Karnataka High Court
Sri Veeramaheswara Credit Co Operative ... vs Sri C H Veerabhadrappa on 30 January, 2013
1 Crl.A.No.112/2008
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 30TH DAY OF JANUARY, 2013
BEFORE
THE HON'BLE MR. JUSTICE A.S. PACHHAPURE
CRIMINAL APPEAL No.112 OF 2008
BETWEEN:
SRI VEERAMAHESWARA CREDIT
CO-OPERATIVE SOCIETY LTD.
REGISTERED UNDER THE
KARNATAKA CO-OPERATIVE SOCIETIES ACT
REP. BY ITS ASSISTANT & AUTHORITY HOLDER
D M MANJUNATH
S/O PARAMESHWARAIAH
AGED ABOUT 43 YEARS
R/O P J EXTENSION
8TH MAIN, DAVANAGERE.
... APPELLANT
(BY SRI: REVANNA BELLARY, ADV)
AND:
SRI C H VEERABHADRAPPA
MANJUNATHA PHOTO STUDIO
P B ROAD, DAVANAGERE.
... RESPONDENT
(BY SRI B M HALASWAMY, ADV)
THIS CRL.A. IS FILED UNDER SECTION 378
CR.P.C AGAINST THE JUDGEMNT AND ORDER OF
ACQUITTAL DATED 01.10.2007 IN C.C.NO.1391/06 ON
THE FILE OF THE JMFC-II COURT, DAVANAGARE-
ACQUITTING THE RESPONDENT/ACCUSED FOR THE
2 Crl.A.No.112/2008
OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I.
ACT.
THIS CRL.A. COMING ON FOR HEARING, THIS DAY
THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T
The appellant has challenged the judgment and order acquitting the respondent for the charge under Section 138 of Negotiable Instruments Act (hereinafter referred to as 'NI Act' for short) on a trial held by JMFC, Davangere.
2. The facts relevant for the purpose of this appeal are as under:
The appellant is a co-operative society and it is its case that the respondent borrowed a sum of Rs.20,000/- on 07.04.2000 by executing the loan documents. He agreed to repay the said amount with interest in equated monthly installments. The sum of Rs.27,170/- was due. On repeated demands by the officials of the 3 Crl.A.No.112/2008 appellant, a cheque is said to have been issued by the respondent bearing No.314189 dated 17.12.2005 drawn on Davangere Urban Co-operative Bank. The cheque was presented for encashment and it returned with an endorsement of insufficient funds. The appellant issued notice and as it was not replied, he approached the Trial Court with a complaint under Section 200 Cr.P.C. to initiate action for the offence under Section 138 of NI Act.
3. On appearance of respondent, the Trial Court recorded the evidence of PW1 - D M Manjunatha, an official of the appellant and in his evidence documents Exs.P1 to P9 were marked. Statement of the respondent was recorded under Section 313 Cr.P.C. He has not entered the witness box but got marked Ex.D1 the certified copy of complaint in CC No.1225/2005. The Trial Court after hearing the counsel for parties and on appreciation of the material on record, 4 Crl.A.No.112/2008 acquitted the respondent for the said charge. Aggrieved by the acquittal, the present appeal has been filed. During the pendency of appeal, the appellant has filed an application under Section 391 Cr.P.C. seeking permission to produce as many as 6 documents.
4. Heard the learned Counsel for both the parties.
5. It is submission of learned Counsel for the appellant that signature on the cheque is not in dispute and as it was issued towards repayment of dues to the co-operative bank, the Trial Court could have raised presumption and as there is no material on record to rebut the said presumption, he submits that the Trial Court could have held the respondent guilty. He also submits that the loan document pertaining to respondent was produced and as they are necessary documents, to do justice to the 5 Crl.A.No.112/2008 parties, he submits to remit the matter back to the Trial Court.
6. On the other hand, learned Counsel for the respondent submits that the document - Ex.D1, copy of complaint reveals that the complaint was filed against the respondent by the appellant in CC No.1225/2005 and as the payment was made and nothing is due from the respondent, he contends that as the notice was not served, the Trial Court has rightly found that the presumption which arose has been rebutted from the material placed on record.
7. It is relevant to note that the appellant is a co-operative society and it is its case that a sum of Rs.20,000/- was advanced to the respondent as loan. As could be seen from the allegation in the complaint - Ex.D1 the date of cheque drawn is mentioned as 15.12.2004 whereas the cheque produced in the present case 6 Crl.A.No.112/2008 is dated 17.12.2005 to mean that there were two different cheques pertaining to two different cases. It is the submission of learned Counsel for the appellant that the son of respondent has raised loan for which the respondent was surety and CC NO.1225/2005 pertains to the said transaction. As the respondent had issued the cheque for repayment of the dues for which the son is principal debtor, CC No.1225/2005 pertains to the transaction of respondent's son and therefore, he claims that the Trial Court committed an error in granting an order of acquittal on the ground that Ex.D1 pertains to the same transaction.
8. As there are two different cheques in both the criminal cases and the signature on the cheque - Ex.P2 is not in dispute, a presumption arises under Section 139 of NI Act to the effect that the cheque was issued towards repayment of dues. Anyhow, to rebut the said presumption 7 Crl.A.No.112/2008 though the respondent has placed reliance on the document Ex.D1. Subsequent to filing of this appeal the appellant has produced the documents i.e., copy of loan application/sanction order, copy of loan agreement, copy of promissory note and the copy of revenue receipt. Perusal of these documents would reveal that the respondent has raised loan of Rs.20,000/- but anyhow, these documents will have to be proved by the appellant in accordance with law. As the appellant is a co-operative society, it appears that in the interest of justice, the matter requires remittal.
9. So far as service of notice is concerned, the Trial Court has observed that on the acknowledgement - Ex.P7, the address of respondent is on a piece of paper which has been pasted. Therefore, it appears that it is not accepted as Ex.P7 is a document to prove the service of notice to respondent, but anyhow the 8 Crl.A.No.112/2008 endorsement made by postal official to obtain the signature of the addressee, the words referred to therein are on both the acknowledgment and also on pasted address. Hence, an inference could be drawn that the address was pasted prior to the endorsement made by the postal official under Ex.P7. This circumstance will have to be considered by the Trial Court while disposing of the matter after remittal. Anyhow, as the appellant contend that there are two transactions, one in the name of respondent and another in the name of his son, it is necessary to consider the said aspect afresh and dispose of the case in accordance with law.
10. In the result, the appeal and interim application filed under Section 391 Cr.P.C. are allowed. The impugned order acquitting the respondent for the charge under Section 138 of NI Act is set aside. The matter is remitted 9 Crl.A.No.112/2008 back to the Trial Court with a direction to afford an opportunity to both the parties to lead evidence and dispose of the case in accordance with law.
To avoid the delay, both the parties are directed to appear before the Trial Court on 28.02.2013 without waiting for any notice.
Sd/-
JUDGE *bgn/-