Karnataka High Court
Siddappa vs K Nanjappa on 20 October, 2009
Author: Jawad Rahim
Bench: Jawad Rahim
JUDG2ME¥\ET This appeal is by the complainant against the judgment in Cri.A.No.724/2002' dated 7.11.2003 "setting aside the conviction of the respondent-accusedare-co~:_ded
by the triai Court in cc No.3S132/2000 ciatecié2;ivsi1;g;é..oo2".'
2. Heard.
3. The case papers revi/eca'i"'~t.ha._t -:th§'c«._a:pp:e|!a'int07 Siddappa initiated prosecution ccagcainst re'sp'o4\n'de'nt,g K.Nanjappa for the offence"puni.shahie._unde=r 1323' of Negotiabie Instrument Act (for 'short 'the Act') on the basis; that cith"erfe..ii'wga's~»_::fivna'ncia| transaction between the parties. '*-TheVvresponcdeirithad requested financial assistance an.dCcccborrowed.._.cavc sum of Rs.80,000/- assuring to repay .0 1p.rom_ptciy..:'r§o_wever, he defauited. When the compiainant to repay the amount, the respondent iscs"'Lied-cJc'f'ieque on 12.5.2000 for a sum of Rs.80,000/~ '' " assuring encashment. The cheque on presentation was Hdcischonored vide endorsement dated 16.6.2000 insisting H issuance of statutory notice which was also not compiied.
4. The iearnecl jurisdictionai Magistrate taking cognizance for the offence under Section 138 of N.I. Act 5': 57;,» has secured the presence of the respondent--accused and put him on trial, during which the appellant___herein examined himself as PW.1 and relied on 10 at.oicumleints. The accused on his part examined himself? witnesses and relied on three docuimeéntsgl " b
5. The main defence of the t'ha:tV:li*e."fik1.as Contributing for two chits o'f:_R's...z1,3f3}O(§O~,/5 by complainant through his ag.en't.._one M.ar'ijii|_a._i He was paying regularly the"'-iinonthlfgf:.s'u'bsc'rEip.t_ion and became successful in l:_:i'dding:i:h"e' entitled to prize amoiVjVnt'Vloff'the i3i.it«..:yvhen."VheVdemanded the money, the appellAant'iobtai.ned] blank cheque. The cheque is now..been'°in_isusedAtoéclaim Rs.80,000/~. To support his . 'co---nCte?ritio'n..«he eéxalmined three witnesses describing them ti:e'c_o4mjem~bers in the chit transaction. trial jiudge found the evidence so led by the accused was not sufficient but the evidence led by the V_=cof;iplainant established ingredients constituting offence fpunishable under Section 138 of Ni Act. Thus, the respondent was convicted with a direction to pay Rs.82,000/~-- as the fine amount. Against which he was in
-or 5 chit. He submits that in order to claim the prize amount of the chit, when the accused approached the complainant, the complainant demanded him to sign some documents as also to issue a cheque. He has done the sar'.1e'...yvith other members, who had also lodged against him. He submits that"m'odus._ of the ' complainant was to obtaina neg.otiaVble ins_tru»m«ent'"f.r'o'mu the members of the chit andithen to'-inst.itu_teA"':fa"lse'V cases' for recovery of the an*iQ_unt..iii"'Henjsub'm_its tha't*ti'i'e appellant is guilty of collecting mion'e'y .Ch.i"t'_~_subscription and then enforci..n'g..:VVt'he cheque '«oAb=ta~i.ned"Vj'as security. He submits '-- that'cirirninai-..,,_c'as'es have been registered and complairiant ,beingV¥f:_3"Government servant could not have ruri, such ci1it"'-tra__n_s,actions. Therefore, no offence has ' V:,'b'een..rn'ade,"oi4t for action under Section 138 of N.I Act. V_10._qi£* have examined the evidence on record in the plight" the contentions urged by both sides. It is
--..V'pe_ri:inent 0 note that issuance of cheque impugned in this gicase is not denied by the accused nor he has denied that the amount filled was Rs.80,000/--. According to him, he has given a cheque in good faith. Therefore, the burden is on the accused to explain under what circumstances he
--x }\J.i,.,,.., Q, 6 issued the cheque. The circumstances stated go against him because the accused admits that he was contributing to the chits and had succeeded in bidding auction. Therefore, the question is whether"
the chit, did the accused receive the amount'-or notice, which is the first docum'ent"offi the parties, the accused has "
obtained as security. {he re'i'evrajrit s'ta_temen't*n the prize amount and thaitfldhe in the notice reads as 'foE.;iow's--;~V' the'.-'-chit in h'ay'i _ .Vw.o n ricftf in» ' ge between if he: re_c'e.ivedu r'-.. 1 théque was Wade by him " Your*«.i_ci-ientl vi/ash conducting' a chit for R;,2]afo;t00%0,r~ Chits of Rs. 1,30,000) througri orie Smt. Manjula. My client was~..th'e prrzécl bidder in the Chit. Your client by i'h_formea--'--. m_y_client to furnish surety for the bid amount, Hence, my client only said cheque as security to the priaedtizamount and in good faith and intention z "'tha':" your client will not misuse the same. Now "your client with an ulterior motive to cause wrongful loss to my client and unlawful gain for himself has got it dishonoured and has issued the Notice under Reply though my client is paying the Chit installment to your client's agent regularly as desired by you. Thus, there is no consideration passed to my client and the f .
s/ 7,,.-»*'' amount mentioned by you is not a legally enforceable debt, but the said cheque was taken only as a security for the Ch:it'»,. transactions.
My client reserves her right to jurisdictional police author-i'ties. to .:¢iion§ against your client and 'z,you'=..client's~ Smt.Manjula in ,respect'1_'of _¢7heating,'; it blackmailing etc. and i:'he"ithreat*-- of"'yourV'"client to forcibly enterthe take the movables from re.sic:tence-V,jvwiti?«o_ut recourse to law. __You «also iad'i/ice/intiinate your client ,tlia«t_:he is runn'ing. iliega,l___chit business in of'«i'{'arna.taVl<a Chit Fund Act and _ client"'rwouldaihjagpproach the appropriate au'i.'h4ori,ties_with" reigard to running of illegal chit ' " business; V' ' ._In thesame manner, your client has also A Legal Notice, where sureties are Vv'o'i't"e,re'dV"Vby parties by issuing Cheques and .-thi'ea'tening them with dire consequences. This " ,_a{:t of issuing Notice is creating nuisance and mental tension to the parties concerned. Hence, it is requested to advice your client to desist from initiating any criminal proceedings against my client. Inspite of this reply if your client were to rush to the Court of law, my client will suitably defend the same at a_/'' 8 your client's costs and expenses, which may be noted.
11. From the said averments, it is c|ea_r*tha't of cheque is not in dispute. Fina__ncia_l traiisaCti:o;ns"'bet.wee:€' » _ the parties are not in dispute. The:'_"aniiou»nt"~fo'r chits were contributed is RsV._1Z;c€.5O,(i'OO/l-. . failed to mention what wasApt_heA'»ip_rizye _7Therefore, the admitted factsvasiasuch' burden on the complainant to esta'b'iisi5; 'vvas transaction between in this regard.
J The Ztrial"C§§fiJ_vrtV'l:i}}asjfrightlylu_'ap'pVreciated the evidence as offence if under of N.I Act, in view of preVsumpt'i'onV_'und'er fE§_eVc'ti'ons 180 and 139 of l\i.I Act. a_1:2.~vi.The Appellate Judge has no doubt differed from A but no acceptable reasoning is forthcoming that the conviction so recorded by the trial Courtdflias either capricious, unjust or unsustainable. The f.,r:ea§:oning assigned by the Appellate Court to acquit the __?i'espondent»~accused certainly finds no support from the evidence. I find, the Appellate Court's finding is virtually against the evidence on record. I am therefore satisfied =_:'/,_/ Eb 53/mfg j fie-A that the order passed by the Appeliate Judge to acquit the accused of the offence under Section 138 of N.I .Act:'jcanVnot be sustained. Accordingly, it is set aside It finding recorded by the trial Cou_rt...a.gainst accused.
13. In the result, the 'a'p::p'ea| is aiioiived. 2'fl§The order passed in cri.A.i\io.724,42ooiéiiiigjigyigmfyg11.2oo3by the xxv Additional City is set aside and the judgmfenitjfl.passedy Court in CC and the consequent sentence pa ' it is restored.
The accused is granted six' pay the amount imposed as fifie.I..,if:l imprisonment for a De riod':.of "ch ree--- ri1o~nths';