IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL APPEAL No.627 OF 2010 BETWEEN:
Sri. Shek Allabakash Ali, Aged 45 years, Occ. Business, R/o #9/3, Lakshmi Road, 4th Cross, A.T. Halli, Shanthinagar, Bengaluru – 27 ...Appellant (By Sri. R.Srinivasa Gowda, Advocate) AND:
Sri. Sanjeev B. Navalagatti, Aged 38 years, Occ. Business, R/o #92, Siddarameshwara Krupa, Rukmininagar, 1st Cross, M.M.Extention, Belagavi.
...Respondent (By Sri. Prasanna V.R., Advocate) This Criminal Appeal is filed under Section 378(4) Cr.P.C praying to set aside the Judgment and Order Dt.10.03.2010 passed by the P.O. FTC-II, Bengaluru in Crl.A.437/09 and confirm the judgment and order of conviction Dt.28.04.09 passed by the XV Addl. CMM, Bengaluru in C.C.No.5729/08-Convicting the respondent/accused for the offence punishable under section 138 of Negotiable Instruments Act.
This Appeal coming on for Hearing, this day, the Court delivered the following:
ORDER In the complaint filed by the present appellant under Section 200 of Code of Criminal Procedure, 1973, against the present respondent, for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as `N.I. Act’), the learned XV Additional Chief Metropolitan Magistrate, Bengaluru City (hereinafter for brevity referred to as `trial Court’), in C.C.No.5729/2008 pronounced the judgment of conviction, convicting the present respondent/accused on 28.04.2009. Against the same, the present respondent, as an accused, preferred Criminal Appeal No.437/2009 before the learned City Fast Track (Sessions) Judge, Bengaluru City, FTC-II, (hereinafter for brevity referred to as `lower Appellate Court’), which by its impugned judgment dated 10.03.2010 allowed the appeal and set aside the judgment of conviction passed by the trial Court. It is challenging the judgment of acquittal passed by the lower Appellate Court, the appellant/complainant has preferred this appeal.
2. The summary of the case of the complainant in the trial Court is that the accused was a person known to him since several years and at the request of accused, to enable him to meet his business urgencies in the month of January-2007, the complainant gave him a hand loan of `1,50,000/-. Towards dischargal of the said loan amount, the accused issued him a post dated cheque bearing No.301449, dated 05.10.2007, for a sum of `1,50,000/- drawn on Corporation Bank, Kirloskar Road Branch, Belagavi. When presented for realisation, the said cheque came to be returned with the banker’s endorsement “Funds Insufficient”. Demanding the cheque amount, a notice was issued by the complainant, however, the accused sent an untenable reply denying his liability to pay the cheque amount, which constrained the complainant to institute a criminal case against him.
3. To prove his case, the complainant got himself examined as PW-1 and got marked documents from Exs.P-1 to P-11(a). On the other hand, the accused got himself examined as DW.1 and got marked documents from Exs.D-1 to 3.
4. After holding the trial, the trial Court convicted the accused for the alleged offence and sentenced him accordingly. In the appeal filed by the accused, challenging the said judgment of conviction, the same came to be allowed by the lower Appellate Court, by its judgment dated 10.03.2010, wherein it set aside the judgment of conviction passed by the trial Court and acquitted the accused of the alleged offence. It is against the said judgment of acquittal, the appellant/complainant has preferred this appeal.
5. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court.
6. Even though the appellant was originally being represented by the counsel engaged by him, however, this Court observing in its detailed order dated 04.02.2019 that said learned counsel for the appellant had continuously remained absent from appearing in this matter, appointed Sri. R. Srinivasa Gowda, learned counsel from the Panel of High Court Legal Services Committee, Bengaluru, to appear for the appellant and to prosecute further in the matter. Accordingly, learned counsel from the panel of High Court Legal Services Committee is appearing for the appellant in this matter.
7. Heard arguments from both side. Perused the Memorandum of Appeal, impugned judgment and also the Lower Court Records.
8. The admitted fact remains that both the complainant and accused were known to each other. The accused has not denied or disputed the issuance of cheque at Ex.P-2 in favour of the complainant. According to the complainant, who got examined himself as PW.1 stated that the said cheque was given to him towards dischargal of hand loan, which the accused is said to have availed from him in January-2007. However, the defence of the accused, which defence apart from his reply notice at Ex.D-1, was also put to PW.1 in his cross-examination was that the accused has never borrowed any amount from the complainant, but two duly signed blank cheques were given by the accused to the complainant at Belagavi when the accused wanted to join the complainant in doing business in scraps and automobiles. However, the said intention could not be materialised, as such, the accused wanted the said cheque back, but the complainant did not return.
9. The defence of the accused was at the first time made known to the complainant in his reply notice at Ex.D-1. Further, the accused has placed his defence in the cross-examination of PW.1, however, PW.1 has not admitted the said suggestion as true. Later, DW.1 has put forth his very same defence even in his examination-in-chief as DW.1.
The complainant in his evidence as PW.1 though has reiterated the summary of the complaint that the accused had borrowed hand loan of `1,50,000/- from him in January-2007 and towards dischargal of the same, the accused had issued a cheque to him as per Ex.P-2, but has failed to put his case to DW.1 in his cross-examination. As already observed above, the contention of the complainant/PW.1 regarding the accused availing loan has been categorically denied by the accused at the very first instance in his reply notice at Ex.D-1. Thereafter, the accused has also denied the alleged loan transaction by subjecting PW.1 to a detailed cross-examination and accused putting his defence in the mouth of PW.1 in his cross-examination. Though the PW.1 has not admitted those suggestions made by the accused as true, however, the accused has put his case before PW.1.
10. Contrary to the above, the case of the complainant both in his complaint as well in his evidence as PW.1 is that the accused had availed hand loan of `1,50,000/- from him in January-2007. The said case of the complainant was not put to the accused in the cross- examination of accused (DW-1). On the contrary, the complainant has come up with totally a new case in the cross-examination of DW.1, suggesting to the witness that in March-2007, the accused has borrowed hand loan of `3,00,000/- from him through a cheque. To substantiate the same, the complainant also got produced his Savings Bank Account pass book at Ex.P-9, a counter foil challan of remittance to bank at Ex.P-10 and the statement of accounts issued by his banker at Ex.P-11, trying to show that those three documents show a debit entry of `3,00,000/- on 05.03.2007. The accused has denied those suggestions specifically.
A perusal of Exs.P-9, 10 and 11 go to show that the debit entry of `3,00,000/- shown in the pass book at Ex.P-9 is dated 07.03.2007, but it does not mention the particulars as to whom the said amount was paid. It only says “Belgaum” as the particulars of debit that was made. Therefore, by the said entry, it cannot be inferred that the amount was paid to the accused.
11. Ex.P-10 is a counter foil of bank challan and it is not known how the said counter foil showing the name of the accused as the one to whose account the amount is said to have been credited, is with the complainant. Had really the cheque has been credited by the accused to his account, then under normal condition, he was expected to retain the counterfoil of bank challan, but the said counter foil is produced by the complainant. However, the said counter foil of the challan is dated 07.03.2007. The banker’s statement at Ex.P-11 shows another debit entry dated 05.03.2007 for a sum of `3,00,000/- in the name of ‘Shaik Alla Bux’.
Incidentally, the name of the accused is ‘Sheikh Alla Baksh Ali’. The debit entry dated 05.03.2007, for a sum of `3,00,000/- also go to show that it is not paid to accused. Further, the instrument that is shown in Ex.P-11 does not tally to that of what is shown in Exs.P- 10 and Ex.P-9. Therefore, Exs.P-9, 10 and 11 would not be of much help to the complainant.
12. From all the above analysis, one important point which cannot remain unnoticed is that even according to the complainant the alleged loan said to have been given by him to the accused was in the month of January, 2007, that too only for a sum of Rs.1,50,000/-, however, Exs.P-9, 10 and 11 does not pertain to the said period of January-2007, but they are with respect to 7th March, 2007. As such, if at all any such transaction was there, then that was totally a different transaction than what was contended by the complainant in his complaint.
13. In addition to the above, in the cross- examination of accused as DW.1, the complainant has given a go by to his original case that he had given any loan of `1,50,000/- to the accused in the month of January-2007, but has come up with totally a new case, which till then had not been canvassed by him, by suggesting that the accused had availed a sum of `3,00,000/- in the month of March-2007 and thereafter another sum of `3,00,000/-, in total `6,00,000/- and towards repayment of the same, he had issued two cheques i.e., one for `4,50,000/- and another for `1,50,000/-. The accused has denied all those suggestions. However, the complainant without putting his original case to DW.1 in his cross-examination and by putting totally a new case which till then was not his case at all, for the first time to DW.1 in his cross-examination has himself shown that the alleged loan transaction canvassed by the complainant is suspicious one.
14. On the other hand, the defence of the accused which has come throughout in consistency i.e., from the stage of his reply notice till his evidence as DW.1, that, in order to join the business with the complainant in scrap and automobile, he had issued two cheques as security and Ex.P-2 is one such cheque, which appears to be more nearer to the truth.
15. Merely by issuance of cheque, even though a presumption would have formed in favour of the complainant, but the accused has successfully rebutted the said presumption. The complainant could not able to make out his case and has not put his case at all to DW.1 in his cross-examination. These aspects the trial Court has not appreciated in its proper perspective. By considering that a cheque was issued by the accused to the complainant, it has proceeded to pronounce the judgment of conviction without properly appreciating the evidence placed before it. Though the lower Appellate Court has given some other reason for holding the judgment under appeal before it as erroneous and has set aside the said judgment, but it has arrived at a correct finding of setting aside the judgment of trial Court and acquitting the accused from the alleged offence. Thus, I do not find any infirmity, inconsistency or error in the said judgment of acquittal passed by the lower Appellate Court.
16. Accordingly, I proceed to pass the following order:
ORDER The Appeal stands dismissed. The judgment of acquittal passed by the learned City Fast Track (Sessions) Judge, Bengaluru City, FTC-II, in Criminal Appeal No.437/2009, dated 10.03.2010, is confirmed.
The Registry is directed to transmit a copy of this judgment to the trial Court immediately along with lower Court records.
Considering the effort put by the learned counsel for the appellant from the panel of High Court Legal Services Committee, Bengaluru, it is recommended to the Committee to consider the remuneration/ honorarium payable to the learned counsel for appellant at `3,000/-.
Sd/- JUDGE BMC