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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JANUARY, 2020 BEFORE: THE HON’BLE MR.JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL No.3 OF 2019
BETWEEN
SRI. B.DEVENDRA, S/O. BILIGIRIYAPPA, AGED ABOUT 58 YEARS, RESIDING AT NO.78, 9TH MAIN ROAD, KENGERI SATELLITE TOWN, BENGALURU-560 060.
... APPELLANT
(BY SRI. N.SHANKARA NARAYANA BHAT, ADVOCATE)
AND
SRI. GOVINDARAJ, S/O. GUDLA TIMMA NAIDU, AGED ABOUT 34 YEARS, RESIDING AT NO.27, 2ND FLOOR, ‘LAKSHMI BALAJI NILAYA’, 19TH MAIN ROAD, 1ST STAGE, TAVAREKERE, BENGALURU-560 068. ... RESPONDENT
(BY SRI. T.K.RAJAGOPALA, ADVOCATE)
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THIS CRIMINAL APPEAL IS FILED U/S 378(4) OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 15.11.2018 PASSED BY THE XII ADDITIONAL AND XXXVII ADDL.C.M.M., BENGALURU IN C.C.NO.17821/2017 ACQUITTING THE RESPONDENT/ ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT.
THIS CRIMINAL APPEAL COMING FOR FINAL HEARING ON THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the complainant in CC No.17821/2017 on the file of the 12th Addl. and 37th ACMM, Bengaluru, challenging the judgment and order dated 15.11.2018, acquitting the accused-respondent of the offence punishable under Section 138 of N.I. Act.
I have heard the learned counsel appearing for the appellant/complainant and the learned counsel appearing for the respondent-accused.
The case of the complainant is that the accused was engaged in hotel business and known to him for the past 8 – 10 years. On account of long standing friendship, during the first week of January 2016, at the request of
the accused, he paid hand loan of Rs.12 Lakhs to the accused to improve the hotel business and also to open another branch. The accused assured to repay the same within 12 to 14 months and agreed to pay interest of Rs.18,000/- per month until realization. Towards discharge of his liability, the accused issued a post dated cheque bearing No.006585 dated 17.04.2017 drawn on Corporation Bank, Madiwala Branch, Bangalore. Though the accused assured to pay the monthly interest, he failed to do so, despite repeated request. When the said cheque dated 17.04.2017 was presented to the bank on 25.04.2017 through his banker i.e., State Bank of India, Padmanabhanagar Branch, Bangalore, same was dishonoured on 16.05.2017 with an endorsement “funds insufficient”. The complainant then issued legal notices dated 24.05.2017 and 06.06.2017. The accused failed either to reply to the notice or to repay the amount mentioned in the cheque. Hence, the complaint was filed on 03.07.2017.
Before the trial court, the complainant got examined himself as PW1 and got marked Exs.P1 to P7. The accused got examined himself as DW1 and got marked Exs.D1 to D5. The trial court after considering the evidence and material on record, proceeded to acquit the accused of the offence punishable under Section 138 of N.I. Act. Aggrieved by which, the present appeal has been preferred.
It is the contention of the learned counsel for the appellant that the trial court has not properly appreciated the evidence led by the complainant and has come to an erroneous conclusion that the accused is not guilty of the offence punishable under Section 138 of N.I. Act. He submits that the trial court seriously erred in law in not drawing the legal presumption under the provision of the Negotiable Instruments Act. He submits that the accused has admitted the signature on the cheque and therefore, a presumption is available in favour of the holder in due course that the cheque was issued to him for the discharge of legally recoverable debt. He submits that
the complainant and the accused are known to each other for several years, hence, reposing trust, amount was advanced to the accused. He submits that non production of income tax returns etc., cannot be a ground for the trial court to hold that the complainant had no source of income. He submits that when the respondent has pleaded that he had issued the cheque in question to his landlord M.C. Muniraju, the trial court ought to have taken an adverse interference against the accused for not examining his land lord. Hence, he submits that the impugned judgment and order passed by the trial court is opposed to law, facts and probabilities of the case and therefore, seeks to allow the appeal.
Per contra, the learned counsel appearing for the accused/respondent has contended that the complaint is a stranger to the accused and he has not issued any cheque in favour of the complainant as alleged. The accused was a tenant under one M.C.Muniraju and he was doing business in the premises lent by the said M.C.Muniraju. The said M.C.Muniraju attempted to evict him from the
shop premises and for continuation of the premises, he had taken a blank signed cheque from the accused. Said M.C.Muniraju had cheated him by not extending the Lease Agreement and also did not return the cheque and therefore, the accused lodged a complaint before the Police on 12.03.2017 itself. The learned counsel further contends that in fact, reply notice was issued to the complainant denying the transaction between the accused and the complainant. He submits that with an ulterior motive, the landlord has handed over the cheque to the complainant. He submits that advancing a huge loan of Rs.12 lakhs to the accused by the complainant cannot be believed and there is no legally enforceable debt. Therefore, the trial Court is justified in acquitting the accused. Accordingly, seeks to dismiss the appeal.
It is the case of the complainant that the accused was engaged in hotel business and for his business purpose, he approached the complainant during the first week of January 2016 for hand loan and at his request, a sum of Rs.12 lakhs was advanced to him to
improve his hotel business and also to open another branch. It is the further case of the complainant that the said amount was paid in cash, on an assurance by the accused that the same will be repaid within a period of 12 to 14 months. The accused also agreed to pay interest of Rs.18,000/- p.m. until realization towards discharge of the liability and issued a post-dated cheque bearing No.006585 dated 17.04.2017. When the cheque was presented to the bank, the same came to be dishonoured with an endorsement “funds insufficient” and therefore, the accused has committed an offence punishable under Section 138 of the N.I. Act.
It was contended by the complainant that no reply notice was issued by the accused to the legal notice. However, the accused has got marked Exs.D3 to 5 which show that to the legal notice issued by the complainant reply was given as per Ex.D3. Exs.D4 and 5 are the postal receipts and acknowledgement. Perusal of the said documents go to show that reply notice was sent by the accused on 22.06.2017 and the same was received by the
complainant as per the acknowledgement at Exs.D5 on 12.07.2017. However, it is seen that the legal notice as per Ex.P3 was issued by the complainant on 24.05.2017 and since there was no response by the accused though the notice was served on the accused as per the postal track record, the complaint under Section 200 of Cr.P.C. came to be filed on 03.07.2017. Hence, on the date of filing of the complaint admittedly the complainant did not receive any reply to his legal notice and it is only later as per postal acknowledgment at D5 that he received the reply notice sent by the accused.
It is the specific defence taken by the accused that the complainant was stranger to him and there was no transaction between him and the complainant. The accused was a tenant under one M.C.Muniraju, who had let-out a shop premises to him for doing business by entering into a rental agreement. According to the accused, he was not at all liable to pay any amount to the complainant. The cheque in question was taken by M.C.Muniraju for continuation of the loan agreement and
without executing such document, he put a lock to the premises without paying the advance amount and also without returning the cheque in question.
The accused has got marked Exs.D1 and D2. Ex.D1 is the complaint given to Madiwala Police Station and Ex.D2 is the NCR endorsement issued by the concerned Police. It is stated in the complaint marked at Ex.D1 that the accused had taken a premises consisting of ground and first floor situated in BTM lay-out from one M.C.Muniraju for his business purpose and he had given a total sum of Rs.4 lakhs as advance to the said person. He was paying monthly rent of Rs.30,000/- and he was running a shop in the name and style ‘Kabab Corner’. On 06.03.2017 he had closed the business and on 07.03.2017 when he returned to commence the business, he found that his landlord had put a lock to the said shop. His landlord had M.C.Muniraju informed him that the time mentioned in the agreement is already expired and therefore, he should get one more agreement. It is further stated that the old agreement was taken by the landlord
and he returned a coloured photostat copy of the same. However, did not execute a fresh agreement. It is further stated that said M.C.Muniraju did not return the advance amount as well as the blank signed cheque, which was given to him.
It is pertinent to see that the complaint given to the Police is dated 12.03.2017. In the said complaint, the accused had mentioned the cheque No.006585 which tallies with the cheque in question. The perusal of the complaint shows that the cheque in question was already given by the accused to his landlord M.C.Muniraju as per Ex.D3 and therefore, a doubt arises as to whether the cheque in question which is dated 17.04.2017 was issued by the accused to the complainant herein. Though the case of the complainant is that the cheque was issued in the first week of January 2016 and as stated by him in the cross-examination that post-dated cheque was issued on 28.01.2016, however, apart from the said oral assertion made by the complainant, there is nothing to show that any transaction took place on the said date.
According to the complainant, a hand loan of Rs.12 lakhs was advanced to the accused in the first week of January 2016 and it was assured by the accused that the same will be repaid in 12 to 14 months and he also agreed to pay interest of Rs.18,000/- p.m. When it is the specific case of the complainant that the accused agreed to pay interest at Rs.18,000/- p.m. then, why there is no document executed in this regard is not forthcoming. The complainant has not placed any material to show that he had the capacity to pay a huge loan of Rs.12 lakhs to the accused. In his evidence, P.W.1 has stated that he was doing civil contract work and he was having an income of Rs.25,000/- to 30,000/- p.m. and he has stated that he may require Rs.15,000/- to 25,000/- for his expenses. He has stated that he is an income tax assessee. However, he has not produced any document to show that he is an income tax assessee or to show that he had mentioned the said amount in the income tax returns. There is no material to show that he had a cash of Rs.12 lakhs in the first week of January 2016. The complainant has admitted in his cross-examination that the cheque number in his
complaint as well as the cheque number mentioned in Ex.D1 is one and the same.
It is submitted by the learned counsel for the appellant that the respondent/accused has taken an inconsistent stand that his landlord M.C.Muniraju collected a blank signed cheque i.e., the cheque in question after negotiations for continuation of shop premises in reply notice-Ex.D3. However, in his cross- examination, he has stated that M.C.Muniraju had put a lock to the premises and he took away the cheque which was inside the shop. However, the fact remains that even prior to the date mentioned in the cheque, the accused has lodged a complaint with the Police against the landlord M.C.Muniraju and in the said complaint cheque number was mentioned which is the same cheque now alleged to have been issued by the accused to the complainant.
As discussed above, the complainant has not placed any material to show that he had a cash of Rs.12 lakhs and he advanced a hand loan to the accused to the tune of Rs.12 lakhs in the month of January 2016 by
receiving the post-dated cheque. The accused by examining himself and marking documents specifically at Exs.D1 and D2 has rebutted the presumption available in favour of the complainant. The complainant has failed to establish that there was a legally enforceable debt recoverable from the accused and in discharge of the said liability, the accused issued the cheque in question. As such, the findings recorded by the trial Court and the conclusion arrived at cannot be found fault with. There are no grounds made out to interfere with the findings recorded by the trial Court acquitting the accused for the offence punishable under Section 138 of the N.I. Act. Accordingly, I pass the following:
ORDER
The appeal is dismissed.
Sd/- JUDGE Snc & Ksm*