Karnataka High Court
S Timmappa vs L S Prakash on 28 May, 2010
Equivalent citations: AIR 2011 (NOC) 77 (KAR.), 2011 ACD 355 (KAR) 2010 (3) AIR KAR R 207, 2010 (3) AIR KAR R 207, 2010 CRI. L. J. 3386, 2011 ACD 355 (KAR), 2010 (3) AIR KANT HCR 207, (2011) 2 RECCRIR 217, (2011) 1 NIJ 494, 2011 (4) CRIMES 554 SN
IN THE HIGH COURT OF KARNATAKA, BA1\TfGA§".;QI§E' " DATED THIS THE 28"' DAY OF MAY I BEFORE ' " * " ' THE HONELE MR. JUSTICE CRIMINAL APPE£;L__NOI4Q7'--OF 20%' ' BETWEEN : S.'I'1M1\/IAPPA s/0 DANDAFPA L AGE: 46YEARs " f FLOWERMER.CEI_ANT" ' ; CH1TRADUF<GA;;.I-' 'q=.."-..,.APPELL.ANT (BY sR1.E._s.:~j_'A' I ;D_ I AND'; L.s.PRA1<:AsH _ A _ S/_0..SUKA1\IANDAPPA EASAVESWARA STQ RES. NEAR »NEELAKANT'ESWARA TEMPLE » j_=C_H1TRADDRCA. RESPONDENT
~. EEBY S§{I_:_B.I§}§".'SIDDAPPA, ADV.) " 'THIS CRIMINAL APPEAL IS FILED UNDER SECTION I " .«378VV'CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT PASSED BY THE I ADDL. JMFC, CI-IITRADURGA IN 'C;C.N0.1353/1995 DATED 18.11.2005. ~ ACQUITING ACCUSED NO. 1/ RESPONDENT FOR THE OFFENCE P/U/S 138 OF N.I.AC'I'.
THIS APPEAL COMING ON FOR HEARING THIS DAY. THE COURT DELIVERED THE FOLLOWING:
.@/ JUDGME NT This appeal filed under Section 1 obtaining special leave from this Section 378(5) of Cr.P.'C._;"--~.V..is lldirectediagainst dtheif. Judgment and Order date(:1V:4.l:lll:p'£l._1~1_p.p2Ot}5V: passed by the First Additional JMFC: ,c.c.No. 1353/95, acquitting charge levelled against under Section 138ofNegotiahie"Ins-trnnierits [for short 'the Act'). filed private complaint under Ssjction 200' alleging offence punishable under »A of the Act against the respondent herein '- Ki,.R.;Vijaya Kurnar, inter-valia alleging that the are the partners of Chandana Finance 2 it 'Corporation, a registered Firm of partners; they lhorrowed a sum of Rs.1,30,000/-» from him as hand loan promising to repay the same within two months;
for repayment of the said loan amount they issued cheque bearing No.1i»479 dated _ Merchants Co-operative Bank, gQhitrad--ui*ga:;~.. .. said cheque was presented forA._en_;oas'hmen.t',"- was returned unpaid forflvant of 'suff1cientA{amou3ntint» the account; in spite of service._of..notice« as required by law, the accused the amount covered under the cheque they committed the aforesaid; off'en:c';e-.'1V;_ '' -I V' _' herein upon service of summons the learned Magistrate and p1epade.d not"gui1ty for the accusations made against him .A hand to be tried. As the summons and the = pcoercive_»e-_p1jocess issued from the court could not be sheryedg on accused No.2-«K.R.Vi}aya Kumar, on the it memo fiied by the complainant, the complaint came to dismissed as not pressed against the said K.R.Vijaya Kumar and the complaint was continued only against the respondent herein. In support of his case, the complainant examined herself as PW.1 and"'--.ia1so examined one more Witness as PW.2 and documentary evidence as per Exs.P1 to ' I
4. During his examination under Sectioil Cr.P.C. the accused ail circumstances appearing against him in the evidence of the complainant. In ~dAefence. _.t.h'e_jaccused examined himseif as a1so'.j_"--e§<__a:inined four other He produced Exs. DJ to 13.4.
The defence of was that at no point of time heiaiong yVithiVK.R;'Vijaya Kumar borrowed any money complainant as alleged and that the cheque in not issued by him for discharge of any debt other iiabiiity. It was also his defence that the it it cheqtie in question does not hear his signature and the signature appearing therein is a forged one. It was also ' his defence that he ceased to be the partner of Chandana Finance Corporation with effect from "2 X' }&:8/ ,1.-
5 8.8.1994 itself therefore there was no occasion for him to borrow the loan for the purpose of the K.R.Vijaya Kumar as such, the whole complainant that the amount; .for"hth«e purpose of the firm is false» and Q'
5. During the trialajthe'=.disputed_cheque was referred to a hand -.,examination and report. writing expert submitted that the signature found in the chequlexand the adrriittiedlllsignature of the respondent - acgggused tallie_syvith. each other and both the disputed signatures are made by one and the same a 'hand writing expert was examined as CW.1 "report came to be marked as Ex.C.1.
6. The learned Magistrate, after hearing both sides, and on appreciation of both the oral as well as documentary evidence, by the Judgment under appeal. held that the complainant has failed to prove the guilt of if;/' the accused for the aforesaid offence inasmuclfas the complainant has not placed any acceptable~«~eSIidenc§V"to show that he had lent a sum of to accused, therefore the accused j;no_t ': ' offence punishable under' S__ection_"l38 The learned Magistrate that the defence theory is unacceptable.
In that viewv of Magistrate acquittedT.the:t:":a;ccus.eVdV.'A it aggrieved by the said judgrnen.t ' the complainant has presented.thisV:app*eai~:-after obtaining special leave. service of notice of this appeal, the appeared through his counsel. 1 have learned counsel for the appellant as well as it 'the counsel appearing for the respondent. Perused the judgment under the appeal.
8. It is now well settled law that the appellate court while dealing with an appeal against the judgment 5'?
'E! , V -f f of acquittal cannot interfere with the said judgment unless it is shown that the judgment is contrary to the evidence on record or has omitted to consider any ma_terialz fexfidence 'placed. on ' record. As noticed above', 'it is the definite_rcasefiofvtther. complainant that the were partners of the» Finance Corporationand of Rs. 1,130,000/~ the amount, the cheque in H No doubt, the respondent disputecigtheigpuitportled signature appearing on the vc_hecjlue rnarlrledv---as"Ex.P. 1. However. the court below on V Lthe ..Tof--..the report of the hand Writing expert has it finding that the said defence cannot be accepted. The respondent has not seriously disputed it * ._the said finding recorded by the court below. Therefore, E the evidence on record indicates that the cheque in question-EX.P.1 bears the signature of respondent ~ accused and another K.R.Vijaya Kumar claiming to be 2'?
a the Managing Directors of Chandaria*«' Corporation. Even according to the the cheque relates to the account.__of ifirni. ' Apart from the cheque in question',' adni'ittAejcil.yVVt1tiere no other documents transaction.
According to they -cornplainant, the amount was borrovred' the business of the i'n__ was borrowed by the rifts. 'inquestion was purported to partnership firm. However the partners'hip~ not made an accused by the .f5'i11§3r1ainant.V'"' ' ----- --« * of the entire complaint do not indicate amount was borrowed by partnership firm.
" there is inconsistency and discrepancy in the case of the complainant in this regard. This has been seriously viewed by the court below to disbelieve the case of the complainant. No doubt, under Section 139 3a (2 of the Act there is a presumption that the holdejhof the cheque has received it for the discharge of liability. It is now well settled law by cate1i'aV.of of the Apex court and this 1 debt is not the subject .»matterV"oVf"'presut'fiption Section 139 of the Act. of the cheque has to prove"~the 'debt iiability and it is only upon of the debt, the presumptioti' Vofmthe Act to the effect that:"'th'e;_ issued for discharge of such debt be drawn. Of course, as per .__[a) "of'v----Section 118 of the Act, there is A Vi)1'esu;t1;;5tioV11--..that whenever a Negotiable Instrument is ' I__I1ade_ ¢ri'dr'awn it is so drawn or made for consideration. As clause (b) of Section 118 of the Act whenever a x'V_c_hfegot1ab1e Instrument bears a date, it shall be presumed that it was so made or drawn on such date. This court in the case of Shivamurthy Vs. Amruthraj reported in ILR 2008 KAR 4629 has held that by l0 combined effect of reading of clauses [a] of Section 1 18 of the Act would be whenever Instrument bears a date it hasmto be it has been so made or drawn' on"as:uch V date' a-:1_d'=;1Vfor consideration. It has been futther decision that if in a.given__c:ase_ _case of the complainant is paid on the purported the presumption under '-it Act that it is made or stood rebutted and it is for the 2 dtaavee cheque to prove passing of 'u"i.l€')':I1'_§_>_i--f1€17lEllZi01'l'.V ' ---------- ~ "
' « iifthe case on hand, the complaint is silent as to th-eppddate on which the alleged loan was advanced. In " 'ithne complaint, it is merely stated that the accused d' ibim~owed Rs.l,30,000/-- as hand loan from the complainant. The complaint do not state the date on which the complainant advanced the loan of ll Rs.l,30,000/- to the accused. According to the complaint averments, the cheque was issued. on 6.8.1995. Even in examination--in;¥cl1ie£._J:;_th.e complainant has not spelled outmthe loan was advanced. However in the.' 7cross+.eVxarnin.atici1, it is elicited from him"th--at loan' was'V:"adv.aI}Ced 9 6.1.1995. Perusal __ of ExV._I?;VVi»aci1eque"indicates that it bears the date 6.3. according to clause
(b) of" oftthe lA'ct.itv'vvas deemed to have been dravvn above. it is clear that no consideration :l;._as~.V_pa.slsed under the cheque Ex.P.l on 1_-9:95as Aevenaccording to the complainant, the loan 9 on 6.1.1995. Therefore, the presumption
(a) of Section 118 of the Act stood AA rebutted. The perusal of the evidence on record do not * sajtisfactorily establish that the complainant has lent a substantial amount of Rs.1,30,000/-- to the accused. As noticed above, except the cheque Ex.P.l, there is no other document evidencing advancement of loan of 12 Rs.1,30,000/--. It is highly difficult to ..a businessman like the complainant he a flower vendor and an exporter flowers-£9Wou_ld=.adyapnc;e "
a substantial amount of.»Rs__..1,3VO,.Ql00/-- any document to evidence such 'transaction. V}
11. Section Tax Act directs that any .. Rs.20,000/~«~ and of an account payee chetiliueli complainant the loan amount was in is violation of provisions of;S"ection 12'39"(ss)lof the Income Tax Act. In addition to complainant has not placed any evidence to ._ he had financial capacity to advance amount of Rs.1,30,000/--. Though the " Vicomvpllainant in his cross--examination has stated that holds a bank account in Merchants Co-operative T Bank, Chitradurga, he has not produced an iota of evidence tn show that he had substantial amount in his '13 bank account to lend. No evidence is prc:duiced*.,Aon record to show that the cornplainantfiisy '_ merchant and an exporter of" flow-arse.' 9 j learned Magistrate is justified doubtingttthgg. capacity of the complainanoto.
of Rs.1,30,000/--. *"if'hus not been able to satisfacto_1fiV'i'_',rA._V lending of Rs.1,3O,OG_b'/A'l;jctoV a*?vfiséd:f it 12,1 the.%contrary,_' the accused has placed oral as . as-. docurneritary evidence, which would pigfobabalise defence theory. Ex.D.1 IS a document have been executed by K.R.Vijaya Kumar ._ "tire"'oth,erf:partner in favour of respondent -- accused. to the contents of this document, the V * itsresnondent -- accused retired from the said firm with "effect from 8.8.1994 after settling the accounts of the firm. To prove the execution of Ex.D.1 accused has examined two witnesses who have attested this 57 M 14 document. No doubt Ex.D.1 is not written as paper but the signature of K.R.Vijaya on revenue stamps. DWS. 2 and who" be y attestors to this document have ' presence K.R.Vijaya Kur1iar*-..signedtl1is % course. the fact that respond'evnt"--.:g' accused retired from the said firm has to the Registrar of Firms as required legally it has to be presurnedp' continued as partner of the document would probabalise the contention of, "the respondent - accused that he éé'E1S;§'-Jffl to bnex"th--e~"partner of the firm from the date of V itself and therefore there was no occasion hirn borrow any money from the complainant. A Theffourt below accepting the defence theory has held if * ..that the complainant has failed to prove the guilt of the E accused. To satisfy myself about the correctness of the judgment passed by the court below, I have scanned the evidence placed on record. I am convinced that the 15 court below has properly appreciated the judgment of the court below is in acco1*c1a:iee"'vtrith and therefore there is no perversity'"in:'th'ejL1dgmen.t.*=
13. The learned counseifor the not a position to point beigggf Omitted to consider any record. Therefore, I do not with the judgment of respondent «-~-- accused.
In View I find no merit in the appeal: * .,1<;..t.Acc'ordin'g1y, the appeal is dismissed. §é/ Euése RS/*