Karnataka High Court
M Padmaraj vs Sri K V Ramamurthy on 28 June, 2023
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.917 OF 2012
BETWEEN:
M PADMARAJ
S/O MANJAIAH GOWDA
AGED ABOUT 45 YEARS,
R/O KARKAMUDI,
NAGODI POST,
HOSANAGARA TALUK - 577 418
...APPELLANT
(BY SMT. YOGITHA MUDAKANNAVAR, ADVOCATE FOR
SRI. KRISHNAMURTHY M R, ADVOCATE)
AND:
SRI K V RAMAMURTHY
S/O K VENKATA RAO,
AGED ABOUT 60 YEARS,
R/O KUNDAGAL,
NAGARA POST,
HOSANAGARA TALUK - 577 418
.....RESPONDENT
(BY SRI. S GANGADHARA AITHAL, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE
THE JUDGMENT PASSED BY THE LEARNED SESSIONS JUDGE I
FAST TRACK COURT, SHIMOGA IN CRL.A NO.132/2011
DATED 18/06/2012 AND CONFIRM THE ORDER OF
CONVICTION AND SENTENCE PASSED BY THE CIVIL JUDGE &
JMFC., HOSANAGAR IN C.C. NO.114/2007 DATED 29/08/2011
IN THE INTEREST OF JUSTICE.
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THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED ON 07.06.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the complainant challenging the acquittal of accused for the offence punishable under Section 138 of the N.I. Act by the Sessions Court, by reversing the conviction and sentence imposed by the trial Court.
2. For the sake of convenience, the parties are referred to by the rank before the trial Court.
3. It is the case of the complainant that accused borrowed loan of Rs.75,000/- from the complainant, agreeing to repay the same with interest within three months. However, despite repeated requests it was not repaid the loan. Ultimately, accused issued a cheque dated 12.09.2006. When complainant presented the same through his banker, it returned dishonored, on the ground of "Insufficiency of Funds" on 15.09.2006. Complainant got issued a legal notice dated 20.09.2006. Though it is duly served on the accused, he has neither paid the amount due 3 under the cheque nor sent any reply. Without any alternative, the complainant has filed the complaint.
4. Accused appeared before the trial Court and contested the case. He Pleaded not guilty to the charges leveled against him and claimed trial.
5. In support of his case, complainant got himself examined as PW1 and relied upon Ex. P1 to 6.
6. During the course of his statement under Section 313 Cr.P.C, accused has denied the incriminating evidence.
7. In fact, accused has also stepped into the witness box by examining himself as DW-1. He has relied upon Ex.D1.
8. Accepting the case of the complainant, the trial Court convicted the accused and sentenced him to pay fine of Rs.1,05,000/- and in default of payment of the fine amount, sentenced him to undergo imprisonment for four months.
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9. Accused challenged his conviction and sentence in Crl.A.No.132/2011. Vide the impugned judgment and order, the Sessions Court allowed the appeal and acquitted him.
10. Being aggrieved by the impugned judgment and order, complainant is before this Court, contending that the Sessions Court has committed error in holding that in the complaint, complainant has not stated the date on which accused borrowed the loan. The non mentioning of the date is not fatal to the case of the complainant, as the same is not a mandatory requirement under the provisions of N.I.Act. The Sessions Court has also erred in holding that complainant has not proved the source of income through which he was able to advance Rs.75,000/- to the accused. The Sessions Court failed to appreciate the fact that the accused has failed to rebut the presumption under Sections 118 and 139 of N.I.Act.
10.1 The Sessions Court has also erred, in holding that the non-marking of complaint is fatal to complainant's case. In the light of the presumption under the provisions of Section 139 of the N.I.Act, burden is on the accused to 5 prove the circumstances in which the cheque went into the hands of the complainant, which he has failed to discharge. In the circumstances, the Sessions Court has erred in upsetting the well reasoned judgment of the trial Court and prays to allow the appeal, set aside the order of the Sessions Court and restore the order of the trial Court.
11. On the other hand, the learned counsel representing the complainant supported the impugned judgment and order of the Sessions Court and submitted that in the light of the rebuttal evidence adduced by the accused, the Sessions Court is justified in reversing the judgment and order of the trial Court and prays to dismiss the appeal.
12. In support of his arguments, the learned counsel representing the accused has relied upon the following decisions:
(i) Vijay Vs. Laxman and Anr. (Vijay)1
(ii) M/s Kumar Exports Vs. M/s Sharma Carpets (M/s Kumar Exports)2 1 (2013) 3 SCC 86 2 AIR 2009 SC 1518 6
(iii) Sayeeda Iqbal Vakil Vs. Javed Abdul Latif Shaikh (Sayeeda)3
13. Heard arguments and perused the record.
14. Thus, it is the definite case of the complainant that accused borrowed a sum of Rs.75,000/- and towards repayment of it, he has issued the subject cheque. Accused admits that the cheque in question belongs to him, drawn on his account maintained with his banker. However, he has taken up a specific plea that he had borrowed loan of Rs.25,000/- from Rameswara Finance run by complainant and his other relatives and had issued a blank cheque by way of security. The said Finance was closed. Complainant who is one of the partner got the said cheque and based on it he has chosen to file this complaint to make wrongful gain. Though the complainant has admitted that he was one of the partner of said Finance and now it is defunct, he has denied that accused had given a blank cheque and making use of the same, he has filed a false complaint.
15. In the light of the fact that the accused admit that the cheque in question belongs to him, drawn on his 3 2009 (1) Crimes(HC) 194 7 account and it bears his signature, presumption under Section 118 and 139 of the N.I.Act is operating in favour of the complainant. Therefore, burden is on the accused to prove that the cheque was not issued to the complainant towards the discharge of any debt or liability and on the other hand, the circumstances in which he stated to have issued the cheque.
16. Though, the legal notice is duly served on the accused, he has not chosen to send any reply. In this regard he has stated that after due service of notice, he approached the partners of the Rameshwara Finance and questioned them as to why they have filed the false complaint. During his cross-examination, complainant has admitted that he was one of the partners of the then Rameswaram Finance. However, he has expressed ignorance to the suggestion that the other partners are his relatives and that accused had borrowed loan of Rs.25,000/- and a blank cheque was taken from him by way of security. Being a partner, it would be reasonable to expect that complainant knows who are all the other partners, especially when the other partners are stated to 8 be his relatives and also the fact whether accused had borrowed a loan from it.
17. For reasons best known to him complainant has not chosen to agree with the said suggestion. In order to prove that accused had borrowed loan from Rameshwara Finance, he has produced a notice issued to him on behalf of the said Finance at Ex.D1, stating that he had borrowed loan of Rs.25,000/- on 23.12.1999 and has become defaulter. He was called upon to pay the amount due as on 23.12.1999. This document supports the defence of the accused that he was a borrower from the said Finance of which complainant is one of the partner. In fact, to prove that at the time of advancing loan to him, apart from getting his signatures to the relevant documents, a blank cheque was also taken, the accused has filed application to summon one of the official of the said Finance to produce the documents. The trial Court has allowed the said application.
18. In fact one D.P. Krishnamurthy of the said Finance was present before the trial Court and gave a requisition that the documents are not available. Even 9 where the Finance has become defunct, the documents are required to be maintained or at least surrendered to the concerned authority. The witness has no explanation as to what exactly happened to the said document. Therefore, an adverse inference is required to be drawn against the accused that despite having the documents, intentionally they are not produced it or that if documents are produced they are going to be against the case set up by the complainant or supporting the defence of the accused.
19. In fact accused has chosen to cross examine the complainant with regard to holding of Annual General Meetings, submitting of report containing the details of the borrowers etc. Though the complainant has admitted of holding the Annual General Meeting, he has expressed ignorance with regard to the other aspects. In the light of the material placed on record, especially the defence of the accused the presumption under section 139 of the N.I.Act is reverted by the accused.
20. The accused has also challenged the financial capacity of the complainant, having advanced Rs.75,000/- to the accused. In this regard, the complainant has stated 10 that at the relevant point of time he had sold Arecanut to one Eshwarappa of Tumari village. Except his self-serving statement, the complainant has not produced any evidence to that effect. In fact, it is evident during the cross- examination of the complainant that apart from the present case, he has filed two more complaints, of which one is with regard to Rs.90,000/- loan and the other in respect of loan in a sum of Rs.15,000/-. This piece of evidence elicited through the cross-examination of complainant indicate and support the contention of the accused by preponderance of probabilities.
21. The possibility of complainant laying his hands on the blank cheques which were given as security for the loan taken from the Finance in his capacity as one of the partner of the said Finance. At the most the complainant would have examined the said Tumari Eshwarappa to show that he had purchased Arecanut worth Rs.90,000/- from complainant and out of the sale proceeds he had advanced Rs.75,000/- to the complainant. However, the complainant has not chosen to examine him and thereby failed to prove that he had financial capacity to advance loan of 11 Rs.75,000/- to the accused. Moreover, the complainant has not proved for what purpose accused was in need of a sum of Rs.75,000/-. It is not the case of the complainant that he and accused were known to each other since long time. This aspect assumes importance in view of the fact that according to the complainant he is not a money lender who would have usually involved in money lending business.
22. So far as the decisions relied upon by the accused are concerned. In Vijay and Sayeeda cases, on facts, the Co-ordinate Bench of this Court as well as Bombay High Court held that in the absence of exact date of lending the money, the complainant therein failed to prove the case. Though in the present case also the complainant has not indicated the date of advancing the money, the same is not relevant. In Kumar Exports, the Hon'ble Supreme Court held that the accused is not required to prove his defence beyond reasonable doubt. It is sufficient for the accused to establish his case on preponderance of probabilities.
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23. The trial Court failed to take into consideration these aspects and proceeded to hold the accused guilty of the offences alleged. It has wrongly placed burden on the accused to prove that the contents of the cheque are not in his handwriting. It was for the complainant to prove that the contents of the cheque are also in the handwriting of the accused. Consequently, the trial Court erred in holding that the accused is liable to pay the amount due under the cheque.
24. On the other hand, the Sessions Court in appeal filed by the accused by appreciating the oral and documentary evidence in right perspective has chosen to acquit the accused. The judgment and order of the Sessions Court is based on proper appreciation of the oral and documentary evidence placed on record and in the light of the specific defence taken by the accused. This Court find no justification to interfere with well reasoned judgment of the Sessions Court. In the result, the appeal fails and accordingly, I proceed to pass the following: 13
ORDER
(i) The appeal filed by the complainant is dismissed.
(ii) The impugned judgment and order dated 18.06.2012 in Crl.A.No.132/2011 passed by the Sessions Judge, I FTC, Shivamogga is confirmed.
(iii) The Registry is directed to send back the trial court records along with copy of this order forthwith.
Sd/-
JUDGE RR