Karnataka High Court
Mr N Shrihari S/O Sudhakara Reddy vs Mr Babu Shetty on 26 February, 2014
Author: N.Ananda
Bench: N. Ananda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26TH DAY OF FEBRUARY 2014
BEFORE
THE HON'BLE MR.JUSTICE N. ANANDA
CRIMINAL APPEAL No.438/2009
BETWEEN:
MR. N.SHRIHARI
S/O SUDHAKARA REDDY
AGED 42 YEARS
PROPRIETOR, BALAJI ENTERPRISES
LIQUOR DEALERS, 19-7-457
ROSARIO CHURCH ROAD, MANGALORE. ... APPELLANT
(BY SRI CYRIL PRASAD PAIS, ADVOCATE)
AND:
MR BABU SHETTY
S/O LATE B NARAYANA SHETTY
R/A MARVOOR BEEDU HOUSE
KENJAR POST, MANGALORE. ... RESPONDENT
(BY SRI RAHUL RAI, ADVOCATE FOR SRI ARUN SHYAM, ADV.)
THIS APPEAL IS FILED UNDER SECTION 378(4) & (5)
CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT DATED
20.11.2008, PASSED BY III ADDITIONAL DISTRICT AND
SESSIONS JUDGE AT DAKSHINA KANNADA, MANGALORE, IN
CRIMINAL APPEAL NO.143/2007, ACQUITTING RESPONDENT-
ACCUSED OF AN OFFENCE PUNISHABLE UNDER SECTION 138
OF N.I.ACT & ETC.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
2
JUDGMENT
The learned trial Judge convicted respondent (hereinafter referred as 'accused') for an offence punishable under section 138 of the Negotiable Instruments Act, 1881 (for short, 'the Act'). Therefore, accused was before I- appellate court. The learned Judge of I-appellate court on re- appreciation of evidence has acquitted accused. Therefore, appellant (hereinafter referred as 'complainant') is before this court.
2. I have heard Sri Cyril Prasad Pais, learned counsel for complainant and Sri Rahul Rai, learned counsel for accused.
3. The gist of averments of complaint and the evidence adduced by complainant are stated thus:-
The complainant was a wholesale liquor dealer and he had supplied liquor to accused, who was a retail dealer. As on 03.02.2001, accused was due in a sum of Rs.75,682/- to complainant. In order to discharge the same, accused issued a cheque in favour of complainant. On presentation, cheque 3 was dishonoured. There was no reply to legal notice issued by complainant. Therefore, instant complaint was initiated.
4. The complainant has relied upon several documents, including ledger extract (Ex.P.8). From the tenor of cross- examination of complainant, we find that accused has contended that he was not the Proprietor of M/s.Keerthi Wines, on the other hand, he was a worker in M/s.Keerthi Wines, of which one Sudhir Kumar was the Proprietor. The agents of complainant came for collection. At that time, Proprietor of M/s.Keerthi Wines namely Sudhir Kumar was absent. Therefore, accused issued cheque. The accused has contended that he had no liability to discharge in favour of complainant. There was no legally recoverable debt and cheque was not issued to discharge legally recoverable debt.
5. The parties have adduced oral evidence and produced several documents. In my considered opinion, ledger extract produced by complainant (Ex.P.8) has direct bearing on decision of the case.
4
6. As per the contents of ledger extract (Ex.P.8), one Sudhir Kumar, Proprietor of Kirthi Wines used to purchase liquor from complainant on credit basis and he had a running account with complainant. As on 03.02.2001, Sudhir Kumar was due in a sum of Rs.75,682/- to complainant. The accused had issued dishonoured cheque as an agent of Sudhir Kumar.
The complainant has maintained books of accounts to fasten liability on Sudhir Kumar and he has pressed cheque into service to contend that accused was liable to pay a sum of Rs.75,682/- to complainant.
7. The learned counsel for complainant taking me through oral evidence of complainant would submit that accused has admitted the issuance and contents of cheque. Therefore, court has to presume the existence of legally recoverable debt and cheque was issued to discharge legally recoverable debt, which I am not persuaded to accept for the following reasons:-
5
The complainant has produced documentary evidence (ledger extract-Ex.P.8), wherein one Sudhir Kumar is shown as Proprietor of M/s.Kirthi Wines and he had a running account with complainant and he used to purchase liquor on credit basis. As on 03.02.2001, Sudhir Kumar was due in a sum of Rs.75,682/- to complainant. In the circumstances, complainant cannot rely upon oral evidence to contradict the documentary evidence.
8. The presumption under section 139 of the Act can be raised if basic facts necessary to raise presumption are established by complainant. The accused can rebut presumption either depending upon evidence adduced by complainant or depending on his evidence. If evidence adduced by complainant is inherently weak, the court cannot raise presumption under section 139 of the Act.
9. The learned Judge of I-appellate court on proper appreciation of evidence has held that complainant has failed to prove existence of legally recoverable debt. 6
10. The accused has contended that as an employee of Mr.Sudhir Kumar, he had issued the cheque. The complainant has contended that accused was running wine shop on behalf of Sudhir Kumar.
11. In order to run a wholesale/retail liquour shop, one has to obtain necessary licence/permit from Excise Department. There cannot be transfer of licence, except in accordance with the relevant provisions of the Karnataka Excise Act. The complainant has not produced documents to show that there was transfer of licence by Sudhir Kumar in favour of accused. Therefore, complainant cannot be heard to say that accused was running M/s.Keerthi Wines and in that connection, he had purchased liquor from complainant and he became due in a sum of Rs.75,682/-to complainant. The complainant has failed to prove that accused was under
legal obligation to discharge the debt which was due to complainant from Sudhir Kumar, Proprietor of M/s.Keerthi Wines.7
12. The learned counsel for complainant has relied on the following decisions:-
I. ILR 2001 KAR 4079 (in the case of Swathi Industries and others Vs. Hitesh Traders); II. 2001 Crl.L.J. 3120 (in the case of G.Rukkumani Vs. K.Rajendran);
III. (2002) 6 SCC 426 (in the case of ICDS Ltd. Vs. Beena Shabeer & another);
IV. ILR 2006 KAR 4672 (in the case of J.Ramaraj Vs. Iliyas Khan);
V. ILR 2007 KAR 4586 (in the case of M/s.Gowri Containers Vs. S.C.Shetty & Another); VI. 2000 (2) Kar.L.J. 383 (in the case of Geetha Vs. State of Karnataka & others)
13. After going through the aforestated decisions, I find that what has been held in the aforestated decisions has no bearing on facts of the instant case.
8
14. On reconsideration of the matter, I do not find any reasons to interfere with the impugned judgment.
15. In the result, I pass the following:-
ORDER The appeal is dismissed.
Sd/-
JUDGE SNN