IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 04TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.1349/2019 Between:
S. Mohammed Jaan S/o Jamal Ahmed Aged about 33 years R/at No.11, 2nd Floor Old Korcherpalaya B Street Shivaji Nagar Bengaluru – 560 051. … Appellant (By Sri. Naveed Ahmed, Advocate) And:
S.A.Zubair S/o Sayed Ali Akbar Aged about 40 years R/at No.13, 10th Cross 6th Main, Al-Hilal Nagar H.B.R.Layout Bengaluru – 560 043. ... Respondent (Served and unrepresented) This Criminal Appeal is filed under Section 397 read with 401 Cr.P.C. pleased to set aside the order of acquittal passed on the file of the LXXII Additional City Civil and Sessions Judge, Mayo Hall, Bengaluru in Crl.A.No.25150/2018 dated 03.04.2019 at Annexure-B and confirm the order passed by the XIV A.C.M.M., Bnegaluru in C.C.No.56330/2017 dated 23.07.2018 at Annexure-A and the respondent may be convicted.
This Criminal Appeal is coming on for admission, this day, the Court delivered the following:
J U D G M E N T The present appeal has been filed by the appellant/complainant challenging the judgment passed by the Court of LXXII Additional City Civil and Sessions Judge, Mayo Hall, Bengaluru in Crl.A.No.25150/2018 dated 03.04.2019, whereunder, the judgment passed by the Court of XIV Additional Chief Metropolitan Magistrate, Mayo Hall, Benglauru in C.C.No.56330/2017 dated 23.07.2018 is set aside and the accused is acquitted.
2. I have heard the learned counsel for the appellant/complainant. Though notice has been served to the respondent/accused, he is unrepresented.
3. Though this case is listed for admission, with the consent of learned counsel for the appellant, the same is taken up for final disposal.
4. The case of the complainant in brief is that the accused approached the complainant stating that himself, his brothers and sisters are the joint absolute owners of immovable property bearing house list No.141 and he is intending to sell the said property to the complainant for a consideration amount of Rs.36,50,000/- as the complainant was in need of building in his locality for business purpose. Bonafide believing the words of the accused, he agreed to purchase the said property. On 08.06.2016, an advance amount of Rs.1,50,000/- has been paid to the accused and subsequently, on 25.06.2016, another sum of Rs.50,000/- has been paid to the accused and to his brothers and sisters. Despite of repeated requests made by the complainant, the accused did not chosen to complete the contract or he agreed to return the advance amount paid by the complainant to him. In discharging of the said advance amount, the accused had issued a cheaque bearing No.726530 dated 25.02.2017 for a sum of Rs.2,00,000/- drawn on State Bank of Mysuru. The said cheque was presented by the complainant to the bank for encashment on 17.05.2017 through the banker of the complainant and the same was returned with a shara ‘insufficient fund’ as per the memo dated 26.05.2017. Immediately, the same has been informed to the accused and thereafter, he got issued legal notice dated 01.06.2017 calling upon the accused to pay the cheque amount. The accused evaded the notice and the same was returned on 06.06.2017. Within the stipulated time the accused did not paid the said amount and as such, a complaint was registered.
Learned Magistrate took the cognizance of the offence and secured the presence of the accused. Thereafter, plea was recorded and the accused pleaded not guilty.
5. In order to substantiate the case, the complainant got examined himself as PW.1 and got marked 7 documents at Exs.P1 to P7. Thereafter, the statement of the accused was recorded by putting incriminating material as against him and he denied the same. The accused got examined himself as DW.1 and got marked 01 document at Ex.D1.
6. After hearing the learned counsel appearing for the parties, the Court below has convicted the accused for the alleged offence. Being aggrieved by the same, the accused preferred the appeal, the learned Sessions Judge has allowed the appeal and set aside the impugned order and acquitted the accused. Challenging the legality and correctness of the judgment of the Sessions Judge, the complainant is before this Court.
7. The main ground urged by the learned counsel for the appellant is that the accused has admitted the transaction and he has also admitted the fact that he has received the advance amount from the complainant. But only on the ground that the cheque has been handed over to the complainant by police, the learned Sessions Judge has come to a wrong conclusion that there is no legally enforceable debt or liability. It is his further submission that throughout the trial, the accused has not denied the receipt of the said amount and the said transaction between the parties. Even inspite of the said fact, the Sessions Court without application of judicial mind has come to a wrong conclusion and acquitted the accused. The Sessions Court has failed to appreciate the facts that the accused has established the transaction between him and complainant and also admitted that there exists legally enforceable debt and liability. It is well settled proposition of law that when once the ingredients of Section 138 of Negotiable Instruments Act, 1881 (‘the N.I.Act’ for short) have been proved, when the accused admits the signature on the cheque, then under such circumstances, the Court is duty bound to draw the presumption under Section 139 of the N.I.Act. The said presumption includes legally enforceable debt or liability. The above said fact of course is in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. The 1st Appellate Court has wrongly set aside the judgment of the trial Court and acquitted the accused. On these grounds, he prayed to allow the appeal and set aside the impugned judgment of the 1st appellate Court by convicting the accused.
8. I have carefully and cautiously gone through the submissions made by the learned counsel for the appellant and perused the records including the lower Court records.
9. It is the specific case of the complainant that the accused, his brothers and sisters have come forward and offered to sell the property to the complainant for a sum of Rs.36,50,000/- and an amount of Rs.2,00,000/- has been paid by the complainant to the accused as advance. Subsequently, the said transaction was cancelled and the accused have agreed to refund the same. Inturn the accused had issued a cheque to the complainant in order to return of advance amount. In order to substantiate the contention of the complainant, he got examined himself as PW.1 and has reiterated the contents of the complaint in his examination-in-chief. But during the course of cross-examination, he has admitted that on 02.03.2017 police have apprehended the accused, brought to the police station and threatened him for non-returning of advance amount to the complainant. He has admitted the fact that one Head Constable by name Sanaulla has obtained the cheque and given to the complainant. He has also further deposed that the said cheque was given by Sanaulla when the complainant was there in his hotel. The other suggestions have been denied. As could be seen from the evidence of DW.1, it is the specific case made out by the accused that the complainant has given the complaint to KG Halli Police Station and on the basis of the said complaint, the police came to the house of the accused and by pressurizing him have taken three cheques and he was pressurized to sign on the said cheques and they have also threatened that if the said cheques have not encashed, he may be arrested and he is going to be sent to the jail. It is further submitted that in the evidence of DW.1, he has stated that he is only liable to pay a sum of Rs.20,000/-, which is his share. He got marked Ex.D1, the bail order passed by the 57th Additional City Civil and Sessions Judge, Mayo Hall Unit, Bengaluru in Crl.Misc.No.25460/2017. Though, in the rebuttal evidence, the accused has contended that by pressurizing him, the police had taken the cheques. In the bail order of the accused, it has been specifically mentioned that in terms of the financial transaction between the accused and complainant and in respect of the said agreement, the accused has given a cheque for a sum of Rs.1,00,000/- and the said cheque has been dishonored. Hence, the complainant had given the complaint alleging that the accused has to pay Rs.2,00,000/- and they have taken the signature on the said cheque. By going through the said order, it indicates that the accused has admitted his liability to an extent of Rs.1,00,000/- and he has also admitted the said cheque has been issued in this behalf was dishonored. The said evidence produced by the accused himself clarified the fact that an amount of Rs.1,00,000/- is due and in discharge of the same, the cheque has been issued.
10. Taking into consideration of the above said facts and circumstances, I am of the considered opinion that to an extent of Rs.1,00,000/- that the respondent/accused is liable to be convicted and he is liable to be sentenced to pay fine. Taking note of the above said facts and circumstances, it is clear that the 1st Appellate Court has not fully looked into the evidence and documents produced by the accused and has come to a wrong conclusion and acquitted the accused. In that light, there is ample material to interfere with the judgment of the 1st Appellate Court. In that light, the judgment passed by the LXXII Additional City Civil and Sessions Judge, Mayo Hall Unit, Bengaluru in Crl.A.No.25150/2018 dated 03.04.2019 is set aside and the appeal is allowed and the accused is convicted and sentenced to pay a fine of Rs.1,25,000/-.
In default of payment of fine, he has to undergo simple imprisonment for a period of 6 months. Out of the said amount, a sum of Rs.1,10,000/- may be paid to the complainant on proper identification and acknowledgment and remaining amount may be forfeited to the Government to meet the expenses.
Sd/- JUDGE NR/-