Karnataka High Court
Sri Sandeep Kundra vs Narayanappa V N on 20 January, 2023
Author: P.N.Desai
Bench: P.N.Desai
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CRL.A No. 419 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE P.N.DESAI
CRIMINAL APPEAL NO. 419 OF 2017
BETWEEN:
SRI. SANDEEP KUNDRA,
S/O. SUBHASH NAIDU,
AGE:34, R/O.2821/C, 5TH MAIN,
BSK 2ND STAGE, BANGALORE - 560 070.
...APPELLANT
(BY SRI. H.S.SANTHOSH., ADVOCATE)
AND:
NARAYANAPPA V.N.
S/O. NAGAPPA,
AGED ABOUT 60 YEARS,
R/AT # 408, WEST COLONY, RWS QUASTERS,
YELAHANKA, BANGALORE-5600064
...RESPONDENT
(BY SRI. S.M.KULKARNI.,ADVOCATE)
Digitally signed by THIS CRL.A. IS FILED U/S 378(4) CR.P.C BY THE
NAGARATHNA M
Location: HIGH
ADVOCATE FOR THE APPELLANT PRAYING TO SET ASIDE
COURT OF
KARNATAKA
THE JUDGMENT DATED 27.12.2016 PASSED BY THE XXII
ACMM, BANGALORE IN C.C.NO.29864/2015-ACQUITTING
THE RESPONDENT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 138 OF N.I ACT.
THIS APPEAL, COMING ON FOR FURTHER DICTATION,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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CRL.A No. 419 of 2017
JUDGMENT
This appeal is filed questioning the judgment of acquittal dated 27.12.2016 passed by learned XXII Addl. Chief Metropolitan Magistrate, Bangalore City in C.C.No.29864/2015, wherein the Appellate Court has acquitted the accused/respondent.
2. The brief case of the complainant before the Magistrate is that the complainant filed a private complaint under section 138 of the Negotiable Instruments Act, 1881 (for short 'N.I. Act'). It is alleged that the accused was introduced to the complainant by two persons viz., by one Sunil and Swamy. The complainant intended to purchase an agricultural land around Doddaballapura. At that time, the complainant proposed to negotiate with the owner of the land adjacent to the land of the accused at Doddaballapura. So with such intention, he purchased the property. The complainant advanced an amount of Rs.7.00 lakhs to the accused during November 2014 and he requested him to negotiate with the owner of the land. It is further contended -3- CRL.A No. 419 of 2017 that Rs.60,000/- was transferred to the account of the accused and remaining amount was collected by way of cash. As the accused failed to complete the transaction, the complainant asked him to return the amount. The accused told him that he has utilized the said amount for personal expenses. Then the accused issued a cheque bearing No.545904 for Rs.7.00 lakhs dated 31.03.2015 drawn on Syndicate Bank, Ganga Nagar Branch, Bengaluru. When the said cheque was presented, it returned with an endorsement 'funds insufficient'. Hence, the complainant issued notice and inspite of notice, the accused neither replied to the notice nor paid the amount. Hence, he filed the complaint.
3. The complainant got examined himself as PW-1 and got marked four documents as Ex-P1 to P4 and Ex-D1 was got marked during cross examination of DW-1. Then the accused filed defence evidence as DW-1. After hearing the arguments, learned JMFC acquitted the accused. Aggrieved by the same, this appeal is preferred.
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4. Heard Sri. H.S. Santhosh, learned counsel for the appellant and Sri. S.M. Kulkarni, learned counsel for the respondent.
5. Learned counsel for the appellant/complainant submitted that the trial court failed to consider the provisions of section 138 of N.I. Act. Once legal notice is issued and no reply received, it amounts to admission. Learned JMFC has not properly appreciated the evidence and as the issuance of cheque is admitted, the presumption under section 139 N.I. Act arises. The respondent/accused has not given any complaint regarding misuse of the cheque. Therefore, learned counsel argued that the learned JMFC without discussing the evidence and appreciating the evidence has wrongly dismissed the case. In support of his arguments, he relied on the decision of the Hon'ble Supreme Court in the case of M/s. Kalamani Tex & Anr. v. P. Balasubramanian, reported in 2021(1) SCCR 668 and at para 14, it is held as under:-
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14. Adverting to the case in hand, we find on a plain reading of its judgment that the trial Court completely overlooked the provisions and failed to appreciate the statutory presumption drawn under Section 118 and Section 139 of NIA. The Statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then these 'reverse onus' clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. This point of law has been crystalized by this Court in Rohitbhai Jivanlal Patel v. State of Gujarat, 2019) 18 SCC 106 in the following words:
"In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act, the trial court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the trial court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case could not have been raised for want of evidence regarding the source of funds for advancing loan to the appellant accused....."
6. Similarly, learned counsel relied on another decision in the case of Bir Singh V. Mukesh Kumar, reported in (2019) 4 SCC 197 and referred to para 23 of the said -6- CRL.A No. 419 of 2017 judgment regarding presumption under section 139 of N.I. Act.
7. Against this, learned counsel for the respondent/accused argued that the accused has successfully rebutted the presumption by leading his defence evidence and cross examination. The complaint averments and his oral evidence are different. The complainant states that he is a software engineer and he has transferred Rs.60,000/- by way of RTGS which is also not proved. The remaining amount, according to him, he has paid in cash on different occasions, that is also not proved. On the other hand, the complainant had transaction with Sunil and Swamy and the cheque was of the said transaction. Further, learned counsel argued that complainant has failed to prove initial burden casted upon him. Question of raising presumption does not arise. In support of his case, he relied upon the decision of the Hon'ble Supreme Court in the case of Kumar Exports v. Sharma Carpets reported in (2009) 2 SCC 513. There is no proof of issuance of cheque by -7- CRL.A No. 419 of 2017 accused and as the complainant has failed to prove his initial burden, the trial court has rightly dismissed the case.
8. I have perused records of the case.
9. The complainant in his written complaint nowhere stated as to exactly when has handed over the amount to the accused. Admittedly, the accused has not borrowed any loan from him. It is the complainant himself who got introduced to the accused for making some negotiations for purchase of an agricultural land. The accused has denied that he had any land, much less, he had any transaction with the complainant for purchase of any land, which is situated by the side of his land. When the accused has no land, question of he making transaction with the neighbouring land does not arise.
10. The complainant nowhere in his examination-in-chief states that he is an engineer by profession and only in his legal notice, he states he is working as an software engineer in a company. He also admits that accused was introduced to -8- CRL.A No. 419 of 2017 him by one Sunil and Swamy. No date is mentioned as to when the said amount in cash was given. He simply states that accused was in contact with him after retirement. Why he was in contact with him is not forthcoming. On the other hand, one Swamy who introduced is the friend of the complainant. Complainant states that with an intention to purchase the land, he advanced Rs.7.00 lakhs to the accused during the month of November 2014 and asked him to negotiate. If at all the complainant intended to purchase any land, first there will be negotiations and then he will hand over the amount or advance amount to the owner of the land, but why he has given Rs.7.00 lakhs to the accused is not forthcoming. As already stated, the accused has not taken such contention. There are no records to show that the accused is having any land, the question of complainant dealing with him does not arise. Who is that land owner, to whom the accused had transacted is not forthcoming. The complainant deposed that owner of the land told the accused that he is not intending to sell the land for the price quoted. Then what happened to further negotiations is not -9- CRL.A No. 419 of 2017 forthcoming. The accused told him that he has spent that amount. Then, complainant demanded the money, then the accused gave him the cheque. These are all defence which have no basis at all. Nowhere in his examination-in-chief affidavit, he has stated that he has transferred Rs.60,000/- by way of RTGS. It is also not stated as to when the amount was advanced, how the amount was transferred, in whose presence the amount was advanced. In the cross examination, he states he cannot say the name of the person who is doing the real estate agency. He do not know the survey number or the owner who is having the land. He do not know with whom the accused made transaction. He has no records to show he has got Rs.7.00 lakhs. Again, he says, he has transferred Rs.60,000/- to the accused Bank. He states that on November 2nd, he has given Rs.2.00 lakhs and Rs.4,00,000/- on 10th November in cash. which again has no basis at all and there is no basis as to why he gives Rs.2.00 lakh, Rs.4.00 lakh to the accused. He has also stated that he has no documents to show transaction of sale. He has also admitted that the accused is a retired person
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CRL.A No. 419 of 2017and he is not doing any real estate business. He has denied the suggestion that he has misused the blank cheque given by the accused to one Swamy. He has also stated, he has not shown the amount given to the accused in the income tax returns. He has denied the suggestion that just to extract the money, as the accused has retired, himself and Swamy has filed this false case. So in the legal notice also Ex-P3, he has reiterated the complaint averments. How this accused is having contact with complainant is not forthcoming. If he has given Rs.2.00 lakhs, Rs.4.00 lakhs and Rs.60,000/-, they why the accused will give him Rs.7.00 lakhs is not forthcoming.
11. On the other hand, it is settled principles of law that the complainant has to prove initial burden of his case. The presumption arises if the transaction is admitted. Ofcourse, simply because signature is admitted that does not mean that the complainant has proved the legally admissible debt or liability. This presumption is rebuttal presumption. The accused can rebut said presumption either by way of cross
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CRL.A No. 419 of 2017examination or by leading his defence evidence. Ofcourse, the proof by accused is not beyond all reasonable doubt, but it is proof on preponderance of probabilities. The accused positively need not prove his defence. He may show by his defence that the case made out by the complainant is not acceptable. Then once, he proves by preponderance of probabilities, that his defence is probable, then burden shifts on the complainant to discharge the burden again shifted upon him. The complainant has to prove by positive evidence to show that the defence of accused is not tenable.
12. The accused has given his defence evidence as DW.1 to rebut the presumption. The accused has filed his examination-in-chief affidavit wherein he has stated that the said cheque in question was given as security to one Swamy and after completion of that transaction, the said Swamy did not return the cheque and the complainant has misused the said cheque by colluding with the Swamy. He has denied that he has received the notice. The accused further stated that he is residing in the address stated in the cause title.
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CRL.A No. 419 of 2017The accused stated that after his retirement he is residing at Vinayakalayout, Yelahanka, Bengaluru. Therefore, he has denied that he has any legally enforceable debt or liability to pay to the complainant. The accused has stated that the complainant has filed a false complainant against him. In the cross-examination, he has stated that the said Swamy and himself are friends since three years. He has stated that he has not borrowed any amount from the Swamy. The accused has stated that he has given cheque to the Swamy as a security, on the premise that the said Swamy had assured him to get loan from others. The accused has stated that he came to know about misuse of the cheque given to the Swamy, only when he has received summons from the Court. But he has not lodged any complaint against said Swamy or complainant for misusing the said cheque. The accused has denied the suggestion that he has taken Rs.7,00,000/- from the complainant on the premise that he will get agricultural land for him. The accused has denied the suggestion that the complainant has sent Rs.6,00,000/- through NEFT to the account of the accused. The pass book
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CRL.A No. 419 of 2017of the complainant is marked as Ex.P5 and the relevant entry regarding transferring the amount is marked as Ex.P5(a). According to the complainant, first he has transferred Rs.60,000/-. For that the Trial Court held that the name of the accused is different from the name of account holder. It is transferred to Narayanappa through NEFT. But the complainant has not clarified the same by adducing any documentary evidence. Name of accused differs with the name of account holder.
13. The complainant in his cross-examination stated that he has given Rs.2,00,000/- on 2nd November and on 10th of November, he has given Rs.4,40,000/- to the accused, but while cross-examining the accused, no suggestions were made in this regard. On the other hand, the complainant has stated that the accused has borrowed a sum of Rs.7,00,000/- stating that he will get the agricultural land for complainant. Even no such suggestions were made regarding this to DW.1.
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CRL.A No. 419 of 2017
14. Even in complaint, the complainant has not stated as to when and in what manner he has given the amount to the accused. No where in the complaint, the complainant has stated that he has transferred Rs.60,000/- through NEFT to the accused. On the other hand, the complainant admits that the accused is not a real estate agent. In the examination-in-chief the complainant has stated that he intend to purchase an agricultural property in and around Doddaballapura and was contacting some real estate agents. At the same time, the complainant had proposed to negotiate with the owner of the land adjacent to the accused land at Doddaballapur. So if he has negotiated with the owner of land who is having his land adjacent to the land of accused at Doddaballpur, then how he has given the amount periodically to the accused is not forthcoming. On the other hand, the accused has denied that he is not having any land. Therefore, the question of complainant purchasing the land adjacent to the land of accused does not arise and no records were produced to that effect and the payment of
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CRL.A No. 419 of 2017amount to the accused itself is doubtful. On the other hand, the complainant himself states that one Swamy is his friend.
15. As already stated the accused has neither approached the complainant nor demanded any money. On the other hand, according to the complainant, he voluntarily transferred Rs.60,000/- through NEFT to the accused, but the same is not proved by producing any document. The complainant states that he gave amount periodically to the accused, but the same is also not proved. If at all the Swamy is the friend of complainant, he could have examined the said Swamy, but the complainant has not examined him.
16. Therefore, as discussed above, the complainant has failed to prove that he has any acquaintance with the accused. The accused has never approached him and nor requested to lend loan. On the other hand, the complainant himself has voluntarily gave the amount to the accused, but the same is not proved. The said cheque according to the accused is given to one Swamy which is not denied. The transaction of transferring the amount to the account of the
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CRL.A No. 419 of 2017accused through NEFT is also not proved. Therefore, under such circumstances, the presumption even if it is arising in favour of the complainant, stands rebutted by the accused by way of preponderance of probability. Then the burden shifted upon the complainant, but the complainant has failed to discharge that onus. The Trial Court has relied on the decision of Hon'ble Supreme Court in the case of Kumar Exports Vs. Sharma Carpets reported in 2009(2) SCC 513 and John K.Abraham Vs. Simon C.Abraham and another reported in (2014) 2 SCC 236 and came to the conclusion that the accused has given rebuttal evidence to the case of complainant. As such, the complainant failed to prove the alleged guilt of the accused beyond all reasonable doubt.
17. It is the settled principles of law that this Court being a First Appellate Court cannot interfere in the judgment of the acquittal by the Trial Court, unless, said finding is not based on the proper appreciation of evidence or the judgment is perverse.
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CRL.A No. 419 of 2017
18. The Hon'ble Supreme Court in the case of Sampat Babso Kale and Another v. State of Maharashtra [(2019) 4 SCC 739], while dealing with the power of the appellate court held that appellant court shall not interfere in the judgment of acquittal, unless the judgment of trial court is perverse, illegal and erroneous.
19. In view of the principles stated by the Hon'ble Supreme Court in the decisions referred above and on re- assessing the entire evidence of complainant, I am of the considered opinion that the complainant has failed to prove his case. Therefore, in view of the evidence placed before the Court and the principles stated in the above decision, the complainant has failed to prove that the said cheque was issued for discharge of any legally enforceable debt or liability. I find that the judgment of acquittal passed by the Trial Court is neither illegal, perverse, erroneous nor the judgment has resulted in miscarriage of justice. Absolutely, there are no grounds to interfere in the judgment of
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CRL.A No. 419 of 2017acquittal. The appeal being devoid of merit is liable to be dismissed.
20. Accordingly, I pass the following:
ORDER
1. The appeal filed by the appellant is dismissed.
2. Consequently, the judgment and order of acquittal dated 27.12.2016 passed by XXII Additional C.M.M. Bangalore City in C.C.No.29864/2015 against the respondent/accused is hereby confirmed.
3. Bail bond, if any, executed by the accused, the same shall stand cancelled.
4. Office is directed to send back the records to the trial court.
5. No order as to costs.
Sd/-
JUDGE HJ List No.: 1 Sl No.: 22