IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JANUARY 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL APPEAL No.993 OF 2010 BETWEEN:
B.V.Venkatappa, S/o. Late Chikkanna, B.A., Residing at No.D3, North Avenue, ITI Colony, Doorvani Nagar, Bengaluru-560 016. …Appellant (By Sri. N.Vasudevan, Advocate for Sri. S.Shiva Prasad, Advocate) AND:
M.N.Manohar S/o. Nagaraj, Residing at K.Naveen Nilya, III Cross, Sir M.V.Layout, Ramamurthy Nagar, Bengaluru. …Respondent (By Sri.P.D.Subramanya, Advocate; (Panel Advocate from Legal Services Committee High Court)) This Criminal Appeal is filed under Section 378(4) of Cr.P.C praying to set aside the judgment dated:30.01.2010 passed by the Addl. Sessions Judge and P.O, FTC-III, Mayo Hall Unit, Bengaluru in Crl.A.No.25080/2007 – acquitting the respondent/accused for the offence punishable under Section 138 of N.I.Act.
This Criminal Appeal coming on for Hearing this day, the Court made the following:
ORDER In the complaint filed by the present appellant under Section 200 of Code of Criminal Procedure, against the present respondent, for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as `N.I.Act’), the learned XXV Addl.Chief Metropolitan Magistrate, Court of Small Causes, Bengaluru, (hereinafter for brevity referred to as `trial Court’), in C.C.No.11742/2005, pronounced the judgment of conviction, convicting the present respondent/accused on 29.09.2007. Against the same, the present respondent, as an accused, preferred Criminal Appeal No.25080/2007, before the learned Fast Track Court-III, Presiding Officer & Addl.Sessions Judge, Bengaluru, (hereinafter for brevity referred to as `lower Appellate Court’), which by its impugned judgment dated 30.01.2010, allowed the appeal and set aside the judgment of conviction passed by the trial Court. It is challenging the judgment of acquittal passed by the lower Appellate Court, the appellant/complainant has preferred this appeal.
2. The summary of the case of the complainant as placed by him before the trial Court is that the accused is his friend and in the month of January 2005, the accused approached him and borrowed a loan of `75,000/-, promising to return the same within one month and issued a cheque bearing No.512162, dated 18.2.2005, for a sum of `75,000/-, drawn on State Bank of Mysuru, Ramamurthynagar, Bengaluru. When the cheque was ripen for the presentation, the complainant presented the same for realisation through his banker on 18.2.2005. However, the said cheque returned dishonoured with the banker’s endorsement “insufficient funds” vide memo dated 19.2.2005. Thereafter, the complainant issued a legal notice dated 23.2.2005 to the accused demanding him for the payment of the cheque amount. The accused did not claim the said notice. Hence, the same was returned. A notice was also sent under Certificate of Posting, which was duly delivered to the accused. Inspite of the same, the accused neither paid the cheque amount nor replied to the said notice. Thus, it constrained the complainant to institute a criminal case in the trial Court against the accused for the offence punishable under Section 138 of N.I.Act.
3. To prove his case, the complainant got himself examined as PW-1 and got marked the documents from Exs.P-1 to P-6(a). The accused got examined one Sri Mallikarjuna M., who is said to be the Assistant Manager of the drawer bank as DW-1 and got marked the documents at Exs.D-1 & D-2 (D-1). After hearing both side, the trial Court by its impugned judgment dated 29.9.2007, convicted the accused for the alleged offence and sentenced him accordingly. However, the lower Appellate Court in the appeal filed by the accused in Criminal Appeal No.25080/2007, by its judgment dated 30.01.2007, allowed the appeal by setting aside the judgment of conviction under appeal and acquitted the accused of the alleged offence punishable under Section 138 of N.I.Act. It is against the said judgment of lower Appellate Court, the appellant/complainant has preferred this appeal.
4. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court.
5. The learned Counsel for the appellant/ complainant in his argument submitted that a loan of `40,000/- was given to the mother of the accused and remaining sum of `35,000/- was given to the accused by the complainant. Towards dischargal of total amount on behalf of both, the accused had issued the cheque in question amounting to `75,000/-. The dishonour of the said cheque for the reason “funds insufficient” and issuance of legal notice being undisputed fact, the trial Court had rightly convicted the accused for the alleged offence. However, the lower Appellate Court not appreciating the material in its proper perspective, reversed the said judgment by acquitting the accused.
Learned counsel further submitted that since the accused did not enter the witness box, but, has examined only a Manager of the bank, the contentions of the accused has not been established. Further, the accused has changed his version. Learned counsel also submitted that even according to Dharma, the accused being son of his mother, is liable to clear the debt incurred by his mother.
6. The accused was initially being represented by his counsel on record. However, noticing that the said learned counsel remained absent in the matter for several dates of hearing and that the appeal being of the year 2010, as such one of the old appeals pending before this Bench, this Court appointed Sri P.D.Subramanya, learned counsel from the panel of High Court Legal Services Committee, Bengaluru, to appear for the respondent.
The said learned counsel in his argument submitted that the contention taken up by the complainant in the complaint is contradictory to what his evidence as PW-1 is. The cross-examination of PW-1 clearly establish those contradictions and demolishes the case of the complainant that there was a loan transaction of `75,000/- between the complainant and the accused. That being the case, there being no legally enforceable debt, the presumption under Section 139 of N.I.Act would not operate in favour of the complainant.
He further submitted that the evidence of DW-1 further go to show that the signature on the cheque in question also differs from the specimen signature of the accused. With this, he submitted that the case of the complainant would not stand on its own leg and presumption, if any, in favour of the complainant, has stood successfully rebutted.
7. The complainant got himself examined as PW-1.
The complainant in his evidence filed in the form of affidavit has reiterated the contentions taken up by him in his complaint. He has specifically stated that the alleged loan transaction was in the month of January 2005 and in the said month, accused approached him and borrowed a friendly loan of `75,000/- to clear off his debt and to meet his domestic urgencies. It was at the time of borrowing the said loan of `75,000/- itself, the accused gave him the cheque in question which is for a sum of `75,000/- and dated 18.2.2005.
However, the said witness in his cross-examination from the accused side has stated that he had lent a loan of `40,000/- to the mother of the accused and `35,000/- to the accused and that for the total debt of `75,000/-, the accused had issued the cheque in question. Thus, the stand taken by him in his cross-examination is totally different and opposed to the one what he had taken in his complaint, as well in his examination-in- chief as PW-1.
8. PW-1, apart from stating that out of `75,000/-, the alleged loan, a sum of `40,000/- was lent to the mother of the accused, has volunteered to state that he had obtained a Promissory Note for the said sum of `40,000/- from the mother of the accused. Admittedly, the said witness has not produced the said Promissory Note. Further, he has also not given any reason for not demanding repayment of the said sum of `40,000/- from the mother of the accused, to whom, he is said to have lent that money. Interestingly, as against his own statement, the very same witness in the very same cross-examination has also stated that since from five years, he knew the mother of the accused and that she never transacted with him. If the mother of the accused has never transacted with him, then the question of she borrowing a loan of `40,000/- from him would not arise.
9. Thus, the statement of the complainant at the first phase that the entire sum of `75,000/- was borrowed as loan by the accused in the month of January 2005 and his second statement that the said loan of `75,000/- also includes the loan said to have been given by him (PW-1) to the mother of the accused, which was a sum of `40,000/- and thirdly, the very same witness stating that he had obtained a Promissory Note for the said loan of `40,000/- said to have been lent to the mother of the accused and non-production of the said Promissory Note and fourthly, the very same witness in his very same cross-examination also stating that the mother of the accused had never transacted with him, are all contradictory to each other and in no way creates any belief in the mind of the Court about the alleged loan transaction in question. The complainant had not given any satisfactory reasons either in his legal notice at Ex.P-3 or in his complaint, as to what made the accused to issue a cheque for `75,000/- when his alleged loan said to have been given to him was only a sum of `35,000/-. Similarly, no where the complainant has given any reason for non-production of the said Promissory Note alleged to have been executed by the mother of the accused in his favour.
Fifthly, the complainant has not shown any reason for not initiating any recovery action against the said mother of the accused for the recovery of the alleged loan of `40,000/-.
Sixthly, when the very same complainant in his cross-examination has stated categorically that mother of the accused had never transacted with him, his further statement that the alleged loan in question includes a loan of `40,000/- given to the said mother of the accused, also imbibe serious doubt in the case of the complainant. As such, even if it is presumed that the cheque in question was drawn by the accused in favour of the complainant, still the presumption under Section 139 of N.I. Act being rebuttable, the accused could able to successfully rebut the said presumption by eliciting favourable reply to him in the cross-examination of PW-1. In such an event, the burden of proving the alleged legally enforceable debt would shift again upon the complainant, which burden, he has failed to discharge as analysed above.
10. Thus, keeping the alleged discrepancy in the signature upon the cheque at Ex.P-1 aside, suffice it to say that the very own statements made by none else than the complainant in a different manners, at different stages of the case, has weakened his case and creates a serious doubt in his case.
On the other hand, the accused could able to rebut the presumption successfully that had accrued in favour of the complainant. The lower Appellate Court having appreciated these aspects in its proper perspective, has rightly allowed the appeal filed by the accused by setting aside the judgment of conviction passed by the trial Court and pronounced the judgment of acquittal in favour of the accused. I do not find any reason for interfering in the said judgment of acquittal passed by the lower Appellate Court.
Accordingly, the Appeal stands dismissed as devoid of merit. The judgment of conviction and order on sentence passed by the learned XXV Addl.Chief Metropolitan Magistrate, Court of Small Causes, Bengaluru, in C.C.No.11742/2005, dated 29.09.2007, which was set aside by the judgment of acquittal passed by the learned Fast Track Court-III, Presiding Officer & Addl.Sessions Judge, Bengaluru, Criminal Appeal No.25080/2007, dated 30.01.2010, and its acquitting the present respondent/accused for the offence punishable under Section 138 of N.I.Act, is confirmed.
The Registry is directed to transmit a copy of this judgment to the trial Court forthwith along with lower Court records without any delay.
Considering the effort put by the learned counsel for the respondent from the panel of High Court Legal Services Committee, it is recommended to the Committee to consider the remuneration/honorarium any amount not less than `5,000/-.
Sd/- JUDGE bk/