Karnataka High Court
Basavanneppa S/O Ningappa Hulugur vs Prakash Ramanna Kampli on 2 August, 2021
Equivalent citations: AIRONLINE 2021 KAR 2178
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 02ND DAY OF AUGUST, 2021
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO.2787/2012
BETWEEN:
BASAVANNEPPA S/O NINGAPPA HULUGUR,
AGE: 52 YEARS, OCC: PROP.
MAHALAXMI TRADING COMPANY,
LAXMESHWAR, TQ.SHIRAHATTI, DIST: GADAG.
...APPELLANT
(BY SRI.DEEPAK C.MAGANUR, ADV.)
AND:
SRI.PRAKASH RAMANNA KAMPLI,
AGE: MAJOR, OCC: BUSINESS,
HOUSE NO.193, BHAIRAVA NIWAS,
NEAR SYNDICATE BANK, VISHWESHWARANAGARA,
HUBLI, TQ.HUBLI, DIST: DHARWAD.
...RESPONDENT
(BY SMT.GIRIJA HIREMATH, ADV. FOR
SRI.G.I.GACHCHINAMATH, ADV.)
THIS APPEAL IS FILED UNDER SECTION 378(4) OF
CR.P.C. TO SET ASIDE THE ORDER OF ACQUITTAL DATED
04.07.2011 PASSED BY THE LEARNED PRL. SENIOR CIVIL
JUDGE AND CJM, GADAG IN C.C.NO.31/2005 AND CONVICT
THE ACCUSED.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
2
JUDGMENT
This appeal is filed under Section 378(4) of Cr.P.C. by the complainant who was appellant before the trial court, against the judgment of acquittal passed by the Principal Senior Civil Judge & CJM, Gadag in C.C.No.31/2005 dated 04.07.2011 whereby the learned Magistrate has acquitted the accused/respondent herein.
2. The brief facts of the case of the appellant/complainant are that, he has filed a private complaint against the respondent/accused alleging the offence punishable under Section 138 of Negotiable Instruments Act. According to the complainant, there was transaction between the appellant/complainant and the respondent/accused in respect of supply of greengram and other food grains and accordingly, the appellant/complainant has supplied greengram worth Rs.3,00,000/-. The respondent/accused herein has issued four cheques in respect of repayment of price of the greengram for Rs.75,000/- each and one such cheque 3 pertaining to this case when presented was dishonoured. After issuing notice, the proceedings came to be initiated.
3. The trial court after detailed trial after recording evidence and appreciation held that there is no legally enforceable debt and further held that the appellant/complainant has failed to establish the transaction between himself and the respondent/accused herein and thereby accepted the defence set up by the respondent/accused herein in respect of his clerk misusing the cheques and acquitted him of the offence punishable under Section 138 of N.I.Act. This order is being challenged in this appeal.
4. Heard the arguments of the learned counsel for the appellant/complainant and the learned counsel for the respondent/accused. Perused the records.
5. The learned counsel for the appellant/complainant would argue that the trial court has committed an error in appreciating the evidence on record and failed to consider that there is a presumption in favour 4 of the complainant/appellant under Section 139 of N.I.Act and it is for the respondent/accused to rebut the said presumption. He would submit that the trial court has casted negative burden on the appellant/complainant without forming any presumption in favour of the appellant/complainant and thereby it has lead to miscarriage of justice. He would also submit that there were earlier series of proceedings arising out of the same transaction in Crl.A.Nos.2544, 2545 and 2546 of 2009 and the respondent herein was convicted there and this complaint is out of the same course of transaction, but quite interestingly, the learned Magistrate has taken inconsistent view and hence, he would seek for setting aside the impugned judgment of acquittal and sought for convicting the respondent/accused.
6. Per contra, learned counsel appearing for the respondent/accused would contend that the trial court has appreciated the oral and documentary evidence and the appellant has failed to prove that there was a legally 5 enforceable debt and hence, she would support the trial court's acquittal judgment.
7. Having heard the arguments and perusing the records, it is to be noted herein that the respondent/accused has not disputed that the cheque belongs to his account. Further, he has also admitted his signature on the cheque. He simply set up a defence that P.W.3 who was working as his clerk has obtained signature on the blank cheques and they were misused by the appellant/complainant. He would also contend that now P.W.3 has left the job with him and hence, he would contend that the cheque is obtained by misrepresentation. When the respondent/accused has admitted his signature on the cheque and when the cheque belongs to him, admittedly the appellant/complainant is a holder of the cheque in due course under Section 118 of N.I.Act. Hence, the presumption under Section 139 of N.I.Act is in favour of the appellant/complainant and it is for the respondent/accused to rebut the said presumption, which 6 is mandatory and statutory presumption. The respondent/accused did not lead any defence evidence for rebutting the presumption and he can rebut the presumption by available material, but mere denial does not amount to rebuttal of the presumption.
8. Admittedly, there is no dispute of the fact that appellant/complainant and respondent/accused were dealings in food grains. Further, very importantly in respect of the same transaction, the other three complaints filed by the present appellant/complainant against the respondent/accused in C.C.Nos.232, 233 and 234 of 2005 wherein the transaction was upheld and the respondent/accused was convicted by the trial court. The respondent/accused challenged this conviction in Crl.A.Nos.11, 12 and 13 of 2007 before the District and Sessions Judge, Gadag and the learned Sessions Judge by doubting regarding existence of legally recoverable debt, has set aside the conviction order by acquitting the respondent/accused. The said acquittal judgments 7 challenged before this court in Crl.A.Nos.2544, 2545 and 2546 of 2009 and this court by order dated 07.07.2007 allowed the appeals and set aside the impugned judgment of acquittal. In the said cases, the trial court has convicted the respondent/accused with two years rigorous imprisonment with fine of Rs.1,02,000/-, in default with further imprisonment of six months in each cases. However, this court only to that extent modified the order by setting aside the order of imprisonment and directed to pay fine of Rs.1,02,000/- as ordered by the learned Magistrate. The judgments passed by this court in Crl.A.Nos.2544, 2545 and 2546 of 2009 have reached finality and admittedly they are pertaining to this transaction of Rs.3,00,000/- in respect of greengram and four cheques were issued and in three cheques, the matter ended in conviction and in this case, it is ended in acquittal.
9. Very strangely, the trial court while considering the transaction has dealt it as if a civil case and casted 8 burden on the appellant/complainant to prove the transaction ignoring the presumption under Section 139 of N.I.Act. This Court relying on the decision rendered by the Apex Court in the case of Krishna Janardhan Bhat Vs Dattatraya G.Hegde (2008) 4 SCC 54, held that initial presumption is in favour of the complainant. In the case of Rangappa Vs Mohan (2010 CRI.L.J. 2871), the Hon'ble Apex Court has made the things more clear from Krishna Janardhan Bhat's case (supra) and held that drawing presumption is mandatory and accused is required to prove and rebut the said presumption by showing that there is no legally enforceable debt. In the present case, the respondent/accused set up a defence that P.W.3 who was working as clerk has misused the cheques which were signed by him. But the said ground was already negatived in earlier cases, which were discussed in Crl.A.Nos.2544, 2545 and 2546 of 2009. Hence, now it is not open for the trial court to observe that there is no transaction between the parties and in fact the burden is on the respondent/accused to establish that there was no 9 transaction and cheque was not issued in discharge of legally enforceable debt.
10. The trial court committed an error apparent on the face of the records by casting burden on the appellant/complainant against the mandatory requirement under Section 139 of N.I.Act. It is further observed that, in earlier cases that the decree is already obtained by the appellant/complainant in respect of payment of the amount. Under these circumstances, the learned Magistrate has erred in holding that there is no legally enforceable debt and committed an error in acquitting the respondent/accused. The judgment of acquittal passed by the learned Magistrate is erroneous, illegal and capricious and as such, it calls for interference by this court in this appeal.
11. Learned counsel for the respondent/accused submits that lenient view may be taken. But however, in earlier cases arising out of the same transaction, the respondent/accused was imposed fine of Rs.1,02,000/- and the High Court has only set aside the imprisonment of 10 two years. There are no mitigating circumstances to take a different view. Hence, the fine will meet the ends of justice. Accordingly, I proceed to pass the following:
ORDER The appeal is allowed. The impugned order of acquittal dated 04.07.2011 passed by the Principal Senior Civil Judge & CJM, Gadag in C.C.No.31/2005 is set aside.
The respondent/accused is convicted for the offence punishable under Section 138 of N.I.Act and he is sentenced to pay a fine of Rs.1,00,000/-, which shall be deposited within three months before the trial court, failing which, he is required to undergo simple imprisonment for six months.
Out of the fine amount recovered, Rs.90,000/- shall be paid to the appellant/complainant under Section 357 of Cr.P.C. as compensation and Rs.10,000/- shall be credited to the State Treasury.
Sd/-
JUDGE MBS/-