IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL APPEAL NO.860 OF 2017 BETWEEN:
MR SYED SULAIMAN SHAHID AGED ABOUT 54 YEARS, S/O MR.SYED ABDUL KHADER, R/AT FLAT NO.T-2, BLOCK-2, GANGA CHELSTAN APARTMENT, SILVER SPRING ROAD, MARTHAHALLI, WHITE FIELD ROAD, BANGALORE-560 037.
(BY SRI: B PRAMOD, ADVOCATE) AND SRI N D SUBRAMANYAM S/O SRI.N.DHANAKOTICHETTY, R/AT D.NO.14-281, KHADAR MEERAN STREET, CHITTOOR-517 001, ANDHRA PRADESH MOB:09490586664 (BY SRI: P V RAO, ADVOCATE) ... APPELLANT ... RESPONDENT THIS CRL.A. IS FILED U/S 378(4) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 20.03.2017 PASSED BY THE ACJM, BANGALORE RURAL DISTRICT, BANGALORE IN C.C.NO.2966/2016 -ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 ON N.I ACT.
THIS CRL.A. COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T This appeal is directed against the judgment of acquittal recorded by the Addl. Chief Judicial Magistrate, Bengaluru Rural District, Bengaluru in C.C.No.2966/2016.
Heard learned counsel for the appellant and learned counsel for respondent and perused the records.
2(i) Appellant herein filed a complaint against respondent/accused under section 200 Cr.P.C. read with section 138 of Negotiable Instruments Act, 1881 (for short “N.I. Act”), contending that complainant and accused were known to each other and they were good friends and accused borrowed hand- loan of Rs.5 lakhs from the complainant on 20.09.2015 and executed on-demand promissory note and consideration receipt on the same day and in repayment of the said amount, issued a cheque bearing No.000110 dated 10.12.2015 drawn on the Karur Vysya Bank Ltd., Chittoor, for a sum of Rs.5 Lakhs and when the said cheque was presented for encashment, same was dishonoured as “payment stopped by the drawer”.
(ii) Before the Trial Court, appellant/complainant examined himself as PW.1 and produced in evidence, original cheque at Ex.P1, copy of Cheque Return Memo - Ex.P2, legal notice -Ex.P3, courier receipt – Ex.P4, postal acknowledgement – Ex.P5, reply notice Ex.P6 and promissory note - Ex.P7.
(iii) In rebuttal, respondent/accused examined himself as DW.1 and relied on copy of FIR - Ex.D1, copy of the complaint - Ex.D2 and notice (Ex.D3) issued by him to one Smt.K.Meenakshi, Sri.K.Kodanda Naidu and Sri.S.Gunasekhar dated 14.12.2015 and copy of the reply notice dated 27.01.2016 - Ex.D4.
(iv) Considering the above material, learned Magistrate was of the opinion that the complainant failed to prove the transaction at Ex.P7 and further, complainant failed to prove that accused had issued the aforesaid cheque in discharge of the legal liability and consequently, dismissed the complaint and acquitted the accused.
3. Learned counsel for the appellant/complainant contends that the complainant has proved his case by producing the original cheque. Cheque is attached with a presumption. Circumstances under which cheque was issued by the respondent has been deposed on oath. The said evidence has not been discredited in the cross-examination. The accused has failed to rebut the presumption attached to the cheque. Under the said circumstances, learned Magistrate has committed serious error in dismissing the complaint.
4. Learned counsel for the respondent/accused argued in support of the impugned judgment, contending that the material produced by the appellant clearly disclose that the cheque in question was issued by respondent/accused in respect of the transaction with Smt.K.Meenakshi, Sri.K.Kodanda Naidu and Sri.S.Gunasekhar. The very same cheque has been made use of by the complainant/appellant. Accused has successfully rebutted the presumption attached to the cheque. The Trial Court has rightly appreciated the evidence in proper perspective and therefore, there is no reason to interfere with the judgment of the Trial Court.
5. I have considered rival submissions and perused the records.
6. The complainant has come up with the specific averment that the accused was known to him and he had lent hand-loan of Rs.5 lakhs to the accused on 20.09.2015 and on the date of lending of the amount, on-demand promissory note as well as consideration receipt were issued by the accused. Accused however has taken up a plea that the complainant was a total stranger and there was no transaction whatsoever between him and complainant. In his reply notice, he has taken a specific plea that the cheque in question was given by him to Sri.S.Gunasekhar and same has been misused by complainant. In view of the specific denial made by accused disputing the very liability, burden was on the complainant to prove with the acceptable standard of proof that the cheque in question was issued by the accused towards discharge of the liability due by him.
7. On going through the evidence of complainant, I find that the complainant has failed to discharge the initial burden cast on him. Though he has reiterated in his evidence that on account of his acquaintance, he lent a sum of Rs.5 Lakhs to the accused in his house in the presence of two witnesses who had come along with the accused, he has neither examined the inmates of his house nor referred to the identity of any one of the persons stated to have accompanied the accused during the transaction. There is also no material as to how he mobilized the said amount and the manner in which he paid the amount to the accused.
8. On the other hand, accused has probabalised his defence by deposing on oath that the cheque in question was issued by him to Sri.S.Gunasekhar in respect of the transaction with Smt.K.Meenakshi and Sri.K.Kodanda Naid. What is relevant to be noted is that, much before issuance of the legal notice by the complainant to the accused, the accused had issued a notice to the aforesaid Smt.K.Meenakshi, Sri.K.Kodanda Naidu and Sri.S.Gunasekhar on 14.12.2015 wherein he has specifically stated therein that a cheque bearing No.000110 of Karuru Vysya Bank, Chittoor Branch, was taken from him by the aforesaid Sri.S.Gunasekhar on behalf of Smt.K.Meenakshi and Sri.K.Kodanda Naidu. The material produced before the Court indicate that the notice of dishonour of cheque was issued to the complainant on 20.1.2016. It is for the first time in the said notice, complainant has come up with the allegation that the very same cheque which accused is stated to have issued to Sri.S.Gunasekhar has been dishonoured. In view of this positive evidence, there is no difficulty whatsoever to hold that the accused has probabalised the plea set up by him whereas the complainant has failed to prove that the aforesaid cheque was issued by the accused towards repayment of the hand-loan alleged to have been borrowed by him.
9. On reappreciation of the evidence, I am of the opinion that the Trial Court has rightly appreciated the evidence on record and has based its conclusion on legal evidence. Even on re-appreciation of entire material, I do not find any ground to hold a different view than taken by the Trial Court. I do not find any merit in this appeal.
As a result, the appeal fails and it is dismissed.
Sd/- JUDGE Bss