IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF DECEMBER 2019 BEFORE THE HON’BLE MR.JUSTICE ASHOK S. KINAGI Criminal Appeal No. 987 of 2010 BETWEEN:
SRI. SHANKARA NARAYANA S/O. NARASIMAIAH AGED ABOUT 51 YEARS R/A. No.17, SRI RAM MANDIR BASAVANGUDI BANGALORE - 560026 …APPELLANT (BY SRI. K. RANJAN KUMAR, ADV.) AND:
SRI. K. ANNAPPA PRABHU STAFF MP/3773086 COMMERICAL DEPARTMENT, CODE-03, BG-1 ‘A’ GROUP BHEL (INDUSTRIAL SYSTEM GROUP) PROF. CNR RAO CIRCLE MALLESWARAM BANGALORE - 560012 ... RESPONDENT (BY SRI. HARSHAVARDHAN, ADV. FOR SRI. V. MANJUNATH, ADV.) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C. PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 09.02.2009, PASSED BY THE XVI ADDL. CMM., BANGALORE IN C.C.NO.1837/2008 ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I.ACT.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The appellant aggrieved by the order dated 09.02.2009, passed in C.C.No.1837/2008, has filed the present appeal.
2. Brief facts of the case are as under:
The appellant, respondent and wife of the respondent - Smt. Nalini A. Prabhu were known to each other for a long time and they are all employees of BHEL, Bengaluru. That the respondent and his wife approached the appellant in the month of January 2005 and requested to lend a sum of Rs.6,00,000/-. The appellant paid a sum of Rs.5,50,000/- to the respondent in the month of January 2005. Thereafter, when the appellant demanded to repay the said amount, the respondent issued four cheques bearing Nos.032551, 032552, 032553 and 032554, dated 16.07.2017, amounting to Rs.50,000/- each. The appellant presented the said cheques for encashment and the said cheques were returned on the ground “insufficient funds”, vide endorsement dated 25.07.2007. After the receipt of endorsement, the appellant issued a legal notice dated 22.08.2007. The said notice was served on the respondent. But the respondent has not replied to the same. Therefore, the appellant was forced to file a complaint on 26.09.2007, under Section 200 of Cr.P.C., for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (‘the N.I.Act’ for short). The Trial Court recorded the sworn statement of the appellant. Cognizance was taken against the respondent. The respondent, on receiving summons, appeared before the court and was enlarged on bail. He did not plead guilt and claimed to be tried. The Trial Court posted the matter for trial. The appellant, in support of his complaint, got examined himself as PW-1 and three witnesses as PWs. 2 to 4 and got marked 25 documents as Exs.P1 to P13. The respondent, in support of his defense, examined himself as DW-1 and got marked one document as Ex.D1. The Trial Court, after appreciating the materials on record, acquitted the respondent under Section 255(1) of Cr.P.C. Against the said order, the appellant has filed the present appeal.
3. Heard arguments of learned counsel for the parties and perused the records.
4. Learned counsel for the appellant submits that the appellant has lent Rs.5,50,000/- to the respondent by borrowing the said amount from PWs.2 to 4. The appellant has examined PWs.2 to 4 to prove that he has borrowed money from them and he has got financial capacity to lend the amount. But the Trial Court has failed to consider the evidence of PWs.2 to 4 and also Exs.P18 to 25.
5. Learned counsel for the respondent supports the impugned order.
6. The appellant has failed to prove that he has got the financial capacity to lend money to the respondent. PW-2, who is related to the appellant, has deposed that he has paid amount to the appellant on various dates in the year 2004. But, PW-2 does not state that the amount alleged to have been paid to the appellant, was advanced to the respondent and in the course of cross-examination, he clearly admits that he does not possess any document to show that he has paid the amount to the appellant. The evidence of PW-2 does not support the case of the appellant to show that the amount has been advanced by PW-2 to the appellant.
7. Further, PW-3 in his evidence has deposed that the appellant arranged a sum of Rs.5,50,000/- and paid the same to the respondent, as the appellant and respondent were close friends. He has further deposed that the appellant has actually borrowed money from other people to arrange and give the same to the respondent. Even PW-3 had also paid a sum of Rs.25,000/- to the appellant. During the course of his cross-examination, PW-3 admits that he does not possess any document to show that he has paid the amount to the appellant. PW-3 does not disclose the date as on which the alleged amount was paid by him to the appellant.
8. Coming to the evidence of PW-4, who is said to be an eyewitness to the alleged transaction, he deposes that the alleged transaction took place between the appellant and the respondent in his presence and the appellant arranged a sum of Rs.5,50,000/-, including an amount of Rs.30,000/- paid by PW-4 to the appellant. Even PW-4 does not speak about the date of alleged transaction. During the course of cross- examination, he admits that the appellant is his close friend.
9. The evidence of PWs.2 to 4 do not prove that the appellant has advanced a loan of Rs.5,50,000/- to the respondent. If the evidence of PW-1 is perused, it is evident that he himself has borrowed money from Canara Bank and he has not repaid the said amount. Further the appellant has also admitted that he has raised loan from Syndicate Bank and Nikhara Finance. Nikhara Finance had filed a criminal case against him for the offence punishable under Section 138 of N.I.Act and in the said criminal proceedings, the appellant was convicted by imposing fine of Rs.1,00,000/-. He further admits that the said fine amount has been paid by the respondent, on his behalf. Further PW-1 admits that he has borrowed housing loan of Rs.13,00,000/- from SBI, Rajarajeshwari Nagar. In addition, the appellant has admitted that he had borrowed a sum of Rs.1,25,000/- from BHEL Credit Co-op. Society and that he has to pay a sum of Rs.2,50,000/- to Canara Bank towards loan repayment. When the appellant was unable to repay the loan amounts raised by him, question of he advancing loan to the respondent, does not arise. Further the appellant has not explained in the complaint or in the legal notice or in his evidence as to what made him to receive 4 cheques on 16.07.2007. The appellant has admitted in his cross-examination that the respondent and his wife have stood as guarantors for the loan obtained by him from Canara Bank. It clearly goes to show that the alleged cheques were issued by the respondent for security purpose to obtain loan by the appellant, where the respondent and his wife stood as guarantors. The appellant, taking undue advantage, misused the cheques and has filed the present complaint.
10. The appellant in order to prove that he has got financial capacity to lend the amount, has not produced any documents. On the contrary, he has admitted in his cross-examination that he has borrowed money from different financial institutions. He has also admitted that he has not repaid the said amounts. When he himself is a defaulter, question of he advancing the amount to the respondent, does not arise.
11. In this regard, I would like to place reliance on the judgment of the Hon'ble Supreme Court in the case of BASALINGAPPA VS. MUDIBASAPPA [AIR 2019 SC 1983], wherein the Hon'ble Supreme Court has held that under the N.I.Act, complainant has to prove that he has got financial capacity to lend the amount. In the present case, appellant has failed to prove that he has got financial capacity and further failed to prove that the alleged cheques were issued by the respondent towards discharge of debt. First of all, the appellant has failed to prove that he has lent the amount to the respondent. Considering the evidence of PWs.1 to 4, and the documents produced by the parties, the Trial Court has rightly acquitted the respondent for the offence punishable under Section 138 of the N.I.Act. The appellant, neither in the legal notice nor complaint nor in his examination-in-chief, has stated regarding amount borrowed from PW-2 to PW-4 and also regarding the names of the borrowers from whom he borrowed the amount i.e., PWs.2 to 4. This clearly goes to show that PWs.2 to 4 have been examined only to patch up the omission and commission of PW-1.
12. As observed above, the admission of PWs.2 to 4 does not prove that they have paid the amount to the appellant. The appellant has admitted in his cross-
examination that except his salary, he does not have any other source of income. When that is so, the appellant has failed to prove that he has got financial capacity to lend the amount. The Trial Court, after considering the entire material on record, has rightly acquitted the respondent. Hence, I do not find any ground to interfere with the impugned order. Accordingly, the appeal is dismissed.
Sd/-
Judge RD