Karnataka High Court
Basanagouda Channappa vs M/S Karnataka Mining Industries on 13 August, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 13TH DAY OF AUGUST, 2012
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL APPEAL No.645/2007
BETWEEN:
Basanagouda Channappa
Gurangoudar
Age: 55 years, Occ: Business
R/o. L. S. Anakeri Building
Nava Ayodyanagar
Old Hubli, Hubli.
...APPELLANT
(By Sri. R. A. Purohit for Dinesh M. Kulkarni, Adv.)
AND:
M/s. Karnataka Mining Industries
Misrikote, by its partners
1. Basayya Siddhalingayya
Mathapathi, Age: 59 years
Occ: Business, R/o. Malaprabha
Co-operative Oil Sales Depot
Stall No.220, House
Pune-Bangalore Road, Hubli.
2. Jameel M. Kolar
Siddarudha Nagar
Old Hubli, Hubli.
2
3. Ashok Tippanna Miskin
Channapeth, Age: Major
Old Hubli, Hubli.
...RESPONDENTS
(By Sri. S. V. Shastri, Adv.)
---
This Criminal Appeal is filed under Section 378 of
Code of Criminal Procedure, 1973, praying to set aside the
judgment dated 06.12.2006 passed by the II Addl. Civil
Judge (Jr.Dn.) and JMFC-III Court, Hubli, in
C.C.No.186/2011 acquitting the respondent/accused for the
offence punishable under Section 138 of the Negotiable
Instruments Act, 1881.
This appeal coming on for final hearing this day, the
Court., delivered the following:
JUDGMENT
Heard the learned Counsel for the appellant and the respondents.
2. The appellant was the complainant alleging an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the N.I. Act' for brevity), against the present respondents. 3
3. It is the case of the complainant that, the complainant, along with the accused, were running a business in partnership under the name and style of Karnataka Mining Industries, Misrikoti. The complainant is said to have invested a sum of Rs.6,40,000/- in the firm and since he wanted to withdraw from the partnership, the said accused had issued a cheque bearing No.792120 dated 30.09.1999 in favour of the complainant, drawn on Andhra Bank. This, according to the complainant, was towards return of the investment made by him. The cheque, when presented for encashment, was returned with an endorsement that there were insufficient funds. Therefore, the complainant, after having issued the statutory notice, had filed a complaint and there was failure to meet the demand. The Court below having taken cognizance had issued summons to the accused, who entered appearance and contested the proceedings.
The complainant had examined himself as PW1 and marked Exs. P.1 to P.8(c). The accused examined DWs. 1 4 and 2 on their behalf and Exs. D.1 to D.15 were marked. On the basis of the material evidence produced and the rival contentions, the following point was framed by the Court below for consideration:
i. Whether the complainant proves that the accused had issued a cheque dated 30.09.1999 drawn on Andhra Bank, Hubli, bearing No.792120 for a sum of Rs.6,40,000/- in favour of the complainant in order to discharge the debt or liability of the complainant and the said cheque was dishonoured as 'funds insufficient' on its presentation and accused failed to repay the amount covered under the cheque within 15 days from the date of issue of the notice and thereby committed an offence punishable under Section 138 of the Negotiable Instruments Act?
The point was answered in the negative and the accused were acquitted. It is that, which is under challenge in the present appeal.
4. The learned Counsel for the appellant would submit, that the Court below has examined the contentions 5 raised on behalf of the accused and has embarked on a close examination of the material documents, including the cheque in question, and has proceeded to pronounce on the suspicious nature of the documents. In this regard, reliance is also placed on the expert opinion, which was sought during the course of the proceedings. The Court below has, however, lost sight of the primary ground, that the cheque in question was not returned by the banker of the accused on the ground that it was invalid or found to have been tampered with, but on the ground that there were insufficient funds. Hence, the scope of enquiry has been unnecessarily enlarged by the Court below at the instance of the accused.
5. When there was no controversy as to the said cheque having been issued by the accused and the same having been presented for encashment, the theory put forward by the accused that the cheque in question was, in fact issued to one Shabbir Killedar, who was an erstwhile partner of the said firm, when it was an unregistered firm 6 and during the course of certain transaction, five cheques had been issued by the accused from a cheque book marked as Ex.D.6 and that, the said cheque in question was one of the cheques issued to the said Shabbir Killedar and it was for a sum of Rs.40,000/- etc., the Court has readily accepted the said contentions and has held that the complainant was guilty of having altered the cheque and therefore, was invalid and has accordingly, rejected the complaint.
6. The learned Counsel would submit that the accused having taken the contention that the cheque in question was issued to one Shabbir Killedar has not addressed the circumstance, that the cheque stands in the name of the complainant and it is not the case of the accused that the name has been altered or forged, and further, the legal notice issued by the complainant in the first instance was not replied to by the accused. If the accused were justified in negating the transaction, ought to have replied to the legal notice raising their defence that was sought to be set up. This not being available, from the tenor 7 of Section 138 of the N.I. Act, an offence has been committed by the accused. The Court below having proceeded to address the facts and circumstances of the case, as if in a suit for recovery of money, when the only ingredients that are required to be proved were as set down in Section 138 of the N.I. Act, the Court below having embarked on an elaborate enquiry, as it were, was wholly unwarranted and results in a miscarriage of justice. The business relationship between the complainant and the accused was not denied. Therefore, the theory of forgery and misuse were all irrelevant in the face of the admitted relationship between the parties. Secondly, if the cheque in question had been originally issued in favour of Shabbir Killedar, it is inexplicable that Shabbir Killedar is not examined before the Court by the accused to substantiate their case. Therefore, the Court having merely placed reliance on the contention of the accused is without any basis.
7. Insofar as the opinion of the expert as regards the cheque and the alleged alterations are concerned, in the 8 absence of examination of the said expert before the Court, the complainant was never in a position to test the veracity or correctness of that report and if the said author of the report was never examined before the Court, the Court could not have placed reliance on the same. It is also contended that the alterations, if any, on the cheque in question were that of the accused themselves and the complainant could not be called upon to explain the same and the accused never having denied, that they were in-charge of the firm at the time the cheque was issued, the Court below ought to have accepted it as proof in addressing the rival contentions and therefore, the appellant seeks that the complaint be allowed and to hold that the offence has been established and to convict the accused accordingly.
8. While, the learned Counsel for the respondents seeks to justify the judgment of the Court below.
9. It is seen from the reasoning of the Court below, that the Court has firstly taken note of the admission by 9 PW1 - the complainant, that there was an unregistered firm and one Shabbir Killedar was running the said firm and that the said firm had maintained an account with Andhra Bank, but the said witness has, however, denied that five cheques were issued in favour of one Miskin.
10. On the other hand, the Court has also taken note of the fact that, DW1 had instituted two complaints against the present complainant in respect of the dishonour of cheques issued by him and that, it was as a counter blast, that the complainant who was in possession of one cheque issued in favour of Shabbir Killedar, had altered the same and presented it for encashment and therefore, has denied the loan under the cheque. In the light of the vehement denial of the execution of the cheque by the accused, it was in fact a cheque for only Rs.40,000/- which had been issued in favour of Shabbir Killedar that was sought to be misused, the Court has no doubt referred to the expert opinion, in holding that there were material alterations that were not duly counter signed by the executant of the cheque. The 10 Court has also opined that, such alterations are apparent to the naked eye without the assistance of any expert report. It is in that glaring circumstance, that the Court below has negated the case of the complainant as to the cheque having been issued for the particular amount in discharge of a legal liability, especially in the backdrop of several disputes pending between partners of the firm, namely, the accused as well as the complainant and other pending complaints as well and therefore, has negated and dismissed the complaint.
11. From an over all consideration of the rival contentions and on examination of the cheque itself, the material alterations are patent and are not duly countersigned. Even though the bank, on which it was presented for encashment, had not taken note of the material alterations, in the eye of law, the cheque would be invalid on account of the said material alterations. There is no fault to be found in the finding of the Court below in this regard.
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12. The contention of the appellant to the effect that the alterations were made by the accused himself is immaterial, if the complainant had received the cheque with such material alterations, it was at his risk, since the material alterations would straight away invalidate the cheque in question. The Court below having expressed this finding cannot be found fault with. That finding cannot be termed as going beyond the scope of the complaint. A Court of law is required to address such a glaring circumstance, and therefore, notwithstanding that the bank had not taken exception to any such material alterations, the Court having found the same is well within the scope of such proceedings. Therefore, there is no warrant for interference by this Court.
The appeal is dismissed.
Sd/-
JUDGE gab/-