Karnataka High Court
B Rajashekar vs Smt A S Asha on 20 December, 2018
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL APPEAL No.626 OF 2010
BETWEEN:
B.Rajashekar,
S/o.S.Bhadraiah, 48 years,
Residing at Hosaholalu Village,
Kasaba Hobli,
K.R.Pet Taluk,
Mandya District. .. Appellant
(By Sri. N.S.Sanjay Gowda, Advocate )
AND:
Smt.A.S.Asha,
Wife of A.R.Narayana,
No.430, 14th Main Road,
1st Block, 3rd Stage,
Basaveswarnagar,
Bengaluru. .. Respondent
(By Sri D.Mohan Kumar, Amicus Curiae
Appointed vide order dated:23.11.2018)
This Criminal Appeal is filed under Section 378(4) of
Cr.P.C praying to set aside the order of acquittal dated 12th
March 2010, passed by Civil Judge (Jr.Dn.) & JMFC, K.R.Pet,
in C.C.No.1/2005, acquitting the respondent/accused for the
offence punishable under Section 138 of N.I.Act.
2 Crl.A.No.626/2010
This Criminal Appeal having been heard and reserved
for Judgment on 06.12.2018, this day the Court delivered the
following:
JUDGMENT
In the complaint filed by the present appellant under Section 200 of Code of Criminal Procedure, against the present respondent, for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as `N.I.Act'), the learned Civil Judge (Jr.Dn.) & JMFC, Krishnarajapete, (hereinafter for brevity referred to as `trial Court'), in C.C.No.1/2005, pronounced the judgment of acquittal on 12.03.2010. It is against the said judgment of acquittal, the complainant has preferred this appeal.
2. The summary of the case of the complainant in the trial Court is that the respondent/accused who was his relative, had borrowed a sum of `9 lakhs from him as 3 Crl.A.No.626/2010 a hand loan on 20.12.2003, promising to repay the same within one month. However, she failed to repay the same within the time, but, issued a cheque bearing No.1324450, dated 28.1.2004, drawn on Vijaya Bank, Ravindranagar Branch, Hassan, in favour of the complainant for a sum of `9 lakhs. The complainant when presented the said cheque for realisation, the same was dishonoured and returned to the complainant with a Banker's shara "account closed". Thereafter, the complainant issued a legal notice to the respondent calling upon her to repay the cheque amount. Despite the notice being served upon her, the respondent failed to comply the demand made in the notice, which constrained the complainant to institute a complaint against her in the trial Court for the offence punishable under Section 420 of Indian Penal Code read with Section 138 of N.I.Act.
4 Crl.A.No.626/2010
3. The respondent appeared in the trial Court and contested the matter. The accusation was framed against her under Section 138 of N.I.Act. Since she pleaded not guilty and claim to be tried, the complainant got examined four witnesses - PW-1 to PW-4 and got marked documents from Exs.P-1 to P-7. Though the respondent got herself examined as DW-1, no documents were marked as exhibits from her side. The trial Court by its judgment dated 12.03.2010, acquitted the respondent/accused for the offence punishable under Section 138 of N.I.Act. It is challenging the said judgment of acquittal, the complainant has preferred this appeal.
4. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court.
5. Even though the respondent herein was being represented by her counsel, in view of the fact that 5 Crl.A.No.626/2010 the counsel remained absent for some dates of hearing, this Court in its detail order dt. 23.11.2018, appointed learned counsel Sri D.Mohan Kumar, as an Amicus Curiae.
6. Heard the arguments from both side.
7. Learned counsel for the appellant/complainant in his argument while reiterating the contentions of the appellant taken up by him in his memorandum of appeal submitted that the reasoning given by the trial Court holding that the complainant has failed to establish that he had the capacity to lend the amount, was against the statutory presumption under Section 139 of N.I.Act. He further submitted that instead of giving the benefit of presumption in favour of the complainant, the trial Court erred in fixing the burden from the beginning, of proving the existence of legally enforceable debt, upon the complainant, which was not correct. He further submitted that the accused though led her 6 Crl.A.No.626/2010 evidence, has failed to rebut the presumption that was in existence in favour of the complainant.
8. Learned Amicus Curiae appearing for the respondent/accused in his argument submitted that the respondent/accused has satisfactorily established and successfully rebutted the presumption that was operating in favour of the complainant. It has been brought on record that the complainant had no capacity or source to pay the alleged huge amount of `9 lakhs as a hand loan to the accused. In his support, he relied upon few judgments of Hon'ble Apex Court which would be referred to at the relevant stage hereafterwards.
Learned Amicus Curiae, also submitted that the legal notice which was the requirement under Section 138 of N.I.Act, has not been sent to the respondent. However, the complainant having sent the notice to a wrong address, has obtained a postal certificate which 7 Crl.A.No.626/2010 does not speak that the notice was delivered to the respondent/accused at her correct address. As such, there is no valid service of notice.
9. The complainant who got himself examined as PW-1, in his affidavit evidence in the form of examination-in-chief, has reiterated the contentions taken up by him in the complaint. He has stated that the accused who is his relative has availed a hand loan of a sum of `9 lakhs on 20.12.2003 and towards the repayment of the said loan amount, on 28.1.2004, she issued the cheque in question which is at Ex.P-1 and the said cheque came to be returned unpaid when presented for payment with the Banker's endorsement as "account closed" as per Exs.P-2 and P-3. He also stated that, in that regard, he got issued a legal notice through his counsel as per Ex.P-4. The certificate of its posting is at Ex.P-5 and the postal certificate confirming the delivery 8 Crl.A.No.626/2010 of the registered notice to the accused is at Ex.P-6. With this, he stated that the accused has committed an offence punishable under Section 138 of N.I.Act.
The witness was subjected to a detailed cross- examination. In the cross-examination of PW-1, it was tried to elicit from him that the complainant had no capacity to lend the amount of `9 lakhs and that he had no source to that extent. In the said process, the witness has stated that he is a distributor in Indane Gas. He has paid the amount received by him in leasing out his shop premises and the business transaction amount to the accused. He also stated that he has got documents to show that he has leased his shop premises which are more than one in number and that two shop premises were leased for a sum of `4 lakhs, which amount he had kept in his house. The remaining sum of `5 lakhs was kept in his house which was his 9 Crl.A.No.626/2010 business amount from his Gas Agency. He has also stated that he is an Income-tax assessee and he has documents in that regard. He denied the suggestion that he did not have the capacity to lend a sum of `9 lakhs to the accused.
10. Based on the said evidence of PW-1, it was the argument of learned counsel for the respondent, who is an Amicus Curiae in this case that, it is established that the complainant had no fund to lend, as such, presumption in his favour stands rebutted. In his support, he relied upon three judgments of Hon'ble Apex Court.
In the case of Vijay -vs- Laxman & another, Criminal Appeal No.261/2013, disposed of on 7.2.2013. The Hon'ble Apex Court with respect to presumption under Section 139 of N.I.Act, was pleased to observe that the absence of any details of the date on which the loan was advanced, as also the absence of 10 Crl.A.No.626/2010 any documentary or other evidence to show that any such loan transaction had indeed taken place between the parties, is a significant circumstance. So also the fact that the cheque was presented on the day following the altercation between the parties is a circumstance that cannot be brushed away.
With the said observation, the Hon'ble Apex Court was pleased to dismiss the appeal preferred by the complainant, challenging the judgment of acquittal passed by the High Court of Madhya Pradesh, Bench at Indore. It is submitted that the said finding of the Hon'ble Apex Court was considering the facts and circumstances of the case before it and more particularly, the stale relationship existing between the parties.
The second judgment relied upon by the learned counsel for the respondent is in the case of 11 Crl.A.No.626/2010 John K. Abraham -vs- Simon C. Abraham and another, reported in { (2014) 2 SCC 236}. In the said case also, with respect to dishonour of cheque and offence under Section 138 of N.I.Act, after observing that in the case before it, complainant was not aware of the date when substantial amount of `1,50,000/- was advanced by him to the appellant/accused and the respondent-complainant failed to produce relevant documents in support of the alleged source of advancing money to the accused and also complainant not being aware as to when and where the transaction took place, for which the cheque in question was issued to him by the accused and also complainant being not sure as to who wrote the cheque, but, complainant had made contradictory statement in that regard, the Hon'ble Apex Court observed that, there were serious defects/lacuna in the evidence of the complainant, as such, the judgment of High Court reversing the judgment of 12 Crl.A.No.626/2010 acquittal by the trial Court was held perverse and could not be sustained Accordingly, the acquittal was restored.
In the other judgment in K.Subramani -vs- K.Damodara Naidu, reported in 2015 AIR SCW 64, with respect to a case falling under Section 138 of N.I.Act, the Hon'ble Apex Court was pleased to observe that the finding by the trial Court on consideration of entire oral and documentary evidence that complainant had no source of income to lend a sum of `14 lakhs to the accused and he failing to prove that there was legally recoverable debt payable by the accused to him, which resulted in acquittal of the accused, was proper.
From the above judgments, what can be noticed is that in the process of rebuttal of evidence, if it is shown that the complainant had no source or capacity to lend 13 Crl.A.No.626/2010 the amount would be a ground to consider that the presumption stands rebutted.
11. In the case on hand, the complainant as PW-1 in his cross-examination has stated that he is the distributor in Indane Gas and that by accumulated fund which he had with him after leasing the shopping premises and his business amount, he has lent a sum of `9 lakhs to the accused, who is his close relative. He has further stated in his cross-examination that he has leased two shop premises for a sum of `4 lakhs and had kept the said amount in his house. The remaining sum of `5 lakhs was his business amount earned in his Gas Agency business, which also he had kept in his house. He has further stated that he is an Income-tax assessee and has got documents in that regard.
12. Except making a denial suggestion that he had no funds, no further statements favourable to the accused 14 Crl.A.No.626/2010 were elicited by the accused in the cross-examination of the complainant. As such, the evidence of PW-1 that he is a businessman and also the owner of an immovable property in the form of shopping complex and had cash of an amount of `9 lakhs with him, not only remains to be a satisfactory explanation for him to possess such a sum with him in the form of cash, but, also shows that he had the source and capacity of lending so much of amount to the accused. As such, not only the reasoning given by the trial Court in its judgment suspecting the capacity of the complainant to lend the cheque amount to the accused proves to be an erroneous finding, but, also the argument of learned Amicus Curiae for the respondent/accused that the complainant had no source to lend money, also does not deserves to be accepted.
13. The defence of the accused was that the cheque in question was given by her to one Sri Sainath, 15 Crl.A.No.626/2010 from whom, she had availed a loan. It was at that time, as a security, she had issued a blank cheque to him and the complainant has collected the said cheque from said Sainath and after filling it, has presented for realisation. However, the said defence of the accused has remained in the form of her statement in her evidence as DW-1 and in the form of suggestion made to PW-1 in his cross-examination. Since the statement of DW-1 on those lines have been specifically denied in the cross- examination from the complainant side and PW-1 denying the suggestions made to him from the accused side in his cross-examination, have remained only as a contention without any proof or reliability. As such, the defence taken by the accused that the cheque in question was not issued to the complainant, cannot be accepted. Thus, the presumption about the existence of legally enforceable 16 Crl.A.No.626/2010 debt comes in favour of the complainant. Though the said presumption is rebuttable, but, as observed above, the accused has failed to successfully rebut the presumption that was formed in favour of the complainant.
14. The trial Court putting the burden of proving the existence of legally enforceable debt completely upon the complainant, proceeded to hold that the complainant has failed to prove the same and also it was established that there was no source of fund to the complainant to lend money. The said finding of the trial Court, as observed above, is not the correct finding. However, by that itself, it cannot be held that the complainant succeeds in establishing the alleged guilt leveled against the accused. It is for the reason that another major contention of the accused both in the trial Court, as well before this Court put forth 17 Crl.A.No.626/2010 is that the notice required to be given to the accused under Section 138 (b) of N.I.Act, was not given to her. As such also, the complaint fails.
15. On the point of alleged non-compliance of requirement of giving notice to the accused under Section 138(b) of N.I.Act, learned counsel for the appellant submitted that the Certificate of Posting under Ex.P-5 and the Postal Certificate at Ex.P-6 establishes the giving of notice to the accused as required under law. On the other hand, learned Amicus Curiae for the respondent/accused in his argument submitted that the Certificate of Posting has not reached the accused and that it is not a valid form of making a demand. He also submitted that Ex.P-6 does not pertain to the notice at Ex.P-3 since there is various discrepancy in the said document and also for not producing the postal receipt. 18 Crl.A.No.626/2010
16. According to the complainant, legal notice was sent to the address of the accused wherein the house number of the accused is shown as "430". The Certificate of Posting also bears the very same house number. However, since it is the contention of the accused that no such notice has been received by her, the Certificate of Posting at Ex.P-5 cannot be considered as a valid compliance of requirement under Section 138(b) of N.I.Act.
According to the complainant, the notice was also sent to the accused through Registered Post Acknowledgement Due. To show the service of the same, the complainant has produced a Postal Certificate said to have been issued by the Superintendent of Posts, Mandya, dated 12.3.2004. No where in his evidence, the complainant has stated that he did not receive the postal acknowledgement, as such, he got issued a 19 Crl.A.No.626/2010 certificate from the postal department as per Ex.P-6. Without any narration or details about Ex.P-6, the said document has been simply marked as an exhibit.
However, a reading of the said document at Ex.P-6 goes to show that a registered article sent to the name of the present accused was delivered to the addressee on 18.2.2004. However, the door number of the addressee in the said certificate is shown as "480". As already observed above, the door number/house number of the accused, according to both party, is "430", but, not "480". How the said discrepancy in the said door number of the house of the accused came in Ex.P-6 has not been attempted to be explained by the accused any where.
Secondly, the complainant has not produced the postal receipt evidencing sending of legal notice to the accused. Though a postal receipt number is mentioned 20 Crl.A.No.626/2010 in Ex.P-6, which is the postal certificate, but, the production of the postal receipt by the complainant would have shown the name and address of the addressee, which duly could have helped in noticing whether the notice was sent to the correct door number i.e., "430" and that in the postal certificate the said number was wrongly shown as "480". Even to deduce that conclusion also, the production of postal receipt by the complainant was necessary which he has not produced.
Thirdly, the Postal Certificate at Ex.P-6 is addressed by the Postal Department to one Sri M.V.Ramakrishna Rao, an Advocate, whereas, the copy of the legal notice at Ex.P-4 shows that the said name of the advocate who has issued the legal notice is one Sri M.V.Ramarkishna Gowda. As such, a query with the postal authority is also not made by the counsel for the 21 Crl.A.No.626/2010 complainant who is said to have issued the notice at Ex.P-4.
17. Added to the above, the complainant as PW-1 in his cross-examination, apart from denying a suggestion that no postal acknowledgement has been received by him from the accused side, has specifically stated that the acknowledgement with respect to service of the notice upon the accused has reached his advocate. Thus, when the complainant has specifically stated that the acknowledgment for having sent the notice upon the accused has reached his counsel, nothing had prevented them from producing the same. For the reasons unrevealed by them, the complainant who is in possession of valid and important document, has not produced it, rather, they have withheld it. On the other hand, Ex.P-6, the Postal Certificate which was attempted to be established as an alternate document to 22 Crl.A.No.626/2010 prove the giving of notice upon the accused, also has not established, it has to be held that the complainant has failed to prove that a statutory requirement under Section 138 (b) of N.I.Act about the complainant making a demand for the payment of the cheque amount by giving a notice in writing to the drawer of the cheque has not been proved.
18. Therefore, even though the complainant could able to establish that the accused had issued the cheque in question to him and the same got dishonoured when presented for realisation, which constitute an offence punishable under Section 138 of N.I.Act, since Section 138(b) of N.I.Act also had to be established and the complainant since has failed to establish the same, it has to be held that the offence punishable under Section 138 of N.I.Act is not proved against the accused. Even though the finding of the trial Court acquitting the 23 Crl.A.No.626/2010 accused for the said offence is on a different reasoning regarding the alleged incapacity of the complainant to lend the cheque amount, but, its conclusion in pronouncing the judgment of acquittal in the matter is a correct conclusion. As such, the same does not requires to be interfered with.
Accordingly, the Appeal stands dismissed as devoid of merits.
This Court places on record its appreciation for the assistance rendered by Sri D.Mohan Kumar, learned counsel as Amicus Curiae, in this case.
The Registry is directed to pay a sum of `5,000/- shall be paid to the learned Amicus Curiae as an honorarium.
Sd/-
JUDGE bk/