Karnataka High Court
Sri H C Nanjunde Gowda vs Sri Musthaf Pokoya Thangal on 25 October, 2018
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF OCTOBER, 2018
BEFORE
THE HON'BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL APPEAL No.463 OF 2010
BETWEEN:
Sri. H.C. Nanjunde Gowda
S/o. Chikkanna Gowda,
Aged about 56 years,
Hesgodu Village,
Banakal Hobli,
Mudigere Taluk,
Chikkamagaluru District,
Pin - 577 132. ...Appellant
(By Sri. Dharmapal, Advocate)
AND:
Sri. Musthaf Pokoya Thangal
Aged about 55 years,
R/at Hasanabba Building,
J.M.Road, Mudigere,
Chikkamagaluru District,
Pin-577 132. ...Respondent
(By Sri. H.P. Leeladhar, Advocate)
This Criminal Appeal is filed under Section 378(4) of
Cr.P.C praying to set aside the judgment and order
dataed:15.03.2010 passed by the C/C Prl. C.J. and JMFC,
Mudigere in C.C.No.690/2008 acquitting the
Crl.A.No.463/2010
2
appellant/accused for the offence punishable under Section
138 of N.I. Act.
This Criminal Appeal having been heard and reserved
for orders on 12.10.2018, this day the Court delivered the
following:
JUDGMENT
The present appellant as a complainant had instituted a private complaint against the present respondent in the Court of the Principal Civil Judge, JMFC, Mudigere (henceforth for brevity referred to as "Court below") for the offences punishable under Section 138 Negotiable Instruments Act.
2. The Court below, by its judgment dated 15.03.2010, acquitted the accused / respondent for the alleged offence. Aggrieved by the same, the complainant has preferred this appeal.
3. The summary of the case of the complainant in the Court below was that for a valid consideration received from him, the accused had issued a cheque Crl.A.No.463/2010 3 bearing No.735816 dated 04.02.2008 for a sum of `1,10,000/- drawn on Syndicate Bank, Mudigere Brach. When presented the cheque for realization, it returned dishonoured with an endorsement "Exceeds arrangement" on 14.06.2008. Thereafter, the complainant issued a legal notice to the accused for which he received an untenable reply. As such, the complainant instituted a private complaint under Section 200 of the Criminal Procedure Code against the present respondent for the offence punishable under Section 138 of the Negotiable Instruments Act.
4. The complainant in the Court below got himself examined as PW.1 and got marked documents from Exs.P.1 to P.7 on his side. The accused did not lead evidence on his side. However, in the cross- examination of PW.1, he got marked documents from Ex.D.1(c) to Ex.D.4(c).
Crl.A.No.463/20104
5. It is the contention of the appellant in his memorandum of appeal as well the arguments of the learned counsel for the appellant that the burden of proving that the cheque was issued only as a security but not towards legally enforceable debt was upon the accused. However, the Court below by observing that the cheque was given only as a security has acquitted the accused which is an erroneous finding. It is also his contention that had the cheque been given only as a security, the accused could have stopped the payment of the cheque which he has not done. Therefore, there is all the reason to believe that the cheque was given towards legally enforceable debt which has to be presumed in favour of the complainant.
Per contra, learned counsel for the respondent in his argument submitted that the legal presumption is a rebuttable one, when the accused both in his reply Crl.A.No.463/2010 5 notice at Ex.P-7 as well in the cross-examination of PW.1 has successfully rebutted legal presumption, as such, the burden has shifted upon the complainant to prove the existence of legally enforceable debt, which he had failed to discharge.
6. It is not in dispute that the respondent had issued a cheque dated 04.02.2008 drawn in favour of the complainant on Syndicate Bank, Mudigere Branch for a sum of `1,10,000/-. It is also not in dispute that the said cheque (Ex.P-1) when presented for realization came to be dishonoured on 14.06.2008 with the shara "Exceeds arrangement" (Ex.P-2). Thereafter, the complainant issued a legal notice to the accused on 16.06.2008 as could be seen at Ex.P-3 and 6(a). The accused gave his reply to the said notice as could be seen at Ex.P-7.
Crl.A.No.463/20106
7. Similarly, it is also not in dispute that the accused had approached the complainant offering to purchase the standing timber in his land in which regard they had entered into an agreement as per Ex.D-4, wherein, it was agreed by the complainant to sell the standing timber in his land which was stated to be 13.24 acres and the accused had to pay a consideration of a sum of `5,44,000/- as the sale value of those timber as per Ex.D-4. It is not in dispute that the accused is shown to have advanced a sum of `40,000/- to the complainant and it was also agreed to pay 40% of the consideration after the accused obtaining the necessary permission from the concerned Department/Authorities for cutting the standing timber in the lands of the appellant. The remaining amount was agreed to be payable to the seller/complainant at the time of lifting the timber finally. It is in this background the Crl.A.No.463/2010 7 complainant and the accused are stated to have come to know each other.
8. The complainant neither in his complaint nor in his evidence as PW1 has stated as to when and in what manner the alleged hand loan of a sum of `1,10,000/- was given by him to the accused. As PW1, he has not given any further detail about the date, place and mode of payment of the alleged hand loan. The complainant even in his legal notice at Exs.P1 and P6 also has not stated as to when, where and in what manner the alleged hand loan to the accused was given by him. On the other hand, the accused in his reply notice though has admitted that he had given the cheque in question to the complainant but has specifically stated that subsequent to their agreement for sale of timer as per Ex.D4, the complainant / seller was in financial difficulty. However, he was not entitled Crl.A.No.463/2010 8 for claiming the part of the sale consideration until the buyer getting the necessary permission or licence from the concerned authorities. He requested for a cheque from the accused, so that he can show the same to the other lenders and can avail the loan based on the said cheque. Further, it was specifically undertaken by the complainant that he would not present the said cheque to the Bank for realization.
9. The accused has also contended in his reply statement that breaking his promise that the cheque was given only as a security and not for its presentation, the complainant had presented the said cheque. Interestingly, the complainant has not stated in his complaint that the contention taken up by the accused in the reply given is incorrect and far away from the truth. That apart, the accused in the cross examination of PW1 (complainant) has specifically suggested to the Crl.A.No.463/2010 9 witnesses that the similar cheques given by the accused to other sellers of the timer in the same village were all got honoured, since the documents furnished by them were in order, but it was only the cheque issued to the complainant in the similar circumstances, has been dishonoured. Further, it was also suggested to PW1 in his cross examination that the cheque was given by the accused to the complainant in the business they had with respect to the sale of timber. However, the complainant denied the said contention only because his admission may go against him. Through his cross examination of PW1 and also by producing Ex.D4 the agreement, the accused has rebutted the presumption that was formed in favour of the complaint under Section 139 of the Negotiable Instruments Act. Therefore, once the accused has successfully rebutted the presumption which was formed in favour of the complainant, then the burden would be upon the Crl.A.No.463/2010 10 complainant to establish that there was legally enforceable debt towards which the cheque in question was issued to him.
10. In the instant case, as already observed above, the complainant no where in his case ie., either in his legal notice or in his complaint petition or even in his evidence as PW1 has stated as to when and in what manner the alleged hand loan of `1,10,000/- was given by him to the accused. On the other hand, the undisputed fact that the complainant and the accused had an agreement as per Ex.D4 whereunder the complainant had agreed to sell the timber to the accused for a sum of `5,44,000/- and had also received an advance amount of `40,000/- would go to show that there was a business relationship between them. Further, the very agreement at Ex.D4 also go to show that for the other part of consideration of 40% in the Crl.A.No.463/2010 11 total sale value, the complainant / seller was eligible, provided the accused / buyer was granted with the permission / licence by the competent authorities to cut trees.
11. As observed above and as could be seen from the reply notice at Ex.P7, due to the improper documents furnished to the accused by the complainant, the accused could not get the necessary licence or permission. Therefore, the complainant was not entitled to claim any amount, much less 40% of the remaining portion of consideration. Therefore, even if it is taken that the cheque in question for a sum of `1,10,000/- was given by the accused to the complainant, still, the complainant was not eligible to demand or get 40% of the sale consideration as the necessary permit to cut the trees was not granted to the accused / seller, as such, it cannot be said that there was a legally enforceable debt. Crl.A.No.463/2010 12
12. Therefore, since the accused has successfully rebutted the legal presumption drawn in favour of the complainant and the complainant since has failed to establish that there was in existence of any debt or other liability towards the dischargal of which the cheque in question was given to him by the accused, the Court below has rightly acquitted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act.
In view of the analysis made above, I do not find any reason for interfering in the said finding given by the Court below. Accordingly, I dismiss the appeal as devoid of merit.
Sd/-
JUDGE GH