J Srinivas S/O Jayaram vs Krishna Automation And Software ... on 18 August, 2010

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Karnataka High Court

J Srinivas S/O Jayaram vs Krishna Automation And Software ... on 18 August, 2010

Bench: Huluvadi G.Ramesh

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

Dated this the 18"' day of August, 2010 -f  

Before

THE HON'BLE MR Jvsilczs HIjLUIi4DI    A'

Between:

J Srinivas S/0 Jayaram

46 yrs, # 998, 11 Main Road
4"' Block, Rajajinagar 4_ M ,  ,   
Bangalore ' 'M       --. Appellant

(By Sri C shivakumazgajv.) 

And:

1 Kr_ishna.,*t11to1na~ti _» 'n  'Software
Solution Pvt Ltd'=  T'    
# 32/12,11 F100;, 3"",cms's
4""_Main Road, .Charn'araj"apete
Bangalore 18" ~  V

    Udupa

  V  W Nagaraja Hegde, Adv.)

243 Are Directors of Krishna Automation &
 Sofiwaie Solution Pvt Ltd
it ~ #132/1"2, I¥F1oor, 3*" Cross
_ x _b_4mA.'Main Road, Chamarajapete
 Bangalore 18 Respondents

W

Criminal Appeal       



Appeal is filed under S.378(4) of the Code of Criminal Procedure
praying to set aside the judgment dated l9.7.2008 in CC 3109.3/2,C'0.5'~by
the Addl. CMM, Bangalore.    s-  

following:

JUDGMENT

Appeal is by the complainant assailing the order:o:f.thel:XVi Addl. CMM, Bangalore in CC 310933! J .4 V Accordingtov he have made payment of 123.5 lal_<hs..,,toi"'t.lie ir4c§_po1;djents'i " their uncle one Ratnakar. Towards repaymentlolf» tlieiﬁ arno"ant",'~ a cheque came to be issued, which on presentation, was "re,turlnedl'bacttlyuith an endorsement 'payment stopped ..---by tl1E5_~(l'tfa\lV€§f'. P.§ftcr,issue.nce of legal notice, complaint came to be l"f2iledVl'u_nde.r of the Negotiable Instruments Act. Learned The Appeal coming on for Hearing day, Court the u ..

Magstrate, iafiéa. ilrujuiry, held that the complainant has not proved his ' [case and ra'tl1er, the accused have rebutted the presumption by filing a icomp'lai.nt and, that the complainant has not approached the court with 'Hf-clean hands. Suspecting the bonafides of the complainant, accepting the iﬂversion of the accused, relying upon the judgment in Krishna W Janardhan Bhat Vs Dattatraya G Hegde - II (2008) BC 44 (SC), having found favour with the accused, acquitted the accusedjand dismissed the complaint against which, the complainant.-is'beforejth-§§'~i H Court on various grounds. I _ According to the appellant's céuiisel, the trial court failedhto tal<e--,t * note of the existence of the burden of...diso.wni_r1g, 'has $139 of the Negotiable Instruments Act. appellant knows respondents 2 and through their 1" respondent is a private ilionbusiness of software development. __Because.y_otfythe_acquaintance and relationship developed between the appel1ant"and~.the_ r'e.s_porident company and its Directors and V also, sirzgce the respondents were visiting the house and participating in the fzincttionsiparranged by the complainant, they were knowjto each other and_iti___tha'tv r5onte§rt;»"the cheque was advanced by the accused for the V .payment received by them. The presumption drawn by the trial court is r"e,rrorteous and the conclusion drawn by the trial court that the .r_ptp*_eo'1nrp'lainant held the cheque through some third party and got filed a ~ ricornplainant, is not tenable.

W. It is further stated that during January 2003, respondents 2 and 3 have approached him. for a hand loan of Rs.5 lacs in order to meet their business commitments. On the assurance of repayment within six months, the complainant arranged to pay Rs.5 lacs, towards w_'hich;._q'tl<1e accused issued the cheque. When the 2" respondent V' admitted that the cheque belongs to the cornpany .and~'_,that.xh'eV:.lias' wifittesti V the cheque and signed the same together with 3?", respondent, the _ issuing 'stop payment' also amounts topdclishonour of.,ghequ~e"'for* which"

the drawer has to be held punishable.

Further, acc'or'din_g:'«to '«the.,ccrnplainant, the finding of the trial court that noititansactioan has'tal'{'eni'pl'ace between the parties in respect of V the cheqgie", has been negated by this Court in the criminal petition filed the.x"rcspo:nd.ents by dismissing the petition and after quashing the procee}d_inAg's' ho1din'g~'that, the cheque was issued by the respondents in V connection awitl'. "borrowing of the amount and also, the filing of the B by the police also adds to the case of the complainant. Simply, the ._trial. court has believed on the theory that the cheques were lost or stolen. "..:Theiinference drawn by the trial court that the appellant has not proved \/Q*../ the source of income derived from him for paying the amount is irrelevant. Stating that it is the responsibility of the respondent to dislodge or rebut the theory of presumption under Negotiable Instruments Act, the Court cannot take an to the b said presumption available under law and also,} 4'-sp'e.c'ifica*l1y..._ contended that the 2"" respondent has admittetl the fact.'tléatVbthe cl'gec1ue.y belongs to the company and it was vv'ri.tters_ by himllbeven though the signature contained on the chequge is that of respondent 2 and 3 and that there is no such material a1teratior1:.._ _Accordingly;lvbappei:l«ant"s_bcounsel relying upon the decision of the Apex Court iri._the.case. Vs Mohan - AIR 2010 SC 1898, tried to coriterid that presumption mandated by S.l39 of the Negotiable "does indeed include the existence of a legally enforce_able"~de'b,t liability ~-- might be it is in the nature of a rebuttal presurnuptioni and "it is open to the accused to raise a defense. In the said " "decision, itis also held that in the absence of compelling justifications, ._revc..rse 'onus clauses usually impose an evidentiary burden and not a ~ .. V persuasive burden.

Per contra, counsel for the accused has submitted that the trial court having rightly taken note of the fact that nothing disclosed by the complainant as to the source of incorne,a,n:dt-'bother V' aspects ---- like handing over of the cheque"--and ',als_o.ujnoticiingﬂthvat monetary transactions above Rs.20,OOO/~iA:'«ha:'V'e A' to cheques, referring to the various provivs,ions of the Ir1c,o1'ne'TaVX' 'Act and"

other judgments of the Apexﬁourt and"tiiis'Co'u.rt, and i1i~.theVabsence of any material placed to show the traiisaction foii--.i'ssu'ance of the cheque, threw the burden on the'_comp1ajnant to,Vp'ro_veV thercase. Accordingly, it is submitted, the very Vactlof stojp,pVin,g"'pay.rrie;it is in furtherance of the complaintlrlodgedi Aby."th.e:respondents. _' In addition to this cheque, some more cheques. were a}.so*r,nissin.g"and as such, complaint came to be _ lodged" the pVre'st:rnptionV'has been rebutted by the accused and, the ¥_sa,rn'e._c'annot1,b_e"easily discarded to stand by the contention of the coin_plainant.. ., ._ <. "

" * :,Learned counsel has also relied upon several decisions of the ,_j,'Apexb'Court and other courts to stand by the contention that presumption "--.,iis""riebuttable and the accused has also rebutted the presumption by W/_ V presumption, placing circumstantial evidence by filing a complaint and makinggstop payment and also regarding material alteration and, accord.in_gly':

for dismissal of the appeal.

Learned counsel representing the accused has relied, upon the case'--.. of K Prakashan Vs P K Surendran -- éioaié (1) Bansreisaflijadgniai 768 to VA contend that acquittal order by couldlinovt have been interfered unless it is found another decision of the Apex @ Mam' Vs 55959 Of K3? to contend that presumption under S. of Act is rebuttable by adducing evidence and the burdenVof'pro'ofgpis on the person who wants to rebut the ._ "'l..1_',eafnei_l,,counsel has also relied upon the decision of the Apex V court in Krislzmr Janardhana Bhat Vs Dattatrraya Hegde cited supra "contend"' that presumption with regard to existence of a legaliy ._f_.recover"able debut is not a matter of presumption under S. 1 39 of the Act. " Itinerely raises a presumption in favour of the holder of the cheque and that the same has been issued for discharge of any debt or other liability. it is also held that accused is need not required to step into thveyv-itriess box and examine himself. He may discharge his burden--3base'd--' . material on record. Also, the accused has got__con§;tituti'on_al lhright to maintain silence. Counsel has also reliedfiupon 'another ideci.si'on reported in (I) 2009 BC 392 ~-- KumarTE.rp0ris' Vs contend that when no transaction hasqAt.al<en1v --place, there--was_rlo existing debt in discharge of which thelliappellantylygas to issue a cheque to the respondent and Other judgments also have been of the Negotiable Instruments Act.to"contend t'h.at'the _ccmplainant has to prove the case beyond reasonéﬁlle. doubt. " it if ~_2\t the decision reported in AIR 2010 so 1898 - specifically refers to Krishna Janardhana Bhat's case, and clarification has been made by the Apex Court that the l"obserivation"rnade in the said case is not correct. It appears, the theory gthat. accused is required to step into the witness box to discharge his 'ﬁburden has been held to be not correct and it has been held that, the We accused has a constitutional right to maintain silence and need not-,step into the witness box and he may discharge his burden on the..b_asi.s:"olftheyy materials already brought on record.

In the case on hand, of course it is the 'of the gco}rnpvIailnan't that the accused had borrowed amount purpose..o:fdevelopnient of software company and respo'1id_ents ljirectors of the Company, having acq_uainted_._ borrowed loan through one Ratnalﬁanll:.a:t:hrelati've €of'lThis aspect has been ignored by thatlliwhere the cheque was issued and what th_e__D0t€ been made clear. As to the material corrections noticedgbyy_thepgtrial court, there is an admission on the _. Part of_tlj1e"2u".d respondent that he has written the amount mentioned in __tl1V¢A hetdenies having written the date on the cheque. Might be; writ_t~eVn "date or not but, how the cheque belonging to the 1"

respondent «fcornpany could come into the hands of the complainant, is the qtaestion'; Of course, even the explanation of the 2"" respondent is .l_ytha't.{arn:ount is filled by him and the cheque is signed both by rllresponden-ts 2 and 3. On perusal of the complaint filed by the V/r 10 respondents on behalf of the company, is seen that they have mentioned that several cheques have been lost or not found, and that they "hay-eliost a bundle of papers and, if any such documents are found,-to retnTrn"ti1e.ni; ' Though the cheques have been lost, it is not't'he.caseT_' of Vthe~vr'espovnden'tS be that these cheques were stolen by the complainant; A' There also by them as to their acquaintance wit_h"'the complainant in1Vtheir"'cross"' examination.

As regards eontétltion the requirement of the provisions of tIéie'ii1rCotﬁe"3ta1t act-..i.e.,__ti'an'sactions above Rs.20,000/-- to be made by way of the purpose of income tax proceedings and, for thea--pconsequences.-- not transacting through cheque, the con1piai{nantA.is answerable and not the respondents and the respondents "~._ca.nno.t insist. .upon non compliance of legal provisions by the compiainant'that he could have only stood by his contention that he has"'not---Vgissued any such cheque, admittedly, when the signature ':foyut;dso_n the cheque is that of the accused and also when it was found in of the complainant and also when the police have filed 8 "--«_uReport, it is too much on the part of the accused to say that they have W.

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Karnataka High Court