IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF DECEMBER 2019 BEFORE THE HON’BLE MR.JUSTICE ASHOK S. KINAGI Criminal Appeal No.980 of 2012 BETWEEN:
MR. SHIVAPPA GOWDA S/O LATE B K BASAPPA, AGED ABOUT 58 YEARS, R/AT NO.10, PILLANNA RAMASWAMY ROAD, J C NAGAR, BENGALURU-560 006.
….APPELLANT (BY M/S. KAMAL & BHANU, ADVOCATES) AND:
MR. D GANESH S/O LATE DODDAMUNINAGAPPA, AGED ABOUT 51 YEARS, R/AT NO. 211, GRAPES GARDEN, VISHVANATHANAGENAHALLI, R T NAGAR, BENGALURU-560 032.
…RESPONDENT (BY SRI. K JAYARAM, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 26.6.2012 PASSED BY THE XVIII ACMM AND XX ASCJ, BENGALURU IN C.C.NO. 3338/2006 ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT.
THIS CRIMINAL APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The petitioner/appellant aggrieved by the judgment dated 26.06.2012 passed in C.C.No.3338 of 2006 has filed this appeal.
2. Brief facts of the case are as under :
The appellant and the respondent are closely acquainted with each other. The respondent is doing real estate business and in this connection, respondent has contacted the complainant on a couple of occasions. The appellant submits that the respondent, on various occasions, had borrowed hand loan from the appellant to meet his business requirement as detailed hereunder:-
Thus, in all, the respondent had borrowed a sum of Rs.16,25,000/-. The respondent had promised to repay the said amount, together with interest at the rate of 24% p.a. The respondent has issued two cheques bearing No.777561 dated 25.02.2005 drawn on Vijaya Bank, Ganganagar, Bengaluru, for Rs.11,25,000/- and another cheque bearing No.777560 dated 30.02.2005 drawn of Vijaya Bank, Ganganagar, Bengaluru, for Rs.5,00,000/-.
3. The second aforesaid cheque bearing No.777560 for Rs.5,00,000/- was wrongly dated as 30.02.2005, with a deliberate intention of defrauding the appellant. The appellant accepted the same inadvertently and with a bonafide belief, the appellant restricted his claim of Rs.11,25,000/- in respect of the first aforesaid cheque. The appellant presented the cheque for encashment. The said cheque was returned with an endorsement ‘insufficient funds’ vide memo dated 23.08.2005. After the receipt of endorsement, the appellant got issued a legal notice on 22.09.2005 calling upon the respondent to repay the amount mentioned in the aforesaid cheque within 15 days from the date of receipt of the notice. The said notice was served on the respondent. In spite of service of notice, the respondent neither repaid the amount nor he has replied to the said notice. The appellant filed a complaint before the trial Court under Section 200 Cr.P.C. for the offence punishable under Section 138 of the N.I.Act.
4. The trial Court recorded sworn statement and took cognizance and issued summons to the respondent. The respondent appeared before the Trial Court and obtained bail and did not plead guilty and claimed to be tried.
5. The trial Court posted the matter for trial. The appellant, in support of his complaint, examined himself as PW1 and one witness by name L.Raman as PW2 and got marked documents Exhibits P1 to P8. The trial Court recorded the statement of the respondent under Section 313 Cr.P.C. The respondent examined himself as DW1 and got marked exhibits D1 to D3.
6. The trial Court after considering the entire material on record held that the appellant has failed to prove that the cheque was issued towards discharge of debt and acquitted the respondent-accused for the offence punishable under Section 138 of N.I. Act.
7. Heard the arguments of the learned counsel for the parties.
8. The learned counsel for the appellant submits that the respondent has borrowed a sum of Rs.16,25,000/- on different dates and the respondent, in order to discharge the loan, has issued cheques and the same was presented and dishonoured on the ground ‘funds insufficient’. The respondent knowing fully well that he was not possessing sufficient funds in his account had issued cheques to defraud the appellant. Further, the appellant admits that he being a Corporator of Bengaluru Corporation getting an income of Rs.1,000/- and Rs.1,200/- as remuneration. But he was unable to explain the income he is getting out of real estate business. He admits that both of them have trusted each other. That, on 19.08.2004 and 29.10.2004 respondent approached and requested the appellant to advance a hand loan. The appellant considering the need of the respondent, advanced a loan of Rs.16,25,000/- on different dates.
9. He admits that he has not drawn the amount from the Bank. He has stated that the said amount was in his house. He also further admits that he has not shown regarding advancing of loan to the respondent in his income tax returns and he further states that at the time of advancing loan, PW2 was present and in his presence the amount was paid to the respondent. He further submits that in order to establish the transaction, PW2 was examined and the appellant has proved beyond all reasonable doubt that the respondent has issued cheques towards discharge of the debt.
10. Per contra, learned counsel for the respondent supports the impugned order.
11. The appellant has not placed any material before the trial Court to show that as on the date of advancing loan to the respondent, he was possessing sufficient funds for lending the amount. He further admits in the course of cross-examination that he has not disclosed the amount advanced to the respondent in his income tax returns. When such a huge amount is advanced, the petitioner should have shown in the income tax returns. Non-disclosure of the said transaction in the income tax returns proves that there is no such transaction between the appellant and the respondent as alleged in the legal notice and in the complaint. When PW1 himself admits that he is getting income of Rs.1,000/- and Rs.1,200/- remuneration, he has not produced any records to show that he has got financial capacity to advance Rs.16,25,000/- in support of his contention and further no documents were executed between the appellant and respondent in regard to advancing such a huge loan amount. No prudent man would lend the money without obtaining a promissory note or any other document evidencing the loan transaction.
12. PW2 does not depose the date on which the amount was lent to the respondent. The initial burden is on the appellant to prove that he has advanced a loan of Rs.16,25,000/-. It is only after satisfying that the appellant has proved the existence of legal enforceable debt or liability, then the Court can proceed to pass the presumption under Sections 118 and 139 of the N.I. Act.
13. In the present case on hand, the appellant has not placed any record to show that he has lent amount to the respondent. Further, the conduct of the appellant is to be considered for the simple reason that one Jojappa executed a power of attorney in favour of the complainant authorizing him to sell the sites. The said Jojappa died on 07.08.2001. Even after his death, the appellant went on executing registered sale deeds in favour of the respondent and others, without authority. The appellant has executed registered sale deeds as per Ex.D3 in favour of the respondent on 24.01.2005. The appellant himself has cheated and played fraud on the respondent by executing a sale deed in his favour based on the power of attorney executed by Jojappa who died on 07.08.2001.
14. The appellant has suppressed the real facts by showing his ignorance about the date of execution of two sale deeds executed on 24.01.2005, as GPA holder and he has also suppressed the real fact of denying execution of two sale deeds as GPA holder of Jojappa.
15. The appellant has not approached the court with clean hands. In the absence of necessary documentary evidence, a doubt arises in the mind of the court regarding genuineness of the transaction. As observed above, the appellant has not placed any material to show that he has advanced hand loan of Rs.16,25,000/- to the respondent.
16. The trial Court, after considering the entire material on record and the documents produced by the respondent, has rightly come to the conclusion that the appellant has failed to prove the existence of legally enforceable debt and the appellant has also failed to prove beyond all reasonable doubt that the respondent has committed the offence punishable under Section 138 of the N.I. Act.
17. In view of the aforesaid facts, I do not find any grounds to interfere with the impugned order. Hence, I proceed to pass the following :
Order The appeal is dismissed.
Sd/- JUDGE RD