Karnataka High Court
Sri Dadapeer vs Sri Munavar Sab on 23 May, 2022
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF MAY, 2022
BEFORE
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO.1758 OF 2016
BETWEEN
SRI DADAPEER,
S/O. AMMASHASAB,
AGED ABOUT 64 YEARS,
R/O. TURCHUGATTA VILLAGE,
DAVANAGERE TALUK & DISTRICT - 577 002. ... APPELLANT
[BY SRI. H.N. BASAVARAJU, ADVOCATE]
AND
SRI MUNAVAR SAB,
S/O. MUDDINSAB @ MOHIDDIN SAB,
AGED ABOUT 46 YEARS,
OCC: OWNER OF MUNAVAR LORRY
GARAGE AND MECHANIC,
R/O. APMC BEHIND ONION MARKET
AND NEAR BILAL MASCHID COMPOUND,
DAVANAGERE - 577 002. ... RESPONDENT
[BY SRI. V.P. KULKARNI, ADVOCATE]
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
DATED 20.08.2016 PASSED BY THE J.M.F.C.-III COURT,
DAVANAGERE IN C.C.NO.849/2015-ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 138 OF N.I. ACT.
2
THIS CRIMINAL APPEAL COMING ON FOR ADMISSION,
THROUGH VIDEO CONFERENCE/PHYSICAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is an appeal filed by the complainant challenging the judgment and order of acquittal passed by the trial Court in respect of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881.
2. Heard both the side and perused the material on record.
3. The case of the complainant is that he was well acquainted with the accused. During November 2014, the accused approached him for financial assistance to the tune of Rs.2,75,000/-, agreeing to pay the same within a month and in discharge of the said liability issued a cheque bearing No.032514 dated 26.12.2014 drawn on Scrap Merchants Credit Co-operative Society Limited. When the said cheque was presented for encashment to the complainant's banker, 3 the same was returned on the ground of 'insufficient funds' in the account of accused. Thereafter, a legal notice was issued calling upon the accused to make good the payment. However, the accused failed to honour the cheque amount within the stipulated time and therefore committed an offence punishable under Section 138 of N.I. Act.
4. It is the contention of the learned counsel for appellant that the accused has admitted his signature in the cheque and hence, there is a legal presumption available in favour of the complainant. He contends that the accused has failed to rebut the said presumption by leading any independent evidence. He contends that the trial Court has erroneously acquitted the accused, holding that the complainant has failed to prove his financial capacity as well as taking into consideration irrelevant aspects. He contends that when once the accused has admitted the signature in the cheque and failed to rebut the presumption available in favour of the 4 complainant under Sections 118 and 139 of N.I. Act, the trial Court ought to have held the accused guilty of the offence punishable under Section 138 of N.I. Act.
5. The learned counsel appearing for respondent has argued in support of the impugned judgment. He has contended that there is absolutely no transaction between the complainant and the accused. The cheque was issued towards security in respect of a chit business, to one Lathif Khan in the year 2010. The same was misused by the said Lathif Khan in collusion with the complainant. He has drawn the attention of the Court to the admission made by the complainant in his cross- examination, wherein he has stated that he is a BPL card holder and therefore contends that the trial Court was justified in holding that the complainant had no financial capacity to lend a huge loan of Rs.2,75,000/-. He contends that the initial burden lies on the complainant and mere dishonour of cheque itself will not lead to a conclusion that the said cheque was issued by the 5 accused towards any legally enforceable debt. He therefore contends that there is no illegality committed by the trial Court. Accordingly, he seeks to dismiss the appeal.
6. In order to establish the case, the complainant has got himself examined as PW.1 and got marked Exs.P1 to P8. The accused has got himself examined as DW.1 and he has got marked the documents Exs.D1 to D4.
7. Though a contention was raised by the defence before the trial Court that the notice issued to the accused was not received by him, the trial Court after due verification and examination of the material on record has come to the conclusion that signature on Ex.P5 i.e., the postal acknowledgment tallies with the signature on Ex.P1 cheque as well as Ex.D2 and therefore, was of the view that the legal notice issued by the complainant to the accused was duly served on his 6 working address. The said finding recorded by the trial Court does not call for any interference.
8. Insofar as the cheque in question is concerned, the same is marked as Ex.P1. According to complainant, he was well acquainted with the accused and for business purpose and household necessities, the accused approached him for a loan of Rs.2,75,000/- assuring him to return the said amount within a month with interest at the rate of 2%. The said transaction is alleged to have taken place in the month of November 2014, to be precise on 15.11.2014. In his evidence, PW.1 has stated that after a month when he approached the accused to return the amount, the accused issued the cheque in question dated 26.12.2014 stating that he would give the interest amount after some time.
9. It is relevant to see that even though the complainant has stated that on 15.11.2014, a sum of Rs.2,75,000/- was advanced to the accused, there is not a single piece of document which has come in existence 7 on the said date. The complainant who is examined as PW.1 has admitted in the cross-examination that with regard to the interest amount there is no document executed and Ex.P1 was issued only for the principal amount. In the cross-examination, PW.1 has admitted that while advancing such a huge loan he has not taken any security from the accused. He has specifically stated that he is a BPL Card holder. In that view of the matter, the findings recorded by the trial Court doubting the financial capacity of the complainant cannot be said to be erroneous.
10. Learned counsel for appellant would place reliance on a decision of the Hon'ble Apex Court reported in (2008) 4 SCC 54 to contend that the financial ability of the complainant to issue cheque to the accused is not a matter to be considered. In the said decision the issue of the cheque and its dishonour was proved by the complainant beyond reasonable doubt. In the present case, the issuance of cheque towards any legal 8 enforceable debt by the accused to the complainant cannot be held to be proved beyond reasonable doubt.
11. It is no doubt true that the accused has admitted that the cheque belong to him and not disputed his signature on the cheque. The defence taken by the accused is that the said cheque was handed over to one Lathif Khan towards security in connection with a chit business in the year 2010. The accused has not examined the said person by name Lathif Khan. It is contended by the learned counsel for the accused that the said person has colluded with the complainant and therefore even if he was examined he would not have thrown any light with regard to the actual transaction. He has drawn the attention of the Court to Ex.D3 i.e., the bank endorsement which shows that the alleged cheque was issued by the bank on 29.06.2010 which supports the defence taken by the accused that the cheque in question was in fact issued in the year 2010. Another aspect is that according to the complainant the 9 contents of the cheque was filled by the accused. In the course of cross-examination of PW.1 i.e., the complainant when it was suggested to him that the signature on the cheque - Ex.P1 and other writings are in different inks, he has denied the same. However, the trial Court having carefully examined the cheque in question has found that the contents of the cheque except the signature was not written by the accused as there is difference in writing. Hence, the claim of the complainant that the accused himself wrote the amount and other contents of the cheque appears to be doubtful. Though the contents of the cheque can be filled up by any person, however, in view of the specific stand taken by the complainant that the contents of the cheque was written by the accused himself and the trial Court having found difference in the ink, writing etc., the complainant's case that the accused obtained a hand loan of Rs.2,75,000/- from the complainant and issued a cheque for the said amount in discharge of a legally 10 enforceable debt cannot be held to be proved beyond doubt.
12. The learned counsel for the appellant has relied on a decision of the Hon'ble Apex Court reported in (1999) 7 SCC 510, to contend that when the signature in the cheque is admitted to be that of the accused the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration. The said proposition is well settled but the statutory presumption mandated by Section 139 of the Act is in the nature of rebuttable presumption and it is open for the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested, the same can be either by leading evidence or by effective cross-examination of the complainant. The presumption in favour of the complainant has been rebutted. In the instance case, the complainant has failed to prove the existence of a legally enforceable debt. This being an appeal against an order of acquittal, 11 I find no illegality committed by the trial Court to reverse the findings recorded. The impugned judgment does not require any interference. Accordingly, the appeal is dismissed.
SD/-
JUDGE HB/-