Karnataka High Court
Sri Shivanna vs Sri Nagaraja Gowda on 20 January, 2022
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL No. 1012/2012
BETWEEN:
SRI. SHIVANNA
S/O. MUNIRANGAIAH
#62, 11TH MAIN
VRISHABAVATHI NAGAR
MARUTHI TEMPLE STREET
NEAR SRS FLOUR MILLS
KAMAKSHIPALYA
BENGALURU - 560 079
....APPELLANT
( BY SRI. SAGAR B.B., ADVOCATE)
AND:
SRI. NAGARAJA GOWDA,
S/O. LATE HANUMANTHARAYAPPA
# 157/1, 6TH MAIN,
PRASHANTH NAGAR,
BENGALURU - 560 079.
.... RESPONDENT
(BY SRI. K.T. GOVINDE GOWDA,ADVOCATE)
*****
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374
OF CR.P.C. PRAYING TO SET ASIDE THE IMPGUNED
JUDGMENT DATED 10.08.2012 PASSED BY THE XIX
2
ADDITIONAL C.M.M., BENGALURU IN C.C. NO.1356/2004-
ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 138 OF THE N.I. ACT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
13.01.2022, COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellant-complainant has filed this appeal against the judgment of acquittal passed in C.C. No. 1356/2004 on the file of the XIX Additional Chief Metropolitan Magistrate, Bengaluru City, Bengaluru dated 10.08.2012, whereby the learned Magistrate has acquitted the accused/respondent for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 ( 'N.I. Act' for short).
2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the trial Court.
3. The brief factual matrix leading to the case is that, the complainant is carrying on business in Bengaluru City and the accused is also a neighbouring resident. The accused was 3 running two buses and he used to approach the complainant for various helps. It is further alleged that, accused has approached the complainant for hand loan on the ground that, he incurred huge loss. The complainant was keeping some amount with him for the purpose of constructing the house and considering the promise made by the accused of repayment at the earliest, he had advanced the hand loan of Rs.4.00 Lakhs to accused by way of cash in the 2nd week of January, 2002. It is also alleged that, after receiving the amount, the accused has issued two post-dated cheques for Rs.2.00 Lakhs each dated 25.11.2003 and for repayment of the said loan amount, the complainant has approached the accused on number of times for repayment. But, the accused failed to repay the amount and as such the complainant has presented the said cheques to the Bank. The cheques were returned on 28.11.2003 with an endorsement 'Payment Stopped'. Then the complainant has got issued a legal notice to the accused demanding the cheque amounts and the legal notice came to be served on the accused. But, the accused has given an evasive reply. Hence, the complainant has filed 4 a complaint under Section 200 of Criminal Procedure Code, 1908 ('Cr.P.C.' for short) before the learned Magistrate.
4. The learned Magistrate after recording the sworn statement of the complainant has taken cognizance of the offence and issued process against the accused. The accused appeared before the Court and was enlarged on bail. The accusation was read-over to the accused and he pleaded not guilty. The complainant was got examined himself as PW.1 and he also examined three witnesses as PWs. 2 to 4, and in support of his contention, he has also placed 10 documents as Ex.P1 to Ex.P10. Then the statement of accused under Section 313 Cr.P.C., was recorded and the case of accused was of total denial. The accused has got examined himself as DW.1 and one witness was examined as DW.2. The accused has also placed reliance on 18 documents marked at Exs. D1 to D18.
5. After hearing the learned counsels appearing for the parties on both sides, the learned Magistrate came to a conclusion that the complainant has failed to prove that the 5 alleged cheques came to be issued in discharge of a legally enforceable debt and as such, the complainant has failed to prove that the accused has committed the offence punishable under Section 138 of the N.I. Act. Therefore, the Trial Court by the impugned judgment has acquitted the accused of the offence under Section 138 of the N.I. Act. Being aggrieved by this judgment of acquittal, the complainant has filed this appeal under Section 378(4) of Cr.P.C.
6. Heard the arguments advanced by the learned counsel for the appellant/complainant and perused the records.
7. The main contention of the learned counsel for the appellant is that, when the signature on the cheques came to be admitted, the trial Court is not justified in acquitting the accused. He would also contend that the trial Court without appreciating the evidence properly, has wrongly came to the conclusion that, the complainant had no financial capacity to advance such a huge loan amount. He would further contend that, when the trial Court came to the conclusion that the 6 complaint is not maintainable, as in the legal notice seven days period is given, instead of giving 15 days, and in such a case it should not have proceeded to dispose of the matter on merits. He would further submit that, though in the legal notice seven days period is given, but the complaint was filed as per the statutory requirement, as notice was served on 23.12.2003 and the complaint came to be filed on 16.01.2004. He would also contend that the evidence of PWs.2 to 4 is not properly appreciated and as such, he would seek for allowing the appeal so as to convict the accused by setting aside the impugned judgment.
8. Having heard the arguments and on perusing the records, it is important to note here that, in the entire complaint, the complainant has not at all specifically asserted about the specific date of advancement of the hand loan. It is important to note here that the loan is alleged to have been advanced in the 2nd week of January 2002, that too to the tune of Rs.4.00 Lkahs. Rs.4.00 Lakhs is a huge amount in 2002 and it is hard to accept the version of the complainant 7 that he advanced such a huge amount without any security and without charging any interest. Further, he has not specifically stated the date of advancement of the alleged loan amount. Apart from that, in the complaint also there is no specific assertion as to when exactly, the cheques were handed over to the complainant. However, according to the complaint, on the same date of advancement of loan amount, two post-dated cheques as per Exs.P1 & P2 were handed-over to complainant, which were for Rs.2.00 Lakhs each. If at all on the same day, both cheques viz., Exs. P1 & P2 were handed-over, there is no explanation as to why the accused has issued two cheques rather than a single cheque, when the alleged loan transaction is for Rs.4.00 Lakhs.
9. Further, the complainant in his complaint has no where pleaded as to his avocation. He simply asserted that he was carrying on business for his livelihood in his complaint and also in his examination-in-chief. But, during cross- examination, it is elicited that, he is only running a Dry Clean Shop. Apart from that, in the cross-examination at Page 8 No.15, PW.1-complainant has claimed that the Cheques were issued as security for the loan transaction. It is not his case that the said cheques were issued towards repayment. Even PW.1 in his cross-examination pleaded ignorance as to who had accompanied the accused, when the accused has approached him demanding the hand-loan. He admitted in his cross-examination that, he is not an income-tax payee. Even in the legal notice issued to the accused by the complainant, there is no reference regarding the details of the cheques. It is also important to consider the cross-examination of PW.1 dated 03.09.2011 at Page No.13, wherein he claimed that, he had kept Rs.4.00 Lakhs in his house. But, however, he claims that Rs.1.00 Lakh was saved from his business and Rs.3.00 Lakhs was in respect of the sale proceeds of the site sold by him. Hence, at the out-set, the complainant has not produced any material to show that, he had the financial capacity and the cross-examination of PW.1 clearly disclose that, his financial capacity is exposed by the accused. He has not produced any documents to show his income. Further, he claims that, he secured Rs.3.00 Lakhs by sale of his Plot. But, 9 no documents have been produced to substantiate this contention also.
10. Apart from the above, it is also important to note here that the accused had filed a suit against the present complainant in O.S. No.173/1996 along with his mother and brother seeking partition and separate possession on the ground that the present complainant had purchased the property belonging to Defendant No.1, who is the brother of the present accused. The said suit was filed in the 1996 and was decreed in favour of the accused on 03.12.2004, which is evident from Ex.D4. In the said suit, it is clearly held that the sale deed executed by the brother of the accused in favour of the complainant is not binding, by declaring the share of the accused as 1/3rd. When such a civil suit is being prosecuted from 1996 only, it is hard to accept the contention of the complainant that he had advanced Rs.4.00 Lakhs without security to the accused in 2004. Further, he has also admitted that, he has preferred a Regular First Appeal against the said judgment and decree and the said appeal came to be 10 dismissed. This fact is also evident from Ex.D15. His cross- examination further reveals that, he had sold the property purchased from the brother of accused subsequently during pendency of the appeal itself. That clearly discloses the intention of the complainant. When the civil dispute between the accused and the complainant was pending, question of the complainant advancing loan does not arise at all. Apart from that, in the complaint itself no specific date of advancement of loan was given and it is evident that all along that there was a civil dispute between the parties. Further, the financial status of the complainant is also not established. Further, the accused has exposed the complainant in respect of his financial capacity. Though the complainant has claimed that he has accumulated the amount of Rs.3.00 Lakhs by way of sale of site, but, no material is produced to substantiate this contention.
11. The evidence of PWs. 2 to 4 does not assist the complainant in any way in proving his financial status. Hence, on perusal of the entire records, it is evident that the 11 complainant has not approached the Court with clean hands. He has not referred the date of payment of loan and no reasons are given for charging no interest to such a huge amount, that too during pendency of the civil litigation between the parties. Further, there is no explanation from the complainant as to why he has issued two cheques on the same day for Rs.2.00 Lakhs each, instead of one cheque. On the contrary, EXs.D1 and D2 clearly establish that, in the year 1995 itself, the accused has reported that the cheque book was lost and serial number of cheques at Ex.P2 and P3 are part of the said cheque book and this is again supported by the evidence of DW.2. Hence, the accused by leading cogent evidence has rebutted the presumption in favour of the complainant available under Section 139 of N.I. Act.
12. Further, in the decision reported in Basalingappa Vs. Mudibasappa [(2019) 5 SCC 418], the Hon'ble Apex Court has clearly held that the prosecution is bound to establish its case beyond all reasonable doubt, but, the accused is required to rebut the presumption only on the basis 12 of preponderance of probabilities. In the instant case, the cross-examination of PW.1 and the evidence DWs. 1 & 2 and also the documents clearly establish that the accused has rebutted the presumption. Further, in the above referred decision itself, the Hon'ble Apex Court has clearly held that, when the accused disputes the financial capacity of the complainant to pay such a huge loan amount and leads evidence, the burden would be on the complainant to establish his financial capacity/status. Admittedly in the instant case, the complainant has failed to establish his financial status. In such circumstances, the principles enunciated in the above cited decision are squarely applicable to the facts and circumstances of the case in hand. The complainant has failed to prove that the alleged chqeues were issued in respect of a legally enforceable debt and that he has advanced the hand loan of Rs.4.00 Lakhs to the accused.
13. The trial Court has appreciated the oral and documentary evidence in a proper perspective and arrived at a just decision. In such circumstances, the judgment of 13 acquittal does not call for any interference by this Court. As such, the appeal is devoid of any merits and needs to be rejected. Accordingly, I proceed to pass the following:-
ORDER The appeal is dismissed. The impugned judgment of acquittal dated 10.08.2012 passed by the XIX Additional Chief Metropolitan Magistrate, Bengaluru City, in C.C. No.1356/2004, by acquitting the accused of the offence punishable under Section 138 of the N.I. Act, is hereby confirmed.
SD/-
JUDGE KGR*