IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JANUARY, 2019 :BEFORE:
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA Criminal Appeal No.918 of 2010 Between:
Buday Miyan S/o. Syed Isaq Aged about 56 years R/A. D.No.395/B, C.K. Road, Channapatna Town, Ramanagar District.
…Appellant [By Mr. S.R. Hegde Hudlamane, Advocate] And:
M.C. Venkatesh S/o. Late chikkaidegowda, Major in age, R/A No.2221, C-36-4, Upstairs, 2nd Cross Extension Kuvempunagar, Chennapatna Town, Ramanagara District.
(By Mr. Manjunath M.R., for Mr.K.S.A. Reddy, Advocate) …Respondent **** This Criminal Appeal is filed under Sections 378 (4) Cr.P.C., praying to set aside the judgment and order dated 27/07/2010 passed by the Principal Civil Judge and JMFC, Channapatna in C.C.No.84/2003, acquitting the Respondent/accused for the offence punishable under Section 138 of the N.I. Act.
This Criminal Appeal coming on for Hearing, this day, the Court delivered the following:
J U D G M E N T Heard the learned counsel for the appellant and the learned counsel for the Respondent and perused the records.
2. This appeal is preferred against the judgment of acquittal passed in C.C.No.84/2003 on the file of the Principal Civil Judge & JMFC, Channapatna in acquitting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “the NI Act”).
3. The learned counsel for the appellant, Mr.
S.R. Hegde Hudlamane seriously contends before this Court that the Respondent has not denied the issuance of the cheque and also he has taken up the contention that the said cheque was issued as a security with respect to some transactions and not in lieu of repayment of any debt or liability. Therefore, the burden is on the accused to establish the same before the Trial Court. Except cross examining PW1, the Respondent has not entered into the witness box and not established this particular aspect. Therefore, he contended that the presumption regarding existence of debt or liability has to be raised under Section 139 of the NI Act in favour of the complainant. As the accused has not rebutted the presumption under Section 139 of the NI Act, therefore, the accused is liable to be convicted for the offence under Section 138 of the NI Act.
4. On this main ground, the learned counsel for the appellant requested the Court to set aside the judgment of the Trial Court.
5. The learned counsel for the Respondent contended that the accused has taken up three grounds before the Trial Court, which are as follows:-
(1) The notice issued to the Respondent has not been served upon him as the same has been sent to a wrong address with a wrong narration of the name of the Respondent’s father. Therefore, there was no due service of notice, therefore, the complaint itself was not acceptable before the Trial Court.
(2) He further contended that there was no legally recoverable debt in existence and further the appellant himself had no money with him for the payment of any amount to the Respondent. Therefore, in the absence of any existence of a debt or liability, there cannot be any liability on the accused. Therefore, the appellant has failed to establish the existence of a legally recoverable debt. Therefore the judgment of the Trial Court is proper and correct.
(3) He contended that the appellant himself has admitted in the course of cross-examination in various places with regard to the address of the Respondent and also the fact that he had no money on that particular date. Therefore, the Trial Court considering each and every evidence available on record rightly acquitted the accused. There is no room to interfere with the judgment of acquittal passed by the Trial Court.
6. I have carefully examined the materials on record. The contention of the appellant is that the accused and himself are close friends and in the year 2001, precisely on 10-05-2001, the accused approached the complainant requesting for financial assistance and he borrowed a sum of Rs.40,000/- on 10-05-2001, assuring that he would repay the same in the month of September 2001. It is further alleged that once again on 29-05-2001, the accused approached the complainant for further financial assistance and borrowed a sum of Rs.45,000/- agreeing to repay the same within four months. But he has not paid the said amount, but went on dodging and postponing the payment of the money.
7. It is further alleged that on 12-09-2001, the accused had issued a cheque for a sum of Rs.40,000/- in No.406110 pertaining to his account maintained in Bangalore Rural District Co-operative Central Bank Limited, but the said cheque was dishonoured on presentation of the same on 14/09/2001 on the ground of ‘funds insufficient’ in the said Account. The accused had assured that he would make good the payment. The accused issued two cheques for a sum of Rs.45,000/- and Rs.40,000/- on 20/11/2001 pertaining to his Account maintained in the aforesaid Bank. Accordingly, the complainant once again presented both the said cheques on 04/12/2001 and 13/12/2001. The said cheques were also again dishonoured for want of ‘sufficient funds’. Thereafter, he issued notices on 26/12/2001 and 31/12/2001 by intimating the accused with regard to the dishonour of the cheques. But, the accused did not comply or replied to the notices or made good the amount. Hence, the complainant has lodged the complaint against the accused.
8. In order to establish the said averment, the complainant has examined himself as PW1. As rightly contended, the accused has not examined himself. Except cross examining the complainant, he has not placed any other materials.
9. Now coming to the grounds urged before this Court, the first ground is that the notice has not been properly served on the Respondent. The documents which are marked as Exs.P19 to P22 are the notices issued under Registered Post Acknowledgement Due (RPAD) by the appellant. Exs.P20 and P21 are the notices issued which are returned with a postal shara that, the said notices were returned on the ground that the father’s name differs. Again, another notice was issued as Ex.P22. They were returned with a shara on the cover that the concerned postman had been to the said address and as he was not able to serve the same within 7 days, the said notices were returned back. The Respondent has also produced before the Court some documents, viz. Exs.D1 and D2 which are the Identity Card issued by the Election Commission of India and also the copy of the Ration Card in which his address has been shown as 1787, Chikkegowdara street, Channapatna Town, Channapattana Taluk, Bangalore Rural District. But the notices were addressed to M.C. Venkatesha, S/o. Late Chikkegowda, D.No.2221, C-36/4, Upstairs, II Cross, Extension, Kuvempunagara, Channapatna. Of course the said address differs in the said notices.
10. In this context, the evidence of the complainant is to be looked into. The complainant has not stated about the correct address of the Respondent in the evidence and he has not averred that in spite of residing in the said address, he refused to take the said notice issued by him. On the other hand, at page.6 of the evidence of the complainant on confronting the Exhibits D1 and D2, he has admitted that Ex.D1 belonged to the accused Venkatesh and it is also suggested that the accused has been residing in the said address, but the same has not been denied, but the complainant has stated that, he might be residing in the said address. Therefore, it clearly goes to show that the complainant has not denied the address which is mentioned in Exs.D1 and D2 and on the other hand, he has not specifically stated on which basis he has issued the notice to the address as mentioned in the above said postal covers. Unless it is clarified by the complainant the correct address of the accused, it cannot be said that the said notice has been duly served on the accused. Therefore, in my opinion, though the accused has not entered into the Witness Box, but during the cross examination, it is elicited that he has not been residing in the said address with door number of the address mentioned in the covers which are marked before the Trial Court.
Therefore, the accused has probabalized his defence by proving the above said circumstances that the notices have not been served upon him.
11. The next important aspect raised is that the accused himself has taken up the contention that the cheques were issued as security and he has not taken any money in lieu of the said cheques nor there was any existence of an earlier debt or liability. When once the defence has been taken in that manner, it should be probabalised in the course of cross-examination of the complainant or the accused by leading independent evidence before the Court. There is no hard and fast rule as to how and in what manner the accused has to establish this particular defence taken up by him in order to rebut the presumption under Section 139 of the NI Act.
12. Ofcourse, Section 139 of the NI Act raises a presumption in favour of the complainant that unless it is rebutted the Court has to presume the existence of a legally recoverable debt by the accused to the complainant. In this particular case, though that presumption could be raised, the Court has to look into whether the said presumption has been rebutted in the course of cross examination with regard to the existence of any debt or liability.
13. The Respondent’s counsel drew my attention to the fact that the complainant had no money with him as on the date of the alleged transaction between the complainant and the accused. He further drew my attention that, the complainant himself has stated that he had no money on that particular date with him but he has taken the money on interest from a third person and the same has been given to the accused. Even in his further cross-examination, he has admitted that he has repaid the said amount to his friend, but the complainant has not stated from whom he has taken the money and paid the interest and he has categorically stated that while giving the money to the accused, he had taken the said money on interest at the rate of 2% and he has returned the same to his creditor. But there is absolutely no material placed before the Court as to what was the necessity for him to borrow the money and then give it to the accused, if he himself had no money for payment to the accused. There is no necessity for him to borrow money particularly on interest at 2% and to pay the same to the accused. This is little bit abnormal and it cannot be easily acceptable by the Courts of law. Therefore, though the accused has not let in independent evidence, nevertheless, by way of admission of the complainant, it is clarified that there was no money with the complainant himself. Therefore, when the transaction itself is not established before the Court and the cross- examination probabalises by creating a doubt that when the complainant himself had no money there was no question of paying any money to the accused. Therefore, in this line also, the existence of liability or the debt cannot be inferred by the Court unless it is strongly established by the complainant. The onus on the accused has not been strong enough but he can establish by means of preponderance of probabilities, on the other hand, the burden is on the complainant to establish the existence of a legally recoverable debt from the accused.
14. Therefore, under the above said circumstances, In fact, the Trial Court has considered all the above said facts in detail and come to the conclusion that the complainant has not proved the guilt of the accused beyond all reasonable doubts. I do not find any strong reasons to interfere with the impugned judgment of acquittal rendered by the Trial Court. Hence, this appeal is devoid of merit and the same is liable to be dismissed. Accordingly, it is dismissed.
Sd/- JUDGE BMV*