The complainant had no money. He secured a sum of Rs.5,00,000/- from his friends, mother and advanced the same in cash to the accused. The accused issued post dated cheque for a sum of Rs.5,00,000/- drawn 4 on UTI Bank, Basaveshwaranagar, Bangalore towards repayment of the second loan of Rs.5,00,000/-. As desired by the accused, the complainant presented both the cheques for collection through his Banker, Corporation Bank, RPC layout, Bangalore. Both the cheques were dishonoured for insufficient funds in the account of the accused. By issuance of a notice, the complainant informed the accused the factum of dishonour of both the cheques and demanded the payment of the cheque amount within a stipulated period of time. The accused failed to pay the cheque amount within a stipulated period of 15 days from the date of service of notice. The complainant filed a complaint for the offence punishable under Section 138 of NI Act before the learned Magistrate. The accused contested the case. By judgment dated 19.03.2010, the accused has been convicted for the offence punishable under Section 138 of NI Act in so far as dishonour of the cheque for Rs.64,000/- issued in favour of 5 the complainant. So far as the dishonour of the cheques of Rs.5,00,000/- issued to the complainant, the accused has been acquitted.
Aggrieved by the acquittal of the accused in respect of dishonour of cheque issued by him for Rs.5,00,000/-, this appeal is preferred.
4. I have heard the learned counsel appearing for the appellant/complainant and respondent/accused. Perused the records.
5. The case of the complainant is that in the first week of January, 2008, the accused again approached him seeking hand loan of Rs.5,00,000/- in order to get back his property documents from the financier; the accused informed the complainant that he has already applied for Bank loan and soon after the Bank loan is sanctioned, he would repay the loan amount of Rs.5,00,000/- taken from 6 the complainant. Believing the words of the accused, the complainant paid a cash amount of Rs.5,00,000/- as hand loan by collecting the same from his friends and mother. But there is absolutely no documentary evidence for having advanced such a huge cash amount of Rs.5,00,000/- by the complainant to the accused. One thing is true that the complainant had no amount as on the alleged date so as to advance the same to the accused.
6. It is the case of the complainant that he secured the said amount from two of his friends and his mother. For having collected the amount of Rs.5,00,000/- from his two friends and mother, there is no documentary evidence nor the complainant has produced the Bank pass book of so called his friends or his mother so as to know their financial capacity on that day. Though the complainant examined one K.Rajesh said to be his friend as PW.2, he has not produced any documents for having advanced Rs.2,00,000/- to the 7 complainant at any point of time nor he has produced his pass book to show that he withdrew an amount of Rs.2,00,000/- from his account and gave it to the complainant. On the other hand, the evidence of PW.2 would go to show that the advocate for the complainant had informed him to come to the Court and give evidence in favour of the complainant for having advanced Rs.2,00,000/- to the complainant about three months prior to the date of his evidence.
7. Further, in respect of the first loan of Rs.50,000/- advanced by the complainant to the accused, the accused issued a cheque for Rs.64,000/- by calculating the interest on the amount of Rs.50,000/- advanced by him. When, the complainant has charged interest for an amount of Rs.50,000/-, it is rather difficulty to believe that the complainant advanced a cash amount of Rs.5,00,000/- to the accused without interest, moreover for the reason, the 8 amount of Rs.5,00,000/- said to have been advanced to the accused was not the amount of the complainant so as to advance the same without interest. But the said amount was taken by him from his two friends and mother as alleged by him. No person would advance such a huge amount of Rs.5,00,000/- without charging interest on it. Further no prudent person would venture to advance such a huge amount of Rs.5,00,000/- in cash without obtaining even acknowledgement from the accused for having received an amount of Rs.5,00,000/-. No material is produced by the complainant regarding the so called transaction between the complainant and the accused, which made the accused to issue a cheque for Rs.5,00,000/- in favour of the complainant. Added to that, the complainant failed to examine another of his friend and his mother from whom he said to have collected part of the amount said to have been advanced to the accused.
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8. So far as the first amount of Rs.50,000/- is concerned, Rs.42,500/- was paid by way of cheque and Rs.7,500/- by cash. But so far as second loan of Rs.5,00,000/- is concerned, there is no evidence so far as to inspire the confidence of the Court. Mere production of a cheque said to have been issued by the accused is not sufficient so as to discharge the burden cast upon the complainant to prove the existence of legally recoverable debt. The presumption under Section 139 of N.I. Act in favour of the complainant is regarding issuance of cheque. But not as to existence of liability. The burden to prove the existence of legally recoverable debt is on the complainant by cogent evidence. The complainant failed to discharge this burden. On the other hand, the accused has established that he is not due to pay an amount of Rs.5,00,000/- to the complainant based on the evidence of the complainant. Thus the learned Magistrate on proper appreciation of evidence 10 placed on record by the complainant and the accused, has rightly held that the cheque for Rs.5,00,000/- (Ex.P2) issued by the accused was legally debt in favour of the complainant was not towards legally recoverable debt. It appears that the cheques that were obtained from the accused towards security at the time of advancement of the first loan of Rs.50,000/- has been misused by the complainant. Thus, on re-appreciation of the evidence, I do not find any illegality committed by the learned Magistrate in acquitting the accused so far as the dishonour of Ex.P2-the cheque for Rs.5,00,000/- is concerned. There is no merit in this appeal. Hence, the appeal is dismissed.
Sd/-
JUDGE VM