Karnataka High Court
Sri Ram S/O Mahadevrao Jadhav vs Smt Sulochana W/O Vasudev Jadhav on 11 February, 2013
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATE D THIS THE 11 T H FEBRUARY 2013
BEFORE
THE HON 'BLE MR.JUSTICE B.V.PINTO
CRIMINAL APPEAL NO.1867/2007
BETWEEN
Sri Ram S/o.Mahadevrao Jadhav
Age: 41 years, Occ: Business,
R/o. Keshwapur, Hubli,
District Dharwad.
... Appellant
(By Sri S.S.Sajjan, Advocate, for Sri Ravi G. Sabhahit,
Advocate.)
AND
Smt.Sulochana W/o.Vasudev Jadhav
Age: Major, Occ: Business,
R/o.Keshwapur, Hubli.
... Respondent
(By Sri M.L.Vanti, Advocate, for Sri V.M.Sheelavant,
Advocate.)
This Criminal Appeal is filed under Section 378(4)
of Cr.P.C., by the advocate for the appellant praying
that this Hon'ble Court may be pleased to set aside the
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judgment and order of acquittal dated 4.9.2007 passed
by the IV Addl. Civil Judge (Jr.Dn.) and JMFC, Hubli,
in C.C.No.342/2001 acquitting the respondent/accused
for the offence punishable under Section 138 of the
Negotiable Instruments Act, etc.,.
This appeal coming on for final hearing, this day,
the Court delivered the following judgment.
JUDGMENT
This appeal is filed challenging the judgment dated 4.9.2007, passed by the 4 t h Addl. Civil Judge (Jr.Dn.) and JMFC, Hubli, in C.C.No.342/2001, acquitting the respondent of the offence punishable under Section 138 of the Negotiable Instruments Act. For the purpose of convenience the parties are referred according to their ranking before the trial Court
2. The complainant filed a complaint under Section 200 of Cr.P.C. against the accused on 6.1.2001 alleging that the accused had taken a hand loan of Rs.3 lakhs from the complainant for the discharge of -3- the loan standing in the name of her husband and also for the purchase of the property. About one year prior to the date of cheque, as a security for the repayment of the said loan, the accused issued a post dated cheque bearing No.16685, dated 15.10.2000, for a sum of Rs.3 lakhs, drawn on the Maratha Co-operative Bank Ltd., Hubli, and also executed an On Demand Promissory Note for Rs.3 lakhs. It is the case of the complainant that despite repeated requests the accused did not pay the cheque amount. Hence the complainant presented the cheque for encashment through Vijaya Bank, Keshwapur Branch, Hubli, on 9.11.2000. The said cheque when presented was dishonoured with the endorsement 'funds insufficient'. When the said fact was intimated to the accused, the accused requested the complainant to present the cheque again and ensure the encashment of the said cheque. The complainant again presented the said cheque on 27.11.2000, but again the endorsement came as 'funds insufficient'. Thereafter the -4- complainant issued a legal notice on 4.12.2000 to the accused calling upon him to pay the cheque amount within 15 days of receipt of the said notice. The accused refused to receive the said notice, as per the postal endorsement. Thereafter the complainant filed the complaint before the Court on 6.1.2001.
3. The learned Magistrate after taking cognizance of the offence, summoned the accused and the accused when questioned, pleaded not guilty of the accusation made against her. Thereafter the complainant examined himself as PW.1 and also examined two more witnesses as PWs.2 and 3 and got marked the documents Ex.P.1 to P.8. The defence of the accused was one of total denial. She has examined herself as DW.1 and two more witnesses as DWs.2 and 3 in her defence. She also got marked Ex.D.1, which is a letter issued by the Maratha Co-operative Bank, stating that only the cheque bearing series No.40301 to -5- 40310 and 51151 to 51175 were supplied to the accused and not the alleged cheque No.16685.
4. The learned Magistrate after hearing the complainant and the accused, by his judgment impugned in this appeal held that the complainant has not proved the case against the accused, since the cheque was not issued for the legally enforceable liability, but as a security and hence no case is made out for an offence punishable under Section 138 of the Negotiable Instruments Act. Being aggrieved by the order of acquittal passed by the learned Magistrate, the complainant has filed this appeal.
5. Heard Shri S.S.Sajjan for Shri Ravi G. Sabhahit, the learned counsel appearing for the appellant and Shri M.L.Vanti for Shri V.M.Sheelavant, the learned counsel appearing for the respondent.
6. The learned counsel for the appellant submits that the accused has issued the cheque in -6- respect of the liability of her husband, which is a legally enforceable liability. The cheque has been presented within the life time of the cheque and notice has been issued in accordance with the provisions of the Negotiable Instruments Act. Hence the learned Magistrate ought to have convicted the accused. He also submits that, the accused has not replied the notice issued under provisions of the Negotiable Instruments Act and hence it is presumed that he has no defence to make and hence submits that the accused may be convicted by allowing this appeal.
7. On the other hand, the learned counsel for the respondent submits that the complaint itself indicates that the cheque was issued as a security towards the repayment of the amount taken by the husband of the accused from the complainant. Therefore the liability is not established in this case. Apart from this fact the liability should be a legally enforceable liability. The complainant has not stated -7- the exact date on which the husband of the accused had taken the loan. It is further submitted by him that the accused is none other than the wife of the brother of the complainant. The complainant in his evidence has admitted that right from the year 1993 the cases were fought between the complainant and the husband of the accused in respect of the property. Therefore the accused or her husband taking a hand loan in the year 2000 that too such a huge amount of Rs.3 lakhs is improbable. He further submits that the complaint states that the accused has executed an On Demand Promissory Note and the complainant has not produced the same before the Court and therefore the liability under the cheque is not supported by any consideration. Hence the learned Magistrate has rightly acquitted the accused.
8. It is further submitted by him that the case is time barred, since the complainant himself has stated that the cheque was given one year prior to the -8- date of filing the complaint. He relied on the ruling of this Court passed in 2006-LAWS(KAR)-12-63 in the case of Vishnudas vs. Vijaya Mahantesh, wherein it is stated that when the cheque is presented beyond six months from the date of its handing over, the cheque becomes outdated and therefore no liability can be fixed for having committed an offence punishable under Section 138 of the Negotiable Instruments Act.
9. He further submits that the learned Magistrate having considered the entire materials on record has passed the order of acquittal and there are no pressing circumstances to reverse the order of acquittal passed by the learned Magistrate. Hence he submits that the appeal may be dismissed.
10. The averments in the complaint have been reproduced in the impugned judgment. In the evidence before the Court the complainant has further reiterated the version of the complaint stating that the accused had taken a hand loan of Rs.3 lakhs for discharging -9- the loan standing in the name of her husband in the year 2000 and towards the security of the said loan she had issued a post dated cheque bearing No.16685 dated 15.10.2000 for Rs.3 lakhs. The complainant has also reiterated the various dates of presentation of the cheque etc.,.
11. In the cross-examination the complainant has admitted that the husband of the accused is his brother and that there are several civil cases between himself and his brother on account of the property dispute. He has also admitted that he was not in good terms with the husband of the accused. However he has denied that out of the said enmity he has filed a false complaint against the accused. The complainant has further stated that they are three brothers and four sisters and his elder brother Dattaram is working in Police Department. The husband of the accused is the 2 n d elder brother and he (complainant) is the youngest brother. Their father died in the year 1986
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and after the death of their father for about 3 years they lived together and in 1987 they were separated. PW.1 has admitted that dispute arose between them in respect of the partition of the ancestral property and Vasudev had filed a suit in the year 1993 against him in O.S.No.7/1993. He has also admitted that Vasudev, the husband of the accused has filed another suit in O.S.No.45/1995 in respect of the claim of Rs.1,56,000/- and the said suit was dismissed in the year 2002. It is also admitted by him that son of Dattaram, the eldest brother also filed a suit in O.S.No.49/1998 for partition. Thus it is seen from the cross-examination of PW.1 that right from the year 1993 litigation was pending between the parties. It is suggested to PW.1 that the accused and PW.1 were not in talking terms in view of the civil litigation pending between them right from the year 1993 and therefore the question of taking a hand loan would not arise.
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12. PW.2 Gajanan Nagesh Shetty is the manger of the Vijaya Bank, who has stated that the complainant had presented a cheque for payment through his bank. PW.3 Kishor Jadhav is the manager of the Maratha Co-Operative Bank, Hubli. He has stated that he has produced documents in respect of the account bearing No.998 of their branch and also specimen signature of the accused and ledger extract on 13.10.2006. He has stated that SB account opening form is not available in the bank. It is in the evidence of PW.3 that the account stands in the name of the accused as well as her husband V.N.Jadhav who was the director of the Maratha Co-operative Bank Ltd.,. It is his statement that account No.998 is operated by both the husband and wife. In the cross-examination he has stated that he was not in the bank during the said period when the cheque was being presented. It is also stated that the manager who was on duty during the relevant period has been suspended and he was not working in the bank.
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13. The accused was questioned under Section 313 of Cr.P.C. However the accused has denied the incriminating circumstances available against her in the evidence of the complainant. Thereafter the accused examined herself as DW.1. In her evidence she has stated that there was ill-will between herself and her husband on the one side and the complainant on the other side in respect of the house property, which was allotted to their share. She has also admitted that the complainant is her brother-in-law. It is her evidence that she has not issued any cheques to the complainant nor she has taken any amount from the complainant. In the cross-examination it is elicited that she has studied up to 1 s t year BA and that she has got one daughter, but her son is no more. She has denied the suggestion that she is maintaining the account with the Maratha Co-Operative Bank Ltd., as a joint account along with her husband. She has stated that previously case was being handled by her
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husband. But after his death she is looking after the cases.
14. DW.2 Smt.Shakuntala is the sister of the accused. She has also stated that during the time when the notice was sent by the complainant, the accused was staying in her sister's house at Chipaloon for Graha Pravesha function and she was not at Hubli in her house. In the cross-examination PW.2 has stated that the Graha Pravesh of her house took place on 4.12.2000 and she had not invited the complainant. However she has stated that the accused came to her house along with her husband.
15. DW.3 A.R.Ghade is the manager of Maratha Co-operative Bank in the year 2000. He has stated that the accused was having account No.998 and on 14.5.2001 he had been called upon to furnish the details of cheques given to the accused. Accordingly he has given a letter regarding the number of cheques issued to the accused. He has admitted the letter
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issued by him as per Ex.D.1. It is elicited in the cross-examination of DW.3 that the letter Ex.P.7 belongs to the bank, so also Ex.P.8. He has also admitted that there is no seal of bank in Ex.D.1, so also there is no reference number in the said document. He has also admitted that there is no inward or outward number in the said letter. It is suggested to him that a false letter was issued by him.
16. From the aforesaid evidence of the complainant and the accused the learned Magistrate has come to the conclusion that the complainant has not provided the date on which the loan was availed by the accused in his complaint. Similarly, the complainant has not given the date of intimation about the return of cheque to the accused. It is also held by the learned Magistrate that the complainant has not produced any material to show that on the date of advancing the amount, he was having the said amount in his account. The learned Magistrate has also
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observed that it is the case of the complainant that the cheque was issued as a security to the loan taken by the husband of the accused and therefore there is no legally enforceable debt or liability on behalf of the accused towards the complainant or in favour of the complainant and in that view of the matter the learned Magistrate has acquitted the accused holding that the complainant has not proved the ingredients of the offence under Section 138 of the Negotiable Instruments Act.
17. I have gone through the entire evidence of the witnesses and also the documents produced in this case. I am of the view that the learned Magistrate has rightly held that, as admitted by the complainant himself, the cheque was not given towards the legally enforceable liability and that the complainant has not come forward with the exact date on which the accused had taken an sum of Rs.3 lakhs. It is observed that as on the date of taking the hand loan by the accused, the
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complainant and the husband of the accused being brothers were not in talking terms and were facing several civil and criminal cases. There was a serious dispute between them regarding the property which was left behind by their father and therefore it is improbable that the accused would have taken a hand loan of Rs.3 lakhs and that the complainant would have given a hand loan of Rs.3 lakhs without any documents.
18. This is being a criminal case, unless the complainant proves the case beyond reasonable doubt, the accused would not be convicted. Th e learned Magistrate having held that the complainant has not proved the case beyond reasonable doubt, even after thorough re-appreciation of the entire materials on record, I do not find any ground to hold that the judgment of the trial Court is either perverse or against the settled principles of law. I am of the view that the impugned judgment is based on the evidence on record
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and the conclusion arrived at by the learned Magistrate is reasonable.
19. In that view of the matter this appeal has no merits. Accordingly the appeal is dismissed.
SD/-
JUDGE Mrk/-