Karnataka High Court
Sulaiman Faizi vs Sri Sulaiman on 9 August, 2010
Author: Huluvadi G.Ramesh
Bench: Huluvadi G.Ramesh
" _ Sri§eS'a1ai_1Vi'1aD, IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 09" DAY OF AUGUST zoiijj A' x BEFORE THE HON'BLE MRJUSTICE T CRIMINAL APPEAL NQ.1363m: 296$ T BETWEEN: O O Sulaiman Faizi, S/0 Ismail Faizi, A _ Aged51 years,_, » _ - R/0 Kaniyoutof K;é;1iyana'* viilhage post; Bantwa1Ta1=i1k, b D.K.Distrigt-574:ri9V. % «A ...APPELLANT (By Sri.LvG.Ratvis1iae:ikar sha§ti<y,~iAdv.) AND: O it , sip Ibrahim, 'i\.«iaj'or."i2,/0 _Ni.t_iyaje, ;Ar;ytadka'D'=y,ii1agc"& post, Puttur Ta.1uig ' D.K.iz)istriCt~574205. ..RESPONDENT
it AAV(By.«Sri:D.Krishna Moorthy, Adv.) This Criminal Appeal is filed under Section 378(4) of O Cr.P.C. praying to set aside the judgment dt.13.7.07 i.n C.C.N0.2213/()3 on the file of the C.J.(Sr.Dn.) & JMFC, 9*' Bantwal, D.K. --- acquitting the respondent/accused for offence PfU/S138 to l42 of N.i.Act. -
This Criminal Appeal coming on for hearing H Court delivered the following:
This appeal is by the complaii:.ant beinig -by -the order of acquittal passedbyyppthe iludrge (Sr.aDn..) &i§}MFC., Bantwal, in c.c.No.2213/0&3} A "
2. The,' app~ellat1tsx,4_s'a1dptophaye' lent an amount of Rs.l,00l;v0O(}/4 inlvconnection-__ with the transaction between himself and «-the.resporzdentfiowards timber business. Ex.I3l is «._saidp_j the a5gre«e:1_1_ent wherein it is specifically mentioned of amount to the respondent by way of cash, as against. two cheques were issued by the respondent as security,__ 3 There is also an undertaking between the parties that it _out.f*of the profit amount, 60% would be given to the
-rvcomplainant and 40% would be retained by the accused. Subsequently, due to non--performance of the contract or due to Jfu' 3 some misunderstanding between the parties' when the cheques were presented for encashment, they were dishonoured. Ultimately, the complainant approached the Bantwal by filing a private complaint. The learned after taking cognizance of the offenceiilaiid. after passed an order of acquittal. Hence, this appi4e.a1:"._i
3. It appears, as ,1;/er Ex,Dl:f "the"-»a_gree1u;er1.t between the complainant and the resr5ondent.,isfto itlrreeiftfect that out of the profit amount in the. tirrtberz. the complainant has to get 60% the'profi: has to be retained by the accused. In so far as ibo_4rro.wing_ the'..'amount by the accused is concernedy < tv.T§'i'~chefiue_s haye «be_e_nvissued wherein EXD1 is the proof of it. A
5. According to the learned Counsel for the appellant, ii although an amount of Rs.'E lakh has been received by cash by the accused, the trial Court has held that the transaction under Jffiw which the cheques were issued was not established by the complainant and the said inference is erroneous as against Section 139 of the Negotiable Instruments Act. Even vanjiotapof evidence is not produced for having returned $he_.ainouln't»:'b_y ti'-re accused and also the issuance of cheques has been admitted. V Even as per the endorsement made on tl-ieichecgiueswithi'regard, to the date, it speaks to the fact'~th'at there'----isi no iovervvriting on the cheques. Even theeonclusion'iarrivedpat byitheiiitrial Court that the presentation of the' is'~.ti1rie: barred} also cannot . be acceptedf Ac_cor:dingly',__ subrnittedvi that there was a transaction'betvvee-:1"the"'eoir;pia.inant and the accused and there is a lega1ly.._4enforcealjle" and initial presumption is there in < fa,v'durE the' cornpl.a_i_nant and there is no tampering and sought V =for'to '(:r,):_nt\/iiletpgitlie accused. In support of his contentions, iti1ellilearvn_ediCounsel appearing for the appellant has relied upon the decision reported in AIR 2010 SUPREME COURT 1393 case of Rangappa Vs. Mohan and also another decision ii = .. this Court reported in 2006(3) AIR Kar R 14 in the case of Dr.Sampathkumar.B.V. Vs. Ms.Dr.K.G.V.Lakshmi to Jfx 6 submitted that there is no scope for interference in the order of acquittal passed by the trial Court. in support of his contentions'! he has also relied upon the decision reported in (2003)1 Supreme Court Cases 1 in the case of K.G.Raghavan Nair to contend that, unless"_the:.fin_diiigsC' trial Court are perverse or contrary to the_irnaterial'Aon,_':record, High Court cannot, in appeal,.4_ substitute its ni;_erely:', because another contrary opinion"was_possibleon the basis of the material on record.
In'th.ei"l1.gb,t:'theargtunents advanced, the point that would arise_4f"or consi1'derat:_i.on is, whether the order of the trial ~. ,_ Court 'acquitting .th_€.. accused requires interference? l' 8._ the outset, it is seen that, though the trial Court has accepted'1~ the version of the complainant that the cheques are being signed in Kannada etc., on the ground that transaction for ..,_..'.ivhich the cheques are issued is not established by the complainant"; has thrown the burden on the complainant Jr"
neglecting the fact that the burden is on the accused to disprove the transaction. Section 139 of the N.I.Act provides for initial presumption. The Apex Court in the case of Rangap:pa_lV_s. Mohan referred to supra reported in AIR 2019;': Sciis9"si ~ held that, 'the presumption mandated by'-Secti4on_.l'i39 ithej.Aii'c--t it does indeed include the existence of legaibi enforceable liability. This is?) of course 1, iirlitlie nature'oi°.= ahrebuttable it presumption and it is open toiithe: acpcuised to raise a defence wherein the existence ofHa_le.gail_y eni"orceéi1bie--' debt or liability can be contested.Elioweza(er;_there:_4'can be-n'o doubt that there is an initial presurinpfioin favours the complainant. Section 139 of the tAclt..is$i'aniexam;_p'le of a reverse onus clause that has be,eii:. inciuded in«furtherance of the legislative objective of I thejcredibility of negotiable instruments'. " 9V._i3in the case on hand, as per Ex.Dl, the agreement dated 22_.4n§02 said to have been entered into between the parties,
2 ...--depicts the fact that an amount of Rs.1,00,000/-- has been paid by the complainant to the accused for which two cheques were J!"
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issued as a security; as per the contents of the agreement. The transaction is of the year April 2002. The contentions raised by the accused is that, the cheques which were given as er by him have been misutilized subsequently, by 0' Admittedly, the letter issued by the ?;C0lJS6d pt1epietsileth'e faetipthet some business has been carried outin ltirnber out opf'-the; profit amount' 60% had to be to the 40% it to be taken by the accused;t~,_ If_ for .,.ian,y reason or for misunderstanding betWeen,:'_the"cpartiest,'or_'j_dVue to incapable performanceot 'there tis"'aVb1'each of contract, it is for the.._Aaccused'u:o'- 'amount. Admittedly, when the cheques vtiereh issued it was for the accused to make payment anglto collect the cheques back. When the cheques so issued ' were ~pretsf:nted_ for encashrnent and when they were was a legally enforceable debt, in the absence of any evidence to the contrary to say that the accused has made Vflpayrrtent either earlier or subsequently before presentation of the cheque to the bard<. In the decision reported in 2006(3) AIR KAR R 14 referred to above, this Court has held that, the «W 9 dismissal of the complaint on the ground that cheque was issued only as a security and that no prosecution would lie against the accused is untenable. The accused although let in evidence, has not produced any material to the effect that returned back the amount as he has collected by . agreement at Ex.D.1. ._
10. So far as the dates on the clliegiues.._arei"concernE::d; though the trial Court has 'iop'ined that --~iWere».i' presented after six months andvpet-he_re--.is'--»a overwriting etc., it is seen that-. an.ieindersernem'-.has' been made by the accused regardingiisoémev correctionsii\.'carried out by the accused in respect ofV_'d5ate.__ii' Apart ifi'orn___that, even assuming that the accused has V given ava¢naq.1;e after his signature without mentioning the date andiiiotheri'ipatiiculars and subsequently, the dates are being enteredvgby the complainant or his agencies, when there is an A' agreement in existence between the parties regarding the _,._.transaction of receiving of amount and/when the accused has not placed any material for having returned the amount W. E0 necessarily, those cheques are to be treated as issued towards the legally enforceable debt as per Section B9 of the lV\.F.-_I_.Act, though it is mentioned as security. The accused rebut the presumption. When the issuance"__of.._chequesT' K V' admitted and in the absence of non;.--retu_ifn ofgtheli atr1o.untl,"jity_ immaterial whether the date on' the cheques wasvahezted and uthej' , endorsement made on the alterations.V¢by thesiaccusegd himself validates the cheque on date :ofl.;ji*eseritation of the cheque and} for dishonou: of cheq--uesV'an.d__ no.fi§lpaym_ent by the accused, he. ha's .4to?Ibe'._neces_sa:ily--._held guilty for the offence. ll.lThe .learned._Co:u:1se1 for the 1'espondent~accused has als»o~l'.:.reliedVVy_ up.on"«tb_e___decision reported in 1999(1) CR 683 case of Balaji Seafoods Exports (India) Industries Ltd., to contend that the cheques were "issued only as a security and there was no legally enforceable debt. In the case on hand, the above citation cannot V. be Hmde applicable as acceptance of the amount is mentioned in 959» the agreement and} issuance of cheques once signed; whether JP'