Karnataka High Court
Smt Rathnamma vs R Venkataramappa on 26 March, 2018
Author: K.Somashekar
Bench: K.Somashekar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF MARCH, 2018
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL APPEAL NO. 553 OF 2010
BETWEEN
SMT. RATHNAMMA,
W/O V. VENKATESH,
AGED ABOUT 42 YEARS,
R/AT VIRUPAKSHI,
AVANI HOBLI,
MULBAGAL TALUK,
KOLAR DISTRICT.
... APPELLANT
(BY SRI. B.N. MURALIDHAR, ADVOCATE)
AND
R. VENKATARAMAPPA,
S/O RAMAPPA,
TEACHER,
GUTLUR VILLAGE,
AVANI HOBLI,
MULBAGAL TALUK,
KOLAR DISTRICT.
... RESPONDENT
(BY SRI. C.N. RAJU, ADVOCATE FOR
SRI. GIREESHA J.T., ADVOCATE)
CRL.A. FILED U/S 378(4) CR.P.C BY THE ADV.,
FOR THE APPELLANT PRAYING THAT THIS HON'BLE
COURT MAY BE PLEASED TO SET ASIDE THE
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JUDGMENT AND ORDER DATED 02.03.2010 PASSED BY
THE PRL. CIVIL JUDGE (JR.DVN) & JMFC., MULBAGAL,
IN C.C.NO. 41/2006, ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 138 OF N.I. ACT.
THIS CRL.A. COMING ON FOR HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment of acquittal dated 02.03.2010 passed by the Prl.Civil Judge (Jr.Dn) and JMFC, Mulbagal in C.C.No.41/2006 acquitting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the NI Act', for brevity). The same is challenged in this appeal urging various grounds.
2. The factual matrix of the appeal are as under:
The complainant and the accused being the native of same Hobli were having good relationship. The accused approached the complainant to give a loan of Rs.50,000/-
to dig borewell and install pumpset. After several demands and requests of complainant, issued a cheque for :3: Rs.50,000/- for Canara Bank, Mulbagal bearing No.441315 dated 30.6.1999. Further as per the instructions of the accused, complainant presented the cheque for encashment. But the cheque was dishonoured for want of insufficient funds and the bank issued an endorsement to that effect. Subsequently, the complainant got issued legal notice through registered post and certificate of posting, but the same was refused by accused. To escape liability accused filed a false complaint before the police and gave evasive reply notice on 14.8.1999. Hence, the complainant filed a complaint before the court below under Section 200 of Cr.P.C.
against the accused for the offence punishable under Section 138 of the NI Act.
3. The Court below after recording the sworn statement of the complainant, registered criminal case against the accused and issued summons to the accused. After service of summons, accused appeared through his counsel and plea has been recorded and there afterwards, :4: the case was posted for recording the evidence of complainant.
4. Subsequently, in order to substantiate her contentions, the complainant examined herself as PW.1 by way of filing affidavit and examined Manager of the Canara Bank as P.W.2 and got marked Ex.P1 to P8. After closure of the evidence of complainant, the accused was examined under Section 313 Cr.P.C. wherein he denied the entire case of the complainant and in support his defence he examined himself as DW.1 by way of filing of affidavit and no documentary evidence was marked.
5. Subsequently, the Trial Court, on hearing the arguments advanced by the learned counsel for both the parties, had framed the points that arose for its consideration and answered point No.1 in the negative and point No.2 as per the final order and thereby acquitted the accused. It is this acquittal judgment which is called in question in the present appeal. :5:
6. Heard the arguments advanced by the learned counsel for the appellant/complainant and learned counsel for the respondent/accused in this appeal.
7. Learned counsel for the appellant/complainant during the course of his arguments contends that Trial Court was not proper in holding that there was no transaction between the accused and the complainant and only on the instigation of the husband of the complainant, the case has been filed by the complainant. He also contends that the Trial Court was not proper in holding that the complainant admitted in her cross examination that the transaction has taken place 10 years back and the complaint is filed belatedly and barred by limitation for recovery of money. Whereas the Trial Court had failed to note that the cross examination is recorded after 9 years from the date of filing of the complaint. He further contends that the court below has failed to appreciate the evidence on record in proper perspective. The finding given by the Court below is perverse and hence the :6: judgment and order is not sustainable in law and sought for setting aside the same.
8. Per contra, learned counsel for the respondent/accused contends that the court took twice cognizance of the complainant and it is against the principles of law and as per the version of the complainant about 10 years back the accused had took hand loan from the complainant and for repayment of loan amount he issued present cheque, hence according to law the complainant cannot enforce the earlier transaction that took place between the complainant and accused, and the accused is not liable to be convicted for time barred debts and created cheques, when there was no transactions between the complainant and the accused, and further there is no proximity of nexus between the allegations made by the complainant, as admittedly there are two versions of evidence led by the complainant and her husband in comparison to the oral and documentary evidence on record. On these grounds, he contends that the court below was right in acquitting the accused for the :7: offence punishable under Section 138 of N.I.Act and there is no merit in the appeal filed by the complainant, hence sought for dismissal of appeal.
9. Ex.P1 is the affidavit filed by the complainant by way of chief examination as P.W.1. In her evidence she has deposed that she was having good relationship with the accused who is very close friend and the accused approached the complainant for financial assistance to dig borewell and install pumpset and borrowed loan of Rs.50,000/- and after several demands and requests he did not repay the amount but issued a post dated cheque. But when the cheque was presented before the bank, the bankers issued a memo stating due to "insufficient of funds" the cheque is dishonoured. Hence, after issuance of legal notice, she filed a complaint against the accused. Ex.P1 is original cheque which is disputed by the accused stating that the same has been fraudulently obtained by the husband of complainant. Ex.P2 is the endorsement issued by the Canara Bank. Ex.P3 is the copy of legal notice issued to the accused. Ex.P4 and P5 are the postal :8: receipts. Ex.P6 is the reply notice given by the accused through his counsel. Ex.P6(a) is the postal cover. In support of her case, complainant examined the Bank Manager of Canara Bank as PW.2. As per the court directions he produced the cheque entry register before the court below as Ex.P7(a), Ex.P7(a)(1). In the cross examination, he deposed that he has not known personally about Ex.P1 cheque dated 30.6.1999 as at that time, he was not working as Manager in the bank. He admits that Ex.P1 cheque contents written in the year 1999 and the signature of the accused is also old one and also written contents of the cheque and the signature found on the cheque are of different ink.
10. The accused as per Ex.P6 reply notice has taken a defence that he has not obtained any loan from the complainant for the purpose of digging bore well and installed pumpset and there was no relationship between the complainant and accused that of borrower and vendor, as such, the question of issuing cheque in favour of the complainant does not arise at all. He further states :9: that the alleged date of cheque is forged by the complainant as there is severe litigation between the complainant's husband V.Venkatesh and the accused. In fact, the husband of complainant trespassed into the house of accused, thefted the material documents from his house, in this regard, even a complaint was lodged before the Mulbagal police and the police after searching the husband of complainant recovered some LIC bonds and other documents. In a peaceful settlement with the intervention of elderly persons, handed over the LIC bonds and documents to the accused and he also agreed to return the alleged cheque. On a bare perusal of the serial number of the alleged cheque it is 4 to 5 years old cheque and after alleged cheque serial number the accused obtained in the cheque books, which were regularly placed in his account by obtaining stolen cheque, in which theft while forging the date and signature of the complainant misused the cheque and represented through his account which was not in accordance with law. In this regard, the counsel of the accused cross-examined the complainant, wherein she has admitted that accused issued a cheque : 10 : with respect of 10 years back balance and at the time of advancing the loan to the accused she has not secured any documents for repayment of the amount advanced but the alleged cheque was issued for the purpose of security at the time of advancing the loan and she also admits that she made transaction in the absence of her husband and at the time of advancing the loan to the accused she had sufficient money in her SB account and for that she produced pass book. She also admits that she did not know the cheque number given by the accused as it was written in the English language and after issuance of cheque, she went to the bank and presented the same for collection. She states that she did not know in what manner her husband has issued legal notice to the accused. She even admitted that her husband and accused person were friends about 15 years and she denied that there is a quarrel between herself and accused with respect of LIC bond transaction, in that back ground, she obtained the cheque from the accused for different transaction and filed the complaint and she : 11 : denied the rest of the contention of the accused counsel in the cross-examination.
11. DW.1 in his cross examination admits that himself and husband of complainant were friends about 10 years. He further admits that he is doing money transaction with the bank from the year 1999 and Ex.P1 cheque belongs to his bank account and Ex.P1(a) is his signature but denied that Ex.P1 cheque has been issued to the complainant, but he states that in the year 1998, the complainant's husband and himself were friends but due to some dispute the husband of complainant came to his house and in his absence, he took away the LIC bonds and other documents and thereafter the complainant's husband has misused the alleged cheque in order to give trouble to the accused. In this regard, the complainant's husband misused the cheque and he presented the cheque through his wife i.e., the complainant and got it dishonoured and the present complaint was filed. Further he states that regarding stealth of Ex.P1-cheque, panchayath was conveyed, in the panchayath one Illiyas : 12 : Pasha, Srinivasa and Joldebeke were present and they were still alive. Further he denied the contention of complainant that Ex.P1 cheque was issued by him for repayment of loan amount advance from the complainant. The contention of the accused is that the court has taken cognizance twice for single cause of action which is not maintainable and the complaint registered by this court second time is barred by law of limitation and in the cross-examination it was deposed that, the alleged amount of Rs.50,000/- was not received by this accused and the version of the complainant totally contradicts with each other and the perusal of the signature of the accused on the cheque and the date and writing found place in the alleged cheque clearly evidenced that, as on the date of, the date incorporated in the cheque is not issued by the accused and also in the cross-examination, the complainant has clearly admitted that there was a transaction about 10 years back prior to the filing of the case against the accused which is not enforceable under law. The accused is not liable to be convicted for time barred debts and created cheques, when there was no : 13 : transactions between the complainant and the accused and further there is no proximity or nexus between the allegations made by the complainant. There are two versions of evidence led by the complainant and her husband when compared to the oral and documentary evidence on record. The alleged debt pertaining to the accused is manipulated and created by the complainant's husband which was taken away by him about 20 years back and the same was unexecutable. In support of his contentions, the accused relied on a reported decision Hon'ble Supreme Court in AIR 2006 SC 1395 wherein it is held that:
"(A) Negotiable Instruments Act S.150- Presumption under-Section 139 merely raises presumption in favour of holder of cheque that same has been issued for discharge of any debt or other liabtility-existence of legally recoverable debt-Is not a matter of presumption under S.139"
Reliance was also placed on a decision reported II(2008) CCR 398 (SC) wherein it was held that:: 14 :
"(i) Dishonour of cheque-Evidence for defence-Misuse of cheque by complainant given as security for hand loan, which is paid back- Presumption can be raised under Section 118(a) or 139 of Act- Opportunity must be given to accused for adducing evidence in rebuttal thereof- Appellant filed application under section 243, Cr.P.C. wrongly mentioned as Section 293, Cr.P.C. for referring cheque in question for examination by Director, FSL for determining age of his signature-court being master of proceedings must determine as to whether application filed by accused in terms of section 243(2) Cr.P.C. is bonafide or not and intends to bring on record relevant material - trial judge and High court rejected contention of appellant only having regard to provisions of section 20 of Negotiable Instruments Act - By reason thereof, only prima facie right conferred upon holder of negotiable instrument subject to conditions-Application filed by appellant is bonafide-Impugned judgment unsustainable set aside-criminal procedure code, 1973-sections 293(2), 293-Negotiable Instruments Act, 1881- Sections 20, 118(a), 138, 139.": 15 :
12. It is relevant to note that on the basis of aforesaid facts and circumstances and also the contentions urged therein, the Trial court held that at the first instance, the complainant had not approached with clean hands though she had given sworn statement partly and thereafter on the basis of SPA, she examined her husband before the court below and after the appearance of the accused, plea was recorded and on her behalf, her husband gave the evidence and was cross-examined. When the case was posted for further proceedings, at that juncture, the complainant without there being any reasons, withdrew the complaint and gave fresh sworn statement to register a fresh case against the accused, accordingly, the court below registered the case against the accused for second time. As rightly observed by the court below, the manner in which the complainant approached was not proper and not in accordance with law. As argued by the learned counsel for accused, there was no transaction that took place between the husband of complainant and accused in misuse of Ex.P1. A cursory glance of the evidence of complainant/Pw.1 it is : 16 : clearly evident that there was no direct transaction between the complainant and accused. Only on the intervention of the husband of complainant, the present complaint has been filed by misuse of Ex.P1, cheque which belongs to bank account of accused. In this regard, the complainant admits that Ex.P1 cheque issued for the purpose of money transaction was about 10 years back and it was issued for security of loan. Hence, irrespective of money transaction, if one party fails to pay the amount borrowed, then the aggrieved party shall file the complaint within the time stipulated as per law. But as rightly observed by the Trial Court the complainant has filed the complaint beyond the period of limitation and without any basis. As such presumption could arise in favour of the accused under Section 139 of the Act as the appellant/complainant failed to establish her case against the accused as alleged in the complaint and also as per Section 118 of the Indian Evidence Act. The Court below has rightly held that complainant has failed to prove the guilt of the accused beyond all reasonable doubt and the accused clearly established the case as per law stating : 17 : that Ex.P1 the cheque has been misused by the complainant.
13. In so far as bouncing of cheques relating to initiation of the proceedings as under Section 200 Cr.P.C. punishable under Section 138 of NI Act that the limitation point is to be taken into consideration and so also the contention urged by the complainant. In the instant case, it should be noted that complainant filed the complaint before the court below on 19.8.1999 and sworn statement of the complainant Rathnamma in part on 14.10.1999 and after recording the statement as she was not able to depose before the court, her husband V.Venkatesh filed SPA on 20.11.1999 executed by the complainant and he was examined on 19.10.2000 and thereafterwards the court below passed an order on 9.11.2000. The respondent/accused in pursuance of summons issued, appeared before the court below and was released on bail. The accusation was readover to the accused on 29.5.2003 and he pleaded not guilty and thereafter the evidence of Venkatesh by way of examination-in-chief affidavit was : 18 : filed and cross-examined and he filed a memo and withdraw the entire case in C.C.No.635/2000. After that a separate proceedings was registered against the accused and after recording the evidence, again a PCR was registered. Accordingly, the court below had taken the cognizance on twice for single cause of action which was not maintainable as the same was time barred by law of limitation. Even in the cross-examination of complainant, it is very clear that the alleged amount of Rs.50,000/- was not received by the respondent/accused and the version of the complainant totally contradicts with each other. When there was no transaction between the complainant and the accused, there is no proximity or nexus between the allegations made by the complainant. Admittedly, there are two versions of evidence led by the complainant and her husband in comparison to the oral and documentary evidence on record. The alleged debt pertaining to the respondent/accused is manipulated and created by the complainant's husband which was taken away by him about 10 years back which was unexecutable. The ratio laid down in the decision referred to supra, squarely : 19 : applies to the facts and circumstances of the present case and so also the initiation of the proceedings for the offence punishable under Section 138 of the NI Act against the accused.
14. Keeping in view the position of law, the Trial Court rightly held that the materials made available on record are not sufficient to conclude that the accused has committed the offence punishable under Section 138 of the NI Act. The respondent/accused has clearly established his case that Ex.P1 has been misused by the complainant and the complainant has failed to bring home the guilt of the accused. Accordingly, held that the accused was entitle for acquittal. The said finding of the Trial court in the facts and circumstances of this case is just and proper and there is no need for this court to interfere with the said finding.
15. For the above reasons, I find that there is no perversity or infirmity in the judgment of acquittal rendered by the Trial Court. Hence, I am of the opinion that there is no necessity to revisit the impugned : 20 : judgment. As the appeal is devoid of merits, the same is dismissed. As a consequence, the judgment of acquittal dated 2.3.2010 passed by the Prl.Civil Judge(Jr.Dn) and JMFC, Mulbagal, in C.C.No.41/2006 acquitting the respondent/accused for the offence punishable under section 138 of N.I.Act is hereby confirmed.
Sd/-
JUDGE DKB