Karnataka High Court
Ashok Tatappa Kotiwale vs Sevantha Sukumar Bagi on 1 December, 2020
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 1 S T DAY OF DECEMBER
2020
BEFORE
THE HON'BLE MR.JUSTICE RAVI V.HOSMANI
CRIMINAL APPEAL No.100026 OF 2015
BETWEEN
ASHOK TATAPPA KOTIWALE
AGE: 43 YEARS, OCC: PRIVATE SERVICE
R/O. HEBBAL, TQ: HUKKERI
DIST: BELGAUM
...APPELLANT
(BY SRI. SRINAND A PACHHAPURE, ADV.)
AND
SMT. SEVANTHA SUKUMAR BAGI
AGE: MAJOR, OCC: HOUSEHOLD WORK
R/O. HEBBAL, TQ: HUKKERI
DIST: BELGAUM
...RESPONDENT
(BY SRI.SANTOSH B RAWOOT, ADV.)
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 378(4) OF CR.PC. PRAY ING TO SET
ASIDE THE IM PUGNED JUDGMENT DATED
04.02.2014 PASSED BY THE VII ADDL. DIS T. AND
SESSIONS JUDGE, BELGAUM AT CHIKODI IN
CRL.APPEAL NO.118/2013 AND CONFIRM THE
JUDGMENT DA TED 25.04.2012 PAS SED BY THE
JMFC, SANKESH WAR IN C.C.NO.206/2009 AND
CONVICT THE RESPONDENT FOR THE OFFENCE
2
PUNISHABLE UNDER SECTION 138 OF NI ACT, BY
ALLOWING TH IS A PPEAL.
THIS APPEAL COMING ON FOR FINAL
HEARING, THIS DAY, THE COURT, DELIVERED
THE FOLLOWING:
JUDGMENT
Challenging the judgment dated 04.02.2014 passed by the VII Addl. District and Sessions Judge, Belagavi sitting at Chikodi in Crl.A.No.118/2013 complainant has preferred this appeal. Under the impugned judgment, the First Appellate Court had allowed the appeal and set aside the order of conviction and sentence dated 25.04.2012 passed by JMFC Court, Sankeshwar in CC No.206/2009.
2. Brief facts leading to this appeal are as under:
A complaint was filed by the appellant stating that complainant and son of the 3 accused by name Sanju Sukumar Bagi were friends. Sanju Sukumar Bagi was working in Hukkeri Municipality and knew him for about 5 to 6 years. On 10.12.2007, Sanju Sukumar Bagi obtained a loan of Rs.85,000/- from the complainant assuring to return within one month. When the complainant demanded repayment, the accused undertook to make the payment herself and as such on 16.08.2008 issued a cheque bearing No.221884 drawn on State Bank of Mysore, Hukkeri branch for a sum of Rs.85,000/- in favour of the complainant. When the cheque was presented for payment, the same returned on 21.08.2008 with an endorsement"funds insufficient". Therefore, the complainant issued statutory notice to the accused on 06.09.2008 through RPAD. The notice was 4 served on the accused on 08.09.2008.
Despite service, the accused did not either make payment or issued any reply to the notice, thereby construing the complainant to file a private complaint under Section 200 of Code of Criminal Procedure,1973 (for short "Cr.P.C.") and for the offence under Section 138 of Negotiable Instrument Act (For short "NI Act"). After recording of sworn statement of the complainant and issuance of summons after taking cognizance, the accused entered appearance and pleaded not guilty. Recording the same, the trial Court proceeded with the trial. Complainant got himself examined as PW.1 and marked six documents namely Ex.P1-cheque, Ex.P2- Bank endorsement, Ex.P3-Statutory notice, Ex.P.4-RPAD acknowledgement, Ex.P5- 5 Property extract and Ex.P6- Bank acknowledgement.
3. Thereafter, the incriminating material was explained to the accused. Accused denied the same and did no offer any explanation regarding his statement under Section 313 of Cr.P.C. The trial Court proceeded to frame the following points for it's consideration.
1) Whether the complainant
proves beyond reasonable
doubt that as repayment of
the loan borrowed by her
son from the complainant
the accused issued a
cheque bearing No.221884
for a sum of Rs.85,000/-
dated 16.08.2008 drawn on
State Bank of Mysore,
Hukkeri, when the
complainant presented the
6
said cheque for
encashment through BDCC
Bank, Hebbal Branch it
returned with an
endorsement that "funds
insufficient", inspite of
issuance of legal notice to
the accused she did not
pay the amount in the
dishonored cheque and
thereby committed the
offence punishable under
Section 138 of NI Act?
2) What Order?
4. After answering point No.1 in the affirmative, the trial Court proceeded to convict the accused for the offence punishable under Section 138 of NI Act and imposed a sentence of simple imprisonment for a period of six months and a fine of Rs.10,000/-. It was also ordered in default of payment of fine amount, the accused 7 would undergo simple imprisonment for a period of 45 days. The said sentence was in addition to payment of sum of Rs.85,000/- to the complainant as compensation under Section 357 of Cr.P.C. Challenging the said judgment, the accused filed appeal before the First Appellate Court in Crl.A.No.118/2013. The Appellate Court after hearing, passed the impugned judgment dated 04.02.2014 setting aside the conviction passed by the trial Court and acquitting the accused of the offence. Aggrieved by the same, the complainant is in an appeal before this Court.
5. Learned counsel Sri.Srinand A Pachhapure for the appellant submitted that the accused had admitted her signature on the cheque. Therefore, as per 8 the law laid down by the Hon'ble Supreme Court, in the case of Rangappa Vs. Sri.Mohan, reported in (2010)11 SCC 441, a presumption was available that cheque was issued towards discharge of legally recoverable debt as per Section 118 and Section 139 of NI Act. However, Appellate Court by casting the burden to prove the transaction upon the appellant as if in a Civil Court proceeded to pass the impugned order. It was submitted that the same is perverse resulted in miscarriage of justice. He further submitted that the complainant had neither stated in the statutory notice nor in the complaint and nor in his examination-in-chief that he had lent amount of Rs.85,000/- by taking loan from bank. Therefore, relating the loan taken by him from bank to the loan given by him to 9 accused's son, by First Appellate Court, without any evidence and hence perverse.
6. I have heard the learned counsel for the appellant, perused the impugned judgment and the records.
7. The trial Court had proceeded to convict the accused by raising the presumption and holding that accused has failed to rebut the presumption. However, it is seen that the trial Court before coming to the conclusion about failure on the part of the accused to rebut the presumption has not considered the evidence led by accused. The First Appellate Court on the other hand has reexamined the entire evidence on record, especially cross examination of PW.1 by accused wherein, to his admissions substantiated her 10 contention that the complainant did not have financial capacity to lend loan and that there was no transaction between complainant and her son.
8. Though, both the Courts held that accused had failed to substantiate her contention that there was no transaction between complainant and her son, the following excerpts from the evidence of PW.1 would be relevant with regard to the financial capacity of complainant.
"ºÉÆ® EzÉ JAzÀÄ ¸ÁQë ¸ÀévÀ: ºÉüÀÄvÁÛgÉ. ºÉÆ® ªÉÆzÀ°¤AzÀ®Æ EzÉ. JgÀqÄÀ JPÀgÉ ºÉÆ® EzÉ. D JgÀqÀÄ JPÀgÉ £À£Àß vÀAzÉ, £À£ÀUÉ ªÀÄvÀÄÛ £À£Àß vÀªÀÄä¤UÉ ¸ÉÃjzÉ. £ÀªÄÀ ä £ÀqÀÄªÉ ¥Á®Ä DV®è. DgÉÆæAiÀÄ ¥ÀjZÀAiÀÄ EzÉ. DPÉ ºÀÄPÉÌÃjAiÀĪÀ¼ÀÄ. ¸ÀAdÄ ¨ÁV JA¨ÁvÀ DgÉÆæAiÀÄ ªÀÄUÀ DvÀ ºÀÄPÉÌÃj ªÀÄÄ£À¹¥Á®nAiÀÄ°è PÉ®¸À ªÀiÁqÀÄvÁÛ£É £À£ÀUÀÆ DvÀ¤UÉ ¥ÀjZÀAiÀÄ EzÉ. D PÁgÀt¢AzÀ £À£ÀUÉ DgÉÆæAiÀÄ ¥ÀjZÀAiÀÄ EzÉ. £Á£ÀÄ ªÀÄÄ£À¹¥Á®nUÉ PÉ®¸ÀPÌÉ ºÉÆÃzÁUÀ £À£ÀUÉ ¸ÀAdÄ ¨ÁV EvÀ£À ¥ÀjZÀAiÀÄ DVzÉ. DgÉÆæAiÀÄ 11 ¥ÀjZÀAiÀÄ £À£ÀUÉ 5-6 ªÀµÀðUÀ½AzÀ EzÉ. 10.12.2007 gÀAzÀÄ ¸ÀAdÄ ¨ÁV £À¤ßAzÀ ºÀtªÀ£ÄÀ ß ¥ÀqÉzÄÀ PÉÆArzÁÝ£É. DvÀ¤UÉ ºÀtPÁ¹£À vÉÆAzÀgÉ §A¢zÉ JAzÀÄ DvÀ¤UÉ ºÀtªÀ£ÄÀ ß PÉÆnÖzÉÝãÉ. £Á£ÀÄ ºÀtªÀ£ÄÀ ß §rØUÉ PÉÆqÀĪÀ PÉ®¸ÀªÀ£ÀÄß ªÀiÁqÀĪÀÅ¢®è. DvÀ¤UÉ £Á£ÀÄ 85000 gÀÆ ºÀtªÀ£ÀÄß PÉÆnÖzÉÝãÉ. D ºÀtªÀ£ÄÀ ß £Á£ÀÄ MAzÉà ¸À® PÉÆnÖzÉÝãÉ. ¸ÀĪÀiÁgÀÄ 15-20 ¸Á«gÀ gÀÆ ºÀt £À£ßÀ ªÀÄ£ÉAiÀÄ°èvÄÀ Û G½zÀ ºÀtªÀ£ÀÄß ¨ÁåAPÀ¤AzÀ vÉUÉzÄÀ PÉÆnÖzÝÉ Ã£É. £Á£ÀÄ ºÀtªÀ£ÀÄß £Á£ÀÄ PÉ®¸À ªÀiÁqÀÄwÛgÄÀ ªÀ ¨ÁåAPÀ¤AzÀ vÉUÉzÀÄ PÉÆnÖgÀÄvÉÛãÉ. ¨ÁåAPÀ¤AzÀ ¸Á® ¥ÀqÉzÄÀ DvÀ¤UÉ £Á£ÀÄ ºÀtªÀ£ÀÄß PÉÆnÖzÉÝÃ£É D §UÉÎ PÉÆÃnðUÉ PÁUÀzÀ¥ÀvÀæªÀ£ÀÄß ºÁdgÀ¥Àr¹®è. D §UÉÎ PÉÆÃnðUÉ ºÁdgÀ¥Àr¸À®Ä PÁUÀzÀ¥ÀvÀæ ºÁdgÀ¥Àr¸À®Ä £À£ÀUÉ AiÀiÁªÀÅzÉà CqÀZÀt E®è. DvÀ ¸Á® PÉý 15 ¢£ÀUÀ¼À £ÀAvÀgÀ £Á£ÀÄ DvÀ¤UÉ ºÀtªÀ£ÀÄß PÉÆnÖzÉÝãÉ. D jÃw £Á£ÀÄ ¦:¢£À°è §gɹzÉÝãÉ. ¥Àæw wAUÀ¼ÀÄ £À£Àß RZÀÄð ºÉÆÃV 2-3 ¸Á«gÀ gÀÆ ºÀt G½AiÀÄÄvÀÛzÉ. ¦:¢£À°è £Á£ÀÄ £ÀªÄÀ ä ¨ÁåAPÀ¤AzÀ ¸Á® ¥ÀqÉzÀÄ DvÀ¤UÉ ºÀt PÉÆnÖzÝÉ Ã£É JAzÀÄ §gɹ®è."
9. Further on examining the entries in Ex.P.5, it is seen that entry regarding first loan is dated 12.05.2008 for a sum of 12 Rs.2,00,000/- borrowed from Sri. Durdundeshwar Urban Credit Co-operative Society. The Second entry is for a sum of Rs.18,00,000/- dated 18.03.2011 from Hebbal Credit Co-operative Bank. Both these loans are subsequent to date of loan as claimed by complainant i.e. on 10.12.2007. As the complainant has not stated about any other sources of income to justify his financial capacity to lend loan of Rs.85,000/-, the First Appellate Court has rightly held that accused rebutted the presumption in favour of complainant and rightly held that he had failed to prove his financial capacity.
10. On an examination of the entire evidence on record, I find that the conclusion drawn by the Appellate Court is 13 with reference to evidence on record and the same is neither perverse nor grossly irregular. Hence, there is no merit in the appeal. Accordingly, appeal is dismissed.
SD/-
JUDGE HMB