Karnataka High Court
K.Yashoda W/O Nagesh vs K.Venkatesh S/O Honnurappa on 25 June, 2014
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 25TH DAY OF JUNE, 2014
BEFORE
THE HONOURABLE MR. JUSTICE K.N. PHANEENDRA
CRIMINAL APPEAL NO. 2792/2013
BETWEEN:
K.YASHODA W/O NAGESH
AGE: 42 YEARS, HOUSE WIFE,
R/O. CHITWADIGI, BEHIND
MOOKAMBIKA TEMPLE,
HOSPET, BELLARY DISTRICT
... APPELLANT
(BY SRI GIRISH S HIREMATH, ADVOCATE)
AND :
K.VENKATESH
S/O. HONNURAPPA
AGE: 37 YEARS, PEON,
CITY MUNICIPAL OFFICE,
HOSPET, BELLARY DISTRICT.
... RESPONDENT
(RESPONDENT SERVED AND UNPRESENTED)
THIS CRIMINAL APPEAL IS FILED U/S 378 (3) OF
CRL.P.C. TO SET ASIDE THE ORDER DATED 16.02.2013
PASSED BY THE ADDL.SENIOR CIVIL JUDGE & J.M.F.C.
AT HOSPET IN C.C. NO.519/2011 AND ACCORDINGLY
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CONVICT THE RESPONDENT FOR THE OFFENCE
PUNISHABLE U/SEC.138 OF N.I. ACT.
I.A. NO.2/2014 IS FILED FOR GRANT OF SPECIAL
LEAVE.
THIS CRIMINAL APPEAL A/W. I.A. COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The appellant is the complainant before trial Court in C.C. No.519/2011 on the file of Addl. Senior Civil Judge & J.M.F.C., Hospet. The said complaint was filed under Section 200 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.' for brevity) for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the N.I. Act' for brevity) against the respondent herein. The said complaint was contested by accused and after a full-fledged trial, the trial Court has acquitted the accused for the above said offence by giving the benefit of doubt to the accused. 3
2. The appellant has contended before this Court that the trial Court has wrongly acquitted the accused only on technical ground that the cheque was filled up by the complainant with regard to date and amount mentioned in the cheque. He further contends that when a blank cheque was issued by accused, he gave an authority to the holder of cheque to fill up the same to the tune of existing debt or liability on the part of accused. Therefore, Section 20 of the N.I. Act has not been properly appreciated by the trial Court. Therefore, the order of trial Court is erroneous. He further contends before this Court that the accused has admitted to have taken a loan of Rs.10,000/- and as a security for the said loan he has issued the disputed cheque and it is his case that subsequently the said cheque was wrongly filled up by the complainant for Rs.95,000/-. Therefore, the presumption under Section 139 of the N.I. Act ought to have been drawn in favour of the complainant and the accused has to rebut the same by means of preponderance of probabilities by showing to the Court with convincing and 4 cogent evidence that he was only due for a sum of Rs.10,000/-, but instead of that an amount of Rs.95,000/- was wrongly filled up by the complainant. Therefore, he contends that trial Court has not properly appreciated the evidence on record. Hence, he pleads for allowing of the appeal and to convict the accused for the above said offence. Though the respondent is served, he remained absent before this Court.
3. I have carefully perused the complaint averments, judgment of the trial Court and the evidence recorded by trial Court. It is an undisputed fact by the accused that he has given a blank cheque in favour of the complainant as a security for the repayment of a loan amount of Rs.10,000/-. Therefore, issuance of blank cheque is not in dispute. The question is that, whether the complainant has shown to the Court that an amount of Rs.95,000/- was due by the accused.
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4. Before adverting to the factual matrix of this case, it is just and necessary to bear in mind that under what circumstances the Appellate Court can interfere with the acquittal judgment rendered by trial Court. It is pertinent to note here a latest pronouncement of the Hon'ble Apex Court in the case of S. Govidaraju v. State of Karnataka reported in 2013 (4) AKR 289.
In the said judgment, the Hon'ble Apex Court has held that -
" It is a settled legal proposition that in exceptional circumstances, the appellate Court, for compelling reasons, should not hesitate to reverse a judgment of acquittal passed by the Court below, if the findings so recorded by the Court below are found to be perverse, i.e., if the conclusions arrived at by the Court below are contrary to the evidence on record, or if the Court's entire approach with respect to dealing with the evidence is found to be patently illegal, leading to the miscarriage of justice, or if the judgment is unreasonable and is based on an 6 erroneous understanding of the law and of the facts of the case. While doing so, the appellate Court must bear in mind the presumption of innocence in favour of the accused, and also that an acquittal by the Court below bolsters such presumption of innocence."
5. In view of the above said decision, this Court has to see that whether the findings recorded by trial Court is illegal, perverse and the same is not based on any evidence on record.
6. Normally, the Appellate Courts should not substitute their views even though an alternative view is possible on the same facts, which are placed before the trial Court. On appreciation if the Appellate Court comes to a different conclusion to that of the trial Court, the Appellate Court should not substitute its views. Bearing in mind the above said golden principles, now let me consider the materials on record and find out whether the judgment of trial Court is perverse or erroneous.
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7. The complaint averments are also supported by the evidence of complainant, which discloses that the accused had borrowed a hand loan of Rs.95,000/- from the complainant on 06.08.2010 for his needs and towards the loan amount the accused had issued a post-dated cheque on 29.12.2010 bearing No.599246 for a sum of Rs.95,000/- dated 30.12.2010. When the said cheque was presented for collection through her Bank, the same came to be dishonoured due to 'Insufficiency of Funds'. After issuance of notice to the accused demanding repayment of said cheque amount, as the accused has neither paid the cheque amount nor replied the said notice, thereby the complainant has filed a complaint before the Court. The said contention has been denied by accused. As could be seen from the cross-examination of complainant, the defence of the accused is that he has taken a loan of Rs.10,000/- from the complainant and he has given a blank cheque as a security for the said loan. Subsequently, the complainant has mis- used the cheque by filling the amount, name and date and 8 has filed a false case against the accused. The defence taken up by accused need not be proved beyond reasonable doubt and if on the basis of the materials on record that during the course of cross-examination of complainant or by means of other materials on record if the accused is able to show to the Court that there are circumstances which probabalises the case of the accused in order to disbelieve the case of complainant that would suffice so far as accused is concerned. But, when the transaction is denied and the cheque amount is disputed, the complainant has to prove the case beyond reasonable doubt if the presumption under Section 139 of the N.I. Act is not available to the complainant. In this particular case, as I have already narrated the evidence has been led by complainant as well as the accused. It is the case of complainant that on 06.08.2010 a hand loan of Rs.95,000/- was taken by the accused, but, very peculiarly the complainant has stated that on 29.12.2010 the disputed cheque was given to her. If at all, the cheque was issued on 29.12.2010, it was very well 9 within the knowledge of complainant and the accused that the liability of accused was Rs.95,000/- and what was the necessity for the accused to give a blank cheque on that particular day. The complainant has no where stated in the complaint or during the examination-in-chief that as on 06.08.2010 itself a blank cheque was given as a security for repayment of the debt and thereafter the said cheque was filled up by complainant, in that event the complainant would have come under the shelter of Section 20 of the N.I. Act, which envisages that if a person gives a blank cheque knowing fully well that the said instrument is an incomplete negotiable instrument, the law presumes that a person who has given the cheque has authorised the holder of the cheque to fill up the blanks in the cheque. He cannot take the defence that the cheque was filled up by the complainant, but the said provision under Section 20 of the N.I. Act also envisages that the cheque should not be filled up for any excess amount. Therefore, it goes without saying that when the accused disputes the contents of cheque, 10 particularly the amount mentioned in the said cheque as excessive and mis-used by complainant, in that context, the presumption under Section 139 of the N.I. Act cannot be drawn in favour of complainant, because of the simple reason that the liability or debt is disputed by accused and it is admitted by complainant in the course of cross- examination that a blank cheque was given and actually she has filled up the contents of said cheque. That being so, whether an amount of Rs.95,000/- is in excess of the admitted amount of Rs.10,000/- by the accused or not has to be clarified by the complainant during the course of evidence. But, it appears that no effort has been made by complainant to explain this particular discrepancy between the parties. It is the clear case of complainant that on 29.12.2010 the cheque was issued for Rs.95,000/- and if the cheque was issued for Rs.95,000/-, where is the question of filling up the blanks of said cheque. It also creates a serious doubt that whether cheque was issued for Rs.95,000/- and whether there was any debt or liability on the part of the 11 accused to issue the said cheque in favour of the complainant and that fact has also not been clarified by complainant.
8. Even assuming that the complainant is entitled for a presumption under Section 139 of the N.I. Act and after recording of the evidence of the parties before the Court that presumption crystalises in the evidence of the parties and if the Court is of the opinion that by means of preponderance of probabilities, the accused has placed sufficient materials to shift the burden on complainant to establish the existence of debt or liability on the part of accused then the complainant has to satisfy the Court in order to remove the doubts created by accused that the said cheque was issued for a sum of Rs.95,000/- in lieu of his liability. Therefore, in my opinion, even if the presumption is available in favour of complainant, the same has been rebutted by the accused by placing sufficient doubtful circumstances, in view of the 12 admission of complainant that she has subsequently filled up the cheque for Rs.95,000/-.
9. The complainant has nowhere stated that a blank cheque has been issued to her and thereafter she has filled up the amount for Rs.95,000/-. Therefore, it is incumbent upon the complainant to show that as on the date of issuance of cheque the amount of Rs.95,000/- was not known to the parties and with an intention to fill up the said cheque, the accused has given the blank cheque so as to enable the complainant to fill up the said cheque, in future, for the exact liability of the accused. If such elucidation of facts are not available, then the Court has to rely upon the evidence adduced by accused. It is the case of accused that he has taken Rs.10,000/- from the complainant and has issued a blank cheque authorising the complainant to fill up the said cheque. The dispute which has to be exactly clarified before the court is whether the loan amount is Rs.10,000/- or Rs.95,000/-. Therefore, it is incumbent 13 upon the complainant to prove that as on the date of issuance of cheque the outstanding liability of accused was Rs.95,000/-. To prove the said fact he has to produce certain materials before the Court and no other materials are available before the Court as to why an amount of Rs.95,000/- was given as hand loan even without taking any security like promissory note and other documents from the accused. Admittedly, the cheque was not given to the complainant on 06.08.2010 so as to presume that the said loan of Rs.95,000/- was given on the security of a blank cheque issued by accused. The date clearly discloses that subsequent to the loan transaction the cheque is alleged to have been issued by accused. The complainant has also not produced any material as to whether he is an income-tax assessee and it goes without saying that for every transaction, if it exceeds an amount of Rs.20,000/-, the transaction should be by issuance of a cheque and if other materials are not available to show that the transaction between the parties then that particular presumption of law 14 also comes to the favour of accused. Therefore, looking to the above said facts and circumstances of the case, a reasonable doubt has been created by accused with regard to filling up of a said cheque for an amount of Rs.95,000/-. Hence, I am of the opinion that the trial Court has not committed any error, and therefore, I do not find any perversity or illegality in the appreciation of evidence by the trial Court so as to reverse the judgment of acquittal. Under the above said circumstances, I am of the opinion that the appeal deserves to be dismissed. Accordingly, appeal is dismissed.
As the matter is heard on merits, I.A. No.2/2014 for Special Leave is allowed.
Sd/-
JUDGE hnm/