IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.N. PHANEENDRA CRIMINAL APPEAL NO.951/2014 BETWEEN:
M/s. JKS JEWELS Pvt. Ltd., No.872, I Floor, Rajatha Mahal, Nagarathpet Main Road, Bangalore-560 002 Represented by its Authorized Representative Sri Surendra K.
…APPELLANT (BY SRI SARAVANA S., ADVOCATE) AND:
Ms. NIKITA, Proprietor, M/s. Varenyam Jewels, S-112, South Block, 1st Floor, Manipal Centre, Dickenson Road, Bangalore-560 042 ... RESPONDENT (BY SRI JAYAPRAKASH SHETTY B., ADVOCATE) This Criminal Appeal is filed U/s. 378(3) of Cr.P.C., praying to set aside the order dated 06.08.2014 passed by the XIII Addl. CMM, Bangalore in C.C.No.13590/2012 – acquitting the respondent/accused for the offence P/U/S. 138 of N.I. Act.
This Appeal coming on for Admission, 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 on merits of the case at the time of admission itself. Perused the records.
2. The brief factual matrix of the case as could be seen from the records are that the appellant being the complainant has filed a complaint against the respondent (hereinafter referred to as ‘Accused’) under Section 138 of Negotiable Instruments Act, through its authorized agent T. Surendra contending that on 19.09.2011 the accused has purchased some gold ornaments from the complainant under credit invoice No.459 for Rs.6,23,950/- and he has issued three cheques for repayment of the purchase amount in cheques bearing Nos.364790, 364791 and 364792. The complainant presented those cheques through his bankers and the same was returned as unpaid on account of funds insufficient. On 24.11.2011 and 30.11.2011 such endorsements were made by bankers of the Company. The complainant issued legal notice to the accused on 22.11.2011 and the same was served on the accused on 26.11.2011, but he neither replied the notice nor made any payment. Therefore, within the stipulated period as contemplated under Section 138 of the Negotiable Instruments Act, the complaint was filed.
3. The accused in fact contested the proceedings by appearing before the Court. After recording plea of the parties the trial Court proceeded to hold a trial. The complainant examined its authorized agent by name Surendra K., as PW1 and got marked the documents at Exs.P1 to P14. The accused neither entered into the witness box nor produced any documents in support of his defence.
4. At the time of submitting the arguments before this Court, as well as before the trial Court, the defence taken by the accused are that the complaint is barred by limitation and further the authorized agent has not filed the complaint with the resolution of the Company and further, the cheques were not issued by the accused with reference to any debt or liability due on the part of the accused. The trial Court after appreciating the oral and documentary evidence on record, doubted the transaction between the parties and held that the bills produced by the complainant does not bear the signature of the accused and also does not bear the cheque numbers and further there is no actual delivery of the gold articles in favour of the accused. Therefore, the trial Court has acquitted accused person on that particular ground.
5. The appellant who is before this Court has strenuously argued that the trial Court has not properly appreciated the oral and documentary evidence on record nor raised a legal presumption available in favour of the appellant and the entire burden was thrown on the complainant even in spite of presumption available for him to prove the factor that the said cheques were issued for re-payment of any debt or liability. Further, the trial Court has committed serious error in not properly perusing the bills produced by the complainant which actually bear the cheque numbers issued by the accused as on the date of transaction.
6. Having heard the arguments on both sides, this Court has got ample powers to re-evaluate the entire materials on record. On careful perusal of the records, it discloses that after issuance of notice by the complainant there was no reply by the accused. Though it was stated that the notice was not served, but the acknowledgement produced before the Court marked at Ex.P3 discloses that the complainant has sent notice to the known address of the accused which has reached its destination. Therefore, the accused has not taken any defence with regard to non-issuance of legal notice, replying to the complainant taking any defence at the right point of time. Further, added to that, during the course of evidence the accused has not even cross-examined the PW1 to the effect that as to how the cheques belonging to accused bearing his signature passed on to the complainant and in which manner the custody of the cheques have been come to the complainant. It is the onus on the accused to prove the same when the presumption under Section 139 as available to the complainant.
7. The presumption under Sections 139 and 118 of the Negotiable Instruments Act not only raises the presumption that the cheques were issued in favour of the complainant, drawn on a particular Bank, but to the date, writings and amount written on the cheques. It also raises a special presumption that the said cheques were issued for re-payment of whole or part of any debt by the accused person in favour of the complainant, though it is initial presumption that can be drawn, but consequently after evaluation of the entire evidence on record, the Court has to conclude as to the said presumption raised in favour of the complainant has been rebutted by the accused. Of course I am conscious of the legal aspects that the onus on the accused is not as high as on the complainant. By means of showing preponderance of probabilities, the accused may establish that the presumption raised in favour of the complainant has been rebutted. In this background the Court has to re-evaluate the evidence on record.
8. The first point raised by the learned counsel is that the resolution of the Company has not been produced before the Court at the right point of time, when the complaint has been filed, such preliminary ground has not been raised before the trial Court. Further, added to that the complainant has categorically stated that PW1 is the authorized agent of the said Company and the complaint bears the signature of the Director himself. Therefore, in my opinion the non-production of the resolution itself is not fatal because of one of the Directors himself has signed the complaint. Therefore, there is a legal lapse on the part of the complainant in filing the complaint in the name of the Director.
9. The second point raised by the learned counsel is that there is no signature on the invoices. Exs.P2 and P3 are the invoices. The explanation has been given by PW1 that they were computer generated invoices, therefore, there is no question of taking signature of the accused. However, Ex.P3 discloses that the accused has issued three cheques which tallies with the cheques that are presented by the complainant to the Bank, which came to be dishonoured later. Therefore, the invoices disclose that some presumption had been taken place between the accused and the complainant. It is the specific case of the accused that the accused has not received the gold articles and further the accused has not issued the cheques with reference to the said transaction, but he has issued the cheques with reference to some other transaction with the Company. However, in the cross-examination of PW1, no such suggestions have been made that there is absolutely no transaction between the accused and the Company and the cheques were not issued with reference to the present transaction under the invoice bill marked at Ex.P3 and those cheques were actually issued in connection with some other transaction. In the absence of such cross-examination in the evidence of PW1, the accused would have examined himself to establish the defence taken by him. Therefore, at any stretch of imagination the presumption raises in favour of the complainant under Section 139 of the Negotiable Instruments Act has been successfully rebutted by the accused. Once the presumption is in favour of the complainant, he has to prove the case beyond reasonable doubt taking advantage of the presumption, if that presumption is not rebutted by the Accused. Therefore, under the above said facts and circumstances, on re-evaluation of the entire materials on record, in my opinion the trial Court has committed serious error in acquitting the accused. However, there are sufficient materials in favour of the complainant and also the presumption ought to have been raised by the trial Court in favour of the complainant which has not been done.
10. The cheques were issued in the year 2011. The transaction shows that it is the business transaction between the parties. On careful perusal of the cheques, the amount of Rs.6,00,000/- is due from the said accused as the said amount was not paid in spite of issuing notice. Therefore, the complainant has been deprived of the said money from the date of transaction between him and the accused. Therefore, in my opinion, when the accused is liable for conviction, reasonable amount has to be awarded to the complainant towards the loss sustained by him. Hence, I am of the opinion that the appeal deserves to be allowed and I proceed to pass the following:
ORDER The appeal is allowed. The judgment of acquittal passed by the trial Court in C.C. No.13590/2012 dated 06.08.2014 is hereby set aside. Consequently, the accused-respondent is convicted for the offence punishable under Section 138 of the Negotiable Instruments Act.
The accused is sentenced to pay a fine of Rs.9,00,000/-.
Out of Rs.9,00,000/-, the complainant is entitled for a sum of Rs.8,80,000/- and the same is awarded as compensation under Section 357 of Cr.P.C.
The remaining Rs.20,000/- shall be forfeited to the State towards litigation expenses.
In default to pay the fine amount, the accused has to undergo simple imprisonment for one year.
Sd/- JUDGE SBS*