Karnataka High Court
Sri Tavanappa Kallappa Rawal vs Sri Basavaraj Murigepdpa Gani on 12 November, 2013
Author: Jawad Rahim
Bench: Jawad Rahim
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IN THE HIGH COURT OF KARNATAKA,DHARWAD BENCH
DATED THIS THE 12TH DAY OF NOVEMBER 2013
BEFORE
HON' BLE DR. JUSTICE JAWAD RAHIM
CRIMINAL APPEAL NO.2559/2009
BETWEEN:
SRI.TAVANAPPA KALLAPPA RAWAL,
W/O KALLAPPA RAWAL,
AGED ABOUT 46 YEARS,
R/AT BANHATTI,
JAMKHANDI TALUK,
BAGALKOT DISTRICT. ...... APPELLANT
(BY SHRI.S.C. BHUTI, ADVOCATE)
AND:
SRI. BASAVARAJ MURIGEPDPA GANI,
S/O MURIGEPPA GANI, 49 YEARS,
R/O BASAVA COMPLEX,
MUDHOL, MUDHOL TALUK,
BAGALKOT DISTRICT. .... RESPONDENT
(BY SHRI. MRUTYUNJAY TATA BANGI, ADVOCATE)
CRL.A FILED U/S.378(4) OF CR.P.C. PRAYING TO
SET ASIDE THE JUDGMENT AND ORDERS IN CRL. APPEAL
NO. 106/2007 DATED 29.11.2008 ON THE FILE OF THE
FAST TRACK COURT AT JAMKHANDI AND CONFIRM THE
ORDER PASSED IN C.C.NO.32/2005 DATED 19.10.2007
ON THE FILE OF THE JUDICIAL MAGISTRATE FIRST CLASS,
BANAHATTI FOR THE OFFENCE PUNISHABLE UNDER
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SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT AND
ETC.
THIS CRIMINAL APPEAL COMING ON FOR ORDERS,
THE COURT DELIVERED THE FOLLLOWING:
JUDGMENT
The complainant is in appeal under Section 378(4) of the Cr.P.C, questioning the acquittal of the respondent as recorded by the learned Appellate Judge in Criminal Appeal No.106/2007 acquitting him for the offence punishable under Section 138 of the N.I. Act.
2. Heard learned counsel on both sides and perused records.
3. The appellant sought prosecution of the respondent on the ground that he had borrowed loan of Rs.5,00,000/ - during first week of January 2004 agreeing to repay to him in two months, but defaulted. On demand made by the appellant, he issued a impugned cheque on 28.10.2004, which on presentation was dishonoured by the bank for insufficiency of funds on 29.11.2004. A 3 statutory notice issued on 14.12.2004 was not complied by the accused.
4. The accused was summoned and put to trial in which the complainant has tendered evidence as P.W.1 and placed reliance on 9 documents, while the accused tendered evidence as D.W.1 and examined one witness as D.W.2 and relied on 69 documents.
5. The learned Trial Judge analysing the evidence opined that the charge against the accused has been established in the manner known to law and convicted him for offence punishable under Section 138 of the Negotiable Instrument Act and imposed consequent sentence to pay fine of Rs.6,00,000/-, out of which, the complainant had to be paid compensation of Rs.5,50,000/ - .
6. Assailing it the accused was in appeal in Criminal Appeal No.106/2007.
7.The learned Appellate Judge on re-appreciation of the evidence on record opined that the complainant had failed to establish the charge against the accused and 4 consequently reversed the finding recorded by the Trial Court and acquitted the respondent/accused.
8. Assailing the judgment of the Appellate Court, the appellant/ respondent is in this appeal.
9. I have heard learned counsel on both sides. It is relevant to mention that Criminal Appeal No. 2558/2009 was filed questioning the acquittal of the respondent therein in similar facts and circumstances and on similar ground, which appeal has been disposed of by this Court on 29.10.2013 confirming the acquittal.
10. In the present proceedings the appellant had sought prosecution of the respondent on the assertion that he had borrowed personal loan of Rs.5,00,000/- and has failed to return the same. His evidence undoubtedly established issuance of cheque, its dishonour and non- compliance to the demand made in the statutory notice issued by him. However, the question was whether that evidence establishes the charge against the accused beyond all reasonable doubt to convict him for offence punishable under Section 138 of the N.I. Act. 5
11.Supporting his case, the learned appellant's counsel relied on the following citations:
i) 1993 STPL (LE) 18514 SC ( ANIL KUMAR SAHNEY -
VS- GULSHAN RAI.
ii) 1999 STPL (LE) 26778 SC ( K.BHASKARAN -VS-
SANKARAN VAIDHYAN BALAN & ANOTHER
iii) AIR 2001 SC 3897 (HITEN P DALAL -VS-
BRATINDRANATH BANERJEE
iv) (2002) 6 SCC 426 (ICDS LTD - VS- BEENA SHABEER
& ANOTHER
v) 2006 (4) KCCR 2008 (SRI. K. BALACHANDRA -VS-
SRI. DINESH PRABHU
vi) 2010 AIR SCW 2946 (RANGAPPA -VS- MOHAN)
12. Necessarily, we have to consider the nature of defense urged by the accused/respondent by which he had in unequivocal terms disputed having borrowed loan of Rs.5.00 lakhs from the appellant in the month of January 2004 agreeing to repay the same. His defence is he had borrowed Rs.1.00 lakh and had issued a blank cheque as security in the year 2001. The said transaction was not money lending transaction, but it was relating to purchase of Hero Honda Motor Cycle on a scheme floated by the company run under the name and style of " Siddeshwara 6 Finance Corporation". The appellant/complainant was one of the partner of the said business concern. In that scheme, accused had to make periodical payment by way of subscription and on completion of the subscription they were entitled to take the motor cycle or its cash value. In the interregnum, if they were to withdraw the amount contributed towards the scheme, they were entitled to do so, but subject to offering surety. Thus the defense of the accused is he had contributed sufficient money towards Hero Honda purchase scheme and being in need of money he had withdrawn the amount from out of his contribution.
However, as per the terms of the scheme he had issued three blank cheques under his signature. On this basis, he alleged that he had not issued the cheques at any point of time to the complainant towards discharge of any liability. The cheques were given to Siddeshwara Finance Corporation. Since the complainant was one of the partner of the firm, he has misused the impugned cheques and filled it for Rs.5,00,000/- as alleged. He therefore denied the liability. The learned Appellate Judge noticed from the evidence on record has noticed the complainant/ appellant had admitted that he was partner of Siddeshwara Finance 7 Corporation at Banahatti and had floated a scheme in Mudhol also. Ex.D43 - pass book produced by the accused was issued by Siddeshwara Finance Corporation, Mudhol. The learned Appellate Judge accepted it has established the defense that it was issued towards purchase of Hero Honda.
13. The learned Trial Judge analysing the evidence has opined that Ex.D.7 to Ex.D.38 are the receipts issued by Siddeshwara Finance Corporation for having received money and those receipts are signed by the persons who represented the Siddeshwara Finance Corporation. Issuance of promissory note is thus shown to be in relation to that transaction. As there was no contra material to show that money was borrowed by the accused and the transaction was not relating to Hero Honda Motor Cycle, the learned Appellate Judge has entertained a doubt.
14. Besides, the learned Appellate Judge has further noticed that accused had categorically stated he had issued three blank cheques in the year 2001 relating to Hero Honda transaction and had retained Ex.D.4 to Ex.D.6- counterfoils of the cheques bearing No.295938 to 8 295940. The impugned cheque Ex.P.1 in this case is one of those cheques issued from that cheque book and the countersign was signed by the appellant. Thus the appellant had to answer under what circumstances he had obtained the said cheque. This became relevant because there are two proceedings initiated against the respondent/accused by two separate individuals viz. Mallappa for Rs. 5.00 lakhs in C.C.No. 832/2005 and similarly another proceeding filed by the appellant in C.C.No.546/2005. However, as alleged by the complainant, if the impugned cheque was relating to transaction of loan, then he had burden to establish how other two cheques were in possession of Mallappa, when the appellant herein had acknowledged receipt of the said cheque signing the counterfoil. This generated a reasonable doubt in the mind of the learned Appellate Judge about the complainant's contention of the loan transaction.
15. Besides, the learned Appellate Judge has rightly applied the decision of the Apex Court in the case of Krishna Janardhan bhat - vs- Dattatreya G Hegade 9 reported in AIR 2008 SC 1325 to hold that initial burden always rests on the complainant to establish transaction and unless that burden is discharged, the question of raising presumption under Section 139 of the N.I. Act would not be proper. Learned counsel for the petitioner relied on the recent decision in the case of Rangappa -Vs- Mohan reported in AIR 2010 S.C.1898 and contends presumption has to be raised in favour of the complainant about issuance of the cheque towards existing debt or legal liability. But it is material to note the circumstances in which such opinion is expressed. It admits of no doubt the complainant had failed to prove money lending transaction whereas accused had proved the cheques were issued relating to purchase of motor cycle under a scheme and not towards discharge of any liability.
16. Through Ex.D.4 to Ex.D.6, the accused proved those cheques were issued by him to the appellant herein in relation to Hero honda scheme floated by Siddeswara Finance Corporation, to which appellant was one of the partner as evidenced from Ex.D.43.
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17. In the circumstances, the reasoning of the learned Appellate Judge to reverse the finding of the Trial Court is fully justified and the acquittal of the respondent/accused for offence punishable under Section 138 of the Negotiable Instrument Act was the only justifiable decision that could be taken in the facts and circumstances of this case.
18. In this view, I find no merit in the appeal. The appeal is therefore dismissed confirming the judgment of the Appellate Court in Criminal Appeal No. 106/2007.
SD/-
JUDGE Msu