IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JANUARUY 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL APPEAL No.772 OF 2010 BETWEEN:
J.K.Manjegowda, S/o Kullegowda Aged about 33 years, R/of Jakkanahalli Village, Sheelanere Post, Bookinakere Hobli, Krishnarajapet Taluk, Mandya District. .. Appellant ( By Sri Bhanu Prakash H.V., Advocate ) AND:
K.V.Mohan Kumar, S/o K.V.Venkataravanegowda, Aged Major, House No.1650, S L N Temple Road, Krishnaraja Town, Mandya District. .. Respondent ( By Sri P.D.Subramanya, Advocate ) This Criminal Appeal is filed under Section 378(4) of Cr.P.C praying to set aside the judgment and order dated 26.5.2010, passed by the Civil Judge (Jr.Dn.), & JMFC, K.R.Pet, in C.C.No.881/2007, 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 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 Civil Judge (Jr.Dn.) & JMFC, Krishnarajapete, (hereinafter for brevity referred to as `trial Court’), in C.C.No.881/2007, pronounced the judgment of acquittal on 26.05.2010. 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 who was acquainted with him since long time, had obtained a loan of sum of `95,000/- from him on 10.1.2007, to meet the expenses of education of his children and the medical expenses. In order to repay the said loan amount, the accused had issued a cheque dated 12.4.2007, drawn on Vishveshwaraiah Grameena Bank, K.R.Pet Branch, for a sum of `95,000/-. On presentation, the said cheque came to be dishonoured for the reason “funds insufficient” on 17.4.2007. Thereafter, the complainant issued a legal notice as required under law demanding the payment of the cheque amount. Since the accused did not meet the demand, the complainant was constrained to institute a criminal complaint 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 P-11. From the accused side, two witnesses as DW-1 and DW-2 were examined and Exs.D-1 and D-2 were marked. After hearing both side, the trial Court by its impugned judgment dated 26.05.2010, acquitted the accused of the alleged offence. It is against the said judgment of acquittal, the 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. It is the argument of learned counsel for the appellant that it is not in dispute that the cheque at Ex.P-1 pertains to the respondent/accused and that it bears his signature. The reason for its dishonour as “funds insufficient” and instituting a legal notice, is also not in dispute. However, the trial Court without properly appreciating the evidence, has jumped to a conclusion that the complainant has failed to establish that he had capacity to lend the loan amount and his narration regarding the purpose of the loan are contradictory and unbelievable. The learned counsel submitted that the said reasoning given by the trial Court in pronouncing the judgment of acquittal is erroneous.
6. The respondent herein was being represented by his counsel. However, considering the fact that the said learned counsel has failed to appear on few dates of hearing and also considering the fact that the appeal is of the year 2010, as such, one among the old appeals pending before this Court, the Court appointed Sri P.D.Subramanya, learned counsel from the panel of High Court Legal Services Committee, Bengaluru, as the advocate to defend the interest of the respondent. The said learned counsel at the shortest notice, by going through the records, has addressed his arguments.
Learned counsel for the respondent submitted that the alleged presumption in favour of the complainant has stood successfully rebutted through the evidence of DW-1 and DW-2. Their evidence clearly go to show that neither the complainant had financial capacity to lend money nor the cheque in question was issued to him by the accused.
7. The complainant who got himself examined as PW-1, in his examination-in-chief, has reiterated the contentions taken up by him in his complaint. After stating that the accused had availed hand loan from him for a sum of `95,000/- on 10.1.2007, the complainant in support of his contention, also got produced the alleged dishonoured cheque said to have been issued by the accused at Ex.P-1, Banker’s memo at Ex.P-2, copy of the legal notice said to have been issued by him to the accused at Ex.P-3 and other documents, including the alleged loan correspondences by the Life Insurance Corporation of India at Ex.P-8 and Ex.P-9.
8. The accused did not enter the witness box.
However, he got examined one Sri Narayana Holla, the Manager of Vishveshwaraiah Grameena Bank, K.R.Pet Branch, as DW-1 and one Ramesha s/o Kullegowda, as DW-2 and through them, got marked the documents at Exs.D-1 and D-2, which are an account extract of the complainant with the Vishveshwaraiah Grameena Bank and a legal notice said to have been issued by the complainant to the accused.
9. According to the complainant, the accused was his relative, as such, an acquainted person, which is not in dispute. The alleged cheque which is said to be dishonoured is marked at Ex.P-1. The accused has not disputed that the said cheque pertains to him and it bears his signature. However, the contention of the accused is that the said cheque was not issued by him to the complainant, but, it was issued to the brother of the complainant by name Ramesha, who incidentally was examined as DW-2, when he (accused) had borrowed money from him. According to the accused, the said cheque was misused by his brother, who is the complainant and has instituted this case. That was the first defence taken up by the accused.
The second contention taken up by the accused was that the complainant had no financial capacity or source to lend the alleged sum of `95,000/- on 10.1.2007.
10. According to the complainant, on 10.1.2007, the accused approached him for a hand loan on the pretext that he had to meet educational expenses of his daughter and also medical expenses. It is in that regard, the hand loan was given to him. Even in his cross-examination also, PW-1 reiterated that the loan was given to meet the educational expenses of the daughter of the accused. However, in his further cross-examination, the very same witness has stated that he does not know whether the daughter of the accused Ms.Pavitra had completed her education in the year 2005 and had joined an employment. Prima facie, the said purpose of the loan as canvassed by the complainant raises a suspicion. When the complainant claims that accused was his relative and was also acquainted with him, he is expected to know as to whether the daughter of the accused is still studying. It is because the complainant has specifically stated that it was for the education expenses of the elder daughter of the accused, which means, the complainant knows the family details of the accused. In such a case, when the said girl by name Ms.Pavitra is said to have completed her education in the year 2005 itself and said to be under employment, question of complainant lending a hand loan of `95,000/- on 10.1.2007 hardly arises.
Secondly, it is the specific contention of the accused that the cheque in question was never issued to the complainant and the said cheque was issued to one Sri Ramesha (DW-2), the younger brother of the complainant when both DW-2 and the complainant being the brothers, were residing together as a members of joint family. However, when they entered into partition and established their separate residence, the cheque in question was retained by the complainant and has been misused. The accused has put this defence in the cross- examination of PW-1, however, PW-1 has not admitted those suggestions as true.
11. The accused in order to establish his defence that the cheque was given to the brother of the complainant, got the said brother examined as DW-2. The said witness in his evidence has stated that complainant is his elder brother and he knows the accused. He had on three occasion lent a total sum of `15,000/- to the accused and as a security, he had collected two blank cheques and one Promissory Note from him. The witness has also stated that the accused had repaid those loan amount, however, blank cheques and the Promissory Note were not returned to him.
DW-2 has also stated that those cheques and Promissory Note were kept in his house when he was residing along with the complainant. Thereafter, when they separated, those documents were retained with his brother/complainant. It is only after he filing the present case, he came to know that his brother has misused the cheque given to him by the accused. The witness also stated that he requested his brother to return the said cheque to the accused, however, his brother did not return the said cheque. DW-2 also stated that complainant had no income or capacity to lend such a huge amount as loan and that his brother has filed a false case against the accused to make money out of it.
He was subjected to a detailed cross-examination from the complainant side, wherein he adhered to his original version.
In his cross-examination, he has given some more details as to the loan transaction between him and the accused stating that there were three loan transactions between him and the accused, each one for a sum of `5,000/-. In the first loan transaction, he had collected a Promissory Note from the accused. In the subsequent two loan transactions, he had collected blank cheques from the accused. He has also given the cheque numbers received by him from the accused. Incidentally one among those two cheque numbers stated by him, which is 0337878, corresponds the cheque in question which is marked at Ex.P-1.
DW-2 in his cross-examination has also stated that since three years, himself and complainant are not having cordial relationship and that there is a dispute with respect to land property. He has also admitted a suggestion as true that challenging the judgment in Regular Appeal No.51/2007, he has preferred Second Appeal in RSA.No.2270/2008. Still, he has categorically denied a suggestion that in view of the fact of the spoiled relationship between him and his brother, he is giving a false evidence favouring the accused.
12. Except making a suggestion to DW-2 that in view of the spoiled relationship, he was giving false evidence and that several criminal cases were also filed against DW-2, the complainant has not produced any documents in that regard. When the complainant has suggested to DW-2 in his cross-examination that DW-2, through his mother, has got a case for maintenance filed against the complainant and also that DW-2 had put fire to a sugarcane crop of the complainant, in which regard, a complaint has been filed, has not produced any documents to support his contention. DW-2 has categorically denied those suggestions. Thus, the contention of the appellant that DW-2 was facing several cases against him and as such, with enmity against his brother, he was deposing falsely, was confined only in the form of suggestion made to DW-2 in his cross- examination, which were not admitted as true by DW-2. Nothing had prevented the complainant to produce the documents in support of his suggestions made to DW-2 questioning his conduct and alleged ill-will towards the complainant.
13. On the other hand, the evidence of DW-2 that prior to the alleged partition between the brothers, they were residing together and the alleged loan documents, which according to DW-2, were a Promissory Note and two blank cheques said to have been given by the accused, were retained by PW-1 even after the partition, has not been categorically denied in the cross- examination of DW-2. Thus, the first defence of the accused that the cheque in question which is at Ex.P-1 was at no point of time was issued by him to the complainant, but, the said cheque in its blank form was issued to DW-2, gains more support and appears to be more nearer to the truth.
14. The accused has also taken a defence that as on the date of alleged loan, the complainant had no capacity or resource to lend a sum of `95,000/- to him. In that regard, suggestions were made to PW-1 in his cross-examination. No doubt, PW-1 has not admitted those suggestions as true, on the other hand, in his cross-examination has stated that, prior to giving a hand loan of `95,000/- to the accused on 10.1.2007, he had kept that amount in the bank. Before lending the said amount, he had withdrawn the said amount and had kept with him for other business purpose. He has also stated that he had withdrawn the said amount from the bank one year prior to the loan transaction. Though he has stated that he had no inconvenience to produce his bank statement in that regard, but, the complainant did not produce his bank statement. On the other hand, he has produced two letters shown to have been issued by Life Insurance Corporation of India, K.R.Pet Branch and marked them as Ex.P-8 and Ex.P-9 and a bank passbook at Ex.P-10, without specifically stating as to for what purpose and to establish what aspect those documents are produced by him.
15. Assuming that those documents might have been produced to show that he had financial capacity to lend loan in question, still, when those documents are seen, it can be noticed that Ex.P-8 and Ex.P-9 pertains to two loans shown to have been granted by Life Insurance Corporation of India, sanctioning a loan of `5,750/- and `8,000/- respectively under Ex.P-8 and Ex.P-9. Both the amount if totaled, comes to only `13,750/-, which is far lesser than the alleged loan amount of `95,000/-. The passbook at Ex.P-10 pertains to the year 2009 onwards, whereas, the loan in question is alleged to be on 10.1.2007, as such, the said passbook at Ex.P-10 would be of no help to the complainant.
16. On the other hand, the accused got examined DW-1, the Bank Manager, who has stated that the complainant was maintaining an account in their bank and he has produced a statement of account of the complainant. He has marked the said statement at Ex.D-1. The said bank statement at Ex.D-1 is of the very same account bearing No.3115, the passbook of which the complainant has produced at Ex.P-10. The said statement of bank account, the contents of which is not disputed by the complainant, is for the period from 1.4.2004 to 15.1.2010. A perusal of the said statement go to show that no where in the year 2006, up to February 2008, the complainant had a balance in his bank account exceeding `19,500/- at any point of time. The total withdrawals made by the complainant during the said period also does not in any manner come nearer to the alleged loan amount of `95,000/-.
17. Thus, it makes clear that the statement of PW- 1 that he had kept `95,000/- in his bank account and had withdrawn the said amount and kept it with him earlier to lending the said amount to the accused is not proved to be a true statement. The evidence of DW-1, the Manager that at no point of time, the complainant had availed any loan from his bank also falsifies the statement of PW-1 that he had availed loan before he gave hand loan to the accused.
18. Thus, even after assuming that the cheque in question, which is at Ex.P-1, was issued by the accused and as such, a presumption under Section 139 of N.I. Act operates in favour of the complainant, still, the above analysis of the evidence led by the parties clearly go to show that the accused has successfully rebutted the said presumption. As such, the burden of proving the existence of alleged legally enforceable debt shifts back to the complainant. The complainant since has failed to discharge the said burden and could not able to establish that there exists a legally enforceable debt, it cannot be held that there was any loan transaction between the complainant and the accused as alleged and that the cheque in question was issued by the accused to the complainant towards discharge of said debt.
19. As such, even though the finding of the trial Court acquitting the accused from the alleged offence is for other reasons, but, in view of the above analysis, the ultimate finding of the trial Court in pronouncing the judgment of acquittal against the accused cannot be found fault with.
Accordingly, the Appeal stands dismissed as devoid of merit.
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 to be paid to the learned counsel at not less than `5,000/-
Sd/- JUDGE bk/