Karnataka High Court
Sri S M Nataraja vs Sri B M Prakash on 22 October, 2018
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF OCTOBER, 2018
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL APPEAL No.434 OF 2016
BETWEEN:
Sri. S.M. Nataraja,
Aged about 59 years,
S/o. Late Marula Siddappa,
R/at No.113, 28th Cross,
7th Block, Jayanagar,
Bengaluru-82. ...Appellant
(By Sri. M. Narayana Reddy, Advocate)
AND:
Sri. B.M. Prakash,
Aged about 64 years,
R/at No.788, 36th "A" Cross,
4th "T" Block, Jayanagar,
Bengaluru-41.
Now at:No.37,
Valmika Residency, 4th Floor,
Paradise Colony,
2nd Cross, Puttenahalli,
Bengaluru-78. ...Respondent
(By Sri. K.P. Chandra Shekar Reddy, Advocate)
Crl.A.No.434/2016
2
This Criminal Appeal is filed under Section 378(4) of
Cr.P.C praying to set aside the order dated:19.02.2015
passed by the XVI Addl. C.M.M., Bengaluru City, in
C.C.No.1080/2011, acquitting the respondent/accused for
the offence punishable under Section 138 of N.I.Act.
This Criminal Appeal coming on for Admission this day,
the Court delivered the following:
JUDGMENT
Though this matter is listed in the Admission list, however, with the consent of both side, the matter is taken up for final disposal, for which purpose, learned counsel from both side provided the certified copies of the depositions and other documents pertaining to the matter.
2. The present appellant, as a complainant, had instituted a private complaint against the present respondent/accused under Section 200 of Code of Criminal Procedure, alleging an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 Crl.A.No.434/2016 3 (hereinafter for brevity referred to as `N.I.Act'). The said case was tried by the learned XVI Addl.Chief Metropolitan Magistrate, Bengaluru City (hereinafter for brevity referred to as `trial Court'), in C.C.No.1080/2011, which by its judgment dated 19.02.2015, acquitted the accused (respondent herein) for the offence punishable under Section 138 of N.I.Act. It is against the said judgment of acquittal, the complainant has preferred this appeal.
3. The summary of the case of the appellant/complainant in the trial Court is that the respondent/accused and himself were the neighbours and were residing in the same Lane at Jayanagara, Bengaluru. As such, they were in acquaintance with each other and had become friends. The respondent/ accused approached him on 5.10.2006, with a request of hand loan of a sum of `13 lakhs. Considering the said Crl.A.No.434/2016 4 request and noticing that the accused was in need of money for his legal necessities, complainant lent him a sum of `10 lakhs on 10.10.2006 and another sum of `3 lakhs on 17.11.2006, both in cash. Though the accused had agreed to repay the entire loan amount within an year from the said date, but, he failed to do so. However, on repeated request and demands made by the complainant, the accused issued him a post-dated cheque bearing No.367273, drawn on Bank of India, J.C.Road Branch, Bengaluru, on 15.2.2010, by putting the date on the cheque as 23.8.2010. When the said cheque was presented for realisation, it returned unrealised with the Bank's shara "account closed/ transferred", vide the memo of the Banker dated 24.8.2010.
It is the further contention of the complainant that thereafter, he issued a legal notice to the accused, both Crl.A.No.434/2016 5 through the Registered Post Acknowledgement Due and under Certificate of Posting, on 22.9.2010. Despite receipt of the said legal notice, the accused neither paid the demanded amount, nor replied to the legal notice, which constrained him to institute a complaint under Section 200 of Code of Criminal Procedure.
4. The trial Court after recording the evidence led by both sides and hearing both sides, by its judgment dated 19.2.2015, acquitted the respondent/accused of the offence punishable under Section 138 of the N.I.Act. It is against the said judgment of acquittal, the complainant has preferred this appeal.
5. It is the contention of the appellant in his memorandum of appeal, as well the argument of learned counsel for the appellant that the finding of the trial Court to the effect that the complainant failed to establish that he was financially in a capacity to lend the Crl.A.No.434/2016 6 alleged loan amount, is an erroneous finding. The complainant being in the business of Jewellary articles and was running Shroff (jewellary shop), was financially sound, as such, the accused being a neighbour and a known person, the amount was paid in cash to him.
It is also the contention of the learned counsel for the appellant that the accused has not even responded to the legal notice issued to him. On the other hand, as admitted in his evidence, he was frequently availing the hand loan from the complainant.
6. The learned counsel appearing for the respondent/ accused in his arguments submitted that the purpose of loan has been shown in the complaint as for legal necessity of the accused whereas, in the evidence of the complainant, it is stated to have been taken for construction work, as such, they do not go together. Crl.A.No.434/2016 7 However, despite the complainant stating that he has drawn the alleged loan amount, had failed to produce any statement of the Bank nor has shown the said loan transaction in his Income-tax returns. As such, the judgment under appeal does not warrant any interference in it.
7. The complainant got himself examined as PW-1, whereas, the respondent/accused himself got examined as DW-1. The complainant got marked documents from Exs.P-1 to P-8, which includes the alleged dishonoured original cheque at Ex.P-1, the Bank's Memo at Ex.P-3 and copy of the legal notice at Ex.P-4. No documents were marked as exhibits in the evidence of DW-1.
8. The complainant as PW-1 in his evidence has reiterated the contentions taken up by him in his complaint. He has stated that the accused was known to him and they were residing in the same street at Crl.A.No.434/2016 8 Jayanagar, Bengaluru. The said evidence about their acquaintance with each other has not been denied by the accused. On the contrary, the accused as DW-1, in his evidence has admitted that the complainant was known to him.
The complainant as PW-1 in his evidence has stated that at the specific request by the accused, he has lent a sum of `10 lakhs on the date 10.10.2006 and in the same month, once again he has lent him another sum of `3 lakhs, thus in total, a sum of `13 lakhs. He has also stated that the said loan amount was paid to the accused in cash in the denomination of `500/- currency notes. No doubt, in his cross-examination, he has stated that he had drawn the amount prior to giving it to the accused and had kept the same in his house, however, he has not produced any statement of the bank account. He has also admitted a suggestion as Crl.A.No.434/2016 9 true that he had the knowledge that any amount more than `20,000/- was not required to be made in the form of cash. It is based on these statements of PW-1 in his cross-examination, the learned counsel for the accused in his arguments submitted that these aspects have raised a reasonable suspicion in the mind of the trial Court, which considering the same, has pronounced the judgment of acquittal.
9. It is noteworthy that, no where in the cross- examination of PW-1, the accused has denied the alleged loan transaction. Not even a single sentence suggestion was made in the cross-examination of the PW-1 to the effect that at no point of time, any loan amount was availed by the accused from the complainant, much less, `10 lakhs + `3 lakhs = `13 lakhs, as alleged by the complainant. Thus, the very primary statement of the complainant that the accused Crl.A.No.434/2016 10 had borrowed a loan of `13 lakhs from him has not been specifically denied in the cross-examination of PW-1. On the contrary, DW-1 in his evidence by himself has stated that, now and then, he was availing hand loan from the complainant. He has also stated that his request for returning the cheque after clearance of the loan amount has not been acceded to by the complainant. Thus, the accused by himself making such a statement in his evidence has not only shown that he was now and then availing the hand loan from the complainant, but, also has admitted that the cheque in question has been issued by him.
10. Added to the above, DW-1/accused in his evidence has responded to the suggestion made by the complainant to the effect that the complainant was financially sound to lend so much of money by stating that he is not aware of the same. Had it been the Crl.A.No.434/2016 11 contention of the accused that the complainant was financially not capable or was not in a sound condition to lend him such a huge amount, then, it was expected of the accused to deny the suggestion rather than pleading his ignorance. Merely pleading an ignorance cannot be taken as a specific denial of a suggestion put to the witness. In such a situation, more particularly, in a case like this where the accused has not denied the loan transaction and also issuance of a cheque, and more particularly, the alleged financial condition of the complainant, the legal presumption under Section 139 of N.I.Act, crystallizes in favour of the complainant.
The said aspect, the trial Court has not properly considered. On the contrary, it has been carried away by a stray statement made by PW-1 in his cross- examination to the effect that he was aware of the fact that the transaction beyond `20,000/- was not required Crl.A.No.434/2016 12 to be made in cash and that the alleged loan transaction was not shown in the Income-tax returns. It is not known, under what Section of Income-tax Act and under which column of Income-tax return, the assessee was expected to disclose the alleged loan transaction in favour of the accused, it is because, it is nobody's case in this matter that the complainant, as an income-tax assessee, was submitting his returns along with statement of account or balance sheet. In such an event, without establishing as to what type of return the complainant was hitherto filing prior to filing of the private complaint and whether those returns were requiring him to disclose the alleged loan transaction, mere jumping into conclusion that the alleged loan transaction has not been reflected in the Income-tax return, cannot be accepted as a convincing reason. Crl.A.No.434/2016 13
12. Even though the accused has taken a contention that the legal notice alleged to have been issued by the complainant has not been received by him, but, in his cross-examination as DW-1, on a specific suggestion that the legal notice has been served upon him and the said notice was served to his wife, has not been specifically denied by the accused. On the other hand, with respect to the said suggestion also, he has pleaded his ignorance. Thus, merely stating that he does not know whether the legal notice was served upon him, cannot be construed as the legal notice has not been served upon him.
13. Therefore, when the respondent/accused himself has stated that there were frequent loan transactions between himself and the complainant, where himself was borrower and has also impliedly admitted the issuance of a cheque and further when he Crl.A.No.434/2016 14 has not made any attempt to secure the cheque back by making any specific demand in that regard even after alleged repayment of the loan, it cannot be said that the complainant has failed to establish that in return for the consideration passed from him to the accused, the cheque in question was issued to him.
14. Further, the statement made by the accused as DW-1, in his cross-examination, that he had returned the amount to the complainant, also go to show that he has impliedly admitted the alleged loan transaction. Had it been the case of the accused that he had repaid the alleged loan amount, then, he was expected to produce any evidence either oral or documentary corroborating his statement.
15. For all these reasons and more particularly, considering the fact that no where in the cross- examination of PW-1, the accused has denied the Crl.A.No.434/2016 15 alleged loan transaction, on the contrary, the accused, as DW-1, himself has admitted his acquaintance with the complainant and he availing now and than the hand loans from the complainant and also considering the fact that he has impliedly admitted the issuance of cheque and though has stated in his cross-examination that he has returned the amount to the complainant, but, has failed to establish the same, it has to be necessarily come to a conclusion that the complainant has proved his case beyond reasonable doubt.
16. As already observed above, the trial Court only by going through the two aspects of the complainant not disclosing the alleged loan transaction in his income-tax return and not showing any corroborative material that he had source of income to lend money, has erroneously come to the conclusion by pronouncing the judgment of acquittal.
Crl.A.No.434/201616
17. The said judgment being erroneous in the present facts of the case deserves to be set aside and since the complainant has proved his case beyond reasonable doubt, the finding of the trial Court on the charge leveled against the accused is required to be answered in the affirmative. For this purpose, the present appeal deserves to be allowed. Accordingly, I proceed to pass the following order :
The Appeal is allowed. The judgment dated 19.02.2015, passed by the learned XVI Addl.Chief Metropolitan Magistrate, Bengaluru, in C.C.No.1080/2011, is set aside. The respondent/ accused by name - B.M.Prakash, residing at No.788, 36th `A' Cross, 4th `T' Block, Jayanagar, Bengaluru-
560041, presently residing at No.37, Valmika Residency, 4th Floor, Paradise Colony, 2nd Cross, Puttenahalli, Crl.A.No.434/2016 17 Bengaluru - 560 078, is convicted for the offence punishable under Section 138 of N.I.Act.
Heard the learned counsel for the respondent/accused on sentence.
The respondent/accused is sentenced to pay a fine of `14 lakhs (Rupees Fourteen Lakhs) and in case of default of payment of fine, to undergo a simple imprisonment for a period of one and half years. In case of payment of fine amount, a sum of `13 lakhs be paid to the complainant - S.M.Nataraja and remaining sum of `1 lakh be taken to the account of the Government.
The Registry is directed to transmit a certified copy of this judgment to the trial Court forthwith, which Court shall proceed further in the matter for issuance of Crl.A.No.434/2016 18 warrant of conviction and proceed in accordance with law.
The entire copy of this judgment also be delivered to the respondent immediately free of cost.
Sd/-
JUDGE bk/