1 ® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF NOVEMBER 2019 BEFORE THE HON’BLE MR.JUSTICE K.N.PHANEENDRA CRIMINAL APPEAL No. 841/2015 BETWEEN:
SRI RANGASWAMY S/O VENKATACHALAPATHY, AGED ABOUT 42 YEARS, R/AT 8TH CROSS, EXTENSION, NANJANGUD TOWN – 571 030. … APPELLANT (BY SRI H.K. REVANASIDDAPPA, ADVOCATE) AND:
SMT SAVITHRAMMA KEB RECORD KEEPER.
C/O GOVINDA, DOOR NO.170, 5TH CROSS, OPP. TO TAILOR MUNENDRA, BEHIND GHP SCHOOL, YARAGANAHALLI, MYSURU – 570 001. ... RESPONDENT (RESPONDENT SERVED) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) CRIMINAL PROCEDURE CODE, PRAYING TO SET ASIDE THE JUDGMENT DATED 15.04.2015 PASSED BY THE II ADDL. CIVIL JUDGE AND JMFC, NANJANGUD IN C.C.NO.470/2009 – 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 Heard the learned counsel for the appellant.
2. Respondent though served, remained absent and no representation.
3. I have carefully perused the entire materials on record including the judgment passed by the trial Court.
4. Learned counsel for the appellant strenuously contended that the trial Court has committed serious error in acquitting the respondent- accused even though the complainant has proved the case against the accused beyond reasonable doubt. The trial Court has not appreciated the oral and documentary evidence on record and admission on the part of the accused with reference to the existence of debt or liability and taken up the contention that repayment of the debt has not been properly established at least by preponderance of probabilities. The trial Court has taken into consideration the various other factors in order to grant remedy to the complainant and on flimsy grounds, the accused has been acquitted by the trial Court. Therefore, the judgment of acquittal by the trial Court deserves to be set aside.
5. Before adverting to the facts of the case, the judgment of the trial Court with reference to documentary and oral evidence on record, it is worth to remember jurisdiction of the appellate Court that the appellate Court, in exceptional cases, has to interfere with the judgment of acquittal, in case, if there are any compelling circumstances to interfere or the judgment passed in the case must be based on unnecessary grounds and it should be perverse. The appellate Court always bear in mind the presumption of innocence of the accused and inference should not be in a regent manner. Unless the Court is of the opinion that the view taken up is against the law or proving of the facts before the Courts, the view taken up by the trial Court normally should not be disturbed by the appellant Courts.
6. Bearing in mind the above said principles, I would like to consider whether the judgment of the trial Court is based on any sound reasoning or it is perverse or against the law in order to reverse the judgment.
7. In the above stated backdrop and the factual matrix of the case as divulged from the records are, the complainant (appellant) has filed a private complaint for the offence punishable under Section 138 of Negotiable Instruments Act, 1881, against the respondent-accused alleging that the respondent has issued a cheque bearing No.634112 dated 12.05.2008 drawn on State Bank of Mysore, Nanjangud Branch for a sum of Rs.70,000/-. On presentation of the said cheque, the same came to be dishonored by the Bank on the ground of ‘Insufficient Funds’. As contemplated under Section 138 of Negotiable Instruments Act, 1881, the complainant has issued a legal notice dated 18.07.2008 to the respondent-accused calling upon the accused to repay the cheque amount as per Exs.P4 and P5 and in fact, the accused has replied the same as per Ex.P7. Thereafter, as there was no compliance to the notice issued and there was denial of the debt of Rs.70,000/- by the accused, the complainant has lodged a complaint within time, before the jurisdictional Magistrate.
8. The accused has also appeared before the Court and contested the proceedings. The Court has recorded the plea of the accused as she denied the allegations made against her and claims to be tried. Therefore, the trial Court examined the complainant as PW1 and got marked as many as seven documents as Exs.P1 to P7 and accused also got examined herself as DW1 and got marked only Exs.D1 to D3. After appreciating the oral and documentary evidence on record, the trial Court has acquitted the accused against which the present appeal is preferred.
9. Issuance of cheques though is not disputed by the parties but the accused has taken up the contention in the reply notice as well as during the course of cross-examination of PW1 and cross- examination of accused that she has admitted to the hospital in the year 2008. Therefore, she was in need of money and she has taken only Rs.25,000/- from the complainant and issued four cheques towards security for repayment of the said amount. Further, she has stated that amount has been repaid by the accused and in spite of repeated requests and demands, the cheques were not returned by the complainant. The over all defence taken up by the accused clearly discloses that the cheques was issued in favour of the complainant. Therefore, it goes without saying that the issuance of cheques, production of the said cheques to the banker by the complainant, dishonor of the same and in turn issuance of the notice and reply given by the accused are not in dispute between the parties. The only dispute that has been raised by the accused is that she has not taken an amount of Rs.70,000/- but only to an extent of Rs.25,000/- has been taken and that also has been repaid and the disputed cheque or the four chques alleged to have been issued by the accused having not been returned by the complainant.
10. Therefore, the above said circumstances narrowed down the dispute between the parties to the extent that whether there was any cheque being issued by the accused for repayment of the amount of Rs.70,000/- or accused has only taken loan of Rs.25,000/- and repaid the same, in spite of that the complainant has retained the cheques with him in order to make himself wrongful gain.
11. So far as the existence of legal liability and debt is concerned, a strong presumption arises in favour of the complainant under Sections 118 and 139 of the Act. Though the Trial Court has considered this aspect and raised the presumption in favour of the complainant, considering other materials on record, it was of the opinion that the said presumption raised under Sections 118 and 139 of the Act have been rebutted. Before adverting to the evidence on record, Section 118 has to be visualized by the Court. Once the cheque is issued, Section 118 of the Act provides for presumption with regard to the debt, signature on the cheque as well as the amount mentioned in the cheque. For all these three things, the Court has to presume that the said amount mentioned in the cheque was the consideration of the cheque and the cheque was issued on particular date and also the signature of the accused, if it is not denied. Therefore, the amount mentioned in the cheque as consideration of the cheque has to be presumed by the Court and with reference to Section 139 of the Act, it provides a presumption that the said cheque was issued for repayment of whole or part of the debt in existence. In the sense, if both the Sections are read in consonance with each other, it provides presumption not only in respect of preexistence of debt or liability, but also the debt referable to the amount mentioned in the cheque itself. Therefore, when such presumption is raised, a strong onus shifts on to the accused to establish that the amount mentioned in the cheque was not actually the consideration involved between the parties, otherwise that the amount mentioned in the cheque was not correct or that the transaction was only with reference to the amount of Rs.25,000/-. Therefore, it goes without saying the existence of some debt or liability whether it is Rs.70,000/- or Rs.25,000/- and that the existence of transaction between the parties is categorically admitted by the accused. In this back drop, the Court has to mention whether the presumption raised under Sections 118 and 139 of the Act has been successfully rebutted by the accused.
12. The Trial Court, in fact, in its judgment, has taken up various circumstances to analyse the case of the complainant, though those circumstances have not been subjected to cross-examination or the accused has not specifically taken up in her evidence i.e., with reference to the debt of Rs.25,000/-, the Trial Court has observed that as it is stated in the complaint that the loan was issued by the complainant without interest, it is doubtful whether any body can give such huge amount of Rs.70,000/- without any interest to the accused. It all depends on the facts and circumstances of each case. If the parties are known to each other and they are acquainted with each other, the parties may enter into such transaction even without interest for short time. Therefore, the Trial Court ought to have considered this particular aspect by looking into the materials on record. The undisputed fact is that the reply notice has been issued by the respondent which is admitted by her. In the reply notice, it is categorically stated at paragraph 2 that the accused and the complainant were known to each other and on that basis, accused has received a sum of Rs.25,000/- from the complainant for personal use and domestic expenses. Therefore, it goes without saying that parties were known to each other and well acquainted and for the reasons best known to them, they entered into transaction whether it is Rs.25,000/- or Rs.70,000/-. Therefore, the conclusion reached in this regard by the Trial Court is baseless as it is against to the contents of admitted documents by the accused herself.
13. The next important aspect is that the Trial Court has acquitted the accused observing that there was no occasion for the accused to receive the said money as she was admitted to the Hospital and particularly that the complainant was only a tailor and accused was a Government servant. Merely because the accused is a tailor, it does not mean to say that he cannot afford to give such an amount and merely because the petitioner is a Government servant, it does not mean to say that she is not having any personal and domestic problem. But the fact remains that it is an admission on the part of the accused that she received Rs.25,000/-, whether it is Rs.25,000/- or Rs.70,000/-, it makes no difference with reference to the existence of personal or domestic problem of the accused. Therefore, such observation made by the Trial Court is much against and contrary to the evidence let in by the accused herself. In the course of evidence, when the accused has categorically stated about receipt of Rs.25,000/- particularly for the purpose of personal and domestic expenses, how can she blow hot and cold by saying that she has not received any amount and she has no domestic problem at that particular point of time. Therefore, in my opinion, the observations made by the Trial Court in this regard is perverse on the basis of the records.
14. The last limb of the observation of the Trial Court is with regard to repayment of the amount and the complainant retaining the cheques. It goes without saying that the provisions of Negotiable Instruments Act is strongly legislated in order to cover such contingencies between the parties. Section 81 of the Act is an answer to the said observation made by the Trial Court. Section 81 deals with delivery of instrument on payment of indemnity in case of loss. The said provision reads as follows:
“81. Delivery of instrument on payment or indemnity in case of loss – (1) Any person liable to pay, and called upon by the holder thereof to pay, the amount due on a promissory note, bill of exchange or cheque is before payment entitled to have it shown, and is on payment entitled to have it delivered up, to him, or if the instrument is lost or cannot be produced, to be indemnified against any further claim thereon against him.
(2) Where the cheque is an electronic image of a truncated cheque, even after the payment the banker who received the payment shall be entitled to retain the truncated cheque.
(3) A certificate issued on the foot of the printout of the electronic image of a truncated cheque by the banker who paid the instrument, shall be prima facie proof of such payment.”
15. On meticulous and meaningful understanding of the above said provision, it clearly indicates that once the amount was repaid by the person, due on a promissory note, bill of exchange or cheque, before such payment, the person who is liable to pay the same is entitled before payment to have the instrument shown to him and on payment, he is entitled to have it delivered to him. Suppose if the instrument is lost or cannot be produced, the person i.e., the holder of the said document has to indemnify against any further claim thereon against him. Therefore, if the accused has repaid the said amount, before repayment, it was the duty on her part to ask the complainant to produce the said cheque and delivery of the same after repayment of the debt. If not, the accused has to be blamed herself for having not complied with the legal requirements. When the law presumes that once the amount is repaid, the cheque ought to have been taken back, otherwise the contra presumption has to be raised that the amount has not been paid back, heavy onus lies on the accused to prove that though the amount has been repaid, the complainant has retained the cheque.
16. Apart from the above, except issuance of notice and the oral evidence of the accused, nothing has been stated particularly on which date, before whom and at what time the said amount has been repaid to the complainant. No documentary or oral evidence has been produced by the accused in this regard. Therefore, the Trial Court has committed serious error in holding that the said amount has been repaid by the accused and thereafter, the cheque which was given by the accused as security for repayment of debt was retained.
17. Looking from any angle, the Trial Court has not only committed error on legal points, but also committed error in appreciating the oral and documentary evidence on record. Therefore, I am of the opinion that the judgment of acquittal passed by the Trial Court is not only erroneous, it is perverse. Picking some important evidence which are only in favour of the accused, the Trial Court dealt with the same in order to acquit the accused. The Courts must give equal importance not only to the documents produced by the complainant, but also to the accused, but on overall analysis and appreciation of the entire evidence, the Court has to consider whether the case of the complainant has been proved beyond reasonable doubt or not. The doubts which are raised by the accused must be of such nature, if those doubts are accepted that will go to the root of the case of the complainant, which are capable of uprooting the complainant’s case in toto. If doubts are mere doubts which are not sufficient to shake the case of the complainant, in such eventuality, the complainant has to prove his case.
18. So far as the proceedings under Section 138 of the Act are concerned, it is evident that the liability is admixture of both civil and criminal on the part of the accused. Therefore, the accused is responsible to discharge her onus in showing to the Court by strong probability, not mere probability, that she has discharged the loan and asked for redelivery of the cheques. But, if in proving such aspect, accused has not placed any material, only led oral evidence as against strong presumption raised in favour of the complainant, in such eventuality, the Court should always lean in favour of presumption raised in favour of the complainant under the above said facts and circumstances of the case. These are legal and factual aspect that are not properly appreciated by the Trial Court and wrongly acquitted the accused.
19. Under the above said circumstances, the appeal deserves to be allowed. Hence, the following:
ORDER Appeal is allowed. Consequently, the judgment of acquittal dated 15.04.2015 passed by the II Additional Civil Judge and JMFC., Nanjangud, in C.C.No.470/2009 is hereby set aside. The accused – respondent is convicted for the offence under Section 138 of the Negotiable Instruments Act, 1881 and sentenced to pay a sum of Rs.80,000/- (Rupees Eighty Thousand only) as fine and out of the fine amount, a sum of Rs.75,000/- shall be paid to the complainant as compensation and remaining sum of Rs.5,000/- shall be forfeited to the State towards litigation expenses. In default of payment of fine, the accused shall undergo Simple Imprisonment for a period of six months.
Sd/-
JUDGE SB/PKS