Karnataka High Court
Sri Ashok B Dani vs Sri P R Bhot on 25 February, 2022
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL No.236/2019 (A)
BETWEEN:
SRI. ASHOK B DANI
S/O LATE SRI. BHIKALAL DANI
AGED ABOUT 59 YEARS
RESIDING AT SARDAR PATEL HOSTEL
SARAKKI GARDEN, J.P. NAGAR
6TH CROSS, 110 FEET RING ROAD,
BENGALURU-560 078
....APPELLANT
(BY SRI. ANUP RAJ, ADVOCATE FOR
SRI. VAMSHI KRISHNA .C, ADVOCATE)
AND:
SRI. P.R. BHOT
MAJOR IN AGE, ADVOCATE
#32, MAIN, WEST OF CHORD ROAD
BASAVESHWARANAGAR
BENGALURU-560 079
.... RESPONDENT
(BY SRI. SHANKAR M. NAIK, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT DATED
25.10.2018 PASSED BY THE XVI A.C.M.M., BANGALORE IN
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C.C.NO.1667/2017-ACQUITING THE RESPONDENT/ACCUSED
FOR THE OFFENCE P/U/S 138 OF N.I.ACT.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 18.02.2022, COMING ON FOR
'PRONOUNCEMENT JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is listed for admission, with the consent of the learned counsels appearing for the parties on both sides, the same is taken-up for final disposal.
2. The appellant/complainant has filed this appeal under Section 378(4) of Criminal Procedure Code, 1973 ( 'Cr.P.C.' for short) challenging the judgment of acquittal dated 25.10.2018 passed by the XVI Additional Chief Metropolitan Magistrate Court, Bengaluru City ('trial Court' for short) in CC No.1667/2017, whereby the learned Magistrate has acquitted the accused for offence under Section 138 of the Negotiable Instruments Act, 1881 ( 'NI Act' for short).
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3. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the trial Court.
4. The brief facts leading to the case are that, the accused-P.R. Bhot was introduced to the complainant - Ashok B. Dani by his friend Mr. B. Murthy Naik. Resident of Shivanagara, Bengaluru. The accused has requested the complainant for hand-loan in the last week of March 2013 in order to invest the same for establishment of an office and to meet his other financial commitments. Then the complainant has requested the accused to approach him in the month of June, 2013 assuring him that by that time, he would make some arrangements for loan. It is further alleged that, as per request, on 05.06.2013, the complainant paid a sum of Rs.10,50,000/- to accused with interest at the rate of 18% per month, in presence of his friend Sri. B. Murthy Naik. The accused has executed the loan agreement in complainant's favour on the same day, 4 promising to repay the said loan amount within three years. It is the further case that, in March 2016, the complainant requested the accused for repayment of the loan with interest and then, the accused issued a cheque dated 15.04.2016 for a sum of Rs.15,00,000/- including interest. When the said cheque was presented by the complainant for encashment, it was dishonoured on 24.04.2016 with an endorsement as 'Refer to Drawer'. It is further alleged that, the complainant got issued a legal notice through Registered Post Acknowledgement Due ('RPAD' for short) and Speed Post on 24.05.2016 to the last known address of accused and the notice returned with postal endorsement 'No Such Person is residing in the given address' and hence, it is a deemed service. As such, the complainant claims that, he has filed complaint under Section 200 of Cr.P.C. alleging that the accused has committed an offence under Section 138 of the N.I. Act. The learned Magistrate after taking cognizance, has 5 recorded the sworn statement of the complainant and issued process against accused. The accused has appeared through his counsel and was enlarged on bail. The accusation was read-over and explained to accused, and he pleaded not guilty.
5. The complainant himself was examined as PW.1 and placed reliance on twelve documents marked as C1 to C12. After completion of evidence of prosecution, the statement of accused under Section 313 of Cr.PC was recorded, to enable him to explain the incriminating evidence appearing against him in the case of prosecution. The case of accused is of total denial. The accused has also got examined himself as DW.1. However, it is also important to note here that the complainant did not choose to cross-examine the accused and the evidence of accused remained unchallenged.
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6. After hearing arguments of the learned counsels appearing on both sides, the learned Magistrate has found that, appellant/complainant has failed to establish his financial status to advance loan amount and further failed to prove the transaction of advancing of Rs.10,50,000/- and as such, acquitted the accused for offence under Section 138 of the N.I. Act. Being aggrieved by this judgment of acquittal, the complainant has filed this appeal.
7. Heard the arguments advanced by the learned counsel appearing for the appellant/complainant and the respondent/accused. Perused the records.
8. Learned counsel for appellant/complainant would contend that the judgment of acquittal passed by the trial Court is illegal, unjust and arbitrary. He would further contend that the trial Court has failed to appreciate the oral and documentary evidence placed before it in a proper perspective and has not properly applied presumption 7 available in favour of the complainant under Sections 118 and 139 of the N.I. Act. He would also contend that the trial Court has given unnecessary importance to irrelevant factors and when the cheque belongs to accused and the signature on cheque came to be admitted, the trial Court ought to have drawn a presumption and ought to have convicted the accused. But, the trial Court has erroneously acquitted the accused, which has resulted in miscarriage of justice. He would also contend that the notice was issued to the last known address and it is a deemed service, and accused has neither replied to notice nor repaid the amount, and as such, ingredients of Section 138 of NI Act are attracted and hence, he would contend that the trial Court is erred in acquitting the accused. As such, he prayed for allowing the appeal by setting aside the impugned judgment of acquittal and sought to convict the accused.
9. Per contra, learned counsel for respondent/accused would contend that, alleged 8 transaction of Rs.10,50,000/- is said to have taken place in March 2013 and interest for the said amount is alleged to have been charged at the rate of 18% per month. He would also contend that the transaction has taken place in presence of Mr. Murthy Naik. But, the said person was not examined for the best reasons known to the complainant. He would also contend that the pleadings itself disclose that, though loan agreement was executed, it was not produced. The financial capacity of the complainant was challenged, and though he claimed that, he mobilized the amount of Rs.10,50,000/- from his friend one Rajesh, his wife and other family members, none of these witnesses were examined. He would also invite attention of this Court towards evidence of PW.1, which disclose that the complainant was not at all acquainted with accused including full name of the accused and hence, he would contend that, it is hard to accept that complainant has paid such a huge amount to an unknown person and as such, 9 he would contend that the trial Court is justified in acquitting the accused. Hence, he would submit that the impunged judgment of acquittal does not call for any interference by this Court and prayed for dismissal of the appeal.
10. Having heard arguments of the learned counsels appearing on both sides and on perusing the records, it is evident that the complainant has approached this Court with a specific contention that he has advanced loan of Rs.10,50,000/- to accused, with interest at 18% per month in presence of one B. Murthy Naik. At the out-set, it is important to note here that, complainant has not obtained money lending licence so as to charge exorbitant interest at 18% per month. The complainant in his complaint itself disclosed his status as a social and political leader being Councilor for three terms from Gandhi Nagar, Bengaluru and also a business man. He claims that, he is financially well-established and in his examination-in-chief, he has 10 deposed in terms of complaint averments. But, the cross- examination of PW.1 discloses that, he is not acquainted with accused. He claims that he do not know the full name of accused and he met him first time in December,2012 and claims that he is not doing any money lending business. In that event, question of he charging exorbitant interest at the rate of 18% per month does not arise at all. He also admits that, accused is neither his classmate nor his neighbour and he do not know the native place of accused, his age, father's name and his background. If this admission is taken into consideration, it is hard to believe that the complainant has advanced a huge amount of Rs,.10,50,000/- to such a person, whom he do not know at all, without there being any material security. The manner of the complainant charging interest at 18% per month would clearly disclose that, he is involved in money lending business.
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11. Further, all along the complainant claims that, accused met him with one B.Murthy Naik, who is working in Police Department in Bengaluru City. He pleads ignorance regarding financial transaction between said B.Murthy Naik and in his initial cross-examination, the complainant claims that, he arranged Rs.4,50,000/- from his friend one Mr. Rajesh and balance amount of Rs.5,50,000/- from his family members. But, in subsequent cross-examination, he claims that his friend Rajesh paid Rs.4,50,000/- to him and he received Rs.2,50,000/-from his wife and the balance amount was arranged by him from his income. If this version is taken into consideration, it is evident that he had no financial capacity to pay Rs.10,50,000/- as on the said date. Further, to prove that his friend Rajesh has paid him Rs.4,50,000/- and he received Rs.2,50,000/- from his wife, the said persons were not at all examined. Further, it is the specific contention of the complainant that he advanced 12 loan in presence of said B. Murthy Naik and that person was also not examined.
12. Further, during cross-examination of PW.1, it is suggested that, accused has availed loan of Rs.1,00,000/- from B. Murthy Naik in the year 2013 and at that time, B. Murthy Naik had collected eight Bank Cheques from accused including the cheque-Ex.P1. But, interestingly the complainant has not denied this fact and pleaded ignorance. The defence of accused is very specific that, he had availed loan of Rs.1,00,000/- from B. Murthy Naik, who was working in Police Department and the said Murthy Naik has obtained eight blank cheques including the disputed cheque in this case from accused and also obtained signatures on blank stamp papers and that have been misused by accused in collusion with B. Murthy Naik. Very interestingly, the complainant has not denied this specific defence. The cross-examination of complainant discloses that, he does not know anything about accused. His 13 financial status is also exposed and he has not led any material evidence to show as to how he mobilized such a huge amount by examining the relevant witnesses. Even though the complainant claimed that, he paid the said loan amount in presence of Murthy Naik, the said witness would have been the best witness to the alleged transaction in the given circumstances, but he was not examined.
13. Apart from that, the accused himself has got examined as DW.1 and he has set-up similar defence in examination-in-chief regarding borrowing loan of Rs.1,00,000/- from B. Murthy Naik and he denied borrowing loan of Rs.10,50,000/- from complainant. Interestingly, the complainant has not challenged the evidence of DW.1 by way of cross-examination. The evidence of accused remained unchallenged and his defence also remained unchallenged. During cross-examination, PW.1-complainant has not denied the defence of accused, but pleaded ignorance. The material evidence on record does disclose 14 that complainant was not acquainted with accused and his background. The financial status of complainant is also exposed. Further, the complainant charging exorbitant rate of interest at 18% per month, which is not permissible, as he has not obtained any licence in this regard for carrying money lending business. Apart from that, the complainant all along asserted that, at the time of availment of loan, accused has also executed an agreement. Interestingly, the said agreement was also not placed on record by the complainant and thereby he has withheld the meterial evidence in this regard. As such, an adverse inference is required to be drawn against the complainant. When the complainant does not know about personal as well as family background of accused including the name of the father of accused, it is hard to accept that he had advanced a huge loan of Rs.10,50,000/- to such a stranger, with whom he first time met in the month of December, 2012. Further, though he claimed that he has taken some amount from 15 his friend Rajesh and his wife, they were also not examined to prove that, the complainant has mobilized any amount. The alleged transaction is said to have taken place in presence of B. Murthy Naik and non-examination of this material witness is fatal to the case of complainant. Even he has not produced the alleged loan agreement and even the defence of accused is also not challenged by the complainant by way of cross-examination.
14. The learned Magistrate has appreciated the oral and documentary evidence in detail and arrived at a just decision. Hence, considering the all the above said aspects and when the financial status of complainant is disputed, the presumption under Section 139 of NI Act is not available in favour of complainant. Hence, the complainant has failed to establish advancement of loan to accused and he has also charged exorbitant interest and material agreement in this regard is not produced. Hence, the complainant has failed to establish that the cheque under 16 Ex.C1 was issued towards legally enforceable debt as claimed by him. The learned Magistrate, considering all these aspects has rightly acquitted the accused and as such the judgment of acquittal passed by the trial Court is neither perverse nor capricious so as to call for any interference by this Court. Hence, 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 judgment of acquittal dated 25.10.2018 passed by the trial Court viz., XVI Additional Chief Metropolitan Magistrate, Bengaluru, in CC No.1667/2017, stands confirmed.
Sd/-
JUDGE KGR*