Karnataka High Court
Sri. M Nagaraju vs Sri. Lokesh Bagal on 26 October, 2021
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF OCTOBER, 2021
BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO.1194 OF 2018
BETWEEN:
SRI M. NAGARAJU,
S/O LATE MAYANNAGOWDA
AGED ABOUT 62 YEARS
R/AT NO.9, 1ST 'A' CROSS, 24TH MAIN
MARENAHALLI, J.P.NAGAR 2ND PHASE
BENGALURU - 560 078 ... APPELLANT
[BY SRI C.S. NAGENDRA, ADVOCATE]
AND:
SRI LOKESH BAGAL
S/O G.L. RAMA RAO
AGE: 49 YEARS
PROPRIETOR, R.K. ENTERPRISES
NO.120, S-12,
PAMADI CHAMBERS
DVG ROAD, BASAVANAGUDI
BENGALURU - 560 004 ... RESPONDENT
[BY SRI HARISH H.V, ADVOCATE]
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF CR.P.C., PRAYING TO SET ASIDE THE ORDER/JUDGMENT
DATED 30.04.2018 PASSED BU THE XII AND XXXVII
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE AT
BENGALURU IN C.C.NO.7851/2017 - ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF
N.I.ACT.
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THIS CRIMINAL APPEAL COMING ON FOR ADMISSION,
THIS DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is an appeal preferred by the complainant against the judgment and order of acquittal passed by the trial Court in acquitting the respondent/accused in respect of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short N.I. Act).
2. Heard the learned counsel for appellant/complainant and respondent/accused and perused the evidence and material on record.
3. The case of the complainant is that the complainant and accused are well known to each other and they are friends. During second week of April 2016, accused approached him and requested for financial assistance to the tune of Rs.7,25,000/- to meet his domestic problems and assured to repay the same within six months. Believing his version, complainant mobilized the funds and paid the said amount by way of cash and while borrowing the amount, accused executed an on demand promissory note in favour of the complainant. After the lapse of 3 stipulated period of time, when the complainant approached the accused for repayment of the hand loan, accused issued a cheque bearing No.340046 dated 04.11.2016 for a sum of Rs.7,25,000/- drawn on Corporation Bank, Padmanabhanagara Branch, Bengaluru in favour of the complainant with instructions to encash the said cheque on due date and took back the on demand promissory note. When the said cheque was presented for encashment through his banker namely State Bank of Mysore, J.P. Nagara Branch, Bengaluru, it was dishounoured with a bank endorsement "fund insufficient" on 04.01.2017. Thereafter, a legal notice was issued on 12.01.2017 and inspite of receipt of the same on 18.01.2017 no amount was paid. On the other hand, evasive and untenable reply was given on 01.02.2017 by suppressing the true and real facts. Hence, it is alleged that the accused has committed an offence punishable under Section 138 of N.I. Act.
4. It is the specific defence of the accused that he had never issued the cheque and the loan transaction as alleged by the complainant has never taken place and there is no legal debt. It is stated that the complainant was running a chit business and for security purpose in connection with the said chit 4 transaction, he obtained two blank/unfilled cheques bearing No.304067 and 340046 from the accused and later misused the said cheques.
5. In order to establish the guilt of the accused, the complainant got examined himself as PW1 and got marked Exs.P1 to P6. The accused got examined himself as DW1 and got marked Exs.D1 to D9. The Trial Court after considering the entire material and evidence on record and after giving reasons, acquitted the accused, which is under challenge in this appeal.
6. It is contended by the learned counsel for the appellant that the cheque at Ex.P1 belongs to the accused, which is not in dispute and the signature is also not in dispute and therefore the presumption mandated by Section 139 that there exists a legally enforceable debt and liability, attracts. It is contended that the accused has raised a contention that the cheque was issued for security purpose in respect of a chit transaction, however, no documents relating to the chit transaction and no particulars have been placed by the accused and therefore, the presumption has not been rebutted by the accused. He would also contend that the trial court was not 5 justified in acquitting the accused, observing that there is change in handwriting with regard to the contents of the cheque. He would place reliance on the judgment of the Hon'ble Apex Court in 'Bir Singh v/s. Mukesh Kumar' (Crl.A.Nos.230-231 of 2019, dated 06.02.2019), wherein it is held that 'if a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence.' He would also place reliance on a decision of this court in the case of 'M. Krishnappa v/s. K. Kumar' reported in 2021 ACD 127 (KAR), to contend that merely disputing the lending capacity of the complainant is not sufficient unless the presumption is rebutted, in accordance with law.
7. The learned counsel for the accused has contended that the trial court having considered the entire evidence and material on record and after giving cogent reasons, has acquitted the accused. Hence, being an appeal against acquittal, there is no justifiable grounds to interfere with the judgment and order 6 passed by the trial court. He would contend that the trial court has taken into consideration not only the fact that the complainant has failed to adduce any evidence by placing acceptable documents to show his lending capacity, but also considered the fact that the cheque was not issued in discharge of a legally enforceable debt and therefore he contends that there are no grounds to interfere with the impugned judgment and order passed by the trial court.
8. According to the complainant, at the time of lending a cash of Rs.7,25,000/-, he received an on demand promissory note from the accused and when the cheque was issued, accused took back the on demand promissory note. It is contended by the learned counsel for the respondent that the case of the complainant that the accused has issued an on demand promissory note and then took it back cannot be accepted for the reason that no person will return the on demand promissory note back to the accused unless the amount due was paid. He has contended that except the bald statement there is no legal evidence adduced to show that the accused had executed an on demand promissory note.
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9. The accused who is examined as DW1 has stated that, towards security, two cheques in respect of a chit transaction was received by the complainant from him and after the transaction was over, when the accused requested the complainant to return the cheque, he informed that both the cheques have been destroyed. According to him, the complainant and one Suresh misused the said two cheques and filed two different complaints. He has got marked Exs.D1 to 9 namely the certified copies of the documents produced in CC No.7846/2017. The complainant has denied that he knows one Suresh. According to the complainant, the contents of the cheque in question was filled up by the accused. The Trial Court has taken into consideration the evidence adduced in CC No.7846/2017, wherein the complainant by name Suresh has admitted that both the cheques are filled up by him.
10. If a signed blank cheque is voluntarily presented to a payee, the payee himself can fill up the payment and other particulars. However, it is the specific case of the complainant that cheque was issued for a payment of Rs.7,25,000/- by 8 accused by filling the contents. As per the evidence adduced in CC No.7846/2017 by the complainant in the said case namely Suresh, he has clearly admitted in the cross-examination that the contents of both the cheques are filled by him. PW1 in his cross-examination has admitted that he is not aware as to who filled the name and amount mentioned in the cheque. Hence, the case of the complainant that the accused issued a cheque for asum of Rs.7,25,00/- can not be believed.
11. It is also the contention of the accused that after completing the chit transaction, when he requested the complainant to return the cheques, he was informed that the cheques are torn and thus destroyed. The trial court on observing the cheque - Ex.P1, has noticed that the cheque was torn on the right side and some whitener was put and pasted. The complainant/PW1 has expressed that he is unaware of the same, which also gives rise to a suspicion about the case as putforth by him.
13. No doubt, there is a presumption in favour of the holder of the cheque under Sections 118 and 139 of N.I. Act, that when a cheque is issued by the accused, the same is 9 presumed to be issued in discharge of a debt or other liability. However, the said presumption is rebuttable one. In the instant case, the accused has been able to rebut the presumption. Further, it is necessary for the complainant in a reasonable manner to show the capacity to lend a huge amount of Rs.7,25,000/-. In the case on hand, PW1 has admitted that though he was doing bar and restaurant business in the name 'Divya Wines' and he is also having agricultural income etc., he has not placed a single document to prove the same. Further, he has admitted that he has not shown the amount mentioned in the cheque in the income tax returns. In that view of the matter, the trial court has come to the conclusion that the complainant has not established that the amount mentioned in the cheque was in connection with any legally enforceable debt. There is no illegality or perversity in the order passed by the trial. Hence, the appeal is dismissed.
Sd/-
JUDGE snc