Karnataka High Court
Muttu S/O Yamanappa Kondaguli vs Ghoshayya Channayya Hiremath on 23 August, 2024
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NC: 2024:KHC-K:6240
CRL.A No. 200252 of 2021
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 23RD DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO.200252 OF 2021
(378(Cr.PC)/419(BNSS)
BETWEEN:
MUTTU
S/O YAMANAPPA KONDAGULI,
AGE: 34 YEARS, OCC: BUSINESS,
R/O: D. A. MAHAJAN,
NEAR KSRTC WORK SHOP,
IBRAHIM ROZA ROAD,
JORAPUR PETH, VIJAYAPURA.
...APPELLANT
(BY SRI D. P. AMBEKAR, ADVOCATE)
AND:
Digitally signed
by SHILPA R GHOSHAYYA CHANNAYYA HIREMATH
TENIHALLI AGE: 52 YEARS,
Location: HIGH OCC: AGRICULTURE,
COURT OF
KARNATAKA R/O: KALAHALLI,
TQ. SINDAGI,
DISTRICT: VIJAYAPUR.
...RESPONDENT
(BY SRI CHAITANYAKUMAR C. M., ADVOCATE)
THIS CRL.A IS FILED UNDER SECTION 378(4) OF CR. P.
C., PRAYING TO ALLOW THIS APPEAL AND THEREBY SET ASIDE
THE JUDGMENT AND ORDER OF ACQUITTAL DATED 10.03.2020
PASSED IN CRIMINAL APPEAL NO.36/2019 BY THE IV ADDL.
DISTRICT AND SESSIONS JUDGE, VIJAYAPURA AT VIJAYAPURA
AND FURTHER RESTORE THE JUDGMENT AND ORDER OF THE
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NC: 2024:KHC-K:6240
CRL.A No. 200252 of 2021
ADDL. SENIOR CIVIL JUDGE AND JMFC, SINDAGI, AT SINDAGI,
IN CRIMINAL CASE NO.429/2017. AWARD DOUBLE THE
CHEQUE AMOUNT TO APPELLANT BY WAY OF COMPENSATION
IN THE INTEREST OF JUSTICE.
THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT,
COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT,
DELIVERED/PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR) The appellant/complainant being aggrieved by the judgment passed by the learned IV Additional District and Sessions Judge, Vijayapur (for short 'first appellate Court') dated 10.03.2010 in Criminal Appeal No.36/2019, allowing the said appeal filed by the accused and acquitting him for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'N.I.Act') by reversing the judgment of conviction passed by the learned Additional Senior Civil Judge and JMFC, Sindagi (for short 'Trial Court') in Criminal Case No.429/2017, has preferred this appeal.
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NC: 2024:KHC-K:6240 CRL.A No. 200252 of 2021
2. The facts leading up to this appeal in brief are as under:
That, both complainant and accused knew each other for the last three years prior to filing of the complaint. It is stated by the complainant that, whenever the accused was in need of money used to take financial assistance from the complainant. Likewise, to meet his financial difficulties, the accused has availed loan of Rs.6 lakhs in the month of January, 2012 from the complainant. Because of the relationship of the complainant with the accused, he advanced a loan of Rs.6 lakhs to the accused. The accused has promised to return the said amount within a year, but he did not repay the same and he went on postponing. Because of persistent demand by the complainant, the accused issued a post dated cheque bearing No.539736, drawn on Syndicate Bank, Sindagi branch dated 25.11.2013. When the said cheque was presented for encashment as per the instructions of the accused through the complainant's Banker i.e., Karnataka -4- NC: 2024:KHC-K:6240 CRL.A No. 200252 of 2021 Bank Limited, Sindagi branch on 18.01.2014, but the said cheque was dishonoured as per the memo dated 20.01.2014 with an endorsement 'account closed'.
Though the accused knew the fact of closing his account, he issued a cheque in a deceitful manner with an intention to deceive the complainant. Thus, the accused has committed the offence punishable under Section 138 of the N.I.Act read with Section 420 of IPC.
3. It is further case of the complainant that, after dishonour of the said cheque, within the statutory period, the complainant has issued a notice to the accused on 28.01.2014 through his counsel and called upon the accused to pay the cheque amount. Despite service of notice, the accused did not pay the cheque amount. Therefore, the complainant was constrained to file a complaint against the accused for the aforesaid offence.
4. After filing of the complaint, cognizance of the offence was taken by the jurisdictional Magistrate. After recording the sworn statement of the complainant, process -5- NC: 2024:KHC-K:6240 CRL.A No. 200252 of 2021 came to be issued against the accused. The accused has appeared and was enlarged on bail. The plea was read over and explained to the accused in Kannada language. He pleaded not guilty and claimed to be tried.
5. To prove the case of the complainant, he himself entered the witness box as PW.1 and got marked Exs.P1 to P6 and closed the prosecution evidence. On behalf of the accused, he himself entered the witness box as DW.1 and got marked Exs.D1 and D2. Exs.D1 and D2 were confronted to PW.1.
6. The learned jurisdictional Magistrate on hearing the arguments of both the side, raised one point for consideration and answered the same on evaluation of the evidence in the affirmative and found the accused guilty of the offence punishable under Section 138 of the N.I.Act and accordingly, sentenced him as under:
"Acting under Section 255(2) of Cr.P.C., accused is hereby convicted for the offence punishable U/Sec.138 Instruments Act. Negotiable -6- NC: 2024:KHC-K:6240 CRL.A No. 200252 of 2021 Accused shall undergo simple imprisonment for a period of one year for the offence punishable u/sec. 138 of Negotiable Instruments Act.
Further accused shall also liable to pay fine of Rs.12,00,000/-, in default to pay fine amount, he shall undergo simple imprisonment for a period of six months.
Out of the fine amount a sum of Rs.11, 90,000/- shall be payable to the complainant as compensation as provided u/Sec.357(3) of Cr.P.C. and Rs.10,000/- to be appropriated to the State."
7. This judgment of conviction and order of sentence was challenged by the accused by preferring Criminal Appeal No.36/2019 before the first appellate Court. The said appeal came to be allowed vide judgment and order dated 10.03.2020 by setting aside the judgment of conviction and order of sentence passed by the Trial Court in C.C.No.429/2017 dated 12.04.2019 and acquitted the accused for the aforesaid offence. This is how, now the appellant/complainant is before this Court challenging -7- NC: 2024:KHC-K:6240 CRL.A No. 200252 of 2021 the judgment of acquittal passed by the first appellate Court.
8. The learned counsel for the appellant/complainant Sri D.P.Ambekar supported the reasons assigned by the Trial Court and questioned the very finding of the first appellate Court in holding that, the accused is not found guilty of the alleged offence. He narrates the calendar of events that have taken place in between the complainant and accused and submits that, because of good acquaintance between the complainant and accused, as per the demand made by the accused to advance the loan amount to meet his legal necessity, complainant has advanced loan of Rs.6 lakhs to the accused in the month of January, 2012. There was a promise to repay the loan amount within a year. In discharge of the said loan amount, accused has issued a cheque dated 25.11.2013 drawn on Syndicate Bank, Sindagi branch. When the said cheque was presented through the Banker of the complainant i.e., Karnataka -8- NC: 2024:KHC-K:6240 CRL.A No. 200252 of 2021 Bank Limited, Sindagi branch, the said cheque was dishonoured as 'account closed' as per the memo dated 20.01.2014. Accordingly, within 15 days as per the mandate of the provisions of the N.I.Act, the complainant has issued a statutory notice on 28.01.2014 by way of RPAD. Despite service of notice, the accused did not give any reply. Therefore, the complainant was constrained to file a complaint within the prescribed time on 29.05.2015. He submits that, the Trial Court on evaluation of the evidence, has convicted and sentenced the accused as aforesaid, but the first appellate Court has set aside the judgment passed by the Trial Court, which according to him is absolutely incorrect. As the Trial Court has rightly observed about legally enforceable debt as well as issuance of cheque, even the signature on cheque is admitted by the accused. Therefore, according to him, when the signature of the accused on the cheque is admitted, the presumption is very much available under Sections 118 and 139 of the N.I.Act. Such a presumption which is available to the complainant is not rebutted by -9- NC: 2024:KHC-K:6240 CRL.A No. 200252 of 2021 the accused by adducing any evidence. That means, according him, the defence of the accused is not duly proved in accordance with law. It is his submission that, the first appellate Court has committed a grave error in allowing the appeal and setting aside the judgment of conviction and order on sentence. In support of his submission, he took this Court to various provisions of N.I.Act as well as the oral and documentary evidence led by the parties to the appeal.
9. As against this submission, the learned counsel for the respondent/accused submits that, when the accused himself has closed his account in the year 2007 itself, question of he issuing a cheque to the complainant does not arise at all. According to him, the accused has lost his cheque book at Vijayapur itself and to that effect, he lodged a complaint before the police. The police have issued an acknowledgement for having received the complaint, but they have not investigated the same. He submits that, in clear terms, it is stated in the
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NC: 2024:KHC-K:6240 CRL.A No. 200252 of 2021 acknowledgement that, the accused has lost his cheque book. When the accused has lost his cheque book way back in the year 2007, the question of he issuing a cheque in the year 2013 to the complainant does not arise at all. The first appellate Court has considered all these aspects according to his submission and as there was no legally enforceable debt being proved by the complainant, so also missed cheque was misutilized by the complainant, the first appellate Court is right in acquitting the accused by allowing the appeal. He supported the reasons assigned by the first appellate Court in acquitting the accused while allowing the appeal. He too took this Court to the evidence spoken to by the witnesses.
10. I have given my anxious consideration to the arguments of both the side and meticulously perused the records.
11. In view of the rival submissions of both the side, the only point that would arise for my consideration is:
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NC: 2024:KHC-K:6240 CRL.A No. 200252 of 2021 "Whether the first appellate Court has committed any illegality or infirmity in acquitting the accused for the offence punishable under Section 138 of the N.I.Act?"
12. PW.1 being the complainant, has reiterated the contents of the complaint in his evidence on oath. In support of his case, he has relied upon Exs.P1 to P6. It is suggested to PW.1 that, whatever the signature so found on Ex.P6 does not belong to the accused. He has given negative answer to the same. He denied the suggestion, that, there was no transaction between the complainant and accused. Even he denied the suggestion that, the accused has submitted a complaint to the police because of missing of the cheque book. Further, he deposed ignorance that, whether the accused has informed his Banker about missing of his cheque book. This witness has been thoroughly cross-examined by the defence. According to him, he knows to read and write English language. He states that, the name of the accused is Ghoshayya Hiremath. He admits that, in the complaint,
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NC: 2024:KHC-K:6240 CRL.A No. 200252 of 2021 there is no mention with regard to the date and issuance of the cheque and where it was issued. According to him, he can tell the difference in the signatures of the accused. A question is directed to PW.1 about the signature, but the Trial Court has rejected the said prayer. According to him, except accused, he has not given any loan to any other person. Further, he improves his evidence by stating that, he has advanced loan to Jagadevappa Desai, Gollalappagouda Patil, Sharanagouda Patil, Iraganteppa Chinchoor and Chandsab Hosur. According to him, he has advanced loan to the aforesaid persons towards purchase of the landed properties. According to him, he has entered into an agreement and the said agreements are in his house. Further, he denied that, whenever he advance money, he would take cheques by way of security. He denide that, as the amount was not paid and therefore, he to filed the complaint etc. According to him, he has not advanced any loan amount to any third person. Thus, from the evidence spoken to by PW.1, it is very much clear that, on what date, where and how the said loan amount
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NC: 2024:KHC-K:6240 CRL.A No. 200252 of 2021 was given to the accused and when the said cheque was issued by the accused is not stated either in the complaint or in his evidence on oath.
13. It is the specific defence of the accused that, he lost his cheque book containing Ex.P1, when he had been to APMC yard at Vijayapur for the purpose of selling the product. Therefore, he lodged a complaint before the APMC police station. Immediately after missing of his cheque book, the accused has directed his Banker to close the account. To that effect, DW.1 - accused has come before the Trial Court and spoken about missing of the cheque book and filing of a complaint to the police station and he also has produced Ex.D2, which is the acknowledgement supplied to the accused by the police for having received the complaint.
14. This DW.1 - accused has been thoroughly cross-examined by the complainant. According to him, the cheque book was containing 50 cheque leaves and he lost the same. According to him, on 7 to 8 blank cheques, he
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NC: 2024:KHC-K:6240 CRL.A No. 200252 of 2021 has put his signature. Further he states that, he came on that day to the APMC yard, Vijayapur. He admits that, whenever he sells the goods at APMC yard, they used to issue receipt etc. According to him, in Ex.D2 it was written as he has lost 25 cheque leaves. He denied the suggestion that, Ex.D2 is a got up document. It is also denied that, to defeat the rights of the complainant and to recover the cheque amount, he has designed this story of missing of the cheque book. But, this suggestion is denied by him.
15. So far as documents are concerned, Ex.P1 is the chque drawn on Syndicate Bank, Sindagi branch and it shows that, the chque was written for Rs.6 lakhs and if the signature is compared, it is observed by the first appellant Court that, signature differs. So also, Ex.P2 is the Bank endorsement issued by the Syndicate Bank, Ex.P3 is the legal notice. With regard to the notice is concerned, there is no dispute as such. The relevant document so relied upon by the accused is Ex.D2. Ex.D1 is the voter identity
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NC: 2024:KHC-K:6240 CRL.A No. 200252 of 2021 card of the accused showing his age as 48 years as on 01.01.2005. Ex.D2 shows that, the accused has lost his cheque book with cheque numbers commencing from 539726 to 539750 that is 24 cheque leaves. Though the accused states about missing of 50 cheque leaves, but it shows about missing of 24 cheque leaves only. He has lodged a complaint before Gol Gumbaz police station, Vijayapur. It is spoken to by DW.1 that, he lodged a complaint before APMC yard police station, Vijayapur. Relying upon this evidence, the learned counsel for the appellant/complainant submits that, this Ex.D2 is a fabricated document to show that, a complaint was lodged about missing of cheque book.
16. The first appellate Court while considering the evidence placed on record by the complainant and accused, has come to the conclusion that, the complainant is unable to prove about the issuance of the cheque towards legally enforceable debt. So also missing of the
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NC: 2024:KHC-K:6240 CRL.A No. 200252 of 2021 the cheque book, as the complaint was filed to that effect, this complainant must have misused the said cheque.
17. To prove the offence under Section 138 of the N.I.Act, it is the bounden duty of the complainant to prove the ingredients of Section 138 of the N.I.Act. That means, there must be a loan transaction and in discharge of the legally enforceable debt, the accused has issued the cheque and on presentation of the said cheque, the same was dishonoured for want of sufficient funds and other grounds so mentioned in the memo, which must attract the provisions of Section 138 of the N.I.Act. Though in this case, the accused admits his signature by stating that, in the cheqe book, about 7 to 8 cheque leaves were signed. He has lost his entire cheque book containing his signatures on 7 to 8 cheque leaves. Merely because the signature on the cheque is admitted, that does not mean that the said cheque was given by the accused to the complainant in discharge of legally enforceable debt. Therefore, by determining all the aspects, no doubt the presumption is very much available in favour of the
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NC: 2024:KHC-K:6240 CRL.A No. 200252 of 2021 complainant. But the presumption, which is avilable under Section 139 of N.I.Act is a rebuttable presumption. The complainant is under obligation to prove his case with legal evidence. Once the complainant proves about availability of the presumption in his favour by discharging all burden, which casts on him then only onus lies on the accused. But in this case, the accused has specifically taken a defence that, he has lost his cheque book way back in the year 2007 and he lodged a complaint to that effect before the police. The complainant has misused the cheque signed by the accused. That means, the heavy burden is on the complainant to prove the ingredients of Section 138 of the N.I.Act.
18. The learned first appellate Court on considering the evidence placed on record and on evaluation of the evidence so placed, has come to a definite conclusion that, there was no legally enforceable debt in between the complainant and accused and accused has not issued said cheque in discharge of the said loan amount. It is a fact
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NC: 2024:KHC-K:6240 CRL.A No. 200252 of 2021 finding given by the first appellate Court. As rightly observed to prove the said money transaction between the complainant and accused, the complainant has not adduced any legal evidence. When the accused has produced Ex.D2, which is the acknowledgement for having lodged a complaint, it is for the complainant to prove that, there exists a legally recoverable debt from the accused. It is the statutory presumption available under law and burden is on the complainant to prove the same. The learned Trial Court has not considered the same and the first appellate Court has rightly come to the conclusion that, the complainant is unable to establish the guilt of the accused. This finding of the Trial Court has been rightly set aside by the first appellate Court in view of the evidence brought on record by both the side. Even the first appellate Court has observed that, the signature on the vakalath, deposition etc. on comparison, they differ. The Trial Court has wrongly come to the conclusion that, the complainant is able to prove the guilt of the accused. This fact finding is not challenged by the complainant
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NC: 2024:KHC-K:6240 CRL.A No. 200252 of 2021 before any forum. The first appellate Court has considered all these aspects and has come to a conclusion that, the ingredients of the offence under Section 138 of the N.I.Act are not proved in accordance with law.
19. Though the learned counsel for the appellant/complainant submits that, the Trial Court was right in convicting the accused etc., in view of the discussion made above, there is no merit in the said submission. So to say, the ingredients so attract the offence under Section 138 of the N.I.Act are quite missing in this case. Therefore, there arises a doubt in the case of the complainant and benefit of doubt has to be extended to the accused. Accordingly, the point raised supra has to be answered against the complainant and in favour of the accused. Resultantly, I pass the following:
ORDER
a) The appeal is dismissed.
b) The judgment of acquittal dated 10.03.2010 in Crl.A.No.36/2019 by the IV
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NC: 2024:KHC-K:6240 CRL.A No. 200252 of 2021 Additional District and Sessions Judge, Vijayapur is hereby confirmed.
c) Send back the trial Court records along with copy of this judgment forthwith.
d) Bail bonds of the accused, if any, stands cancelled.
Sd/-
(RAMACHANDRA D. HUDDAR) JUDGE SRT List No.: 1 Sl No.:1 CT:BN