Karnataka High Court
Anita Verghese W/O K Joseph vs Ravi Kumar K Patel on 8 July, 2010
Author: N.Ananda
Bench: N.Ananda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 3*" DAY OF JULY 2010
BEFORE
THE HON'BLE MR. JUSTICE N. ANA.zéj'b'AEVA'.'.;'};«A: .
crs. A. No.14/@003
BETWEEN:
ANITA VERGHESE
W/O K JOSEPH
AGED 37 YRS _
R/OF 3-3, NrRMAL.A.~--_ _
APARTMENTS, MOHAI_\|NAxC-BAR.
NAGPUR 440 001 "
REP. BY HER sPEcIA.L..__-. '
POWER OF ATTORNEY H(;«LOE~R_-.._ ' '
C.K. GEORGE . \ '-- "
AGED 45 YRS _ _
Occ: 'SERv1c'E;fR/'O,l="TV._ .. '
T-3-1/1, :~<.P.--cV COL.0'NY~«.
KADRA, 'KALRWAR ' O1=sT_;-
APPELLANT.
(3,,-,_%_sn1:c : HEMALATHA MAHISHI, ADV.,)
RAVT "Ki'J_M'AxR"k PATEL
MAJOR, '
PR'Esr0EN'T / TRUSTEE
THE ASHIRWAD CHARITABLE
= TR_UsT*'(REGO.)
No.40, SHUBASHRI
'.A'PA'RTMENTs, 15' MAIN,
1.5"' BLOCK
-~~R.T.NAGAR BANGALORE 32
RESPONDENT
(By Sri: S NAGARAJA, ADV.,) 2 CRE...A IS FILED u/s. 373(4) CR.P.C. 8\_'.-.__THE ADVOCATE FOR THE APPELLANT PRAvIN_e.V'§j'-{HAT THIS E-ION'BLE coum MAY as PLEAss§:'P--ir_o.'_ajh%saI*«.A ASIDE THE ORDER or. 11.10.02 PAssEoheII3.':\rH1fH%dE'XII Ac:vm., B'LORE IN CC.NO. 23829»/.2'ooo," V' THE RESPONDENT/ACCUSEDI'-._ Ponf I*:»1Effo'F5FIEnt:aE:
PUNISHABLE U/S. 138 0FsN_-I. ACT} 2 "
THIS APPEAL coMING':'_%:o-!$I% z-foR FINAL HEARING THIS DAY, cougf -«._V_H,V:pD*--EpLIVERED THE F0LL0WING:-- ' d "
The was acquitted for an offence 5e<:i:_'ior_: of Negotiable Instrunaehntsh A<V;t7ipn.'Jc;.<j::;'«Ho.28329/2000 initiated by the ap_peE£a'nt_:'--Icornplainant.
A have heard {earned counsei for 'a~pp-erila'nf_"_'»--_--fkfompiainant and learned counsef for . resp'oni:!Aen'fV-- accused.
As per the averments of complaint respondent was in need of money. Therefore, he approached complainant and borrowed W 3 Rs.I,50,000/-- agreeing to pay interest at 2%___ per month. This transaction took place on The respondent did not pay either amount towards the principal,' demands, respondent issued", No.331t'73 dated 27.Oé..:v:'J;-9_99'A"'f:or' of " it Rs.1,S0,000/-- in favour oAf------E;l5_Fle'i-l.ant.'¥'complainant drawn on HongkonVg""€;hangli--aii Corporation Limited, Bangaiore. it cheque was dis honoured§"»vo'n'::_:lih_e"o.i_fo_u.nd -..trtat respondent had instructe.d_A"i:.is A' }payment. Statutory notice*.._was Respondent had caused Therefore, complaint had fil'e,tl_§{a'V complVa'inVt%tin:rJer Section 200 of the Criminal .Pro.ce:l_,t:re~.C:od__e.
"The respondent --- accused appeared and .jplera.ded"'.not guilty. on behalf of complainant, the
-__power of attorney holder of complainant, namely, George was examined as PW.1 and documents " as per Exs.P1 to P13 were marked. Respondent was 31; _ '1. --«C£2»r-.
4 examined as DW.1 and documents produced by him were marked as Exs.I)1 to D21.
5. As already stated, the instituted after statutory complainant. In responseto respondent-accused had reply per Ex.P10, wherein, it thevhiusband of complainant had respondent for purchase of§..a::.gf:yiat and had advanced as against total sale cons'-ide.raVtVi'o-njVlof"l'l?;s';-15,00,000/-. The husband of complainantihaadagreed to pay the remaining sale con.s§idVei=ation' w.ith_i_na period of six months from the .dat.evofvAadv:a"l1ce. In the meanwhile, the husband of i'the.~con?:pAlain'a'n.t left to Middie East in search of a job
-V and.4"'he"*-'hash settled there. All along, it was being it ':~..,assu_red" that the husband of the complainant would .' earn'iin1oney in the Middle East and he would pay the "remaining sale consideration, stage by stage. Tv _ ~w- .
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6. Due to the default committed in payment of sale consideration, the compiain'a.nt requested the respondent to return amount paid by her. It was agreed parties that the complainanjtiiii Possession of flat as V,te'nanit--._Tand respondent was permitted'Vtofirnoid as security deposit andithe hadwagxjreed to pay a sum of rent. As requested b;fy":j;rJ:n1piaAinant, refunded a sum of i'.'.-l_Vs.35""L'3_,."C.}.(")i':'.!,':--j'5.'firetaVi.ni'ng"' Rs.1,oo,ooo/- as security ciep.osi.t;-..:ifhie"res.pondent returned a sum of Rs.50,00'e,[_-an _ of cheque bearing No.,S%;BOd_/79469V6:H dated 27.09.1999 drawn on in -_:7~.C__o-operative Bank Limited. The i'éoni.p~la'inia_vn_t'shad requested the respondent to pay V. mon'th!y:.'a*naintenance charges at the rate of or Rs.3,000/- per month as hand loan stating that the same could be adjusted in the T "security deposit amount or the same would be returned after the return of her husband from W' x«~-Céfi "
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Middie East. Respondent has denied to have raised loan from the complainant and has denied torlhatve issued the cheque on 27.09.1999 repayment of loan. 9 it it
7. Respondent has L extract of Bank account and it of correspondence between the'tpa;rtVi'e-s'5 9' it
8. seen 9 records that complainantfi,.i's>:'"'airea'dy,Aiibefare the Civil Court for : is K A' ., ~' ~ recovery of the 'arno_u'nt.*--~._ ' ' Th"eA.._VV:compiainant has admitted the of-._ietter written by her husband to the somewhere in the month of March 1999 when the'*husband of complainant was staying in .t'.'V'Riya4dhV;"' "In this ietter (marked as Ex.D22), there is r.__'ra?i::ference to the flat. The husband of compiainant
-has also requested the respondent that if his mother were to contact the respondent for anything, the ,0} ,g_ g 7 respondent shail kindly co-operate with his mother and that he had also informed his mother to dispose off their refrigerator and washing machine;'.._:The next letter marked as -9 Ex.D23 was _ complainant to respondent on 15.04.199$§fwhe:n..ti:e"
complainant was at Nagpur confinement. In this !ettei',..__.sheV"h_'as maintenance and rent for npextiyeiar would be paid in the month next rear. In this letter there is_.._r1o_1-.VreiierLen'ce"iitioithe amount aileged to "xh'y------ii':compiainant' to respo:n_de.nt.VV"*i'ii'ese,_'let:te..rs would create reasonable doubt about th"e_ 'iéssuahncée of cheque by respondent on ,,2j:7';09.1999:._.V::It is evident from the contents of
-rriar_ked as Exs.D22 and D23 that during uivlairch"";t«9'9_9;;"the husband of complainant was in Ri\radh"---':a'n'd complainant was at Nagpur. The it-.fl:e*J.iid_enVc'e on record does not disclose that the» .' Zcornplainant and respondent had met subsequent to T ""i5.04.1999. From the records, we find that the complainant had executed a special power of f\; I £4.--vx 8 attorney in favour of C.K. George, who is the brother of her husband on 03.05.2000 to institute"---_and prosecute the instead complainant. on the cheque dated 27.09.1999, I find':
contents of cheque and the ee"te«. 'are handwritings. As afreadyh" steted, hi}§eithe§' complainant nor her to 0' receive the cheque
10. Theieomfilaihaht,-._i'ht'order to substantiate the transaétfoni"'n'a_rrate_t!"'~Ehtthte complaint has relied upon Ila 'marked as Ex.P2, which reads as"'h4e1'euhc_ler': = 0 l§s§J.,S0,000/- paid by Joseph at 2.5% for the eee,,e-.3, Rs.3,000/-- per month
0. ae.;,oo,tooo/-- Rs.2,000/-
Re.' '5o,ooo/- Rs.1,000/-
Rs.3,000/-- per year 5\? « '~."~e'£s~ , 9 Every month with effect from 27.09.1998 (2) If the amount has to withdrawn Mr. Joseph has to give me three months in advance time,V't.._:"t._V' (3) If both agree to extend further second always can be withgj'r'awn A [_nV1:utuai'i--»é understanding."
This letter does not of 9' respondent. The .conte'n't'sf' the "iretter are incoherent an'ud'fthey"ar:e"-not consistent with the case of compI'ai_niant;" H 'A power of attorney hotder of the ii"co'mVpla'in_a_nt.:;'has admitted receipt of a sum of Rs;'5O,€3:(3'G/9"? from respondent on 02.11.1999 in M"'.t,u:tertms receipt marked as Ex.D11. From the 'Contents of Ex.D3, we find that the husband of the "complainant had received a sum of Rs.3,000/- and the contents of Exs.D4 to D16 would show that ~€L.~»' :.
10 during the subsequent period i.e., from 31.104998 to 02.07.1999, a sum of Rs.2,700/- was receivisfiiby the husband of complainant from the said receipts, payments part of repayment of handflo'ar:7 and.
"me reference to interest 'V_as__ contended' gthe complainant. In addition, ~:_accuised has also produced cou"ntarfoils_y':io"F.'yjc>heques as per Exs.D15 to D2.0vto had paid Rs.2,700/_-_. the husband of compiainanty'::dVii_rinp'__tih:el--' iirom 27.04.1999 to has also produced the extract'«o'fm5.i3'. by him in Amarnath Co- opeI}:ati\.'e Balnkiias per Ex.D21, wherein it is shown that o:niA..(}.8i'.';*.§}..1999, cheque bearing No.00794696 "i~ss:.--IVecl"Edy-_re$pondent in favour of complainant was cleiaredviiand contents were transferred to the
-,yacicount of complainant. In these circumstances, it
9 possible to hold that respondent had issued a "cheque for sum of Rs.1,50,000/- on 27.09.1999 towards loan which he is alleged to have borrowed TU» C2» 111 from the complainant on 27.09.1998. The parties are already before the Civil Court. In the instant proceedings under Section 138 of the Negotiiabple Instruments Act, the complainant cannot""su'cc:e3e_d unless all the ingredients constituting-.,.a':n.Voffence"
under Section 138 of the NegotiableAAInustrume'ntvs'_'Asti' are proved beyond reason.ab__le doulalt. In view of the.-':1d.i_scL_i'ssion:4._nfiade supra', I hold that the complainant all the ingredients offence': under Section 133 at uthel*"Ne.g'otpia»!§Ie, 'Instruments Act beyond reasonab*Ee_ doubt'.l7:Th,e"_.date of issuance of cheque is not},provedwhwheyoprud reasonable doubt. The .'c0n'iplainar}zt~-,has also failed to prove that cheque lluisslhuedn' respondent was supported by conusideirlation. On the other hand, respondent has 4"'vr.¥re%3..utte'd the presumption available regarding .' "consideration of cheque. Since the parties are "already before the Civil Court, wherein the right of complainant to recover the amount due under the 12 cheque has to be decided in the touch stone of preponderance of probabiiities, it is unnecessary-i_fo,r me to make threadbare anaiysis of the _ evidence on record is not sufficient to ipiroee a'i!4_'_the._V ingredients of an offence puni'shé_bi'e 138 of the Negotiabie Insttn'm_ents" A_ct._V
12. The Iearned trial iudge on'app'recig3tion of the evidence adducedby t--'_he§.pVar.ties«.and considering the facts admitted heid that cornpiaina _ to' respondent has comniitted aVn"V':ifff:e"nc'e.:p'un'ishabie%under Section 138 of the Negéotivavbieiui:nst'i_.un1ents Act. Therefore, I "do not4:ifind~any to interfere with the impugned ai#d9€méintié["i '4 if Ac.cor:diingiy, the Appeal is dismissed. ESDGE SUE113