Karnataka High Court
Smt Nagarathna N Murthy vs Sri Gopinatha on 7 October, 2020
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF OCTOBER 2020
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL APPEAL No.1206 OF 2010
BETWEEN:
Smt.Nagarathna N. Murthy,
Since deceased, by her LR's
1(a) Smt.Ranjani N.
Daughter of Smt.Nagarathna N. Murthy,
Aged about 47 years,
Residing at No.497,
38th Main, 17th Cross,
J.P.Nagar VI Phase,
Bangalore-560 078.
1(b) Smt.Ashwini Murthy,
Wife of Sri Anil Padaki,
Daughter of Smt.Nagarathna N. Murthy,
Aged about 41 years,
Residing at No.582,
16th Cross, 35th Main,
J.P.Nagar VI Phase,
Bangalore-560 078. .. Appellants
( By Sri M.S.Ashwin Kumar, Advocate )
AND:
Sri Gopinatha,
Son of M.S.Raghavendar Rao,
Aged about 42 years,
Crl.A.No.1206/2010
2
Residing at No.615,
14th Main, Gokula,
1st Stage, Mathikere,
Bangalore-560 004. .. Respondent
( By Sri M.K.Venkataramana, Advocate )
This Criminal Appeal is filed under Section 378(4) of
Cr.P.C. praying to call for the records, peruse them and set
aside the judgment dated 9.8.2010, passed by the learned
XXII Addl.Chief Metropolitan Magistrate and XXIV Addl.Small
Causes Judge, Bangalore, in C.C.No.9296/2007, and to allow
the appeal.
This Criminal Appeal having been heard through
Physical Hearing/Video Conferencing Hearing and reserved
for Judgment on 30.09.2020, coming on for pronouncement
at Dharwad Bench through Video Conference this day, the
Court delivered the following:
JUDGEMENT
In the complaint filed by the present appellant, since deceased, represented by her legal representatives, under Section 200 of Code of Criminal Procedure, 1973, 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 XXII Addl.Chief Metropolitan Magistrate & XXIV Addl.Small Causes Judge, Bengaluru Crl.A.No.1206/2010 3 City, (hereinafter for brevity referred to as `trial Court'), by the judgment dated 09.08.2010, passed in C.C.No.9296/2007, acquitted the respondent/accused of the said offence. Aggrieved by the same, the complainant/appellant has preferred the present appeal.
2. The summary of the case of the complainant in the trial Court is that the complainant and the accused are known to each other. At the request of the accused for financial loan to meet his family commitments and for construction of his house, educational fees of his children and to solve his business commitments, the complainant has lend him a sum of `5,35,000/-, which the accused had promised to return the same within a year. However, the accused did not keep up his promise. Finally after persistence and demands, on 16.8.2006, the accused issued a cheque bearing No.679380, dated 16.8.2006, for a sum of `5,35,000/-, drawn on Canara Bank, Mahalakshmi Crl.A.No.1206/2010 4 Layout Branch, Bengaluru, in favour of the complainant. When the complainant presented the said cheque for realisation, the same came to be dishonoured with the Banker's shara `Account closed'. Thereafter, the complainant issued a legal notice to the accused demanding the cheque amount. Though the notices were sent through Registered Post Acknowledgment Due and under Certificate of Posting and served upon the accused, but, the accused failed to pay the cheque amount. This constrained the complainant to institute a criminal case in the trial Court for the offence punishable under Section 138 of N.I.Act.
3. The respondent who was the accused in the trial Court appeared and contested the matter. In order to prove the guilt of the accused, the complainant got herself examined as PW-1 and got marked documents from Exs.P-1 to P-9. On behalf of the accused, accused Crl.A.No.1206/2010 5 No.1 was examined as DW-1 and got marked documents from Exs.D-1 to D-12.
4. After hearing both side, the trial Court by its impugned judgment dated 09.08.2010, acquitted the accused of the offence punishable under Section 138 of N.I.Act.
5. The trial Court records were called for and the same are placed before this Court.
6. Heard the arguments of learned counsel for the appellants who appeared through Video Conference and learned counsel for the respondent who appeared physically in the Court and perused the materials placed before this Court.
7. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court.
8. Learned counsel for the appellants in his argument submitted that the conduct of the accused is unsatisfactory for the reason that about his Crl.A.No.1206/2010 6 acquaintance with the complainant, he has given contradictory statement. In his reply to the notice at Ex.D-2, he has stated that complainant is a stranger to him. Similarly even in his cross-examination also he stated that he does not know the complainant, However, when confronted with two marriage photographs at Exs.P-10 and P-11 that was held in the family of the complainant, then, he admits of he being invited and attended the said marriage in the year 2000 itself. Learned counsel further submits that even if the case of the accused that he had given two blank cheques to the complainant as a security is taken into consideration, then, a doubt arises as to why he did not take any steps to demand and collect those cheques back. He did not file any police complaint for the return of the cheques. This shows that his defence is untenable. Though he conceded that the complainant's civil dispute for recovery of money from the accused Crl.A.No.1206/2010 7 came to be dismissed, but, contended that the same would not affect the present case in any manner. In his support, he relied upon two judgments of Hon'ble Apex Court which will be discussed at the appropriate stage hereinafterwards.
9. Learned counsel for the respondent in his argument submitted that the accused though has not disputed that the cheque in question has been issued by him, but, has taken a specific contention that the said cheque was issued only as a security for the repayment of the loan of `3,78,000/- availed by him from the complainant. Admittedly, the said loan has been repaid to the complainant, however, the complainant failed to return those two cheques given to him as security. It is one among those two cheques, he has misused it and has filed the present case. He submitted that Ex.D-7 is the evidence to show that the previous loan of `3,78,000/- has been repaid to the complainant. Crl.A.No.1206/2010 8 He also submitted that with respect to some transaction seeking recovery of the cheque amount, the complainant had instituted a civil suit in O.S.No.5813/2009, in the Court of learned XIX Addl.City Civil & Sessions Judge, Bengaluru City (CCH-18), which after contest, came to be dismissed on merit by the judgment and Decree of the said Court dated 13.4.2012. Thus, it goes to show that the complainant's claim is a bogus claim. He further stated that the complainant in his notice at Ex.P-4 has stated that the alleged loan was given in the year 2000, whereas, in her cross-examination as PW-1, she has stated that loan was given in different installments spreading between the year 1999 to 2004-2005. As such, the said contradiction leads to a strong doubt about the alleged loan transaction. He further submitted that the entire complaint and the evidence of the complainant is bereft of any details as to when, where and how the alleged loan was given by her Crl.A.No.1206/2010 9 to the accused. As such also, the complaint would not sustain. In his support, he relied upon few judgments of Hon'ble Apex Court which would be hereinafterwards referred to at the appropriate stage.
10. In the light of the above arguments, the points that arise for my consideration are :
1) Whether the complainant has proved beyond reasonable doubt that the accused has committed an offence punishable under Section 138 of N.I.Act as alleged in the complaint?
2) Whether the judgment under appeal deserves an interference at the hands of this Court?
11. The complainant got herself examined as PW-1, who in her examination-in-chief filed in the form of affidavit evidence has reiterated the contentions taken up by her in her complaint. In support of her contentions, she marked the dishonoured cheque, the Banker's endorsement, the copy of the legal notice sent Crl.A.No.1206/2010 10 on her behalf to the accused, a postal receipt, a Certificate of Posting, a postal acknowledgement, reply to the notice sent by the accused and Bank account extract from Exs.P-2 to P-9 respectively.
She was subjected to a detailed cross-examination from the accused side wherein the accused has elicited some more details from the witness, including the one that, apart from the alleged loan said to have been given to the accused, the complainant has also claims to have lent loan for few more persons and she has initiated litigation against them also.
12. The accused got himself examined as DW-1, who in his examination-in-chief filed in the form of affidavit evidence has taken a specific contention that he had only once availed a loan of `3,78,000/- from the complainantt on 28.11.2002 and it was at that time, the complainant had collected a blank signed cheque as a Crl.A.No.1206/2010 11 security purpose. Though he cleared the said loan on 3.12.2002 itself, but, the complainant did not return the cheque collected from him as a security by giving evasive answer that the said cheque has been misplaced and she would return the same as and when the cheque is traced. He specifically contended that he has not borrowed any such loan from the complainant, much less, the one agitated in the present case. He also contended that in a criminal case conducted by him against Sri.Amaranarayanaswamy in C.C.No.16312/2004, before the learned XII Addl.Chief Metropolitan Magistrate, Bengaluru, alleging dishonour of a cheque, the present complainant had led her evidence in favour of said Amaranarayanaswamy. It is thereafter there was some disliking between each other.
In his support, the accused got produced and marked a copy of the cheque at Ex.D-1, copy of notice at Ex.D-2, postal acknowledgment at Ex.D-3, certified Crl.A.No.1206/2010 12 copy of three complaints in C.C.No.8964/2006, C.C.No.9295/2007 and C.C.No.21705/2007 as Exs.D-4, D-5 and D-6 respectively. He has also produced statement of his Bank account at Ex.D-7, certified copy of deposition in C.C.No.16312/2009 at Ex.D-8, certified copy of the judgment in said C.C.No.16312/2004 at Ex.D-9, certified copy of an order passed in Criminal Appeal No.1579/2005 by the learned XXXII Addl.City Civil & Sessions Judge & Special Judge for C.B.I. Cases, Bengaluru, dated 15.4.2006 at Ex.D-10, a certified copy of Criminal Revision Petition No.973/2006, dated 16.4.2008, passed by a Co-ordinate Bench of this Court at Ex.D-11 and a Bank account Passbook at Ex.D-12.
DW-1 also was cross-examined in detail from the complainant's side, wherein it was elicited from the witness that, in the year 2000 itself, the accused was knowing the complainant and that he was invited to the marriage of the daughter of the complainant and he Crl.A.No.1206/2010 13 attended the same. DW-1 also admitted in the cross-examination that Ex.P-2 is the cheque issued from his Bank account which bears his signature at Ex.P-2(a). However, he adhered to his version that he has never borrowed any loan from the complainant, except a single time loan of a sum of `3,78,000/- and that the present case is a false case.
13. From the evidence of the parties, the undisputed fact remains that the cheque at Ex.P-2 is issued from the account of the accused and the same came to be dishonoured when presented by the complainant for its realisation as per the Banker's endorsement at Ex.P-3 on 29.8.2006 with an endorsement as `Account closed'. It is also not in dispute that thereafter the complainant got issued a legal notice to the accused as per Ex.P-4 demanding the payment of the cheque amount from him. The postal receipts and the Certificate Posting and the postal Crl.A.No.1206/2010 14 acknowledgements at Exs.P-5, P-6 and P-7 respectively show that the said notice was duly served upon the accused. Ex.P-8 is the reply given by the accused to the complainant to the notice of the complainant at Ex.P-4.
14. Thus, it is not in dispute that the complainant as a `payee' under the cheque at Ex.P-2, had presented the cheque for realisation and the same came to be dishonoured. Thereafter, she has also issued a statutory notice within the time, still the accused has not paid the cheque amount. Therefore, the presumption under Section 139 of N.I.Act about the existence of legally enforceable debt forms in favour of the complainant herein, however, the said presumption is rebuttable. Since the accused has specifically taken a contention that there existed no legally enforceable debt between them and that the cheque in question was given to the complainant only as a security in a single loan transaction for a sum of `3,78,000/-, which also came to Crl.A.No.1206/2010 15 be repaid to the complainant, the main question that remains for consideration would be about the existence of legally enforceable debt as on the date of presentation of the cheque by the complainant.
The presumption under Section 139 of N.I.Act is rebuttable. If once it is rebutted, the burden would revert upon the complainant requiring him to prove the existence of legally enforceable debt. Therefore, in the instant case, what is required to be seen is whether the presumption that was formed in favour of the complainant has been rebutted by the accused and whether the complainant has proved the existence of legally enforceable debt amounting to the cheque amount.
15. Initially the accused had taken a contention that the complainant was a stranger to him. In that regard, at the very first place in his reply to the very Crl.A.No.1206/2010 16 notice at Ex.P-8, the accused has specifically stated that the complainant was stranger to him during the year 2000. The same statement continued even in his cross- examination as DW-1 also. However, in the very same cross-examination he has stated that he was invited for the marriage of the daughter of the complainant and had attended the said marriage also. In that regard, two photographs of the marriage marked as Exs.P-10 and P-11 were produced by the witness. According to the complainant, the said marriage was performed in the year 2000. Therefore, at the outset the stand taken by the accused that the complainant was a stranger to him is proved to be false. On the other hand, it shows that, at least, as in the year 2000, they were known each other.
16. According to the complainant, the accused had availed a loan of `5,35,000/- from her. The complainant in her legal notice sent to the accused, which is at Crl.A.No.1206/2010 17 Ex.P-4, has stated that the said loan transaction was in the year 2000. However, the very same complainant in her complaint, which she got marked as Ex.P-1, has not stated either the exact date, month or even the year as to when the alleged loan of `5,35,000/- was given to the accused. Therefore, the complaint is bereft of the basic details as to the date of alleged loan transaction. It is canvassing this point, learned counsel for the respondent/accused relied upon a judgment of Hon'ble Apex Court in Anss Rajashekar -vs- Augustus Jeba Ananth, reported in AIR 2019 SC 942.
In the said case, the Hon'ble Apex Court while dealing with an appeal pertaining to Section 138 of N.I.Act, was pleased to hold that failure on the part of the complainant to establish the source of funds alleged to be utilised for disbursal of loan to the accused, presence of doubt on transaction as complainant did not disclose the facts as to cheques and any steps taken by Crl.A.No.1206/2010 18 him for recovery of the same probabalised the absence of legally enforceable debt. With this, it held that the order of the High Court convicting the accused on the ground that he remained absent though notice of appeal was served, was not proper.
17. In the instant case, as observed above, the complainant who had stated in the legal notice at Ex.P-4 that the loan was given to the accused in the year 2000, did not whisper anything about the time when the loan was given in her complaint at Ex.P-1. However, she, as PW-1, in her cross-examination stated that the alleged loan was not given in a single lumpsum, but, it was given at different intervals and different quantum between the years 1999 to 2004-05. She has stated that in each of the installments, she was giving `30,000/-, `50,000/- like that. Thereafter, when she had been to the house of the accused, after taking the accounts of all the amounts lent and admitting his Crl.A.No.1206/2010 19 liability, the accused issued the cheque at Ex.P-2. The said evidence of PW-1 has been categorically denied by the accused both in the cross-examination of PW-1, as well in his evidence as DW-1.
On the other hand, the accused took a contention that he had availed a loan of `3,78,000/- only once from the complainant which was on 28.11.2002. The said loan was given to him by the complainant through a cheque drawn on Charan Co-operative Bank, which the accused got encashed through his Banker. Thereafter, the said loan amount was repaid by him to the complainant by way of a cheque bearing No.707754, drawn on Canara Bank. In support of his contention, he produced his Canara Bank statement of account at Ex.D-7. The relevant credit and debit entry of `3,78,000/- in the said account were marked as Exs.P-7(a) and P-7(b) respectively. The said debit entry shows the encashment of a cheque bearing No.707754 Crl.A.No.1206/2010 20 by a person with the name Nagarathna. The name of the complainant herein is also Mrs.Nagarathna.
18. Thus, the said undenied evidence of the accused and admitted suggestion on the similar line by PW-1 in her cross-examination goes to show that the complainant had given a loan of a sum of `3,78,000/- to the accused on 28.11.2002 and the same was repaid to the complainant by the accused through cheque on 3.12.2002. According to the accused, the said sum was taken by him as a loan, because, he was required to show sufficient bank balance in his account in order to get a Visa for his son to go abroad. It is for the said relevant purpose and for a short period, he had availed the loan. Suggestions to the said effect were also made to PW-1 in her cross-examination. Though the witness has not admitted the said reason for availment of loan, but, the fact stands proved that there existed a previous loan transaction between the complainant and the Crl.A.No.1206/2010 21 accused for a sum of `3,78,000/- and the same has stood cleared. According to the accused, it is at that time, the complainant had collected the blank cheque as a security which she has misused by falsely presenting it after filling the contents by herself and after its dishonour, by instituting the present case. However, PW-1 has not admitted the suggestion made to her from the accused side on those lines.
19. The accused after bringing the contradictions in the stand of the complainant regarding the time of the alleged loan, has also wanted to know as to in which year all the alleged installments of the said loan were given. Even for the specific question on those lines also, PW-1 could not able to give any specific answer. PW-1 who initially stated that the loan was given in the year 2000, after changing her version by stating that the loan was not given in one particular year, but, was given in a period between 1999 to 2004-2005 under various Crl.A.No.1206/2010 22 installments, was expected to and required to give the details of those dates or the period and the quantum of the installments when specifically asked by the accused in her cross-examination. However, the answer given by the complainant that she was giving the loan as and when demanded by the accused in a quantum of `30,000/- and `50,000/- appears to be a very vague reply. It is also for the reason that, the very same witness in her further cross-examination has stated that she had been to the house of the accused where they calculated the amount and arrived at a figure that the accused was due in a sum of `5,35,000/- and it was at that time the accused issued the cheque at Ex.P-2 to her. If that were to be the case, had really the alleged calculation of amount was discussed and settled between the parties, then definitely and necessarily the complainant should have the details about the same, including the details of the alleged installments of the Crl.A.No.1206/2010 23 loan paid to the accused. But, despite the specific question of the accused, no details of any sort could be able to be given by PW-1 in her cross-examination. This creates a serious doubt in the case of the complainant to believe her version that accused had availed a sum of `5,35,000/- from her as a loan.
On the contrary, the defence of the accused that there was no such loan transaction amounting to `5,35,000/-, on the other hand, the loan transaction between them was only for a sum of `3,78,000/-, which also has long back was cleared by the accused, appears to be more probable. Therefore, the presumption that was formed in favour of the complainant has stood successfully rebutted by the accused. In such a case, it was for the complainant to prove the existence of legally enforceable debt as on the date of presentation of the cheque. However, the complainant, as observed above, has not produced any material to show that there Crl.A.No.1206/2010 24 existed a legally enforceable debt. Therefore, the argument of learned counsel for the appellants that the complainant had proved the existence of legally enforceable debt is not convincing.
20. Admittedly, with respect to the very same cheque seeking recovery of money, the complainant herein, as a plaintiff, had instituted a civil suit against the present accused in the Court of learned XIX Addl.City Civil & Sessions Judge, Bengaluru City, in O.S.No.5813/2009. It is fairly conceded by the learned counsel for the appellants in his argument that the said suit came to be dismissed on its merits by the judgment dated 13.4.2012 and no appeal has been preferred against the said judgment. Thus, the finding of the Civil Court has reached its fanality.
21. Learned counsel for the appellants in his argument submitting that a finding of the Civil Court Crl.A.No.1206/2010 25 would not come in the way of dealing a criminal case for the offence punishable under Section 138 of N.I.Act, has relied upon two reported judgments in his support.
In Vishnu Dutt Sharma -vs- Daya Sapra (Smt), reported in [ (2009) 13 SCC 729], wherein the creditor had instituted both civil suit for recovery of alleged loan amount and criminal proceedings under N.I.Act for dishonour of cheque and subsequently the criminal case ended in acquittal and the question arose regarding the maintainability of the civil suit, the Hon'ble Apex Court observed that, acquittal in the criminal case would not make continuation of the civil proceeding an abuse of process of Court. Thus, the principle of res judicata as contained in Section 11 of Code of Civil Procedure or even general principles thereof is not attracted in the case.
In Kishan Singh (Dead) through L.Rs. -vs- Gurpal Singh and others, reported in AIR 2010 SC 3624, in a Crl.A.No.1206/2010 26 matter under Section 482 of Cr.P.C., for quashing of FIR, the Hon'ble Apex Court observed that the facts before it relate to an agreement to sell executed by the vendor in favour of two different persons. The FIR was lodged by one vendee under Sections 420, 467, 468 of Indian Penal Code, alleging cheating and forgery of signature of vendor on agreement to sell. A civil suit for specific performance earlier filed in respect of same property by another vendee was pending. In these facts, the Hon'ble Apex Court held that finding on facts recorded by the Civil Court in the said suit would not have any bearing on criminal case and vice versa.
22. Learned counsel for the accused/respondent relied upon a judgment of Hon'ble Apex Court in Ashoo Surendranath Tewari -vs- The Deputy Superintendent of Police, EOW, CBI and another, in Criminal Appeal No.575 of 2020, disposed of on 8.9.2020, wherein it has referred to its previous judgment in Radheshyam Crl.A.No.1206/2010 27 Kejriwal -vs- State of West Bengal and another, reported in [ (2011) 3 SCC 581], in paragraph No.26 of the said judgment in Radheshyam's case (supra), the Hon'ble Apex Court was pleased to observe that the determination of facts in the adjudication proceedings cannot be said to be irrelevant in the criminal case.
23. In the instant case, as observed above, the competent Civil Court has adjudicated that the present complainant has failed to prove that she was entitled for recovery of the cheque amount of a sum of `5,35,000/- from the accused. However, despite the said finding of the Civil Court, even an independent analysis of the evidence as analysed above, would clearly show that the accused has successfully rebutted the presumption that was formed in favour of the complainant about the existence of legally recoverable debt equivalent to the cheque amount. On the other hand, the complainant Crl.A.No.1206/2010 28 also could not able to prove the existence of said legally enforceable debt.
24. Therefore, without going into several other aspects which the accused has contended that the present complainant had filed several similar cases for the offence punishable under Section 138 of N.I.Act against various other people as evidenced in Exs.D-4, D- 5 and D-6, suffice it to say that, observing these facts in detail, the trial Court has rightly acquitted the accused from the alleged offence. No interference is warranted in the said finding given by the trial Court.
25. Accordingly, I proceed to pass the following order:
ORDER The Criminal Appeal is dismissed. The judgment passed by the learned XXII Addl.Chief Metropolitan Magistrate & XXIV Addl.Small Causes Judge, Bengaluru City, in C.C.No.9296/2007, dated 09.08.2010, acquitting Crl.A.No.1206/2010 29 the respondent/accused for the offence punishable under Section 138 of N.I.Act, is confirmed.
Registry to transmit a copy of this judgment along with trial Court records to the trial Court without delay.
Sd/-
JUDGE bk/