Karnataka High Court
Sri.Ramdas Kelu Naik vs Sri.Ashok Ganapati Shetty on 3 January, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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CRL.A No. 100222 of 2016
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 03RD DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO. 100222 OF 2016
BETWEEN:
SRI RAMDAS KELU NAIK,
AGE: 75 YEARS, OCC: BUSINESS,
R/O: NANDANGADDA,
TQ: KARWAR.
...APPELLANT.
(BY SRI V. M. SHEELVANT, ADVOCATE.)
AND:
SRI ASHOK GANAPATI SHETTY,
AGE: 51 YEARS, OCC: BUSINESS,
R/O: RAMASHRAMA ROAD,
KARWAR.
...RESPONDENT
(BY SRI HAREESH S. NAYAK, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF
Digitally signed by
SUJATA SUBHASH
PAMMAR
CR.P.C., PRAYING TO SET ASIDE THE JUDGEMENT AND ORDER OF
Location: HIGH
COURT OF
KARNATAKA,
ACQUITTAL DATED 31.03.2016, PASSED BY THE JUDICIAL
DHARWAD BENCH,
DHARWAD. MAGISTRATE FIRST CLASS, II COURT, AT KARWAR, IN CRIMINAL
CASE NO.419 OF 2010, ETC.,.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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CRL.A No. 100222 of 2016
JUDGMENT
This appeal is filed by the appellant-complainant under Section 378(4) of the Code of Criminal Procedure, challenging the judgment of acquittal dated 31.03.2016, passed by the JMFC, 2nd Court, Karwar, in C.C.No.419/2010 by acquitting the accused-respondent herein for the offence under Section 138 of Negotiable Instruments Act, 1881.
2. The brief factual matrix leading to the case are that, the complainant is the permanent resident of Karwar and he is doing real estate business. The respondent- accused is also a businessman doing share marketing of commodity and equity share business.
3. It is further asserted that both the accused and the complainant came in contact in respect of their business and the accused asked the complainant to join his business with an assurance to give Rs.15,000/- per month, in case he invests Rs.1,50,000/- in the business. Accordingly, the complainant invested Rs.1,50,000/- by -3- CRL.A No. 100222 of 2016 paying the amount to accused through cheque. But as per the agreement, the accused did not pay the monthly profit of Rs.15,000/- as well as the investment amount. The complainant demanded for repayment of his amount. It is alleged that on 14.12.2019 the complainant has issued a cheque bearing No.94137 for Rs.1,50,000/- drawn on Axis Bank Ltd., Branch Shan Complex, Green Street, Karwar, towards discharge of legally enforceable debt in respect of the investment made by the complainant. The complainant is said to have presented the said cheque and it was bounced for insufficient funds and subsequently, in spite of issuance of legal notice, the amount was not repaid. Hence he submitted a complaint under section 200 of Cr.P.C.
4. The learned Magistrate after recording sworn statement of the complainant, taken cognizance and issued process against the accused. The accused has appeared and he was provided with all the copies of prosecution papers. He denied the accusation. -4- CRL.A No. 100222 of 2016
5. Then the complainant was examined as PW.1 and Branch Manager of the bank was examined as PW.2. The complainant has got marked Exs.P.1 to P.5. After completion of the evidence of the complainant, the statement of accused under section 313 of Cr.P.C. was recorded and the case of the accused is of total denial. The accused also got examined himself as DW.1 and got marked Ex.D.1 in the cross-examination of PW.2 and also placed reliance on Ex.D.2.
6. After hearing the arguments advanced by both the parties, the learned Magistrate has found that the complainant has failed to establish that the cheque was issued towards legally enforceable debt and hence acquitted the accused for the offence punishable under section 138 of the Negotiable Instruments Act, 1881. Being aggrieved, this appeal came to be filed by the appellant-complainant.
7. Heard the arguments and perused the records. -5- CRL.A No. 100222 of 2016
8. Having heard the arguments and perusing the records, it is evident that the complainant is asserting that he has invested Rs.1,20,000/- in the business run by the accused and accused has promised to pay Rs.15,000/- per month, but he did not pay the amount and when demanded repayment of the invested amount, the disputed cheque as per Ex.P.1 came to be issued. There is no dispute of the fact that Ex.P.1 cheque belongs to accused and it is signed by the accused. Hence, there is initial presumption in favour of the complainant under section 139 of the Negotiable Instruments Act, 1881, regarding issuance of cheque towards discharge of legally enforceable debt. However the accused has set up a specific defence that the complainant has only invested Rs.1,20,000/-, and he has issued a cheque for Rs.1,50,000/- on 14.12.2009. However the complainant has received another cheque bearing No.94139 dated 21.12.2009 asserting that the cheque under Ex.P.1 was lost by him. He would also contend that the second cheque -6- CRL.A No. 100222 of 2016 issued bearing No.94139 was honoured and Rs.1,20,000/- was credited to the account of the complainant.
9. However, during the course of cross-
examination, PW.1 complainant has denied this aspect for having received Rs.1,20,000/-. But during the course of cross-examination of PW.2 who is the Bank Manager, Ex.D.1 was confronted to him and PW.2 has specifically admitted that Rs.1,20,000/- cheque was encashed and amount was credited to the account of the complainant on 22.12.2009. This is again evident by Ex.D.1 which is the bank statement which disclose that Rs.1,20,000/- was credited to the account of the complainant by deducting from the account of the accused on 22.12.2009. It is not the case of the complainant that he had two different transactions with accused.
10. The specific contention of the complainant is that he had invested Rs.1,50,000/- and towards repayment of that amount, the disputed cheque came to be issued. But it is the specific contention of the accused -7- CRL.A No. 100222 of 2016 that the complainant has only invested Rs.1,20,000/- and that amount has been repaid by cheque bearing No.94319 dated 21.12.2009, which was issued subsequently. The records disclose that Rs.1,20,000/- which is claimed to have been invested by the complainant was already received by him on 22.12.2009. But the complainant went on disputing this aspect during his evidence and this aspect is again proved by the accused through Ex.D.1 and by cross-examining the witness of the complainant PW.2. Hence it is evident that the complainant has not approached the Court with clean hands and he tried to mislead the Court.
11. No doubt the presumption is in favour of the complainant in respect of the cheque amount of Rs.1,50,000/-. However the complainant has also admitted that the signature on Ex.P.1 is that of accused but the cheque is in the handwriting of complainant. That means it is evident that he himself has filled the contents of the cheque. No doubt there is no bar under section 118 of the Negotiable Instruments Act, 1881, but the -8- CRL.A No. 100222 of 2016 subsequent events disclose that he received another cheque for a sum of Rs.1,20,000/- and got it encashed in respect of the same transaction.
12. It is not the case of the complainant that he has invested different amounts and the second cheque is issued for Rs.1,20,000/- pertaining to a different transaction. The accused is required to rebut the presumption available in favour of the complainant on the basis of preponderance of probabilities but not as the burden casted on the complainant regarding proof beyond all reasonable doubt.
13. In the instant case the admission given by PW.2 as well as Ex.D.1 clearly establish that the complainant has received the transaction amount from the accused and subsequently he presented the cheque in issue under Ex.P.1. Since there are no two transactions between the parties, question of issuing two cheques in favour of the complainant does not arise at all. The defence of accused is more probable.
-9-CRL.A No. 100222 of 2016
14. The learned Magistrate has appreciated all these aspects in detail and analyzed the oral and documentary evidence in detail. Even in the cross- examination of DW.1 a fatal suggestion has been made on behalf of the complainant in the last paragraph suggesting that the second cheque for Rs.1,20,000/- was issued as the earlier cheque was not available with the complainant. The suggestion reads as under:
"£Á£ÀÄ ZÉPÀÌ£ÀÄß ¥Éæ¸ÉAl ªÀiÁqÀĪÀAvÉ ºÉýzÁUÀ D ZÉPÀÄÌ E®è ¨ÉÃgÉ ZÉPÀÄÌ PÉÆqÀĪÀAvÉ ºÉýzÀÝjAzÀ £Á£ÀÄ ¨ÉÃgÉ ZÉPÀÌ£ÀÄß ¤ÃrzÉ. D ZÉPÀÄÌ ¥Á¸À DVzÉ CAzÀgÉ ¸Àj."
15. This suggestion itself clearly establishes that there was only one transaction and the second cheque was issued in respect of the transaction covering the first cheque itself. The learned Magistrate considered all these aspects in detail and appreciated the oral and documentary evidence in detail and arrived at a just decision. The judgment of acquittal passed by the learned Magistrate cannot be said to be erroneous or illegal so as to call for any interference by this Court.
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CRL.A No. 100222 of 2016
16. Under such circumstances, the appeal being devoid of merits, does not survive for consideration. Accordingly I pass the following:
ORDER
i) The appeal is dismissed by confirming the judgment of acquittal dated 31.03.2016, passed by the JMFC, 2nd Court, Karwar, in C.C.No.419/2010.
ii) Send back the records to the Trial Court along with copy of this judgment.
Sd/-
JUDGE SSP,MRK List No.: 1 Sl No.: 39