Karnataka High Court
Veerabasvanta vs Sri K Subramanyam on 26 November, 2010
Author: Ravi Malimath
Bench: Ravi Malimath
..1..,
NdTHEEfiGF¥COURT€N:KARNATAKA
CIRCUIT BENCH AT CSULBARGA %
ON THE 26" DAY OF NOVEMBER
BEFORE
THE HON"BLE MRJUSTICE {RA\7i'MvALI'MvAA§;,H
CRIMINAL
BETVVEEN:
Sri.Veerabasvanta S/0 Mahavdevafppzu. ._
Aged 30 years, V
R/0 Spi. Plot
Industrial E;$'ta't€/'*V.v~--':V-_ 1' -I V7 '
BSK Mill Roa.d,*ii._}_ E
Gulbarga;---Ve. 'iv-. »
_ _' ...AppeHant
(By S ré h Na rL1d'ra:',V;' 'A/§{(i»\{(dV3'C_¢E1't"€.§_)
ANEI .
is V' "Srj.F{.;§u.b:ramanya'rfimS/o K. La kshmaiah,
Age-d_ V60' ye-a.,r_s"",v __
' ER,/Q_-N," 3f'?fi.eer,
Bang_alofe'-:f56O O18.
"(Bye LSri...A--.«;\iijay Kumar, Advocate)
11'} Main, C-Eieamjza rajpet,
."Respondent
gfhis Crimmai Appeai filed under Sectien 378 of the Code of Criminal Procedure; 19373 praying to set aside {he judgment and erder of acquitta! dated 05.04.2007 gégwm passed by the Principal Civil Judge (Jr. Dn.) ands-35/>lFC Gulbarga in C.C.l\lo.282/G3 punishable under fisecitiien 138 of the Negotiable Instrument Act, 1881. V' This appeal coming on for hearing..th,i's'i.Vda--§Z, court delivered the following:
JuDGMENfc7c"
This appeal is filed aggrieved by the judgnigent by the Principal Civil Judge Qulbarga, in Criminal Case accused of the offence.' 138 of the
2. "*T_he_ prosecution is that the .~._com»p-lainant anld-~thc_e___accused are known to each other "_bfor"seVvera'll 'y4e'ar.s_. In view of the close relationship and the. .i'in'pend'--Ejngfnwarriage of the daughter of the accused, ':'¢_'__'.Vthe cloniplainant gave a sum of Rs.1,S0,000/-- to the A Caclcused during the 15? week of January 2002. In "=..__"°consideration of the said amount, the accused issued a aiww -3- cheque bearing E\io.4S8920 datecigi.5._-03L2'C*.0.'Z..'f'or.0 of Rs.1,50,000/- drawn on \/g}e.ye'-- Ba.ni<..iLiémit;e.d;V' S K.R.Road Branch, Bangaiore.._V_v"'~»The saVn'1e_vw,aS'~._:toWards "
the discharge of the__ debtAo_.nfA"v.ha'V\{ing.0bo.r_royii§ed the amount. The accused.:i'eq'uesi.ted'"the"Tcomplainant to present the cheque for pa.vmen't:'on.ly'~after 15.03.2002. Thereafter, when thew--.,cheq-uAe»,_ 'w'as"'-apresented for payment, with an endorsement ,..c.i*os'ed"'. Thereafter, the compiainaint'eiiissvuedflia notice to the accused on 17.06.20«O.2.. The".a:ccL1s.e'd...:rep|ied to the said notice on 03.07._200.i°~..den3fingA*-._theiiV claim of the complainant. a._?Vco.mpiain't~--was lodged under Section 200 of the Procedure, 1973 for the offence pijnishahlfeffj_ii.r'id'er Sections 138 and 140 of the '.Vi\Iegotiat3i*e Instruments Act, 1881. The Court beiow A V~.itook"'--cognizance of the offence and issued summons. tréai, the court beiow acquitted the accused of the offence punishabie under Section 138 of the Negotiabie .3 5:
a 4"
Instruments Act, 1881. Hence the present ap_?n.e_a.l4_:'0i:1y the complainant.
3. The learned Counsel'""a--ppearin<;§'liter'-the"-.& appellant contends that the acqu»i=tta:l~A.Aol'l the opposed to the evidence s:He contends that the trial"Qourtr"lost:':s'iught of the fact that the issuance of a chedde."Vitstelihis_:a*:.l{J.I@.§l§Jmption of a debt. The an error in misreading V;/§,3ctv*vvhile acquitting the accused. llll "It" even in terms of the replzyvto- 03.07.2002, the accused has stated he" haddlost the signed cheque leaves 5»had"l'K5Flt bag. However, as on that date, 'V't.h'e.._racCo0un.t' offltitle accused was closed and hence, the Con:-?t_ bevl'owhi'~eommitted an error in misreading the plea Vleflthe acensed.
On the other hand, the learned Counsel apldearing for the respondent defends the impugned eeféefi -5- judgment. He centends that there is no error_.:§je'tti's§j1'i-tte:fi____" _ by the triai Court that caiis for any inteste-teniziei; contends that the materiai anti e3ziti.<;:nt:e":4.p£a'cei:.i.tt__'_Ve:n record having been appropi'iat.ely ciene'i'dered'*'ti§,: trial; Court, no interference is calietl'f:o'r. He iion;t:en':ds.':'t§haVt the complainant is not to anidwthere is no debt clue from the accuse-ciiwfijvtihie eoVi'n.'gl.ai_'nant. Hence, the entire eomplainant is erroneous -aside. He further contends~th.a't~-.notiI:only«j:tl'1e cheque, but that the accused hast-i.iivost':.4naany_ other cheque leaves" He therefore. oo--ntenoS'V':th_at«.t:hei order of acquittal is just and proper and ioieVadsf.ori'disnhissal of the appeal. Eieierd counsels and examined the records. "PW-1 is the compiainant. In his evidence, he iiivvfljihasstated with regard to the relationship he had with theiiiaiectised and in View of the impending marriage of «Z/C"
-5-
the daughter of the accused, a sum of Rs.1,SO,VO.-O__O/-- was paid to him in presence of one Basu. He has"fiu'rtL:he'r,. stated that in order to repay the said K instant cheque has been issued,"Di;i'rE.n&_g"..éth_;e':Al¢pt;rse:'«'ot"*'s the cross---examination; a reVferen'Ce 'was rnad'eii i':oK.th~e'* complaint lodged by him und'etf:3.ecti.ori'~ of the Negotiable Instrurriiierits Aet',_'V'i.tS.t?iVit'-r'ead'Mthvvéection 200 of the Code of wherein the list of ii_on;s'i-sts"'wofi"~1the___,:§fo'mplainant, the Bank :o:n'e':v.oj,u'l§;--.{;alrislrimiinarayana Murthyc When with regard to the thirdViN'itnesVs".VA§'5l»a'l§s'h'n1'inarayana Murthy, he has stated' that heedoels notwknow him and he is not even dawavlre that l_3ieé_.has been cited as a witness. :h_"_T.h'e;.""..trial Court while considering the ~V evide'nee'V.«Vol'"the complainant~PW~1, failed to take into V' 'f<:or'i's-icjeration his cross-examination with regard to Pdltalklshminarayana Murthy. The specific case made out arr by the accused is that certain documents including the instant cheque leaf were lost by him, PtLal<shrninarayana Murthy having come into of the same has entered figures onmthe che'q'uef_acn'd: filedsu '* if many frivolous cases against him', /-?;"c.r3py..of one' :suc'iii';j compiaim: in C.CtNo.847/2003a'tqefor'e'v.t'he'XIIIA.dd..itio3naVl Chief Metropolitan Mag:i_strate?V__vt§VangaJ_ore.hw;g$V.:AmV;i}ked as Ex.D1 and the order complaint filed by P.Santosh Murthy in C.C.No.1€.1'E§§9/éb;Q3 Additional Chief MetropQ.!--éta.nii'~iltfl'atjii:g;tra'tep,~:::v'i3l'a'nt3.alare was marked as Ex.D3 and "as Ex.D4. Hence, the accused tov'W.i."-make out a case that "V,..P~L£3'l{§.htIliIl§l'ayc!'FI'vMl..§:"thy who having come across the V,n:.i~spiacce.gl"i:é,lgne~d cheques; of the accused has misused the 'salme_;.ift_ his further case that even though these °*..,_'~two easjliler cases were filed by him, the same were V"-d_iemi'esed for non~prosecution and no effort has been made fer their restoration The said 5 fie air
-8' Mr.P.Lai<shminarayan Murthy has been witness in the instant eompiaintend in o'f.4_'_the._V V' statement made by the com;:{'i:ainl,a"nt' in "his ¢}:,»rio~sVs?.i.:
examination that he does not know him norflhe{_'ivs...aw3are » L' that P.Lai<shminarayan Murthy«.":'riaVs as a witness, would theref<3re"«.rer--7_de:r.t'her,:a.se of prosecution doubtful. - u .
8, __4-itwhiiieiiwsconsidering the evidence of PW--1 was of the view that_ba"se_dV th;e"~«'.evid€nVte and in view of with holdingvviithie. viz., the witness while handi.r2g over to"-the accused, wouid clearly go to 'xv'"vsho'w$°ti<.;*at the atdised has rebutted the presumption o'fuS'e.Ction 139 of the Negotiabie Instruments Abt,,'_iliE38:t,"Ffherefore, the burden on the accused having 'gbeen discharged and the complainant having faiied to A 5_'estab~E_eish his debt, the triai Court was right in acquitting the accused. I find no error committed by the triai Xi; a«e'""' '%»''/i I K ,9- Cotrrt that caiis for any interference. The passed by the trial Court is in accerda.h_ce..:.wEthxl"then rnateriai and the evidence on record. é_
9. The further cehtee:t'ie_n etthe' ilvas " V with regard to the reply...Vnotice"\tid*e'"ExtP7;lHe contends that in the reply the accused has stated that_he_ lost"the'; the cheque leaves lodged during the mO'n'thVV'O.f.V::#\E%;W' Park Police Station} He on April 2002, the account of the aiccusedlwastfAcl:oseVd'."'.Hence, the question of he possessing s4igned'che:ques for the immediate purpose as fistatedl, tloesr~.not arise for consideration, Therefore, he 1rconfzends'*«th'at"r~the intention of the accused was to issue the ,__c'heq_suesl__ khewihg fully well that he has closed his "._accouri~tgl':.The reply notice therefore would be bereft of A v~Ilfaln§,?l"t_rutht It is further contended that there is no ' thatewriai pieced by the accused with regard to the fiiing az"/6"
_ 10..
of the complaint or any other evidence in support o-f___his claim of having lost his bag Containing the leaves.
10. The trial Court whileTeonsiidetéinginth-el'same,it came to the conclusion that7t-h__e best_lpossizblel_ey_ViVdeVnce available to the accused was i/'iaV;,:vthevVf:copy of the complaint, FIR ' or any such document of th9f.ll,k€ ll.a'td'Féf': lV'll$WeQ'el.t"'lxitfialso came to the not be fatal to the case, and evidence on record,:'1.I view that the trial Court has comm'it_ted.v an e'r.ror:_"..'iwn not adequately considering _.v..Athev.p.l:ea "ef the "confipAléainant. The misplacement of the V".__ddcV:umeVn'tsjeovti.ld only be proved by placing such m'a.te*riai triéjt would establish his case of having lost, not Tonly lltlielflshveque leaves but also the other documents. A '~.'l'l5:Z'VT'ECli*.; it was not proper for the court below to come to V s?§f';.*'"""
($1 11- the conclusion that the same weuid not be fatai te--.__the case of the accused.
11. The specific case of the cdmp--i'a*i'a.a:ji1.fi he has paid a sum of Rs.1,5O,OiZ)4O/<1---tie' the:
the presence of one Basu. The_refore.., 'Basufié:AV.a'v.w§ptn3esS to prove the payment pf monVeffA-te_ the aicc-eeeAdT_:5 Hence, it is pleaded that issued by the accused to the his debt for having rece.iv'e'd4__ in the presence.pf_E5'a:e'uf*1:;;:': [A L i neither been cited as a witness nortais vb.e-en"v.eV>(amined by the complainant. If '*the"the cpnvipiavinant were to be accepted, then in that eveiirztt"t%h'e_'_evider2ce of Bast: woe-id cerreborate the staite_me_nt the cempiainant with regard to the R""'--..V:'payme.nt..ii'of the amount to the accused, On the e.'d.e'ii»be'rate failure of the compiainant te examine the said
-B-afsu, the oniy inference that ceuid be drawn is that the .. 12,.
complainant has created a false case against.-.__the accused. That the payment of a sum of to the accused therefore becomes M absence of examining the only with'é'ss«tQ theytra"n_::acti'en"'; viz., Sri.Basu, Hence, thegcompiiailnatnt ha--sA"fai'~leVd.4."to7 establish the debt due by the'ar.cV:c'usedVi it
13. In View of thefc_at«egor.i'c'aw.i_'fi.n'ding recorded by the court below..that the-._hon»-exami_nat:i,.o'n of the said Basu in ord.e.r§*...to money by the complainant"~to"th_;e_ acc'use«d" in view of the alleged mis--use__ of as in terms of Ex.D1 and D3, I 'am 'C:f__4tlhe 'view that the acquittal of the accused is justV"an.dVv_p_roper. I find no error committed by the-trial.:_Ciourt"'that calls for any interference. The entire by the complainant is riddled with '.Vuncertaihitievs. The presumption arising in terms of the it if_'i'::AsLiar3gceV'of the cheque has been appropriately dispeileci
- 13..
by the accused. Hence; I find no interfere in the present appeai.
14; For the aforesaid reasons devoid of merits is dismissed.
good ' theroam/ealsererbetngrr