Karnataka High Court
Raghuram V Shetty vs K Kochu Shetty on 20 November, 2012
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 20TH DAY OF NOVEMBER, 2012
BEFORE
THE HON'BLE MR.JUSTICE A.S.PACHHAPURE
CRIMINAL APPEAL NO.1819 OF 2007
BETWEEN:
RAGHURAM V. SHETTY
AGED ABOUT 59 YEARS
S/O VEERANNA SHETTY
RESIDING AT COMFORT MANOR
FLAT NO.12, KUNJIBETTU
UDUPI TALUK & DISTRICT ...APPELLANT
(BY SRI. RAHUL RAI K, ADVOCATE FOR
SRI. K.M.NATARAJ AND SRI. S. K. ACHARYA,
ADVOCATES)
AND:
K. KOCHU SHETTY
AGED ABOUT 58 YEARS
S/O LATE A.P.DASU SHETTY
D.NO.3-47, GUNDILA HOUSE
POST AIKALA
MANGALORE TALUK
DAKSHINA KANNADA ...RESPONDENT
(BY SRI. SAMPATH ANAND SHETTY, ADVOCATE)
******
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) CR.P.C. BY THE ADVOCATE FOR THE APPELLANT
PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED
TO SET ASIDE THE JUDGMENT AND ORDER DATED
26.9.2007 PASSED BY THE III ADDL. CIVIL JUDGE (JR.
DN.) & JMFC., UDUPI IN CRL. CASE NO.5/2005 AND
CONVICT THE RESPONDENT/ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTION 138 OF
N.I.ACT.
THIS APPEAL COMING ON FOR FURTHER
HEARING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The appellant has challenged the judgment and order of acquittal of the respondent for the charge under Section 138 of the Negotiable Instruments Act (hereinafter called as the 'Act' for short) on a trial held by the JMFC, Udupi.
2. The facts reveal that the appellant - the complainant before the Trial Court had advanced a loan of 3 Rs.1 Lakh to the respondent - the accused before the Trial Court and towards repayment of the said amount, the respondent has issued a cheque bearing No.314862 drawn on Vijaya Bank, Mangalore and the said cheque was presented by the appellant for encashment, but it returned dishonored on 08.09.2004 for want of sufficient funds. The appellant has received the intimation on 10.09.2004 and he has issued the notice dated 21.09.2004 to the respondent calling upon him to pay the cheque amount. As the respondent replied denying the liability, the appellant approached the Trial Court and submitted his complaint for the offence under Section 138 of the Act.
3. As the respondent did not plead guilty the appellant examined as P.W.1 and a witness P.W.2 and in the evidence Ex.P.-1 to 10 the documents were marked. The statements were recorded under Section 313 of Cr.P.C. The respondent has not led any evidence, but got 4 marked as Exs.D1 to D3 at the time of the cross- examination of the complainant.
4. The Trial Court on hearing the counsel and on appreciation of the material on record acquitted the respondent. Aggrieved by the said order, the present appeal has been filed.
5. During the pendency of this appeal, the appellant has filed I.A.No.1/2012 seeking permission to produce the additional documents.
6. I have heard the learned counsel for both the parties.
7. It is the contention of the learned counsel for the appellant that the signature on the cheque has been admitted by the respondent, and the transaction has been proved from the material on record. He submits that the Trial Court could have raised the presumption under Section 139 of the Act and as the respondent has not 5 rebutted the presumption by entering into witness box, he contends that the acquittal is erroneous and illegal. So, he contends that the additional documents produced in this appeal would indicate that the respondent had raised the loan. He submits that permitting the production of the documents the matter may be remitted back to the Trial Court for recording the additional evidence. On these grounds, he sought for setting-aside the impugned order.
8. On the other hand, learned counsel for the respondent submits that the appellant has misused the blank cheque in his custody and there is no evidence regarding the amount of loan advanced to respondent and the Trial Court has rightly dismissed the complaint. So far as the production of the documents is concerned, he contends that they are irrelevant for the purpose of this case.
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9. As could be seen from the allegations in the complaint, there is no mention of the date, month and the year in which the loan of Rs.1 Lakh was advanced to the respondent. What the appellant states in the complaint is that towards the amount of debt due, the respondent issued the cheque for Rs.1 Lakh in favour of the complainant. The cheque has been produced at Ex.P1 and it reveals the signature of the respondent is at Ex.P1(a) and it is dated 06.09.2004. Ex.P2 is the bank endorsement and a perusal of the endorsement reveals that the cheque was returned for insufficient funds. Ex.P4 is the notice issued by the appellant in which there is no mention of the date, month and the year, in which the loan was advanced to the respondent. Though, the presumption could be raised under Section 138 of the Act, it is now relevant for this Court to consider whether the respondent has rebutted the presumption from the material made available in the cross-examination of P.W.1 or the documents produced.
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10. Admittedly, the appellant and the respondent were carrying on business as the partners of a firm prior to the alleged prosecution and in this regard, there was a litigation in MFA No.3009/2003, which came to be disposed of on 22.07.2003. The said dispute was settled between them in terms of the joint memo. The copy of which is produced at Ex.P7. Ex.P6 is the order in MFA No.3009/2003. In para 6 of the joint memo it is stated that -
"6. That the appellant undertakes that he will not pursue any proceedings initiated against the respondent relating to the three cheques drawn on Syndicate bank, Yeyyadi Padavu Branch and the appellant undertakes to withdraw the complaint pending on the file of the Additional Civil Judge (Jr. Dn.) & JMFC, Udupi, relating to the above named cheques and thereby both the parties declare that they do not owe any amount to each other relating to the above subject."8
11. The perusal of the aforesaid terms of the compromise would reveal that the parties declared that they did not owe any money to each other relating to the above subject. The joint memo is dated 22.07.2003. So, it could be inferred as on the date of joint memo, there were no dues between the parties.
12. As could be seen from the cross-examination, the appellant states that a sum of Rs.35,000/- was paid to the respondent in the month of May, 2004, Rs.45,000/- was paid in the month of June, 2004 and Rs.20,000/- was paid in the month of July, 2004. So, what the appellant state in the evidence is that the amount which is due to him was advanced by him as a loan to the respondent in the months of May, June and July of 2004. In this context, if the statement made in the joint memo is looked into as on 22.07.2003, when the appellant had declared that there are no dues between the parties, the payment said to have been made in the months of May, June and 9 July of 2004 cannot be accepted. Even otherwise, as could be seen from the admissions in the cross- examination, the appellant admits that he was in custody of three blank cheques of Syndicate Bank and two blank cheques of Vijaya Bank. As far as the Syndicate Bank's cheques, the appellant has filed a complaint and the cases have been settled by way of compromise in the Court. So, as admitted by the P.W.1-appellant herein, he was in custody of two blank cheques of Vijaya Bank. It is the defence of the respondent that the appellant being in custody of two cheques has misused one cheque by filling in the blanks and the present complaint has been filed on the basis of the blank cheque was given by the respondent which was in the custody of appellant. When the material is placed on record clearly establish that there were no dues in the month of July, 2003 and when the appellant pleads that the loan was paid in the months of May, June and July of 2004, this evidence cannot be accepted in view of the aforesaid admission. As the parties were before this 10 Court in a litigation in MFA No.3009/2003, the payment of loan without any document towards payment in the year 2004 cannot be accepted. It is in this context that the Trial Court has held that the presumption that arose under Section 139 of the Act is rebutted.
13. Under the interim application, the appellant intends to produce the documents relating to the loan raised by the respondent in Vijaya Bank and in that he claimed that the loan of the accused taken from the Vijaya Bank has been paid by him and the Bank has adjusted his F.D. amount towards the loan advanced by the Bank to the respondent. There is no such allegation in the complaint and even as could be seen from the evidence, the appellant has made it clear that he has paid cash amount in the months of May, June and July of 2004. Therefore, the contents of documents sought to be produced are contrary to what is stated by the appellant in his evidence. Even otherwise, if the ledger extract 11 produced by the appellant is looked into, the appellant is said to have cleared the dues of the respondent in relation to the loan amount of the respondent prior to June, 2003. So, in the joint memo in MFA 3009/2003, the appellant states that there were no dues between the parties as on the date of Ex.P7 and the contention that he has cleared the loan of the respondent and towards the payment of this amount, the cheque was issued, also cannot be accepted. Therefore, I do not find any justifiable ground to allow the application filed by the appellant seeking permission to produce the additional evidence. Therefore the appeal fails and it is dismissed accordingly.
SD/-
JUDGE LB