IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF DECEMBER 2019 BEFORE THE HON’BLE MR.JUSTICE ASHOK S. KINAGI CRIMINAL APPEAL NO.1029 OF 2012 BETWEEN:
SMT H R SAVITHA W/O T S VENKATESH PRASAD AGED ABOUT 45 YEAS R/AT NO. 43, ‘F’ BLOCK 3RD CROSS, J P NAGAR MYSURU-570 008. …APPELLANT (BY SRI. V F KUMBAR, ADVOCATE) AND:
SMT G S LALITHAMMA AGED ABOUT 50 YEARS ACCOUNTANT PLD BANK CHIKKANAYAKANAHALLI - 572 214 TUMAKURU DISTRICT PRESENTLY RESIDING AT GONITUMKUR-572 104, TURUVEKERE TALUK TUMAKURU DISTRICT. …RESPONDENT (BY SRI. N SRIRAM REDDY, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF ACQUITTAL DATED 30.6.2012 PASSED BY THE III J.M.F.C., MYSORE IN C.C.NO. 2860 OF 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 DELIVERED THE FOLLOWING:
JUDGMENT The appellant aggrieved by the order dated passed by the III JMFC Mysore, in C.C.No.2860/2007 has filed this appeal.
2. Brief facts of the case are as follows :
The appellant and the respondent are known to each other for past 11 years. Respondent requested the appellant to advance a loan of Rs.5,60,000/- as the same was required to the respondent for clearing the debts raised for treatment of her husband who was suffering from ailment. The appellant considering the request of the respondent, advanced loan of Rs.5,60,000/- in the month of August, 2006. The respondent agreed to repay the said amount on demand. Respondent issued cheque bearing No.631090 dated 16.5.2007 towards discharge of debt. The appellant presented the said cheque for encashment.
The said cheque was returned on the ground ‘insufficient funds’ and ‘account closed’. After the receipt of endorsement dated 18.5.2007 the appellant got issued a legal notice on 12.6.2007 through RPAD and certificate of posting calling upon the respondent to repay the amount mentioned in the cheque within the prescribed period mentioned in the legal notice. The legal notice sent by RPAD was returned unserved with an endorsement ‘process refused, hence returned to the sender and notice sent vide CPO was duly served on the respondent. The respondent has neither replied the legal notice nor paid the amount mentioned in the cheque within the prescribed period mentioned in the notice. Hence, the appellant filed a complaint under Section 200 Cr.P.C. for the offence punishable under Section 138 of the N.I. Act, On 16.7.2007. The trial Court recorded the sworn statement of the complainant, took cognisance of the offence punishable under Sections 138 of the N.I. Act and issued summons to the accused/respondent. The respondent appeared and was enlarged on bail. He did not plead guilty and claimed to be tried.
The appellant in support of her case examined herself as PW1 and her father as PW2 and got marked documents- exhibits P1 to P8. After closure of complainant’s/appellant’s evidence, the trial Court recorded the statement of respondent under Section 313 Cr.P.C. wherein the respondent has denied the incriminating evidence adduced against her as false. She has not chosen to adduce oral evidence but she has got marked the documents exhibits D1 to D5.
The trial Court after considering the material on record held that the appellant has failed to prove that she has got a financial capacity to lend the amount and also held that the notice was issued on a wrong address, cheque does not pertain to the respondent and considering the documents produced by the respondent, acquitted the respondent.
The appellant aggrieved by the said order has filed this appeal.
3. Heard the arguments of the learned counsel for the parties.
4. The contentions of the learned counsel for the appellant are that the appellant has obtained amount from his father i.e. PW-2 for advancing loan to the respondent and in support of her contention, she has relied on Ex.P-8 i.e. registered sale deed executed by PW-2 in favour of PW-1.
5. The second contention is that the legal notice sent to the respondent is on a correct address and the address shown in the cause title and on the endorsement are one and the same and also the summons were served on the same address shown in the endorsement.
6. The third contention is regarding Ex.D3, produced by the respondent i.e. the letter addressed by the respondent to the Manager of Tumkur Cooperative Bank Ltd. Tumakuru, requesting for issuance of endorsement in regard to the cheque in question in respect to Account No.194/2007 but not in regard to Account No.194/2017.
Exhibit D-series are marked without the consent of the complainant and the trial Court considered the said documents in the impugned judgment.
7. Per contra, learned counsel for the respondent supports the impugned judgment and he contends that Ex.P8 i.e. registered sale deed (certified copy) produced by the appellant is not a genuine document but it is a created one and further from the recital of Ex.P8, it can be noticed that the amount and cheque number are kept blank. Further he contends that the appellant has not got financial capacity to advance loan to the respondent. Further the appellant is working in the postal department and getting a meager salary and has no capacity to advance the amount and that no documents have been produced by the appellant to show that PW2 has paid the amount to PW1 for advancing loan to the respondent. Further there is a material alteration in the cheque in regard to the account number. As per Section 87 of the N.I. Act any material alteration of the negotiable instrument renders the same void and seeks for dismissal of the appeal.
8. The appellant in her examination-in-chief has deposed that on 19.8.2006 she has advanced a loan of Rs.5,60,000/- to the respondent as per her request and in discharge of the said loan, the respondent issued a cheque for Rs.5,60,000/- on 16.5.2007 and when the cheque was presented for encashment, it was dishonoured on the ground ‘account closed’ and hence issued a legal notice to the respondent.
9. On going through the contents of the legal notice-Ex.P4 and contents of the complaint-Ex.P1, the appellant has not pleaded in the complaint as well as in the legal notice that when the said amount has been advanced to the respondent. Only during the course of examination-in-chief, the appellant has stated that on 19.8.2006, amount was advanced.
10. The said contention cannot be accepted. If at all the said amount was advanced on 19.8.2006, there was no impediment for the appellant to plead the said fact in the legal notice as well as in the complaint. Further, the appellant has not produced any record to show that she has taken the amount from PW2 on 19.8.2006. The appellant has not produced any record to show as on 19.8.2006 the complainant was possessing huge amount of Rs.5,60,000/- and further she has not stated neither in the legal notice nor in the complaint that she has borrowed amount from PW2 on 19.08.2006.
11. If the amount was advanced on 19.8.2006 by the appellant, the appellant would have obtained the document from the respondent. In the present case, the appellant has not produced any records to show that she has advanced a sum of Rs.5,60,000/- to the respondent on 19.8.2006 except producing Ex.P2 i.e. the cheque. The appellant has not satisfactorily explained the contradiction in the complaint in her examination-in-chief in regard to the non-mentioning of the date of advancing loan to the respondent and her failure to prove the financial capacity though she being a Government servant working in the postal department.
12. The respondent has questioned the financial capacity of the appellant. It was incumbent on the appellant to explain her financial capacity. The court cannot insist on a person to lead a negative evidence.
13. In this regard, I would like to place reliance on the judgment of the Hon’ble Apex Court in the case of BASALINGAPPA VS. MUDIBASAPPA reported in AIR 2019 SUPREME COURT 1983. It is stated in Head Note (A) as under:
“Non-mentioning of date of issuance of cheque by complainant in complaint as well as in his evidence – Complainant not satisfactorily explaining contradiction in complaint vis-à-vis his examination-in-chief and cross-examination – His failure to prove financial capacity though he is a retired employee to advance substantial amount to different persons including accused”.
Further, at paragraph 27 of the said judgment, the Hon’ble Apex Court has held as follows:
“27. Thus, there is a contradiction in what was initially stated by the complainant in the complaint and in examination-in-chief regarding date on which loan was given on one side and what was said in the cross examination in other side, which has not been satisfactorily explained. The High Court was unduly influenced by the fact that the accused did not reply the notice denying the execution of cheque or legal liability. Even before the Trial Court, appellant –accused has not denied his signature on the cheque”.
14. In the present case, the appellant in the complaint has not stated the date on which the amount was lent and also in the legal notice-Ex.P4. But only in the examination-in-chief the date of advancing loan is mentioned.
Further, the complainant has not explained why the date of loan is not mentioned in the legal notice as well as in the complaint. Hence, the appellant has failed to prove the transaction and the said contention of the appellant cannot be accepted for the reason discussed above.
15. The second contention insofar as issuing legal notice by the appellant is concerned, the address shown on the envelope is, Smt.G.S.Lalithamma, Accountant, PLD Bank Chikkanayakanahalli Tumkur District. Though postal cover was returned with an endorsement “refused” and the address shown in the cause title of the complaint is one and the same and when the trial Court has issued summons to the respondent, the same was served on her on the same address. So the contention of the respondent that notice was issued on the wrong address cannot be accepted for the reasons stated above.
16. The third contention of the respondent is that the cheque does not belong to her as it does not bear the seal of the Bank. The said contention cannot be accepted for the reason that the Bank has not returned the cheque on the ground that cheque does not belong to the account holder 194/17 and that the respondent does not deny that account No.194/17 does not belong to her. I am of the considered view that cheque belongs to respondent.
17. From a perusal of Ex.P2-cheque, it is apparent that there is a material alteration in respect of account number. As per the provision of Section 87 of the N.I. Act, if there is any material alteration in the N.I. Act, renders the same void. Section 87 of the N.I. Act reads as under:
“87. Effect of material alteration Any material alteration of a negotiable instrument renders the same void as against anyone who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties;
Alteration by indorsee: And any such alteration, if made by an indorsee, discharges his indorser from all liability to him in respect of the consideration thereof.
The provisions of this section are subject to those of sections 20,49,86 and 125.”
19. From a perusal of Ex.P2-cheque there is a material alteration in the account number and it is not the case of the appellant that by the consent of the respondent, the material alteration was done. If there is a material alteration, as per the above said provision, the said instrument renders void. So the said alteration would be void against the respondent as the said alteration is without the consent of the respondent.
20. Learned counsel for the appellant/complainant contends that the trial Court has committed an error in relying upon Exs.D1 to D5 which were marked in the absence of the complainant appearing before the trial Court. He therefore, contends that the trial court has wrongly placed reliance on the said documents.
21. The initial burden lies on the appellant to show that she has advanced the amount of Rs.5,60,000/- to the respondent. But in the present case, as observed above, the appellant has failed to prove that she has advanced a loan of Rs.5,60,000/- to the respondent. Hence, the said contention of appellant is meaningless and therefore the documents need not be looked into. Even without considering the said document, as discussed above the appellant has failed to discharge that appellant has lent the money to the respondent.
The Trial Court after considering the evidence and documents on record has held that appellant has failed to prove that respondent had issued cheque towards legally enforceable debt.
22. Further, the said exhibits i.e. Exs.D3, D4 and D5 pertain to account No.194/07 and it does not pertain to account No.194/17, which belongs to the respondent. Hence, I am of the view the said documents are not relevant for the purpose of deciding the matter in issue.
23. The trial Court after considering the evidence and the material on record has rightly held that the appellant has failed to prove that she has advanced a loan of Rs.5,60,000/- and failed to prove that the cheque in question was issued by the respondent towards discharge of debt and has rightly acquitted the respondent. I do not find any grounds to interfere with the impugned order.
Hence, I proceed to pass the following :
ORDER The appeal is dismissed.
Sd/- JUDGE rs