Karnataka High Court
Sri D Murugan vs Abdul Gaffar Khan on 17 November, 2020
Equivalent citations: AIRONLINE 2020 KAR 2336, 2021 (1) AKR 476
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
CRIMINAL APPEAL No.467/2014
BETWEEN:
SRI.D.MURUGAN,
S/O SRI.DEVARAJA NAIDU,
AGED ABOUT 42 YEARS,
PRESENTLY WORKING AS
DEPUTY SUPERINTENDENT OF POLICE,
CHAMARAJNAGAR-571 313.
..APPELLANT
(BY SRI.CHETHAN.B, ADVOCATE)
AND:
ABDUL GAFFAR KHAN,
S/O LATE.KHADER KHAN,
AGED ABOUT 55 YEARS,
R/O.NO.181, 7TH CROSS,
JUMMA MASJID ROAD, ILIYAS NAGAR,
J.P.NAGAR, 1ST PHASE,
BANGALORES-560 078.
..RESPONDENT
(RESPONDENT IS SERVED)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) OF CR.P.C. BY THE ADVOCATE FOR THE
APPELLANT PRAYING TO SET ASIDE THE ORDER
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DATED:08.05.2014 PASSED BY THE XXII ADDL.C.M.M.,
BANGALORE, IN C.C.NO.22447/12 - ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT.
THIS CRIMINAL APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT THROUGH VIDEO
CONFERENCE AT BENGALURU DELIVERED THE
FOLLOWING:
JUDGMENT
With the consent of the learned counsel appearing for the appellant, appeal is taken up for final disposal.
2. Appeal is directed against the Judgment dated 08.05.2014 passed in C.C.No.22447/2012 by the XXII Additional CMM, Bengaluru, wherein accused came to be acquitted for the offence punishable under Section 138 of the Negotiable Instruments Act. Being aggrieved by the said Judgment complainant has come in appeal questioning the Judgment of the trial court.
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3. In order to avoid confusion and overlapping parties are referred in accordance with their ranks as stood before the trial court.
4. The complainant and accused person are known to each other in the sense, complainant states that the accused-Abdul Gaffar Khan has a brother by name Jabbar Khan @ Tanveer Khan who is the owner of property bearing No.30, V.P.Khatha No.1380, in Sy.No.52 of Malagal Village, Yeshwanthapur Hobli, Bangalore North Taluk. He agreed to sell the schedule property to the complainant. Accordingly said owner Jabbar Khan @ Tanveer Khan executed a power of attorney on 26.03.2011 in favour of accused authorizing him to sell the property and in the capacity of power of attorney holder the accused entered into agreement to sell the subject property and agreement was entered into between the accused 4 and complainant on 22.03.2012 and agreed to sell the said property for a cash consideration of Rs.8,00,000/- and an amount of Rs.3,00,000/- was paid as advance.
5. Subsequent to the sale agreement complainant found that there was defect in the title of property of the seller. Therefore complainant, accused and well wishers sat together and entered into agreement of cancellation on 17.07.2012 wherein sale agreement dated 22.03.2012 came to be cancelled. Insofar as part sale consideration is concerned complainant had to forego the amount of Rs.50,000/- and was eligible to receive Rs.2,50,000/-. Accordingly accused issued two cheques bearing No.599908 and 599910 dated 18.07.2012 drawn on SBI, Kumaraswamy Layout Branch, Bengaluru, for a sum of Rs.1,50,000/- and Rs.1,00,000/- respectively. Complainant presented 5 the cheques through his bankers State Bank of Hyderabad, Chandra Layout branch, Bengaluru and cheques were returned unpaid with an endorsement "payment stopped by drawer". The complainant got issued legal notice and the same was served on the accused on 01.08.2012. Complaint was filed on 17.08.2012.
6. Learned trial Judge was accommodated with oral evidence of PW-1 -complainant-D.Murugan and documentary evidence Exhibits P-1 and P-2 -two cheques, Ex.P-1(a) & P-2(a)-Signatures of accused, Ex.P-3 & 4 - Endorsements, Ex.P-5-Reply notice, Ex.P-5(a) -RPAD receipt, Ex.P-5(b)- RPAD Acknowledgment, Ex.P-6 - Courier receipt, Ex.P-7- Legal notice, Ex.P-8 -Complaint. However accused neither chose to examine himself nor the witnesses or filed documents.
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7. Learned trial Judge held that there was no legally recoverable debt and that complainant is not entitled for recovery of the sum of Rs.2,50,000/- from the accused.
8. Learned counsel for appellant submits that when everything was in order there was no circumstance to dismiss the complaint. The complainant has suffered too much in the hands of accused as the former could neither get the property nor the advance amount. Learned counsel would further submit that there is no dispute regarding signature, agreement and documents filed by the complainant. But having noticed the circumstances learned trial Judge has failed to apply required legal principles into the case for adjudicating the same in accordance with law and seriously erred in acquitting the accused. 7
9. As per the order sheet legal notice is served on the respondent and he is absent regard being had to the fact that in the trial court also he failed to lead his oral evidence and produce documentary evidence.
10. The learned trial Judge framed the following points for its consideration:
1) Whether the complainant proves beyond all reasonable doubt that, for the discharge of legal liability, the accused person issued two cheques bearing No.599908 and 599910 dated 18.07.2012 drawn on SBI, Kumaraswamy Layout Branch, Bangalore, amounting to Rs.1,50,000/- and Rs.1,00,000/- respectively, in favour of complainant with the assurance to present the cheque for collection, accordingly, the complainant presented the said cheque for collection to his banker, but same is dishonored due to insufficient funds in the account of accused, in spite of issuance of legal notice to the accused, he did not reply or comply the 8 notice and thus, he has committed an offence punishable u/s 138 of N.I. Act?
2) What Order/Sentence?
"My answer to the above points are as follows":
1) In the Negative,
2) As per final Order
11. Analysis of the learned trial Judge in paragraph 9 of the Judgment is lengthy one and extends more than three pages and it is culled out:
"9. POINT NO.1: In support of the case of the complainant, the complainant adduced his oral evidence as PW.1 filed by way of affidavit, in which he has reiterated the complaint contention and got marked Ex.P1 and P2 cheques alleged to be issued by the accused and identified the signatures of accused as Ex.P1(a) and P2(a). The said cheques are dishonoured due to 'payment stopped by drawer' as per Ex.P3 and P4 are the bank endorsements. Ex.P7 is the copy of 9 legal notice sent to the accused through RPAD and courier as per Ex.P5(a) and P6. The RPAD notice duly served upon the accused as per Ex.P5(b). For that, accused has given his reply as per Ex.P5. In his reply, he admitted the alleged agreement of sale entered into between the complainant and accused. But, he denied the rest of the contention of the complainant stating that, the site property was a free site allotted to Sri.Jabbar Khan by the Government on the eve of 25th Independence Day celebration. The concerned Tahsildar issued the Hakku Patra and delivered possession of the site property to him. On taking possession of the site property, he constructed a house, obtained electricity connection and he was in possession and enjoyment of the property. Presently, the property included in the jurisdiction of BBMP. The katha is in the name of Jabbar Khan and property taxes are paid to the BBMP. Jabbar Khan has executed the GPA on 26.03.2011 and authorized the accused to look after and manage the affairs 10 of the aforesaid property on his behalf as Jabbar Khan intended to sell away the property. As per his instructions and on his behalf by representing as his GPA holder on 22.03.2012, entered into an agreement of sale to sell the property in favour of the complainant D.Murugan upon certain terms and conditions incorporated therein. It is specifically agreed and incorporated in the agreement of sale that, at present some third party is in occupation of the property, as such it is the responsibility of the intending purchaser Sri.D.Murugan to evict the persons from the property and also to resolve the disputes on the properly at his own cost and risk. It is further contended that, when such being the fact, it appears some persons in active collusion with each other created documents as if the site No.30 of Malagalu village allotted to C.Rangaiah and in turn, he has sold the site property to Smt.Puttalingamma. Later, said Puttalingamma sold the property to Sri.Dayashankar Sahani and Smt.Gayathri 11 Sahani. On coming to know about the said anomalies, accused filed a civil suit in O.S.No.3162/2012 against the said persons before the City Civil Court, Bangalore. Further he lodged a police complaint in Cr.No.317/2012 for the offences u/s 447, 341, 504 and 506 r/w 34 of IPC before the Vijayanagar police station, Bangalore. Further, he has stated that, it appears that, complainant D.Murugan has come into contact with the above said persons and all of them have conspired together with the common intention to cheat and defraud the site property owner Sri.Jabbar Khan and this accused, they have indulged in illegal acts to cheat accused. On 17.07.2012, accused along with rowdy elements and supporters had trespassed into accused house, forcibly obtained his signatures on several typed papers, documents and also blank papers. On the basis of the said fraudulent signature obtained by duress and coercion, they have withdrawn the criminal complaint in the said case and also the said civil suit on 12 18.07.2012 without the knowledge and consent of accused. They also forcibly taken blank cheques duly signed by the accused under coercion and posing threats to his life. Accused already lodged complaint to the Commissioner of Police, Bangalore, on 7.8.2012 against the aforesaid persons including the complainant for investigation into the matter etc. But, against to the reply notice, the complainant has not issued any rejoinder or counter by admitting and disputing the facts contended in the reply notice except stated the accused given an evasive reply. Further got marked Ex.P8 is the complaint in this case. As per this complaint, there was an agreement taken between the complainant and accused for sale of property belongs to one Jabbar Khan. But, in support of the said contention, the complainant has not produced and got marked any documentary evidence. Hence, on the basis of these facts and circumstances, though the accused did not cross-examine the PW.1 and also laid any 13 defence evidence, but it is the burden upon the complainant to prove his case beyond all reasonable doubt. The case of complainant create doubtful. Hence, the complainant failed to discharge his burden by producing cogent and convincing evidence. Hence, the accused is entitled for acquittal. Accordingly, I answer point No.1 in the Negative.
12. After dishonour of cheques, complainant issued legal notice and same is marked as Ex.P-7 and copy of the same is available in the file and reply notice sent by the accused is marked as Ex.P-5. In that paragraphs 2 and 3 are as under:
"2. Regarding para-1 of your notice, it is true that my client's brother Mr.Jabbar Khan @ Tanveer Khan is the owner of the property bearing No.30, V.P.Khata No.1380, comprised in Survey No.52 of Malagala Village, Yeswanthapur Hobli, Bangalore North Taluk. It is also true that my client's brother Jabbar Khan @ Tanveer 14 Khan has executed GPA dated 26.03.2011 in favour of my client to look after and sell the said property. It is also true that my client by representing as GPA holder of his brother Jabbar Khan @ Tanveer Khan offered to sell the property to your client and entered into an Agreement of Sale on 22.03.2012, for a sale consideration of Rs.8,00,000/- and received advance sum of Rs.3,00,000/- from your client.
3. Regarding para -2 of your notice, my client denies that there is any defect in the title of the property and that your client and my client sat together with well-
wishers and decided to pay back the advance sale consideration and on 18.07.2012 cancelled the Sale Agreement dated 22.03.2012 by executing cancellation agreement and issued cheque bearing No.599908 and another cheque No.599910 dated 18.07.2012 drawn on State Bank of India, amounting to Rs.1,50,000/- and Rs.1,00,000/- respectively towards 15 repayment of the advance sale consideration with a promise to honour the cheques on the date of presentation to the Bank. Your client may be put to strict proof of the same."
13. Thus, by reading of the case of the complainant as per the analysis of evidence by the learned trial Judge it suggests that there was a transaction between the complainant and accused wherein latter in the capacity of power of attorney holder entered into agreement to sell the property bearing No.30, V.P.Khatha No.1380, in Sy.No.52, Malagal Village, for a cash consideration of Rs.8,00,000/- and reference of the agreement is made in the complaint.
14. Learned counsel appearing for appellant Sri.Chethan B., would submit that original agreement was taken back by the accused after cancellation of 16 the same was entered into. It is necessary to mention sale agreement is stated to be dated 22.03.2012 and cancellation of the same was entered into on 18.07.2012. Copy of the cancellation agreement is filed and its reference to date of sale agreement stated above for total sale consideration of Rs.8,00,000/- advance amount of Rs.3,00,000/- for the property is mentioned.
15. Learned trial Judge in his appreciation of evidence concludes that there was no transaction and entire transaction is doubtful. Following are the questions which are totally ignored by the trial court. (1) Signature on cheques and their issuance by the power of attorney holder are not challenged. Contextual reading of the reply notice indicates that the cheques were issued under sale agreement for total sale consideration of Rs.8,00,000/- and advance 17 amount paid was Rs.3,00,000/- which is absolutely clear. Subsequently cancellation is also not disputed in the context. Issuance of cheques is not disputed. From the reading it could be known an amount of Rs.50,000/- is reduced. Pendency of a civil suit between the accused and Dayashankar Sahani and Smt.Gayathri Sahani in O.S.No.3162/2012 is also mentioned in the reply.
16. The accused did not enter into witness box and testimony is not challenged. It is not a legal principle whenever accused or defendant fails to place his appearance before the court or fails to cross examine the complainant or lead evidence or file documents matter has to be invariably adjudicated in favour of complainant/plaintiff. Such notions have no place in law. Even in a case wherein defendant is placed exparte and adjudication should invariably possess all 18 the qualities of appreciation of evidence rather more care will have to be taken than contested cases because evidence, documents are to be examined meticulously.
17. The signatures on the cheques not disputed. Issuance of cheques not disputed. Enabling transaction indicate that there was payment of advance amount of Rs.3,00,000/- by the complainant to the accused and said sale agreement came to be cancelled wherein complainant was given Rs.2,50,000/- by deducting Rs.50,000/-.
18. Payment of Rs.3,00,000/- by the complainant is proved. By virtue of the cancellation of the agreement the accused was bound to return the said amount. However accused issued cheques for Rs.2,50,000/-. (two cheques bearing No.599908 and 19 599910 for Rs.1,50,000/- and Rs.1,00,000/- respectively). The said cheques came to be dishonoured by the bank. The accused has not challenged the case. Even otherwise case of the complainant is proved.
19. It establishes legally recoverable debt and lengthy paragraphs in Judgment only lead to conflict and there is no clarity in the Judgment though there is clarity in the case. I find the appreciation of evidence in the case on hand is very poor on the part of the trial Judge. Judgment of acquittal cannot be sustained and it is liable to be set aside.
Hence, the following:
ORDER Appeal is allowed. Judgment of acquittal passed in C.C.No.22447/2012 dated 08.05.2014 is hereby set 20 aside and accused is convicted for the offence punishable under Section 138 of the Negotiable Instruments Act and sentenced him to pay fine amount of Rs.4,05,000/-. Out of which Rs.4,00,000/-
shall be paid to the complainant as compensation and balance Rs.5,000/- is ordered to be adjusted to the State Exchequer. In default of payment of fine, accused shall undergo simple imprisonment for six months.
Sd/-
JUDGE SBN