IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL APPEAL No.1029 OF 2010 BETWEEN:
Sri. C.R.Paramesh Since deceased by his LR’s Sri. C.T.Moorthy, S/o. Late C.N.Timmayya, (father of Late Sri. C.R.Paramesh) Aged about 71 years, Retd. Veternary Supervisor, Kamadenu Nilaya, Agrahara Fort, Chikkamagaluru. ...Appellant (By Miss. Kavitha Saldanha, Advocate for Sri. V.Sanjay Krishna, Advocate) AND:
1. Smt. Geetha W/o. Swamy Age: Major, Monika Steel Workshop, Rampura Post, Gavanahalli, Rampura Post, Chikkamagaluru Taluk, Chikkamagaluru.
2. Smt. Leelavathi W/o. Late C.R.Paramesh, Aged about 28 years, Kamadenu Nilaya, Agrahara Fort, Chikkamagaluru, Presently residing At Beluru Town. ...Respondents (By Sri. P.Chandrashekar, Amicus Curiae for R-1; Vide order dated:24.01.2019;
R-2 served) This Criminal Appeal is filed under Section 378(4) read with Section 386 of Cr.P.C praying to set aside the order of acquittal dated:16.07.2010, passed by the I Addl. C.J. & JMFC, Chikkamagaluru in C.C.No.2209/2005 – acquitting the respondent/accused for the offence punishable under Section 138 of N.I.Act.
This Appeal coming on for Final Hearing, this day, the Court delivered the following:
JUDGMENT In the complaint filed by the present appellant and the present respondent No.2 as the legal representatives of deceased original complainant one Sri.C.R.Paramesha in the Court of learned I Additional Civil Judge and JMFC, Chikkamagalur (hereinafter referred to as ‘trial Court’ for short) in CC No.2209/2005 for the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as ‘N.I.Act’ for short) against the first respondent herein, the trial Court by its judgment dated 16.07.2010 acquitted the accused from the alleged offence. It is against the said judgment of acquittal, the present appellant arraigning the accused as respondent No.1 and the legal representative No.2 of the deceased complainant as respondent No.2 has preferred this appeal.
2. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court.
3. It is the summary of the case of the complainant in the trial Court that the accused for consideration received from the complainant issued a cheque in favour of the complainant drawn on State Bank of Mysuru, Chikkamagaluru Branch bearing cheque No.232242 dated 16.03.2005 for `1,25,000/-. The complainant presented the said cheque for encashment to his Banker, but, the same returned dishonoured with the Banker’s endorsement “funds insufficient” on 17.03.2005. After return of the cheque, the complainant got issued a legal notice to the accused on 22.03.2005 demanding the payment of the cheque amount. The accused did not pay the cheque amount but sent an untenable reply. This made the complainant to initiate the legal action against her for the offence punishable under Section 138 of the N.I.Act in the trial Court.
4. During the pendency of the case in the trial Court, the original complainant passed away, as such, his father and wife came on record as legal representatives of the deceased complainant. The present appellant is the father of the original complainant.
5. In the trial Court, father of the deceased complainant got himself examined as PW1 and got marked the documents from Exs.P1 to P5. Neither any evidence was led on behalf of the accused nor any documents were marked as exhibits. After hearing both side, the trial Court by its judgment dated 16.07.2010, acquitted the accused of the alleged offence.
6. In this appeal as already observed above, respondent No.1 is the original accused and respondent No.2 is the legal representative No.2 of the deceased original complainant Sri.C.R.Paramesh.
7. Heard the argument of the learned counsel for the appellant.
8. Even though respondent No.1 is being represented by his counsel, in view of the fact that in this old appeal of the year 2010, since the said counsel did not appear and address his argument and respondent No.2 even after service of notice having remained unrepresented in this matter, learned counsel Sri.P.Chandrashekar, was appointed as Amicus Curiae. The said learned Amicus Curiae within the short notice and after going through the records of the Court pertaining to the matter has addressed his argument.
9. PW1 in his evidence has reiterated the summary of the complaint of the complainant and stated that for consideration received by her from the complainant, she issued the cheque in question which is at Ex.P1 for a sum of `1,25,000/- and the said cheque when presented for realisation came to be returned as “funds insufficient” as per the Banker’s endorsement at Ex.P2. Thereafter, a legal notice as per Ex.P3 was issued demanding the payment of the cheque as per Ex.P1. However, the accused instead of making the payment sent an untenable reply as per Ex.P5. He was subjected to a detailed cross examination from the accused side.
10. The reply notice at Ex.P5 which is admittedly issued by the accused shows that the accused has taken a defence that the cheque in question which was a blank cheque duly signed by the accused was given by her husband to the complainant while her husband was availing a financial assistance from the complainant. According to her, the said cheque was issued as a security. However, inspite of her husband clearing the loan amount, the complainant did not return the bank cheque. Now the said cheque has been misused by the complainant. Even in the cross examination of PW1, a suggestion on the similar lines were made from the accused side. However, the said suggestions were not admitted as true by PW1.
11. In the light of the above, it is the argument of the learned counsel for the appellant that inspite of the accused admitting a loan transaction between her husband and the deceased complainant, had failed to produce any document in that regard to show that the cheque in question was given as a security, as such, when admittedly, the cheque is drawn by the accused and presented by the deceased complainant for its realisation and the same came to be dishonoured, the presumption operates in favour of the complainant which the trial Court did not appreciate in its proper perspective.
12. Per contra, learned counsel as Amicus Curiae representing the respondent in his argument submitted that at the very first instance, the accused had made her stand clear that the cheque in question though pertains to her, had never been issued by her towards the alleged loan transaction said to have been taken place between her and the deceased complainant, as such, there is no issuance of cheque by the accused in favour of the complainant.
13. He also submitted that the complaint, the legal notice at Ex.P3, as well the evidence of PW1 are totally lacking in giving the details as to when, where, at what place and how the alleged loan was given to the accused. No whisper about the loan transaction is made, as such, the entire alleged transaction is doubtful. He further submitted that since the presumption under Section 139 of the N.I.Act is rebuttable, the accused has successfully rebutted the presumption. On the other hand, the complainant has failed to establish the alleged loan transaction, as such, the trial Court has rightly pronounced the judgment of acquittal.
14. A reading of the complaint in its entirety, so also the legal notice, given on behalf the complainant, a copy of which is marked at Ex.P3, as well, the evidence of PW1 in his examination-in-chief shows that nowhere the details of the alleged loan said to have been given to the accused by the deceased complainant has been given. Nowhere, it is whispered as to the date when or the period at which and the place where and the mode how and the manner in which the alleged loan was given by the complainant to the accused. The complaint, the legal notice, as well, the evidence of PW1 proceeds on the basis that such an alleged loan transaction had taken place. When it is the specific case in the form of defence by the accused that at no point of time the alleged loan transaction had taken place, then it was required of the complainant to come up with the necessary details about the alleged loan transaction.
No doubt it is not in dispute that the cheque at Ex.P1 pertains to the accused and the same came to be dishonoured when presented for realisation with the endorsement “funds insufficient”. No doubt a presumption regarding the existence of legally enforceable debt or liability form the drawer of the instrument in favour of the payee of the instrument forms under Section 139 of the N.I.Act. However, for such a presumption to form and operate in favour of the complainant / payee of the cheque prima facie, he has to show that there was issuance of said cheque to him by the drawer.
15. Admittedly, the said cheque was not issued to PW1 by the accused. Even according to PW1 who is the legal representative of the deceased complainant the said cheque was said to have been issued by the accused to the deceased complainant. Further more, as elicited in the cross examination of PW1, his son ie., the deceased complainant was a financier and was doing activity of lending money and in that regard, he had maintained the documents. PW1 has further stated that after the death of his son it is only looking at the documents maintained by him wherein the entry regarding the loan transaction in question was also made, he came to know about the alleged loan transaction between his son ie., the complainant and the accused. The accused had denied the said statement.
16. However, even if the said statement of PW1 made in his cross examination are taken into consideration, it is clear that he had ample and sufficient documents to show that the alleged loan transaction was a fact and was properly documented. When there were sufficient documents said to have been available with the complainant or PW1, nothing had prevented them from giving the details as to the alleged loan transaction particularly with respect to when, where and how the loan transaction has taken place and how they were documented.
17. PW1 even after entering the litigation as the legal representative of the deceased complainant had knowing fully well that he had no personal knowledge about the loan transaction which he had admitted in his cross examination, was required to produce the necessary relevant supporting documents which, even according to him were already available with him. So that as a legal representative of the deceased having no personal knowledge about the alleged loan transaction he could have substantiated the case of the complainant. No such effort was done by PW1 or respondent No.2 in that regard.
18. In the said circumstances of the case, when PW1 claims to have in possession of the ample documents in his custody to support the alleged loan transaction, he for the reasons best known to him has withheld from producing before the Court. In such a situation, merely because the accused not producing any document with respect to the alleged loan transaction which her husband said to have had with the deceased complainant would not in any way weaken her defence nor it would strengthen the case of the complainant.
19. Since, the trial Court appreciating the said evidence and the materials in its proper perspective has pronounced the judgment of acquittal, I do not find any reason to interfere in it. Thus, holding that the accused had successfully rebutted the presumption which was formed in favour of the complainant, however, the complainant would not able to prove the alleged loan transaction and more particularly, the existence of debt, I have no hesitation to hold that the appeal is devoid of merits, as such, deserves to be dismissed.
Accordingly, the appeal stands dismissed as devoid of merit.
The judgment of acquittal passed by I Additional Civil Judge and JMFC, Chikkamagalur in C.C. No.2209/2005 acquitting the present respondent No.1 for the offence punishable under Section 138 of the N.I.Act stands confirmed.
Registry to send copy of this judgment along with the lower court records to the Court below forthwith.
This Court places on record its appreciation for the assistance rendered by Sri P.Chandrashekar, learned counsel as Amicus Curiae, in this case.
It is recommended to the Registry to consider the total remuneration / honorarium of `5,000/- to the learned Amicus Curiae.
Sd/- JUDGE GH