Karnataka High Court
G Muniswamy vs H S Nagendra Kumar on 6 November, 2013
1 CRL.A No.2275/2006
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 06TH DAY OF NOVEMBER, 2013
BEFORE
THE HON'BLE MR. JUSTICE A.S.PACHHAPURE
CRIMINAL APPEAL No.2275 OF 2006
BETWEEN:
G MUNISWAMY
S/O GOVINDASWAMY
MAJOR, CONTRACTOR
R/O INDIRANAGAR
HARIHAR
DIST:DAVANGERE
... APPELLANT
(BY SRI:R B DESHPANDE, ADV)
AND:
H S NAGENDRA KUMAR
S/O HAMMIGE SATYANARAYANA SETTY
MAJOR,
R/O SRI RANGANATHA PROVISION STORE
MAIN ROAD, SHIMOGA CIRCLE
HARIHAR, DIST:DAVANGERE
... RESPONDENT
(BY SRI:C H JADHAV, ADV)
THIS CRL.A. IS FILED UNDER SECTION 378(4)
CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER DATED 01.09.2006 PASSED BY THE CIVIL JUDGE
(JR.DN.) AND JMFC, HARIHAR IN CC NO.566/2002
ACQUITTING THE RESPONDENT/ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTION 138 OF NI ACT.
2 CRL.A No.2275/2006
THIS CRL.A. HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT, THIS DAY THE COURT PRONOUNCED THE
FOLLOWING:
J U D G M E N T
The appellant has challenged the judgment and order acquitting the respondent for the charge under Section 138 of Negotiable Instruments Act (hereinafter referred to as 'NI Act' for short).
2. The facts reveal that the respondent had entered into an agreement of sale of site No.138, RCC house situated at Indiranagar, Harihar for a consideration of Rs.6,00,000/-. An agreement was executed in favour of the appellant on 26.12.1997 by receiving the entire sale consideration. After this agreement, the appellant incurred the expenses to improve the house. He had spent a sum of Rs.1,50,000/-. The respondent is said to have informed the appellant that he intends to sell the suit 3 CRL.A No.2275/2006 property to some other person and would refund the advance and also the expenses incurred. To maintain the cordial relationship, the appellant agreed for the same and did not have recourse to legal action. Even at the time when the respondent sold his property, he is said to have signed as a witness to the sale deed. When the appellant demanded for repayment of sale consideration and also the expenses i.e., total sum of Rs.7,50,000/-, the respondent is said to have issued a cheque for Rs.7,50,000/- dated 07.06.2002 drawn at Harihar Urban Co-operative Bank Ltd., Davangere. On the request of respondent, the appellant presented the cheque after a month through his banker and the said cheque returned with an endorsement as account closed. The appellant issued notice of demand and as there was no compliance, he approached the Trial Court with a complaint under Section 4 CRL.A No.2275/2006 200 Cr.P.C. to initiate action for the offence under Section 138 of NI Act.
The respondent appeared before the Trial Court and after recording the plea, the appellant examined himself as PW1 and 3 witnesses as PWs.2 to 4 and in their evidence, documents Exs.P1 to P11 were marked. The commissioner who was appointed to offer her opinion about the contents of cheque is examined as CW1 and in her evidence, Exs.C1 to C4 were marked. After recording the statement of respondent under Section 313 Cr.P.C. as no defence evidence was led, the Trial Court heard the counsel for parties and on appreciation of the evidence on record, has acquitted the respondent for the charge under Section 138 of NI Act. Aggrieved by the judgment and order of acquittal, the present appeal is filed. 5 CRL.A No.2275/2006
During the pendency of this appeal, the appellant has filed an application under Section 391 Cr.P.C seeking permission to produce the xerox copy of sale agreement dated 26.12.1997.
3. I have heard learned Counsel for both the parties.
4. The point that arises for my consideration is:
"a) Whether the Trial Court was
justified in granting an order of
acquittal of respondent for the
charge under Section 138 of NI Act?
b) Whether the application under Section 391 Cr.P.C. deserves to be granted?"
5. It is the contention of learned Counsel for the appellant that there is a presumption under Section 139 of the Act about the existence of debt and issuance of cheque 6 CRL.A No.2275/2006 towards repayment of dues and in the absence of any rebuttable evidence, the Trial Court ought to have granted an order of conviction. It is his submission that the appellant had financial capacity to pay the sum of Rs.6,00,000/- to purchase the house and when the material placed on record is sufficient to hold that the amount was not repaid including expenses incurred, the acquittal order granted by the Trial Court is erroneous. He submits that the claim of appellant was not barred by time and the approach of Court in holding that there is time barred debt is improper. So also he contends that the xerox copy of sale agreement may be permitted to be produced by remitting the matter to the Trial Court to re-consider the material placed on record after permitting him to produce the additional evidence. On these grounds, he has sought for setting aside the impugned judgment and order of acquittal.
7 CRL.A No.2275/2006
6. On the other hand, learned Counsel for the respondent has supported the judgment and order of Court below.
7. It is well established principle of law that when the cheque is admitted to be signed by the accused is produced, a presumption arises under Section 139 of NI Act about the existence of debt and issuance of cheque towards the repayment of said debt. Therefore, it is the responsibility of respondent to rebut this presumption by placing material on record.
8. At the first instance, it is relevant to note that the respondent has questioned the financial ability of the appellant to advance a sum of Rs.6,00,000/- under the said agreement. On this aspect of the matter, the scrutiny of evidence on record reveals the version of appellant that he had a cash amount of Rs.6,00,000/- with him which was the amount paid 8 CRL.A No.2275/2006 by the accused to whom he had sold his house in the year 1996. The respondent has disputed the purchase of house from the complainant in the year 1996 and to prove that there was such a sale transaction, the complainant has not produced any documents. If he had sold his house to the accused in the year 1996, he could have had the copy of sale deed in his custody or atleast the certified copy of such sale deed. The complainant has not produced any such sale deed. That apart, in the ordinary course, no person would retain the cash amount of Rs.6,00,000/- in the house. If the complainant had so much of money through any other business, atleast he could have produced the documents to prove that he had a capacity to possess so much of cash with him. In the absence of any material on record to prove the financial capacity, I do not think that the finding of the Court below that he had no financial capacity to 9 CRL.A No.2275/2006 advance the sum of Rs.6,00,000/- could be interfered with.
9. Secondly, in case if the complainant had agreed to purchase the site and incompleted house of accused for a sum of Rs.6,00,000/- and if there was an agreement to that effect, he could have produced the original agreement before the Court to prove the agreement of sale between the parties. No such agreement has been produced. Though it is stated before the Court that this agreement was given to the accused at the time of sale transaction to the third person, there is no pleading in the complaint about returning of sale agreement to the accused at that time. Generally, when a person pays a huge cash amount of Rs.6,00,000/- under the sale agreement, unless he receive the consideration amount paid would not return the sale agreement. If the appellant was present at the time when 10 CRL.A No.2275/2006 the respondent received sale consideration from the third person, the amount of appellant could have been paid and in turn the sale agreement could have been returned. As to why the appellant did not have this recourse in the natural circumstances is not explained satisfactorily. It is true that after receipt of notice from the appellant demanding the sum of Rs.7,50,000/- is not replied. But though it is a strong circumstance in favour of the appellant, but that itself cannot be a ground to the appellant to overcome the other findings and the facts and circumstances placed on record.
10. As could be seen from the defence that has been put forth by the respondent in the cross examination of appellant, the respondent is said to have given a blank cheque for Rs.50,000/- to one Hinjarappa, a friend of complainant. Though he had repaid the said sum 11 CRL.A No.2275/2006 to Hinjarappa, the blank cheque was not returned and he contends that the said Hinjarappa has given cheque to the appellant which has been misused and the present cheque was made a foundation for the false claim.
11. On this aspect of the matter, though the learned Counsel for the appellant submits that it was for the respondent to examine the said Hinjarappa, the evidence placed on record would indicate that Hinjarappa, the person to whom the said cheque is said to have been given is a friend of the appellant. In the circumstances, I think it was for the appellant to examine the said Hinjarappa, whose evidence could have been of some help to the appellant to reject the defence of respondent. That apart, during the pendency of case before the Trial Court, the cheque Ex.P1 was sent for opinion of 12 CRL.A No.2275/2006 the handwriting expert who is examined as CW1 and the report was secured.
12. Before examining the evidence of expert, if the cheque - Ex.P1 is looked into, it is relevant to note that the handwriting of the letters in the signature are from different hand than the handwriting of contents of the cheque. Thereby, it could be inferred that it is not the respondent who has filled the contents of cheque. That apart, while mentioning in the numericals, the sum of Rs.7,50,000/-, a comma is put after 750 and in the natural course of writing the amount, generally comma will be put after the numerical '7' to indicate it as 7,50,000/- (Seven Lakhs and Fifty Thousand). So perusal of the amount mentioned with the comma after 750 is also a strong circumstance from which it could be inferred that the numerical '7' has been inserted before the sum of Rs.50,000/- and that apart, as could be seen 13 CRL.A No.2275/2006 from the opinion of handwriting expert - CW1, the numerical '7' mentioned in the amount column of the cheque is in a different handwriting than the numerical '7' written while writing the date of cheque on the upper portion of Ex.P1.
13. So, perusal of the evidence of CW1 and the circumstances stated above would indicate that at the time when the cheque was issued, it was a blank cheque for Rs.50,000/- and the numerical '7' has been inserted by filling the contents of the cheque as 7,50,000/- only in words and also by mentioning the date and the name of complainant. This appreciation of the contents and the cheque Ex.P1 in the aforesaid circumstances would go contrary to what has been stated by the appellant in his evidence.
14. Though it is in the evidence that there was a panchayath held about demand of a 14 CRL.A No.2275/2006 sum of Rs.7,50,000/- by the appellant, there is nothing alleged in the complaint in this regard. Therefore, the evidence of witnesses to the effect that there was a panchayath and at that time, respondent had agreed to pay sum of Rs.7,50,000/- and had issued the cheque for the same cannot be accepted.
15. So far as time barred debt is concerned, learned Counsel for the appellant has placed reliance on the decision of this Court reported in ILR 2006 KAR 4242, (H Narasimha Rao Vs R Venkataram), wherein this Court had held that in case if the time barred debt is agreed to be paid through a cheque, there is no legal bar for the debtor agreeing to pay time barred debt and the cheque issued towards repayment of time barred debt also constitute offence under Section 138 of the Act. In view of the decision referred to supra, I do not think that the 15 CRL.A No.2275/2006 finding of Trial Court that the alleged debt was barred by time cannot be accepted. But so far as aforesaid other findings relating to the financial ability of the appellant having not been proved and accused has made out a probable defence from the cross examination of the appellant and other witnesses, the material is sufficient to rebut the presumption that arise in favour of the appellant under Section 139 of the Act.
16. That apart, this is an appeal against the Order of acquittal. It is well-established principle of law that the appellate Court generally will not interfere with such Orders and even if there is second view is possible, the one accepted by the trial Court cannot be disturbed. This principle as well in view of the aforesaid facts goes against the appellants. 16 CRL.A No.2275/2006
17. So far as application filed under Section 391 Cr.P.C. is concerned, the xerox copy produced by the appellant is inadmissible in evidence and perusal of application does not reveal any such ground to permit the appellant to produce such document in this appeal. The appellant has not explained as to why this copy was not produced in the Trial Court. As once an opportunity is given to the appellant, the second opportunity cannot be granted in the absence of justifiable ground. As the appellant has not made out any such ground to permit him to produce the additional evidence, I do not think it can be granted in this appeal. That apart, perusal of the lower court records in file 'B' at page 42, there is a xerox copy of alleged sale agreement and when it was of no use to the appellant, there is no need to again permit the appellant to produce a xerox copy, for no purpose. Hence, for the aforesaid 17 CRL.A No.2275/2006 reason, point No.1 is answered in 'Affirmative' and other in 'Negative'.
Consequently, the appeal fails and it is accordingly dismissed.
Sd/-
JUDGE *bgn/-