IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.574 OF 2019 BETWEEN:
Mr. Shaik Khaleel, Aged about 29 years, S/o Shaik Ibrahim Prop: M/s Networkz (IT Submission) No.165, 2nd Floor, D.K. Street, Shivajinagar, Bengaluru-560 051.
(By Sri. Mohammed Dastagir, Advocate) AND:
Mr. Javid Aged about 25 years, No.204, Bachappa Layout, Rajiv Nagar, Devasandra, K.R. Puram, Bengaluru-560 035.
(Respondent served and unrepresented) ...Appellant ...Respondent This Criminal appeal is filed under Section 378(4) of Criminal Procedure Code, 1973, praying to set aside the judgment dated 01.03.2019 passed by the LVIII Additional.C.M.M., Bengaluru in C.C.No.56830/2014 – acquitting the respondent/accused for the offence punishable under Section 138 of N.I. Act.
This Criminal appeal coming on for Orders, this day, the Court delivered the following:
JUDGMENT This appeal has been preferred by complainant challenging the judgment of acquittal passed by LVIII Additional Chief Metropolitan Magistrate, Mayo Hall Unit, Bengaluru in C.C.No.56830/2014 dated 01.03.2019.
2. I have heard the learned counsel for the appellant. Though notice is served to respondent, respondent remained absent. There is no representation.
3. Though this case is listed for hearing on interlocutory application, with the consent of learned counsel for the appellant, same is taken up for final disposal.
4. The factual matrix of the case as per the case of the complainant are that, on 1.12.2013, complainant let out on monthly rent 20 Desktops for sum of Rs.1,100/- each and one laptop Rs.2,000/- to the accused and he delivered total assets of Rs.3,00,000/- to the accused. Subsequently, the accused got executed an agreement dated 16.1.2014. When complainant visited the premises of the accused on 3.2.2014 to receive the rent for the month of January 2014, accused was not in his residential premises and on 7.2.2014, complainant went to the house of the accused, the accused informed that he sold the said assets to the third parties and agreed to refund the value of assets and issued a cheque for sum of Rs.3,00,000/- bearing No.613577 dated 10.2.2014. On presentation of the said cheque through his banker, it returned with shara “Funds Insufficient” on 13.2.2014. Thereafter, complainant got issued legal notice dated 20.02.2014. The said notice was duly served, but the accused has not given any reply. The complaint was registered as against the accused.
5. The trial Court took the cognizance, secured the presence of the accused and plea of accused was recorded. The accused pleaded not guilty and he claims to be tried and as such complainant examined himself as PW-1 and got marked 9 documents as Ex.P-1 to Ex.p-9. Thereafter, the statement of the accused was recorded and the accused got examined himself as DW.1 and got marked documents Ex.D.1 and Ex.D.2. After hearing learned counsel appearing for the parties, the trial Court dismissed the complaint by acquitting the accused.
6. The main ground urged by the learned counsel for the appellant are that, though trial court has come to the conclusion that the cheque has been issued by the accused and he has requested to return the same within two days, but the court below has come to the conclusion that the complainant has not proved that there is legally enforceable debt or liability, it ought to have drawn a presumption as contemplated under Section 139 of N.I.Act. It is his further contention that the accused has admitted the agreement entered into between the complainant and accused as per Ex.P1 and he has also admitted Ex.P7. Even in spite of admitting the said fact, the trial Court has not properly appreciated and has wrongly dismissed the complaint. It is his further submission that accused has specifically deposed that there was a transaction between one Mr. Venkatesh and Khaleel and the said cheque has been issued as a security. But the trial Court without considering the said fact has come to a wrong conclusion. It is his further submission that during the course of cross examination DW1 has admitted that the signature found on the vakalath and Ex.P2 are like the same. The said aspect itself is sufficient to establish the fact that cheque has been issued by the accused and he has not rebutted the said presumption. If all these materials are taken into consideration, that itself clearly goes to show that though the case has been proved by the complainant, the trial Court without appreciating the said fact has come to a wrong conclusion and has wrongly dismissed the complaint.
7. 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.
8. The complainant got examined himself as PW-1 and in his evidence he has reiterated the contents of the complaint. During the course of cross examination of PW-1, it has been suggested that there was a transaction and the complainant has not supplied any digital documents to the accused and it has been suggested that the said cheque has been taken in blank and he has signed Ex.P1 – the documents. The accused got examined himself as DW.1. During the course of cross examination of this witness, he has denied the signature on the cheque and he has also denied the agreement said to have been entered. During the course of cross examination, he has admitted that the name found on the cheque is his name, but signature found on the cheque is not his signature. He has admitted the signature on the vakalath and he has also deposed that the signature on the vakalath and the cheque are similar. But however, he has stated that the signature on the cheque is not his signature. He has admitted the service of notice. All these materials, if it is taken into consideration, the accused at one stretch admits and says that the signature found on the cheque and vakalath are similar and on another stretch he totally denies the signature found on Ex.P2. The said fact has not been properly and legally appreciated by the trial Court. Even though there were circumstances and there were no strong circumstances to prove that the complainant has been proved the ingredients under Section 138 of N.I.Act.
9. Taking into consideration, the above said facts and circumstances, it is submitted by learned counsel for the appellant that, if the matter is remitted back to the Court below, he will file appropriate application and send the admitted signature and the disputed signature on the cheque to the expert and thereafter he will take appropriate steps to prove that it is the cheque which has been issued by the accused.
10. Taking into consideration the above said submission, I feel that if the impugned judgment is set aside and the matter is remitted back to the court below to give full opportunity to the complainant to establish his case by leading evidence, it is going to meet the ends of justice.
11. In that light, the judgment passed by LVIII Additional Chief Metropolitan Magistrate, Mayohall Unit, Bengaluru in C.C.No.56830/2014 dated 01.03.2019 is set aside and matter is remitted to the court below with a direction to give full opportunity to both the parties and thereafter pass an appropriate order in accordance with law to meet the ends of justice.
In view of the disposal of the main appeal, I.A.No.2/2019 does not survive for consideration and accordingly I.A.No.2/2019 is disposed off.
Sd/- JUDGE ag