Karnataka High Court
Bina Vijay Kumar vs P Sreedharan Namboothiri on 25 October, 2013
Author: N.Ananda
Bench: N. Ananda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 25TH DAY OF OCTOBER 2013
BEFORE
THE HON'BLE MR.JUSTICE N. ANANDA
CRIMINAL APPEAL No.262/2013
BETWEEN:
BINA VIJAY KUMAR
W/O LATE VIJAY KUMAR
AGED ABOUT 52 YEARS
KAVITHA APARTMENTS, III FLOOR, LOBO LANE
KADRI, MANGALORE, D.K. DISTRICT - 575 004. ... APPELLANT
(BY SMT. NEERAJA KARANTH, ADV.)
AND:
P.SREEDHARAN NAMBOOTHIRI
S/O ISHWARA NAMBOOTHIRI
AGED ABOUT 53 YEARS, RAWAL HOUE, MELETHYADAM POST
SREESTHA, KANNUR DISTRICT
KERALA STATE - 670 303. ... RESPONDENT
(BY SRI JEEVAN K, ADV.)
THIS APPEAL IS FILED UNDER SECTION 378(4) CR.P.C.,
PRAYING TO SET ASIDE THE JUDGMENT OF ACQUITTAL DATED
31.01.2013 PASSED BY II ADDITIONAL DISTRICT & SESSIONS JUDGE,
D.K., MANGALORE IN CRL.A.NO.170/2006, ACQUITTING
RESPONDENT/ACCUSED FOR AN OFFENCE PUNISHABLE UNDER
SECTION 138 OF N.I. ACT & CONFIRM THE JUDGMENT OF
CONVICTION DATED 29.04.2006 PASSED BY V J.M.F.C. AT
MANGALORE IN C.C.NO.2648/2004 & ETC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
2
JUDGMENT
The appellant was the complainant in C.C.No.2648/2004. He had initiated complaint alleging an offence punishable under section 138 of the Negotiable Instruments Act, 1881 (for short, 'the Act') against respondent-accused.
2. I have heard learned counsel for appellant (hereinafter referred to as 'complainant' and learned counsel for respondent (hereinafter referred to as 'accused').
3. It is alleged in the complaint that accused towards amount due to complainant had issued cheque bearing No.973527 dated 07.09.2004 for a sum of Rs.5,00,000/- drawn on ICICI Bank, Kochi Branch, Emgee Square, Padma Junction, M.G.Road, Ernakulam, Kochi, in favour of complainant. On presentation, cheque was dishonoured for want of funds. The complainant caused legal notice and the 3 same was served on accused on 04.10.2004. There was no response from accused. Therefore, complaint was initiated.
The complainant was examined as PW1 and documents filed by her were marked as Ex.P.1 to Ex.P.6. On behalf of accused, one Ramesh was examined as DW1 and accused himself was examined as DW2.
4. The learned trial Judge on appreciation of evidence has held accused has admitted signature on cheque, therefore a presumption is available in favour of complainant under section 139 of the Act. The accused has failed to rebut presumption either from cross-examination of complainant or from evidence adduced through DW1 & DW2. The evidence of DW2 that he had given a signed blank cheque for borrowing a sum of Rs.50,000/- from complainant looks improbable. The learned trial Judge after recording aforestated finding, convicted accused for an offence punishable under section 138 of the Act and sentenced him to pay fine of Rs.5,75,000/- and directed payment of 4 Rs.5,70,000/- as compensation to complainant. Thereafter, accused was before I-appellate court in Criminal Appeal No.170/2006.
5. The learned Judge of I-appellate court on re- appreciation of evidence has reversed the findings of trial court by recording following reasons:-
The presumption available under section 139 of the Act does not extend to existence of legally recoverable debt. In other words, existence of legally recoverable debt has to be proved like any other fact. The burden of proof lies upon complainant. The accused cannot be called upon to prove or adduce negative evidence to prove non-existence of debt. The complainant has failed to prove existence of legally recoverable debt. The averments of complaint do not disclose the date on which money was lent and purpose for which money was lent. It is difficult to believe the evidence of complainant that she had lent a sum of Rs.5,00,000/- to accused, without taking any security. The learned Judge of I- 5 appellate court has accepted evidence of accused that he had borrowed a sum of Rs.50,000/- from complainant in the year 2003 and he had given four signed blank cheques to complainant. The accused had repaid loan of Rs.50,000/- with interest to complainant. However, complainant did not return four signed blank cheques to accused. The complainant had misused one of the cheques to initiate the instant complaint.
5. The learned counsel for appellant would submit that accused had been served with notice under section 138(c) of the Act. At the earliest point of time, accused has not put forth defence theory that he had borrowed a sum of Rs.50,000/- from complainant in the year 2003 and accused had given four signed blank cheques as security towards repayment of loan. After repayment of loan, complainant did not return four signed blank cheques. The learned counsel for appellant would submit that learned trial Judge on proper appreciation of evidence has held accused guilty of an 6 offence punishable under section 138 of the Act. The learned Judge of I-appellate court was not justified in reversing the findings recorded by learned trial Judge.
6. The learned counsel for respondent would submit that failure on the part of accused to cause reply notice would not automatically lead to an adverse inference, if accused is able to prove that complainant had not lent money. The learned counsel would submit that accused has proved that he had borrowed a sum of Rs.50,000/- from complainant and he had repaid the same.
7. The learned counsel for accused taking me through evidence of PW1 would submit that admissions made by PW1 would probabalise the defence theory of accused that accused had borrowed a sum of Rs.50,000/- from complainant and he had repaid the same. At that time, accused had given four signed blank cheques to 7 complainant, one of them was misused to initiate the instant complaint.
8. The law is fairly well settled that presumption under section 139 of the Act cannot be raised to presume existence of legally recoverable debt. The existence of legally recoverable debt has to be proved like another fact and burden of proof lies upon complainant. It would be preposterous to call upon accused to prove negative fact. In other words, accused cannot be called upon to prove that he had not borrowed money from complainant and there was no existence of legally recoverable debt. Even otherwise, proceedings under section 138 of the Act are like any other criminal proceedings. The primary burden of proof lies upon complainant. The complainant can discharge burden of proof by availing statutory presumption to the extent permissible under Section 139 of the Act. However, complainant cannot be allowed to be rest contended with the production of cheque without taking pains to prove existence of legally 8 recoverable debt. If accused has pleaded circumstances under which he had issued a blank signed cheque and if such circumstance is established from evidence of complainant, there is no reason to discard the defence put forth by accused. In a criminal trial, accused need not prove facts beyond reasonable doubt. If evidence adduced by accused finds support from admissions of complainant and such evidence withstands the test of preponderance of probabilities that would suffice the purpose.
In the case on hand, complainant has not stated date on which accused had borrowed a sum of Rs.5,00,000/- from complainant. The complainant has not stated circumstances under which accused became acquainted with complainant and purpose for which she had lent a sum of Rs.5,00,000/- to accused and terms and conditions of repayment. The complainant had not taken any security from accused for lending a sum of Rs.5,00,000/-. 9
9. At this juncture, it is necessary to state that proceedings under section 138 of the Act can be initiated to recover legally recoverable debt, which necessarily excludes time barred debt. In the circumstances, the date of transaction of loan has to be stated in complaint to prove that cheque was issued by accused to discharge legally recoverable debt. In other words, the recovery of debt was not barred by time on the date of cheque.
During cross-examination, complainant has admitted that she had met accused for the first time in the year 2003, at that time, accused requested her to lend him a sum of Rs.50,000/-. On the same day, complainant had lent a sum of Rs.50,000/- to accused. The complainant had not obtained any documents from accused. The complainant has admitted that accused had repaid a sum of Rs.50,000/- in two instalments. Therefore, there was no need for her to take any action against accused for aforestated amount. The complainant has admitted that she has receipts to prove that accused had returned a sum of Rs.50,000/- to complainant 10 in two instalments. The complainant has denied suggestion, at the time of lending a sum of Rs.50,000/-, she had obtained four signed blank cheques from accused and she had misused one of the cheques to initiate instant complaint. Added to this, complainant has deposed that she had lent a sum of Rs.5,00,000/- to accused in the presence of her cousin Udaya and one Ramdas. The complainant had initiated a complaint against one Ramdas for failure of accused to repay loan (a sum of Rs.5,00,000/-) which accused had borrowed from complainant. The complainant has categorically admitted that instant complaint and complaint initiated against said Ramdas relate to a sum of Rs.5,00,000/-, which accused had borrowed from complainant. The complainant has admitted for failure of accused to repay loan, she had initiated instant complaint and another complaint against said Ramdas. The complainant has admitted that accused had issued cheque (Ex.P.1) in the month of November 2003. The cheque (Ex.P.1) is dated 07.09.2004. We also see from the contents of 11 cheque, except signature, the other contents are in different handwriting. The evidence of PW1 that accused had issued cheque (Ex.P.1) and he had filled up the contents of cheque looks improbable. The admission of PW1 that accused had borrowed a sum of Rs.50,000/- from her and accused had repaid the same would probabalise the defence of accused that when he borrowed a sum of Rs.50,000/- from complainant, he had issued four signed blank cheques to complainant as security and after repayment of said loan, complainant had not returned cheques.
10. The evidence of PW1 that accused had issued Ex.P.1 in the month of November 2003 looks highly improbable as Ex.P.1 is dated 07.09.2004. In the complaint, it is not stated that cheque (Ex.P.1) dated 07.09.2004 for a sum of Rs.5,00,000/- was issued by accused in favour of complainant in the month of November 2003. The evidence of complainant that accused borrowed a sum of Rs.5,00,000/- from her, in the presence of her cousin by 12 name Udaya and one Ramdas and she had initiated two complaints viz instant complaint and another complainant against Ramdas for failure of accused to repay a sum of Rs.5,00,000/- looks highly improbable. It is not understandable as to how complainant can obtain two cheques for a sum of Rs.5,00,000/- from accused and said Ramdas when she had lent only a sum of Rs.5,00,000/- to accused.
11. Thus, on overall appreciation of evidence, I find that complainant has failed to prove existence of legally recoverable debt. In the circumstances, learned Judge of I- appellate court was justified in acquitting accused of an offence punishable under section 138 of the Act. The defence of accused that he had borrowed a sum of Rs.50,000/- from complainant and in that connection he had issued four signed blank cheques in favour of complainant looks probable. The trial court has not properly appreciated evidence on record. The trial court has invoked section 139 13 of the Act to raise a presumption regarding existence of legally recoverable debt, such presumption is not permissible under section 139 of the Act. The trial court without noticing that burden to prove existence of legally recoverable debt lies upon complainant has shifted burden of proof on the accused as if it were a civil litigation. In the circumstances, the learned Judge of I-appellate court was justified in reversing the findings of trial court. There are no reasons to interfere with the impugned judgment of acquittal.
12. In the result, I pass the following:-
ORDER The appeal is dismissed.
Sd/-
JUDGE SNN.