Karnataka High Court
Manoharaswamy vs Moulasab S/O Imamsab on 27 November, 2012
Author: N.Ananda
Bench: N.Ananda
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 27 T H DAY OF NOVEMBER, 2012
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
CRIMINAL APPEAL No.1038 OF 2007
BETWEEN:
MANOHARASWAMY
S/O AYYASWAMY HIREMATH
BUSINESS GANGAWATHI-583 227
...APPELLANT
(By Sri. D R SUNDARESHA ADV.)
AND:
MOULASAB S/O IMAM SAB
AGED 47 YEARS, HOTEL BUSINESS
LINGARAJ CAMP
GANGAVATHI 583 227
... RESPONDENT
(By Sri. LAXMAN.T.MANTAGANI ADV.)
THIS CRL.A. FILED U/S. 378 CR.P.C. BY THE ADV.
FOR APPELLANT PRAYING TO SET ASIDE THE JUDGMENT &
ORDER OF ACQUITTAL DT.19.5.2007 PASSED BY THE
CIVIL JUDGE (SR.dN.) & JMFC., GANGAVATHI, IN
C.C.NO.227/03 - ACQUITTING THE RESPONDENT /
ACCUSED FOR THE OFFENCE P/U/S.138 OF N.I. ACT.
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This Criminal Appeal coming on for final
hearing this day, the Court delivered the
following:
J U D G M E N T
The learned counsel for parties are absent.
2. The appellant was complainant before the court below. He had initiated complaint under Section 138 of the Negotiable Instruments Act alleging that respondent/accused had availed financial assistance of Rs.1,50,000/- to settle his family legal necessities in the month of May 2002 and issued a cheque in favour of the complainant for a sum of Rs.1,50,000/- on 01.08.2002. On presentation, cheque was dishonoured. The statutory notice was caused. There was no response.
The learned trial judge on appreciation of evidence has held that there is material alteration relating to date of cheque.
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3. The learned trial judge on consideration of documentary evidence relied upon by the parties has held that the defence version that the complainant had taken signed blank cheques, signed blank bond paper and promissory notes in relation to certain transaction between the complainant and accused, and complainant has misused the same to file a false complaint and acquitted accused.
4. As could be seen from records, in particular, the copy of plaint filed in O.S. No.38/2004, complainant has filed a suit for specific performance against accused. The averments of plaint at paragraph 3 reads thus:
"That the plaintiff has got issued a lawyer notice to the defendant on 07.12.2001 calling upon him to execute the registered sale deed of the suit :4: schedule property in favour of plaintiff by receiving the balance consideration amount of Rs.10,000/- as agreed upon. W hich was duly served on him dated 08.12.2001. But, the defendant has failed to reply the same but he approached the plaintiff personally and requested time for the collection of documents pertaining to suit property. Thereafter, the plaintiff approached and requested the defendant on several occasions to execute the registered sale deed of the suit property by receiving the balance consideration amount of Rs.10,000/- by producing necessary documents, but the defendant postponed the same on false pretexts. Hence this suit. The office copy of the legal notice dt.07.12.2001 with postal receipt and acknowledgement are produced herewith for kind perusal of this Hon'ble Court."
5. From the above averments, it is clear that complainant had issued a legal notice to :5: accused alleging that he has committed breach of contract. The legal notice was issued on 07.12.2001 and it was duly served on accused on 08.12.2001. In the circumstances, the averments of complaint that accused had borrowed a sum of Rs.1,50,000/- from the complainant in the month of May 2002 and in order to discharge the same, he had issued a cheque for Rs.1,50,000/- in favour of the complainant on 01.08.2002 are prima facie untenable.
6. It is seen from the cheque marked as Ex.P-2, the date has been materially altered. The complainant has admitted that he has not mentioned the cheque number in the complaint, so also in the legal notice. He has denied the suggestion that the numerical mentioned as `200' in the column meant for mentioning the date of cheque has been materially altered. However, :6: PW-2 / Manager of the Bank has admitted that in the cheque, date is mentioned as '01.08.200'. The last numerical of the year is not visible.
7. On perusal of cheque, I find that the date of cheque was initially mentioned as '01.08.200'. Later, the date was materially altered to make it appear that it was drawn on 01.08.2002.
8. On the face of plaint allegations extracted supra, the case of complainant and evidence adduced by complainant that he had lent a sum of Rs.1,50,000/- to accused in the month of May 2002 and he had issued cheque in favour of complainant on 01.08.2002 cannot be accepted. The parties had fallen apart due to alleged breach of contract by accused. In fact, complainant had caused a legal notice on accused on 07.12.2001 and it was served on accused on 08.12.2001. It is the specific case of complainant that accused had :7: committed breach of contract and he had not executed sale deed in terms of the registered agreement deed dated 17.08.2001. It is highly improbable the complainant had again entertained the accused to lend him a sum of Rs.1,50,000/- in the month of May 2002, after causing a legal notice on 07.12.2001 on accused alleging that accused has committed breach of contract.
9. The learned trial judge, taking into consideration oral and documentary evidence relied upon by parties, has held that defence of accused that there was a transaction between accused and complainant; accused had borrowed money from complainant; in that connection, he had taken blank promissory notes and signed blank cheques from accused, looks probable.
10. On reconsideration of the evidence, it is not possible to hold that complainant has proved :8: the offence alleged against accused beyond reasonable doubt. Therefore, learned trial judge was justified in acquitting accused. There are no reasons to interfere with the impugned judgment. The appeal is accordingly dismissed.
Sd/-
JUDGE RK/-