IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2019 BEFORE:
THE HON’BLE MR.JUSTICE MOHAMMAD NAWAZ CRIMINAL APPEAL No.812 OF 2017 BETWEEN SRI. B.T. MUNIRAMAIAH, S/O. THIMMAIAH, AGED ABOUT 45 YEARS, R/AT NO.114, PRATEEKSHA NILAYA, 5TH CROSS, KAVERINAGAR, NEAR MONOTYPE BUS STOP, BSK 2ND STAGE, BANGALORE-560 070.
(BY SRI. NIRANJAN GANIG N., ADVOCATE) AND SRI. SHANTHARAJU M., S/O. MUNIYAPPA, AGED ABOUT 41 YEARS, R/AT NO.23, VAISHNAVI LAYOUT, UTTARAHALLI, SUBRAMANYAPURA, BANGALORE-560 061.
(BY SRI. V.ANAND, ADVOCATE) ... APPELLANT ... RESPONDENT THIS CRL.A IS FILED U/S 378(4) OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT OF ACQUITTAL PASSED BY THE XVI ADDL. CHIEF METROPOLITAN MAGISTRATE, BANGALORE CITY IN C.C. NO.5622/2014 DATED 06.04.2017 ACQUITTING THE RESPONDENT-ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT AND CONVICT THE RESPONDENT/ACCUSED.
THIS CRIMINAL APPEAL COMING FOR ADMISSION, ON THIS DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the complainant in C.C. No.5622/2014 on the file of the Court of the XVI Addl. Chief Metropolitan Magistrate, Bangalore City, wherein the learned Magistrate by an Order dated 06.04.2017, acquitted the accused-respondent of the offence punishable under Section 138 of N.I. Act.
2. I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent.
3. The brief facts of the case are that, the accused being a friend of the complainant had approached him for financial assistance of Rs.10 Lakhs in the month of December 2011 and on 27.12.2011, the said sum of Rs.10 Lakhs was paid to the accused in cash by the complainant by withdrawing from his account maintained at Hanumanthanagar Co-operative Bank, Hanumanthanagar Branch, Bengaluru. The accused acknowledged the receipt of the said amount on a demand pronote on 27.12.2011. In this connection, the accused issued a Cheque bearing No.194793 dated 21.11.2013 drawn on HDFC Bank, BSK II Stage Branch, Bangalore for the said sum of Rs.10 Lakhs. When the complainant presented the said Cheque for encashing, the same came to be dishonoured on 23.11.2013 with an endorsement “payment stopped by the drawer”. A legal notice was issued to the accused on 21.12.2013 through RPAD and speed post, calling upon him to repay the cheque amount and in spite of receipt of notice, the accused failed to reply and repay the Cheque amount to the complainant.
4. A complaint was filed before the Trial Court, which came to be registered as C.C. No.5622/2014. The accused appeared before the Trial Court. During the enquiry, the complainant was examined as PW1 and he got marked the documents at Exs.P1 to P8.
5. The trial court by judgment dated 06.04.2017 passed in C.C. No.5622/2014, was pleased to acquit the accused of the offence punishable under Section 138 of N.I. Act. Aggrieved by which, the present appeal is filed.
6. It is the contention of the learned counsel for the appellant that even after the service of legal notice, the accused has failed to reply to the said notice and he has not denied the transaction at the earliest point of time. He submits that the signatures found on the Cheque – Ex.P1 as well as on Ex.P7 – on demand pronote are proved to be that of the accused. He submits that the trial court mainly on the ground that the complainant has failed to prove his capacity to lend Rs.10 Lakhs and also on the ground that no supporting documents are produced by the complainant, has acquitted the accused. He submits that the complainant has relevant documents such as the bank passbook showing the withdrawal of Rs.10 Lakhs during the relevant point of time as well as the income tax returns showing his capacity to lend the amount and due to inadvertence, he could not produce the same before the Trial Court. Therefore, he submits that the impugned judgment and order of acquittal may be set aside by allowing the appeal.
7. The learned counsel appearing for the respondent contended that the complainant has failed to prove the existence of legally enforceable debt. He submits that the issuance of cheque by the accused has been disputed and there is no transaction between the complainant and the accused. He further submits that legal notice was not served upon the accused. He contends that the complainant has failed to produce the relevant documents showing the capacity to lend a huge sum of Rs.10 Lakhs and therefore, he submits that the trial court is justified in acquitting the accused. Accordingly, he seeks to dismiss the appeal.
8. Having considered the rival submission and also having gone through the judgment passed by the trial court, it is seen that the trial court has come to the conclusion that while cross-examining the complainant, the accused has not put any single suggestion or question in respect of the postal acknowledgement which is at Ex.P6 and therefore the accused estopped from denying the service of legal notice upon him. It has been held that the technical defence is not available to the accused. Therefore the trial court was of the view that the notice was served upon the accused. It is pertinent to note here that no reply has been given to the notice issued by the complainant and therefore the said notice has been proved to be received by the accused.
9. It is the specific case of the complainant that as on the date of alleged lending of Rs.10 Lakhs, he had the requisite fund in his bank account from which he claims to have withdrawn the said amount. The same has been specifically denied by the accused. The trial court has observed that in the said circumstance, the burden of proving the same is shifted in favour of the complainant. It is noticed that the complainant has stated in the cross- examination that he had no impediment to produce the statement of accounts. The trial court was of the view that since the said statement of accounts etc., were not produced by the complainant, an adverse inference has to be taken against the complainant. The Trial court has further observed that the complainant is an income tax assessee, but failed to produce the documents relating to the income tax returns before the court and therefore it was held that the complainant has utterly failed to prove his financial capacity.
10. The learned counsel appearing for the petitioner would contend that he may be given an opportunity to produce the bank passbook as well as income tax returns for the relevant periods to show his capacity and also to establish that he had withdrawn the amount from the bank. The copies of passbook and income tax returns for the year 2011-12 has been produced before this Court.
11. In that view of the matter, I am of the view that, to meet the ends of justice, the complainant may be given an opportunity to establish his case by producing the above documents and also any other documents which are relevant for the purpose of disposal of the case. Accordingly, I pass the following:
ORDER (i) The appeal is allowed in part.
(ii) The judgment and order dated 06.04.2017 passed in C.C. No.5622/2014 on the file of the XVI Addl. Chief Metropolitan Magistrate, Bangalore City is hereby set aside.
(iii) The matter is remitted back to the Trial Court with a direction to the trial court to permit the parties to lead additional evidence, if they so desire and to proceed in accordance with law.
The evidence already on record shall be intact.
All the contentions of both the parties are left open.
Snc Sd/- JUDGE