IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18th DAY OF FEBRUARY 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL APPEAL No. 999 of 2010 BETWEEN:
N.S.Vijaykumar S/o Siddappa, A/a 37 years, R/a Narsamma Agrahara, Nanjanagud Town, Mysuru District. …Appellant (By Smt. Sinchana.M.R, Advocate for Sri.Muniyappa, Advocate) AND:
C.Gayathri, Asst, Teacher, G.H.P. School, Yaraganahalli, Moogur Hobli, T.Narasipura Taluk, Mysuru 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 dt.31.08.2010 passed by the Addl. C.J. and JMFC, Nanjangud in C.C.No.151/09 - acquitting the respondent/accused for the offence punishable under Section 138 of N.I. Act, 1881.
This Criminal 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 Addl.Civil Judge, Nanjangud, (hereinafter for brevity referred to as `trial Court’), in C.C.No.151/2009, pronounced the judgment of acquittal on 31.8.2010. 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 his friend had borrowed a hand loan of a sum of `1,83,000/- from him in the month of April 2008 to meet her legal necessities and to clear hand loans and had agreed to repay the same within three months. Since the accused did not repay the loan amount at the demand made by the complainant, for the repayment of the loan, the accused issued a cheque bearing No.14049, drawn on MDCC Bank, T.Narasipura Branch, for a sum of `1,83,000/- and dated 4.8.2008, in favour of the complainant. When the said cheque was presented for realisation, the same returned unpaid with the Banker’s endorsement “funds insufficient”. Thereafter, the complainant issued a legal notice demanding the repayment of the cheque amount. Since the accused failed to meet the demand, the complainant was constrained to initiate a criminal proceeding against her 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-6. The accused got herself examined as DW-1 and got marked documents from Exs.D-1 to D- 1C. After hearing both side, the trial Court by its impugned judgment dated 31.8.2010, acquitted the accused for the alleged offence. It is against the said judgment, the complainant has preferred this appeal.
4. Even though the respondent was originally being represented by her counsel, however, this Court in its detailed order dated 13.2.2019, noticing that in this appeal of the year 2010, the learned counsel for the respondent had remained absent on many dates of hearing, appointed learned counsel Sri P.D.Subramanya from the panel of Legal Services Committee of this Court. Accordingly, said panel advocate Sri P.D.Subramanya is appearing for the respondent.
5. Heard the learned counsel from both side and perused the materials placed before this Court.
6. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court.
7. Smt.Sinchana M.R., the learned counsel for the appellant in her arguments submitted that the alleged defence of the accused that the cheque in question was issued as a security when the brother of the accused by name Sri G.C.Ramesh, had availed loan from the complainant, has not been proved. Further, the accused also has not replied to the legal notice issued upon her, which makes her defence suspicious. Learned counsel further submitted that in the trial Court, the accused had volunteered for settlement of the matter, which also go to show that the accused is aware of her liability towards the complainant.
8. Learned panel advocate for the respondent in his arguments submitted that though issuance of cheque at Ex.P-1 is not in dispute, but, the accused has successfully able to demonstrate to the Court that the loan as alleged by the complainant had never taken by her. The cheque in question had been issued only as a security when her deceased brother had availed a hand loan of a sum of `25,000/- from the complainant, which cheque has been misused by the complainant by filling the contents by himself.
9. The complainant got himself examined as PW-1 and got marked the documents from Exs.P-1 to P-6, which includes the cheque in question at Ex.P-1, Banker’s endorsement at Exs.P-2 and P-3, copy of legal notice at Ex.P-4 and postal endorsement at Ex.P-5. The accused got herself examined as DW-1 and got produced a certified copy of the deposition of the present complainant as a complainant in C.C.No.150/2009, in the Court of Addl.Civil Judge (Jr.Dn.,) and JMFC, at Nanjangud, filed against the accused therein i.e., one Sri G.C.Mahesh.
10. From a perusal of the evidence from both side, it is not in dispute that the accused is not an unknown person to the complainant. On the other hand, according to the accused, the cheque in question in this case has been given by her to the complainant in a blank form when her deceased brother by name G.C.Mahesh is said to have availed a hand loan of a sum of `25,000/- from the complainant. Thus, the issuance of cheque which is at Ex.P-1 by the accused to the complainant is not in dispute. Therefore, once the issuance of cheque is shown by the complainant in his favour, a presumption about the existence of legally enforceable debt under Section 139 of N.I. Act, forms in his favour. The Hon’ble Apex Court in Rangappa –vs- Sri Mohan, reported in {2010 (11) SCC 441}, has also observed that, issuance of the cheque would create a presumption with respect to legally enforceable debt in favour of the payee of the cheque, however, the said presumption is rebuttable. Thus, what is to be looked into in the case now is whether the said presumption formed in favour of the complainant has been successfully rebutted by the accused.
11. PW-1 in his examination-in-chief has reiterated the summary of the complaint stating that, towards the repayment of loan borrowed by her, the accused had issued the cheque in question for a sum of `1,83,000/- in his favour. The cheque at Ex.P-1 is for the said amount and the legal notice said to have been issued by him at Ex.P-4 also makes the same averment. It is not in dispute that as shown in Ex.P-3, the said cheque when presented for realisation, has been returned with an endorsement “funds insufficient”.
In the cross-examination of PW-1, the accused has put forth a suggestion to the witness that her deceased elder brother by name G.C.Ramesh had availed a loan of a sum of `15,000/- and another loan of `20,000/- from the complainant and at the time of giving the said loan to G.C.Ramesh, the complainant had collected two blank cheques, one from the accused and another from her another elder brother by name G.C.Mahesh, as a security. Though the said loan availed by her brother Ramesh was repaid, still, the cheque given as a security was not returned to the accused and her another brother, but, the same has been misused by the complainant. However, the complainant has not admitted the said suggestion as true.
12. The accused as DW-1 in her evidence has reiterated the defence as put forth by her in her cross- examination and reiterated that the cheque in question was given to the complainant as a security at the time when her deceased brother Ramesh had availed the loan.
13. In the light of the above evidence of the parties, a careful analysis of the evidence of PW-1 would go to show that in his cross-examination, he has stated that he is an agriculturist and is also running a mobile shop. He is not an income-tax assessee, but, has an annual income of `80,000/- and another income of `50,000/- from agriculture. However, he has not maintained any documents regarding his income. He has also stated that he has not maintained any documents regarding the loan said to have been given to the accused. He denied a suggestion that he had no source of income. The very same witness in the very same cross-examination has also denied a suggestion that earlier he was running an establishment by name M/s.Gourish Finance. However, in the very next sentence, he admitted a suggestion as true that one Sri Ramesh, the elder brother of the accused, had availed a loan of `15,000/- and thereafter, another loan of `20,000/- from the said M/s.Gourish Finance.
14. Thus, the very statement of the witness that he is an agriculturist and has got a mobile shop and has denied that he was running M/s.Gourish Finance, is against his contention taken thereafter that from the said M/s.Gourish Finance, the brother of the accused had availed loan, which clearly shows that PW-1/complainant is not ready to disclose the truth. Though he says that he was not running M/s.Gourish Finance, but, his very statement that deceased Ramesh had availed loan from M/s.Gourish Finance is an example for the same. The accused has also suggested that it was at that time when her brother had availed loan from the complainant, two cheques, one by her another brother Mahesh and one by herself were given as a security, the witness has not admitted the same as true. However, PW-1 has admitted that he had filed a similar case for the offence punishable under Section 138 of N.I.Act against the other brother of the accused by name Sri Mahesh, wherein, he has given his evidence as per Ex.D-1.
15. A perusal of Ex.D-1 goes to show that in the said case, the present complainant, as a complainant- cum-PW-1, has given his evidence, wherein in his cross- examination, it was clearly suggested to him at that time also that the accused and her one of the brother by name Mahesh, had issued one blank cheque each as a security while their another brother Ramesh had availed a loan of `25,000/- from the complainant, who was running M/s.Gourish Finance. No doubt, PW-1 in the said case has not admitted the said suggestion as true, however, it go to show that the accused from the beginning has been taking a consistent stand that she has never availed any loan from the complainant. On the contrary, the cheque in question was given to him as a security. Had that not been the case, the complainant would have in his cross-examination, in the case on hand, admitted that he was running M/s.Gourish Finance. His conduct of intentional suppression of his financial business activity creates a doubt in his case and rather makes the defence of the accused as more convincing and acceptable.
16. Another reason, which supports the above view is also that, even according to PW-1 in this case, he had filed similar cases for the offence punishable under Section 138 of N.I.Act against three or four other persons also. If that were to be the case, when the income of the complainant is only an agricultural income and from mobile business and he is not running any finance business and not maintaining any documents, then, how come he lends money to various people and has filed several cases against several other persons for the offence under Section 138 of N.I.Act, leads to a suspicion.
17. Even according to the complainant/PW-1, his annual income from all source put together is `1.3 lakhs, from which, he has to maintain his family requirements etc., In such a situation, how come he could able to lend `1.8 lakhs to the accused, some more loans to her two brothers and few other people, against whom, he has filed similar cases for cheque bouncing under Section 138 of N.I.Act, raises a doubt. In that circumstance, a specific contention taken up by the accused that the complainant had no capacity to lend money, which was also put to the complainant in his cross-examination as PW-1, gains importance.
18. Therefore, a mere existence of presumption in favour of the complainant as the cheque at Ex.P-1 is shown to have been issued in his favour would not conclusively prove that there was a loan transaction as alleged by the complainant between himself and the accused. On the other hand, the accused in the cross- examination of PW-1 and by leading her evidence as DW-1 has successfully rebutted the said presumption operating in favour of the complainant. She could able to create a serious doubt in the case of the complainant about the existence of alleged loan transaction and also his capacity to lend such an amount to an alleged lonee, who is the accused in the instant case.
19. Thus, the trial Court properly appreciating the evidence placed before it, has rightly pronounced the judgment of acquittal of the accused from the alleged offence, in which finding, I do not find any error.
Accordingly, I proceed to pass the following order:
ORDER The Appeal is dismissed as devoid of merits. The judgment of acquittal dated 31.08.2010, passed by the learned Addl.Civil Judge, Nanjangud, in C.C.No.151/2009, is confirmed.
The Registry is directed to transmit a copy of this judgment along with lower Court records to the lower Court immediately.
Considering the effort put by the learned counsel for the respondent from the panel of High Court Legal Services Committee, Bengaluru, it is recommended to the Committee to consider the remuneration/ honorarium payable to the learned counsel for the respondent at `3,000/-.
Sd/- JUDGE bk/