IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL APPEAL No. 984 OF 2010 BETWEEN:
D.Narasimharaju, S/o Late Dasappa, Aged about 44 years, R/at Old K.R.Nagar Road, Hunsur town, Mysuru District. ...Appellant (By Sri.Mohan Kumar M., Advocate, for Sri. M.V. Vedachala, Advocate) AND:
B.R.Vishwanath, S/o. K.M. Ramaiaha, Aged about 52 years, R/at Unnenekarara Colony, Old Bridge, Hunsur town, Mysuru District. ...Respondent (By Sri. D.Mohan Kumar, Amicus Curiae) This Criminal Appeal is filed under Section 378(4) of Cr.P.C praying to set aside the Judgment dated 21.06.2010 passed by the Sr.C.J. & JMFC, Hunsur in C.C.No.82/06 Acquitting the respondent/accused for the offence p/u/s 138 of N.I Act.
This Appeal coming on for Final Hearing, this day, the Court delivered the following:
JUDGMENT 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 Senior Civil Judge & JMFC, Hunsur (hereinafter for brevity referred to as `trial Court’), in C.C.No.82/2006 pronounced the judgment of acquittal on 21.06.2010. It is against the said judgment of acquittal, the complainant has preferred this appeal.
2. The summary of the case of the complainant in the trial Court is that the accused for his legal necessities had borrowed a sum of `90,000/- from him agreeing to repay the same with interest. Towards discharge of the said loan, the accused issued post dated cheque bearing No.912679 dated 24.06.2005 for a sum of `90,000/- drawn in favour of the complainant at Vysya Bank, Hunsur. When the said cheque was presented for realisation, it returned with the banker’s endorsement “insufficient funds”. Thereafter, the complainant got issued legal notice to the accused demanding the payment of the cheque amount due. However, inspite of receipt of notice, the accused did not comply the demand made in the notice. This constrained the complainant to institute a case against him 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 5(a). Neither any witness was examined nor any document was marked as exhibit from the side of the accused.
4. After hearing both side, the trial Court by its impugned judgment dated 21.06.2010, acquitted the accused of the alleged offence. It is against the said judgment, the appellant has preferred this appeal.
5. The respondent was originally being represented by the counsel engaged by him. However, this Court in its order dated 13.02.2019 observing that the said counsel for the respondent has not appeared in the mater and addressed his arguments, proceeded to appoint the present learned counsel Sri. D. Mohan Kumar as Amicus Curiae to conduct the case for the respondent.
6. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court.
7. Heard arguments from both side. Perused the Memorandum of Appeal, impugned judgment and also the Lower Court Records.
8. The complainant as PW.1 in his examination- in-chief in the form of affidavit evidence, has reiterated the contention taken up by him in his complaint. He has stated that the accused has availed hand loan of `90,000/- from him and towards repayment of the said loan he had issued a post dated cheque bearing No.912679, dated 24.06.2005 for a sum of `90,000/-. The said cheque when presented for realisation, came to be dishonoured for the reason of insufficiency of funds in the account of the drawer of the instrument i.e., the accused. Thereafter, a legal notice was issued to the accused demanding the payment of cheque amount, who despite receipt of the said notice did not comply the demand made, as such, a complaint was filed against him. PW.1 has got produced the said cheque in question, the bankers endorsements, a copy of legal notice and postal acknowledgement at Exs.P-1 to 5.
9. Neither any evidence was led, nor any document was marked as exhibit from the side of accused.
10. Learned counsel for the appellant in his arguments submitted that when the issuance of cheque from the accused to the complainant and its subsequent dishonour and also issuance of legal notice to the accused, since having remained undisputed, the presumption of existence of legally enforceable debt operates in favour of the complainant. The accused has failed to rebut the said presumption. However, the Court below instead of giving benefit of said presumption in favour of the complainant, had expected the complainant to prove the existence of legally enforceable debt as in money recovery suit and also on its own it created doubt in its mind about the writing in the cheque, though it was not contended by the accused, which has led into passing an erroneous judgment of acquittal.
11. Learned Amicus Curiae for the respondent in his arguments submitted that the complainant has failed to give any details as to when the alleged loan was given by the accused. He has also not shown that the accused was a person known to him. Learned counsel further submitted that when admittedly the accused was an unemployed person, it is highly unbelievable that such a huge amount of loan was lent by the complainant to an unemployed person. Learned counsel also submitted that admittedly the accused has previously availed two loans from the same complainant. Therefore, the cheque given at that time has been misused by the complainant. The trial Court after appreciating the evidence placed before it, has appropriately pronounced the judgment of acquittal, which does not warrant any interference at the hands of this Court.
12. The complainant, both in his complaint as well in his evidence as PW.1, has not stated the exact date when the loan was said to have been given by him to the accused. In his cross-examination, PW.1 has stated that he had no difficulty to mention the said date either in his legal notice issued to the accused or in the complaint. However, no effort was made from the accused side to suggest to the witness that the complainant could not able to quote any specific date as the date of loan transaction, since the alleged loan transaction was fictitious one. When such a suggestion is not made, the statement of PW.1 that he knew the date of loan transaction and he had no difficulty to mention the same in the legal notice or in the complaint, would not create doubt in the say of PW.1 that there was a loan transaction between them.
On the other hand, it is the case of the complainant both in his complaint as well in his evidence as PW.1 that when the accused borrowed the loan from him, he issued a post dated cheque which is in question. The said specific statement of complainant has not been specifically denied from the side of accused, as such, mere non-mentioning of the exact date of loan transaction would not create any suspicion in the case of the complainant. Hence, the first argument of the learned Amicus Curiae that nondisclosure of the date of loan transaction would create doubt in the case of the complainant cannot be accepted.
13. Secondly, the complainant as PW.1 in his cross-examination, has stated that earlier to the present transaction in question, the accused had borrowed from him a loan of `20,000/- at one time and `30,000/- or `40,000/- at the second time and on both those occasions, he had given the cheques and after repaying loan amount, taken those cheques back. The accused has not denied those suggestions. The said undenied statement of PW.1 go to show that the accused was a person known to him and that there was also previous loan transactions between them, as such, the second argument of learned Amicus Curiae for the respondent that the accused was not a known person to the complainant, is also not acceptable.
14. The complainant, as PW.1 in his cross- examination has admitted a suggestion as true that while receiving the cheque at Ex.P-1, the accused was unemployed. It is based on the said specific admission it was contended from the learned Amicus Curiae for the respondent that under such circumstance, how come the complainant could give hand loan to an unemployed accused. The said admission of suggestion on the part of PW.1 that when he received cheque from the accused, the said accused was unemployed primarily shows an implied admission on the part of the accused that the cheque at Ex.P-1 was issued by him to the complainant.
15. Even though the accused was unemployed, but the undisputed statement of PW.1, as observed above that on the previous two occasions the very same accused had availed loan from him of a huge amount and had promptly repaid the said amount would go to show that being an unemployed person also, the accused had the capacity to repay the loan amount and that he had repaid on the previous two occasions the loan taken by him. As such, in the instant case unemployment cannot be equated with the accused had no income or source for repayment of loan amount. Further, as observed above, since it was suggested form the side of the accused in the cross-examination of PW.1 that the he has received the said cheque at Ex.P-1 from the accused, the further argument of learned Amicus Curiae for the respondent that the alleged transaction with unemployed accused is suspectable and that the cheque of the previous loan transaction has been misused by the complainant, is not acceptable. Further, the said defence that the cheque in question was given by the accused on the previous loan transaction which is canvassed in the argument now, has never been raised by the accused either in the Court below or such defence was taken in the cross-examination of PW.1.
16. In the light of the above analysis it is established that the issuance of cheque at Ex.P-1 by the accused towards the complainant is not in dispute. When the issuance of cheque is established, legal presumption under Section 139 of the N.I. Act, which is also reiterated by the Hon’ble Apex Court in the case of Rangappa Vs. Sri Mohan reported in (2010) 11 Supreme Court Cases 441 about the existence of legally enforceable debt forms in favour of the complainant. Though the said presumption is rebuttable as observed above, the accused has failed to successfully rebut the said presumption. However, the trial Court expected the complainant to prove the existence of legally enforceable debt as in a money recovery suit and in the said process of analysing the evidence before it, the trial Court itself created a doubt with respect to the difference in the ink in writing of the cheque at Ex.P-1 and has arrived at a conclusion that the alleged loan transaction was suspicious, as such, it pronounced the judgment of acquittal.
17. The said alleged change in the ink or pattern of hand writing had never been the case of the accused throughout in the Court below. Neither it was the defence of the accused as could be gathered in the trial Court records nor it was shown to be argument canvassed from the respondent’s side. In such a situation, when there were no materials to suspect the issuance of cheque by the accused in favour of the complainant and on the other when the accused himself has made a suggestion to PW.1 that the said cheque was received by the complainant from the accused, the introduction of an unfounded suspicion by the trial Court on its own was not proper. Consequently, the judgment passed by the Court below since based on no cogent reasoning, is held to be erroneous judgment, deserves its set aside. On the other hand, when the complainant has proved the guilt of the accused under Section 138 of the N.I. Act, the appeal deserves to allowed and the accused deserves to be convicted for the alleged offence.
Accordingly, I proceed to pass the following order:
ORDER The Appeal stands allowed. The judgment of acquittal dated 21.06.2010, passed by the learned Senior Civil Judge and JMFC, Hunsur in C.C.No.82/2006 is set aside. The respondent/accused by name – B.R. Vishwanath S/o K.M. Ramaiaha, residing at Unnenekarara colony, Old Bridge, Hunsur Town, Mysuru District, is convicted for the offence punishable under Section 138 of N.I.Act.
Heard the learned counsel from both side on sentence part.
While the learned counsel for the appellant/ complainant submits for awarding maximum sentence for the offence for which the respondent/accused is convicted, the learned counsel for the respondent/accused submitting that accused is a family holder and a respectable person in society, prays for taking a lenient view.
It is the sentencing policy that the sentence ordered should not be either exorbitant nor for name sake for the proven guilt. It must be proportionate to the guilt for which the accused is found guilty of.
Considering the facts and circumstances of the case, the accused is sentenced to pay a fine of `1,00,000/- (Rupees One Lakh only) within four weeks from today, and in case of default of payment of fine, to undergo simple imprisonment for a period of six months. In case of payment of fine amount, a sum of `90,000/- (Rupees Ninety Thousand) be paid to the complainant – D. Narasimharaju S/o Late Dasappa and remaining sum of `10,000/- (Rupees Ten Thousand only) be taken to the account of the State.
The Registry is directed to transmit a copy of this judgment to the trial Court forthwith, to enable it to proceed further in the matter for issuance of warrant of conviction, if necessary and proceed in accordance with law.
An entire copy of this judgment also be delivered to the respondent/accused, immediately free of cost.
This Court places on record its appreciation for the assistance rendered by Sri D.Mohan Kumar, learned counsel as Amicus Curiae, in this case.
The Registry is directed to pay a sum of `5,000/- to the learned Amicus Curiae as an honorarium.
Sd/- JUDGE BMC