IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF OCTOBER 2019 BEFORE THE HON’BLE MR. JUSTICE H.P.SANDESH CRIMINAL APPEAL NO.578/2017 BETWEEN:
SMT. VIDYA MANJUNATH W/O MANJUNATH, AGED ABOUT 55 YEARS CURRENTLY RESIDING AT NO.545/85 42ND CROSS, 1ST MAIN ROAD JAYANAGAR 8TH BLOCK BANGALORE – 560 070 … APPELLANT (BY SRI RAVI.R, ADVOCATE A/W SRI A.G.DARSHAN, ADVOCATE) AND:
SRI K.V.VINAY S/O LATE K.G.VENKATESH AGED ABOUT 35 YEARS RESIDING AT NO.7 AND 7/1 2ND CROSS ROAD, SIDDAPURA LALBAGH GATE JAYANAGAR BANGALORE – 560 011 … RESPONDENT (BY SRI E.R.GAJENDRA NAIDU, ADVOCATE (ABSENT)) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 03.02.2017 PASSED BY XXIII ACMM, BANGALORE IN C.C.NO.37546/2010 AND CONVICT THE ACCUSED/RESPONDENT OF THE OFFENCE CHARGED AGAINST HIM UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT AND THE AMOUNT DUE TO THE APPELLANT BY THE ACCUSED/RESPONDENT MAY BE REALIZED AND PAID TO THE APPELLANT AND AWARD COSTS OF THESE PROCEEDINGS.
THIS CRIMINAL APPEAL COMING ON FOR FURTHER ARGUMENTS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T 1. This appeal is directed against the judgment of acquittal dated 03.02.2017 passed by the Court of XXIII Additional Chief Metropolitan Magistrate, Bengaluru, in C.C.No.37546/2010.
2. Parties herein are referred to by their rankings in the court below.
3. Facts of the case in brief are as under:
It is the case of the complainant that the accused is her brother’s son and he had approached the complainant for financial assistance for his business purpose. The complainant had paid a sum of Rs.20,000/- on 07.05.2008, Rs.2,50,000/- on 09.05.2008, Rs.15,000/- on 14.05.2008 and Rs.5,00,000/- on 19.05.2008 in total Rs.7,85,000/- to the accused and the accused had promised to repay the said amount within a short period. However, the accused did not repay the said amount as agreed. Hence, the complainant insisted the accused to repay the amount and he had issued a Cheque dated 05.10.2009 for Rs.7,85,000/-. When the said cheque was presented, the same was returned with an endorsement ‘insufficient funds’. A legal notice was issued against him and the same was acknowledged. The accused did not give any reply to the said notice. Hence, the complainant was constrained to file a complaint.
The accused was secured before the court below and he did not plead guilty. He claims trial. The complainant, in order to prove her case, got examined herself as PW.1 and got marked the documents as Exs.P1 to P10. The accused also examined himself as DW.1 and he got marked the documents as Exs.D1 to D6.
The statement of the accused under Section 313 of Cr.P.C. was recorded and after hearing both sides, the court below acquitted the accused. Hence, the present appeal is filed before this Court.
4. The grounds urged in this appeal are that the accused did not dispute the issuance of Cheque - Ex.P1. The court below had committed an error in coming to the conclusion that the complainant ought to have paid the amount by way of Cheque and the document shows that the complainant had withdrawn the amount. The court below had come to conclusion that there was a strained relation between the complainant and the accused. The court below failed to draw presumption in favour of the complainant when the Cheque issued by the accused was not disputed and also the accused had not given any reply to the legal notice. Thus, the court below had committed an error in dismissing the complaint.
5. Learned counsel appearing for the appellant vehemently contended that the accused had admitted his signature on the Cheque. The only defence taken by him was that the Cheque was given to his grandfather to pay the electricity charges and the said Cheque was taken from the house of his grandfather and misused. He contended that the defence of the accused is not probable. The court below had committed an error in coming to the conclusion that the complainant ought to have paid the amount by way of Cheque instead of cash.
6. The accused/respondent is represented through his Counsel. This appeal was heard in part on the previous occasion and the learned counsel for the respondent had remained absent. Therefore, the matter was adjourned to hear the arguments of learned counsel for the respondent. None appeared for the respondent even today. Hence, it is taken as no arguments on the side of the respondent.
7. Having considered the grounds urged in the appeal memorandum and also the contentions of learned counsel for the appellant with regard to acquitting of the accused, the point that arises for consideration of this Court is as under:
“Whether the court below had committed an error in acquitting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and whether it requires interference of this Court?”
8. The complainant in order to substantiate her case got examined herself as PW1 and got marked the documents as Exs.P1 to P10. She was subjected to cross examination. In the cross examination of PW.1, it is elicited that the accused is staying in the ground floor of the house of the father of the complainant. It is elicited that she was visiting the house of her father. It is elicited that she had given instructions to prepare an affidavit and to file income tax returns. It is elicited that income tax returns for the year 2010-11 was filed on 03.06.2011 and also paid taxes for the years 2009-10 and 2010-11. It is suggested that Exs.P8 and P9 were created for the purpose of this case and the same was denied. It is suggested that there was no entry in the pass book for having paid the amount and witness volunteers that the amount was drawn and paid cash to the accused. It is suggested that a false case has been filed against the accused and the same was denied. It is suggested that a blank cheque was given to his grandfather to pay electricity charges and the same was misused by her and her husband by collecting the same from grandfather and the same was denied. She admits that she had filed O.S.Nos.2557/2010 and 2558/2010 against her brother’s wife and children. Exs.D2 & D4 are confronted to the witness and witness admits the same. The accused was also examined as DW.1. He reiterated the defence taken in the affidavit specifically pleaded at para 6 that he was working as a Marketing Executive and most of time he was out of station and also used to give blank cheques to his grandfather to pay electricity and water bills and the said cheque was misused. In the cross examination, it is suggested that he had borrowed the amount of Rs.785,000/- on different dates and the same was denied. Further, he admits Ex.P1 and his signature on the cheque. He also admitted that he came to know that the cheque was bounced. He claimed that he was not aware that the complainant had presented the said cheque. It is stated that in spite of service of legal notice, he did not repay the amount and the same was denied. He admits that he had not given any complaint when the cheque was misused and filed any case before the civil court.
9. Having considered the oral and documentary evidence on record, it is emerged in the evidence that the accused had issued the Cheque and he did not dispute the issuance of the cheque. He contended that he had given the said Cheque to his grandfather to pay the electricity and water charges. Since he was working as a Marketing Executive and he was out of station, the said cheque was misused. When the accused took such a defence that he had given the cheque to his grandfather, the accused ought to have examined his grandfather but he did not choose to examine him. When he did not dispute the issuance of Cheque and had not given any reply to the legal notice, the court below had committed an error in holding that instead of paying the amount by Cash the accused ought to have paid the amount through Cheque. The complainant in order to substantiate her contention that she had paid the amount had produced the bank statement - Ex.P10 which discloses that the amounts were withdrawn on particular dates. It also discloses that the said amount was in her account. Apart from the above, income tax returns was also produced before the Court wherein she has declared that the amount is due from the accused. When the complainant has produced substantial piece of materials with regard to drawing of the amount from the bank and declaring that the amount is due from the accused in the income tax returns - Ex.P9 and also when the Cheque was admitted by the accused, the court below ought to have drawn presumption in favour of the complainant and the same was not done. When the accused has taken the defence that the cheque given to his grandfather was misused by the accused, how the document came into custody of the complainant has not been explained. As stated earlier, the grandfather of the accused has not been examined in the case. When the complainant has proved that the Cheque belongs to the accused and no reply was given to the legal notice and when the accused did not dispute that the cheque bears his signature, he did not chose to rebut the evidence of the Complainant under Section 139 of the Negotiable Instruments Act, 1881. In this context, it is relevant to refer to the judgments of the Hon’ble Supreme Court in Rangappa vs. Sri Mohan [2010(11) SCC 441] and in Shree Daneshwari Traders v. Sanjay Jain [2019(3) AICLR 921]. When the complainant prima facie proves her case that the amount was advanced in favour of the accused and she had produced the bank statement for having drawn the amount, the findings of the court below that the complainant ought to have paid the amount only by way of Cheque is erroneous. The court below did not draw the presumption in favour of the complainant. When the accused did not rebut the evidence of the complainant, it has committed an error in acquitting the accused by dismissing the complaint. Hence, the judgment of acquittal of the court below requires to be set aside. The very findings of the trial court are opposed to law and amounts to miscarriage of justice.
10. In view of the above discussions, I pass the following: ORDER The appeal is allowed. The impugned judgment of acquittal is set aside. The accused is convicted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The accused is directed to pay double the amount of the Cheque to the complainant within eight weeks from today. If the accused fails to pay the amount within the said period, he is directed to undergo sentence for a period of one year.
Sd/- JUDGE hkh.