Karnataka High Court
Sri Venkatesh Bhat A vs Sri Rohidas Shenoy on 3 August, 2009
Equivalent citations: AIR 2010 (NOC) 301 (KAR.), 2010 CRI. L. J. 1061, 2010 (1) AIR KANT HCR 304, (2010) 3 CIVILCOURTC 520, (2011) 3 KANT LJ 331, (2011) 1 NIJ 427, (2011) 4 CRIMES 39, (2010) 3 RECCIVR 59, (2010) 4 BANKCAS 507, (2010) 3 ICC 148, (2010) 3 ALLCRILR 132, (2010) 3 RECCRIR 107, (2010) 2 CRIMES 631
Crl.A.NO.1166 2008 % ?f5&%"s-"W E
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS TI-IE 3RD DAY OF AUGUST 2009
BEFORE V 4
THE I-ION'BLE MR.JUSTICE ARALI NAOARAE.' A'
Criminal Aggeal No.1166[20% ?":.:,..Vv ' L. %
BETWEEN: « . -1' .
SR1 VENKATESH BI-};A'I'.A
S/O A.VAMAN BHAT
AGE: ABOUT 41 YEARS
"PAVAMANA", D.NO.1--2--75F
KUNJIBETTU =
UDUPL02 --_ .';ApPELLANT
[BY SR1 K.A.ARIGA,ADv0cATE:3._ A
SR1 ROHIDAS SHENs'§'-if * _ ..
S/O HURENDRA SHEEOY __
AGE: ABOUT-53~YEARS " , .« "
BEST co COMf?I.EI>i_ _ ._
MARUTR1 viEETHIEA ROAD
» ;;DUr§: 576 10.1 ..... _. « "RESPONDENT
SRZ ADVOCATE.)
_ '¥'_TH1Si"'cRL{'Av.E'IS FILED U/S.3'78(4} OF CR.P.C. PRAYING
To SET ASIDE" THE JUDGMENT AND ORDER DATED
O6.10';«200,8' PASSED BY THE III ADDL. C.J. {JR.DN.) & JMFC,
LUDUPI, .. "IN C.C.NO.5384/2007 -- ACQUITIING THE
«.REsPONDENT/ACCUSED FOR THE OFFENSE P/U/S. 138 OF
' _N,.IA;ACT.
THIS APPEAL COMING ON FOR FURTHER ARGUMENTS
DAY, THE COURT DELIVERED THE FOLLOWING:
r'---5'~,-~""'
Crl.A.N0.116 2008
J U D G M E N T
This appea} is by the complainant in Criminai Case No.5384/2007 on the fiie of the learned' Additionai Civil Judge [Jr.Dn.} and ' (hereinafter referred to as the 'Triai 'C'mp_:.r'tp' fordgdslhorit}; The appe11ant--comp1ainant has appeal the correctness of the"'judgment._a11d'.= of acquittal dated 06.10.20..Q8 jii1._p.the said case acquitting the respondentgfaccufsed offence under Section 138 of' 'Neg_otiIa'o'ie"In:strum.ents Act, 1881 [hereinafftery for short).
2. Stated' in brief' of the complainant Ihereitiafter parties: are referred to as per their rank Court) as alleged in his complaint filed of Cr.P.C. against the accused, is as ' under: H AA 'd"'{a) H"I'he accused agreed to purchase two shop premises belonging to the complainant bearing D.No.9--4-62E situate in the ground floor of the building known as 'Best-Co Complex' in Udupi (_~_' Cr/.A.No.1 166 2008 town for a total consideration of Rs.23,50,000/--. Accordingly, the complainant executed agreeinent of sale dated 15.05.2007. On that date"-o'i'~.._ agreement, the accused paid to the con1__p"1'aiI1ant1' a sum of Rs.3,00,500/-- and issued 0' date a post dated cheque (da"te'd« 'in:
favour of the compIainant"'1«.dr:i94AWn on" Canafa. Bank, Udupi, for the 'balanced considgeration 0 amount of Rs.20,49,500fon 15.05piV20O7hitself, the accused also issued_«'a'ietter Vin._that regard. {b} When the the said cheque to lt0"~01'l0EiSi:1Ii1€nt, it came to be__ jwithp eiidorselnent as 'funds by drawer'.
Thve1fe'a_ftei',. 0' issued statutory notiCee._dated' .O7,'07€_2007 to the -accused calling pggpon him. to the complainant the said "'i"anio'L"mLtA.¢pof Within fifteen days from the 0 V 'da:t'e._:of4 of the said notice. Despite receipt " . h "of theiv-sgtiidinotice on 12.07.2007, the accused did uunot'-hnialte payment of the amount under the said .. cheque. Thus, the accused committed an offence 0' = tinder Section 138 of the NI Act.
(c) On 25.06.2007 i.e., earlier to the date of the said cheque, the accused issued a notice to the complainant making therein false and frivolous (__f'\/'mp---v CrI.A. No. 1 1 66 2008 statements as to the execution of the said agreement of sale dated 15.05.2007 and as.-"to issuance of the cheque in question. No fo3'ce-v.br_"'*..' coercion was exercised by the complaina;'1;tT ' .
against the accused in getting the said of sale executed and the said the accused as alleged in the not_i_ce.». accused reiterated thellsame .s0ubs:e'quent reply notice dated him to the complainant complainant's statutory notice dated' All the a_'Elegation,s ': notices dated 25.06.2007 iiand' };_:2.3..Q7..2oo7_issued by the accused "jgto 0': flihe . ,comp1'ai~nant are false and imagii1ary.V'V'Vll' any force or coercion, by the e..omplainant,.. ."on4'Vthe accused, as alleged therein," theitaccused should have taken action xthefl complainant immediately after the
-allegedcoercion was removed or he would have complaint in that regard. The ""<con_ten.tions of the accused in the said notices T that' there was no debt, much less legally .V:0"e_nforceable debt, payable by him to the complainant and that the cheque in question was not issued by him towards discharge of any debt _« Crl.A.NO.1166g2008 Triai Court committed serious error in observing at para 15 of its judgment that the complainant failed to prove the fact that the cheque in quest.ior1u» "
issued by the accused for discharging the C' alleged in EX.P1 agreement. He p_ the Trial Court Committed further elrrortin obs'e;.yir1g at para 16 of its judgment thatvlvilii'.-_>i<:;'.P_i agreexnentfg is in dispute and the possevssiicn "sai,d"~properties has not been handedover the. 'therefore, if at all the his part of the contractfllltheet to the complainant was to take against the accused in a Civil Court and_:ti1e.vma'tter: involved between the parties ?fl.cou1"ci- lilniolt decliydedl by the Criminal Court [Trial contended that though the balance C _ consi«deratiori" of Rs.20,49,500/-, agreed to be paid by the ppaccusfied to the complainant in terms of EXP} l_'_ée.'_agrve'ernent could not be termed as 'debt', nevertheless, C it could be termed as 'other liability' as found in Section C. 138 of the NI Act and since the cheque in question that ,.._.._.i'\''''*''' Crl./L No.1 1 66 2008 was issued by the accused to the complainant was towards discharge of the said liability, the Trial Court committed illegality in acquitting the accused.....ofV.'the~ said offence.
5. Per contra, Sri K.M.Nataraj,f;the'iearne-d for the respondent--accused,, _ while :"'suppoif'£ing Q' if impugned judgment and ordlerfilof acquittaif strongly contended that the VeIy4_'agre«_:érnen't:. 'based on which the complyainantiyyfiiiedy had been seIiously3__'dis:§pij_Vted'-- on the ground that -by the complainant by threateningithe accusedyfand by exercising coercion on him ..i'~therei'orey_ the said agreement was validly accused by issuing his notice dated prior to the date of the cheque in é therefore, the Trial Court has rightly "w.oblsed:€ved" in its judgment that 'no legally enforceable ____""."liai9ility' was existing on the said date of the cheque. further contended that the defence taken by the r"""'J'\'M""
CrI.A.NO.1 165 2008 accused was that the said agreement was got executed by the complainant by putting him under threat the said cheque was also obtained from coercion and therefore, the Trial Cou1ft_,yl:"loei:igVl" T' Criminal Court, could not give loan'? 'whether the said agreement was'-ohexecuted thel"
accused voluntarily and free. lycohselitt, as contended by the conipldina-itt, 'whether it was got executed by the c_orri;3lctin.d_rt-t by coercion on the accused, accused', and therefoijeg righltlvlobserved that if the accused part of the contract in termsyef the remedy available to the .comj3laif1"ant'iwas hefore a competent Civil Court but
-(friminal Court. He further submitted _that"~no ..__erro:t or illegality is committed by the Trial iiisacquitting the accused by its impugned lgfilijdgnient and order of acquittal and therefore, the T --«l..:l'p'resent appeal deserves to be dismissed and the (' -19- Crl.A.N0.1 166 2008 complainant in favour of the accused at the instance of the accused himself, as rightly observed by Court, it is described as 'agreement of re--conve.y;tinCé?j _ the properties mentioned therein _by_the _Icornp'}aina11.t 04 in favour of the accused. it in agreement that the two shop 'r__ooIns=,_vvere the 00 complainant by the accused deed dated 17.02.2005 accused requested the corn_p1ainant- same and therefore, existence.
Thus, is "to have been agreed betweendrthe said agreement is re~ conveyance of the-prodperties mentioned therein by the dcomvpiaindant' favour of the accused, which the purchased from the accused during 0 _ .. __.As'*=cou1d be seen further from the recitals in '_'_p-__E::0.VP'i"agreement, the accused paid to the cornpiainant 00 of Rs.3,00,500/-- as part of the consideration ("""r%r'fi'--'-~"
- 11 -
Cr/.A.No.1166 2008 amount and he issued on dated 15.05.2007 post dated cheque i.e., the cheque dated 01.07.2007 in favour of the complainant towards the balance consideration amount of Rs.20/19.500/--. It is further Ex.P1 that the accused shall pay 7' consideration amount to the corrip1a1n.ant.4 on. orflbewfore 01.07.2007 and the comp1ainanlt'.__sh_a11 e§§e_cute'~ register re~conVeyance deed 'i'£1.V:V"favour'*--of aiccusled on or before 01.07.200"?~...and'lthatljinllcase ofvvfailure on the part of the accused to vcorriplainant the said balance;conisideraytion '._"VarnVount on or before 01.07.2607. t11eV"c:or_ripl_:a'inant would be entitled to recover, frorri"the'aCcu'sed, at his cost, the said balance "'considei5ation amount.
:7".=,Thus';f:itlftslylclear from the above recitals in EX.P1 'VVagree'rnent,.Vthough its Valid execution is disputed by 1' ll..:t17ie'10"accused, that the properties in question were earlier sold by the accused to the complainant in the uhxyear 2005 and during the year 2007, the said "<--m_v/-e_e_4..\__7___, ., W12, Crl.A.No.1166 20 8 properties were sought to be re--conveyed by the complainant in favour of the accused under the agreement. It is further clear from the said that ever since the accused sold the said properties it the complainant in the year ZOQS, had been in possession therrevdfyantd did not deliver to the accused Hpo;sse_ssion- the said two shop rooms "said agreement.
Thus, the title to,the pass from complainant complainant received'lVa"Vsurn] terms of the said agreement,' is not admitted by the accused... L Furtherfit is in dispute that by issuing {dtiiep legalhotice da£é:il25.o6.2oo7, which is produced himself as Ex.P2, the accused _ rescinded' said agreement (Ex.Pl) and informed the complairiant in the said notice that he should not the said cheque to the Bank for its T --« " encashment.
,--~..s"-/ A13"
Cri.A.No.1 166 2008
10. On a plain reading of the aliegations in the said notice EXP2 made by the accused against the complainant, it is clear that he rescinded agreement (EX.P1} on the ground that it on it were obtained by the complainant' him with dire consequencesyand under' coercion: It is "
further alleged in the said noticte'V«IV§:x,.P2 cheque in question was obtainecfby wcompiaitnant from the accused by exercising coercion "T.'i"ierefore, it is clear that of__ agreement.
and of thdettcvheque in question by the accused the complainant towards payment of 'oalarice consideration amount in terms of I-fithe' agreemdeyhtd (Ex.P1). had been seriousiy ac};sVpuVted:Tbyv"the.accused. Having regard to these facts, _as Aa«sse1j'ted,3:'by the complainant himself, the fact remains"that in case he proves the said agreement, he
-_wouid'"be entitled to receive the balance consideration amount from the accused only on execution and 3 registration of the sale deed in favour of the accused, (m-r--\-/""'\Z"' _ 14 -
Crl.A.No.1166 2008 and not otherwise. Therefore, I am of the considered opinion that even if the payment of balance consideration amount under the said agreement by accused to the complainant could be held liability' Within the meaning of Section my Act, it could not be further held was legally enforceable against 'accused the compiainant as on O1.07.2007_:'th:e date'o£tt_h:e cheque in question which is to'l--_hajye "beenrissued by the accused in favour of the"c0t:npVl'aii1an.t', «Therefore, I do not the Trial Court in observing its .' judgment that no 'legally enforceable eirliisted as on the date of the said execution of Ex.P1 agreement and _issue~--. of..__"c11eque in question by the accused to the complainant in terms thereof, are seriously questioned, as to, 'whether the said agreement was i entered into by the accused with the complainant with t"""""'*r-§f%*j'-
(ix) (X) (Xi) Likewise, the learned counsel for 'i*eSpo11d'e:r;t-- -17- Cr!.A.No.1 166 2008 A.V.MLLr'thy Vs. B.S.Nagabo.saoanna [2002 AIR SCW 694] I.C.D.S. Ltd. Vs. Beemna Shabeer4...VadCl.V_ Another {Am 2002 SUPREME coUR'1f.c§'r§'i»'1f4}_"»Vo. V-. Ramakrishnan Vs. GangGdharar'iA':_f--'N!1i?% V0 M Am'. [AIR 2007 {N00} (KER.*ji» .. ._ » accused has also relied upon"t_1"1--:=; following decisions'; (1)
(ii) M/S.Swastik Coqfér$_ Vs. M / S.Deepak' '~~Bro_thers~~ _4and._ Othefs" [1997 CRL.L.J. 1942} _ M/S.Kumar 1 . E,n§por*ts_ 0' /S.Sharma. CClIj1'x')t?'E¢SLE20(;3_'9 SCW
-.__\_/3.. _' State Of Kerala and ' ';anotherfi2oo'4;=cR;..L..J. 3433] u'MS. 'System and Solutions (P) Ltd. VS. 'H.N.Giridhar [2008(1) KCCR 75]
--. and Another [ILR 2006 KAR 3579] M18. sciiflauahana Ispat Ltd. Vs. Urnesh Pi-Vefisugopal Vs. Madan.P.Sarathi [2008 AIR ~ ~ sow 77021 T (-V..iiJv'~":~ Bhat V5.
[(2008) 4 SUPREME Krishna J anardhan Dattatraya.G.Hegde COURT CASES 54] Suffice it to say that in View of my findings recorded " Vsupra on facts of the instant case that the Trial Court (_..m.r'V""*/'