Karnataka High Court

Meti Mouneshappa S/O. Ramappa vs Dr E Ningappa on 31 August, 2021

Author: Rajendra Badamikar

            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

         DATED THIS THE 31ST DAY OF AUGUST, 2021

                          BEFORE

       THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

              CRIMINAL APPEAL NO.2547/2013

BETWEEN:

SRI.METI MOUNESHAPPA S/O. RAMAPPA
AGE: 42 YEARS, R/O. ANKALI VILLAGE,
TQ: HADAGALI, DIST: BELLARY.
                                              ...APPELLANT
(BY SRI.V.G.BHAT, ADV.)

AND:

DR. E NINGAPPA
S/O. SANNA HUCHAPPA
AGE: 52 YEARS, R/O. DISTRICT HOSPITAL,
KOPPAL TOWN, KOPPAL.
                                             ...RESPONDENT

(BY SRI.SRINAND A.PACHHAPURE, ADV.)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION
U/SEC. 378(4) OF CR.P.C. SEEKING THAT ORDER DATED
02.03.2012 PASSED BY THE FAST TRACK COURT-II, HOSPET IN
CRL.A.NO.43/2011 MAY KINDLY BE SET ASIDE AND THE ORDER
OF CONVICTION DATED 29.09.2011 PASSED BY THE CIVIL
JUDGE & JMFC, HUVINAHADAGALI IN C.C.NO.1029/2009.

     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 25.08.2021 COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
                                   2




                            JUDGMENT

This appeal is filed by the appellant for setting aside

the order dated 02.03.2012 passed by the FTC-III at

Hospet in Crl.A.No.43/2011 whereby he confirmed the

judgment of conviction and order of sentence dated

29.09.2011 passed by the Civil Judge & JMFC,

Huvinahadagali in C.C.No.1029/2009.

2. For the sake of convenience, the parties herein

are referred with the original rank occupied by them before

the trial court.

3. The accused is conversant with the

complainant and he has borrowed a sum of Rs.8,00,000/-

for the purpose of his urgent domestic expenses from the

complainant and agreed to repay the same within a short

period. But accused did not repaid the said hand loan and

postponed the same one or the other ground and finally

issued a cheque dated 22.05.2009 for a sum of

Rs.8,00,000/-. The complainant has presented the said

cheque through his banker, but it was returned for

insufficient of finds and payment stopped by the drawer.

The complainant got issued a legal notice dated

14.07.2009 through RPAD and UCP calling upon the

accused to make payment of the cheque amount. But in

spite of receipt of legal notice, the accused has not made

any repayment. Hence, private complaint came to be filed

by the complainant. The learned Magistrate after taking

cognizance recorded the sworn statement of the

complainant and after perusing the records issued process

against the accused. The accused appeared through his

counsel and was enlarged on bail. He denied the

accusation made against him. Then the complainant was

examined himself as P.W.1 and two witnesses were

examined as P.W.2 and 3 and he placed reliance on Exs.P1

to P9. Then the statement of the accused under Section

313 of Cr.P.C. came to be recorded and accused has

denied the entire incriminating evidence appearing against

him. He claimed that he has issued two blank cheques in

favour of one E.T.Veeranna as a security and one cheque

is retained which was being misused by the complainant

being the relative of E.T.Veeranna. He has also got

examined one witness as D.W.1 and Exs.D1 to D4 were

marked in support of his defence. The learned Magistrate

after having heard both sides and on appreciating the

evidence on record found that the accused is guilty and

sentenced him to undergo simple imprisonment for a

period of six months and pay fine of Rs.8,30,000/-.

4. Being aggrieved by this judgment of conviction

and order of sentence, the accused has filed an appeal

before the Fast Track Court-III, Hospet and the learned

Sessions Judge by judgment dated 02.03.2012 allowed

the appeal by setting aside the impugned judgment of

conviction and acquitted the accused. Being aggrieved by

this judgment of acquittal, the complainant has filed this

appeal.

5. Heard the arguments advanced by the learned

counsel for the appellant and learned counsel for the

respondent. Trial court records are secured and I have

perused them meticulously.

6. Learned counsel for the appellant would

contend that the accused has taken a defence that the

cheque was issued to one E.T.Veeranna in pursuance of

the agreement as per Ex.D2, but in Ex.D2 there is no

reference of issuance of blank cheque. He would also

contend that the complainant is nowhere concerned with

Ex.D2 and the sale deed referred under Ex.D2 is also not

produced. He would also contend that the evidence of

D.W.1 is not properly appreciated by the appellate court

and the accused himself did not entered into the witness

box. There is no reference of the alleged issuance of blank

cheque under Ex.D2, which is placed as a trump card by

the accused. He would also contend that there is

presumption in favour of the complainant and the accused

has failed to rebut the said presumption. Hence, he would

contend that the trial court was right in convicting the

accused, but the appellate court was erred in acquitting

the accused. Hence, he would seek for allowing the appeal

by convicting the accused.

7. Per contra, learned counsel for the

respondent/accused would contend that Ex.P7 intimation

was issued one month prior to the transaction by issuing

notice to the bank and there is no reference of the date of

transaction in the complaint and the financial capacity of

the complainant is also challenged in the evidence. Hence,

he would contend that when his financial capacity is

challenged, the complainant at least could have proved his

financial capacity, but that was not done and by producing

other material evidence and by cross-examining P.W.1,

who does not know the contents of the complaint itself,

which clearly establish that the presumption stands

rebutted. Hence, he would contend that the appellate court

is justified in acquitting the accused.

8. Having heard the arguments and perusing the

records, it is an undisputed fact that, disputed cheque

under Ex.p1 is belonging to the accused. Further, there is

no dispute of the fact that it bears his signature. The

cheque is dated 22.05.2009. The cheque was bounced on

29.06.2009. Ex.P7 disclose that on 08.04.2009 itself, the

accused has intimated to the bank stating that he has

issued a cheque bearing No.210492, i.e., the present

Ex.P1 to one E.T.Veeranna as a security and hence, the

said cheque if sent for collection, it is prayed for stop

payment pertaining to the said cheque. It is also important

to note here that Ex.P7 was issued well before Ex.P1 which

is dated 22.05.2009. Apart from that, in the complaint the

complainant has nowhere specifically stated the date of

advancement of hand loan of Rs.8,00,000/-. When the

complainant is advancing huge hand loan of Rs.8,00,000/-,

it is hard to accept that he does not know the date. On the

contrary, in the examination-in-chief, the complainant has

come up with a defence that on 10.05.2009, the amount

was advanced in his house for urgent domestic expenses.

9. P.W.1 in his evidence claimed that he has

approximately possessed 10 acres of irrigated land and

also cultivating irrigated lands of others on lease basis and

growing paddy and maize and having average annual

income of Rupees 4-5 lakh. He has also claimed that he

reposed confidence in the accused as he is his distant

relative and paid the hand loan. He claimed that on

22.05.2009 accused personally came to his house and

issued cheque Ex.P1 duly filled by him. But 1½ months

prior to it, he had already issued an intimation to the bank

regarding handing over the cheque to one E.T.Veeranna.

The cross-examination of P.W.1 further discloses that he is

studied only up to 5th standard and he does not know

English language. He has also admitted that he married

the sister of E.T.Veeranna, but pleaded ignorance

regarding transaction between E.T.Veeranna and the

accused. It is hard to accept the contention of P.W.1 that

he had paid huge amount of Rs.8,00,000/- on 10.05.2009

without obtaining any security and only on good faith and

trust. P.W.1 at one instance claimed that accused was

distant relative but at another instance he claimed that he

acquainted with the accused when he was serving in

Huvinahadagali hospital.

10. Apart from that, it is also important to note

here that, to the legal notice issued as per Ex.P6, the

accused has sent his reply through his counsel. But very

interestingly, in the entire complaint, P.W.1 has not

referred regarding reply given by the accused. Even he

was unaware of the reply given by the accused. The

complainant when claimed that he possessing certain

irrigated lands, he has not produced any material

documents to substantiate his contention when the

accused has raised the dispute regarding his financial

capacity. It is also important to note here that in 2009,

Rs.8,00,000/- is a huge amount. The statement of

accounts produced at Ex.P9 does not establish that there is

balance of more than Rs.8,00,000/- in the account of the

complainant at any point of time. When P.W.1 claimed that

he has got documents to prove his agricultural income, he

has not produced them. Apart from that, P.W.1 claims that

he could have advanced any loan except the accused.

There is no evidence that he has got any special

transaction or a close relationship with the accused so as

to advance such a huge hand loan without any security,

that too for the first time. His cross-examination itself

reveals that he has borrowed loan from the bank, fertilizer

shop and used to borrow loan regularly every year.

Further, the evidence of P.W.3 discloses that the

complainant P.W.1 has availed tractor loan and the

installments are not yet paid and he has also availed crop

loan and that amount is still due.

11. According to the accused, he has purchased a

land from one E.T.Veeranna and there was an agreement

between him and E.T.Veeranna for pursuing re-conveyance

of the land and as a security he has issued two cheques

and in this regard, he placed reliance on Ex.D2. He has

also contended that Ex.D3 was also issued which was

returned by E.T.Veeranna and Ex.P1 cheque in this case is

immediately in the next serial of Ex.D3. He has also

produced documents in this regard as per Ex.D4. No

doubt, the complainant is not a party to the said

transaction, but however, it is an undisputed fact that the

said E.T.Veeranna is brother-in-law of the complainant.

Apart from that, the accused in his reply notice itself has

specifically stated regarding the transaction between him

and E.T.Veeranna and the cheque is being issued to him.

The same defence is put forward by the accused when he

issued intimation to the bank. Hence, the accused is

consistent in his defence and considering the intimation of

stop payment and considering the fact that hand loan of

Rs.8,00,000/- without any security, the defence of the

accused appears to be more probable rather than the case

put forward by the complainant.

12. Learned counsel for the appellant would

contend that the accused himself has not entered into

witness box, but for rebuttal, the accused need not enter

into the witness box and on available records he can rebut

the evidence. In the instant case, by cross-examination of

P.W.1 he has exposed the financial status of the

complainant and regarding Exs.D2 to D4, he examined

D.W.1. The averments made in the complaint are vague

and general averments regarding huge money transaction

that too without any security. Even the complaint is silent

regarding reply notice received by his counsel and the

same defence is put forward by the accused in his reply

notice and the complainant could have given proper

explanation in his complaint in this regard, as normally

expected but no such efforts have been made. Ex.P9 does

not establish the financial capacity of the complainant

advancing huge loan of Rs.8,00,000/-. Hence, it is evident

that the complainant has totally concealed the material

aspects. Hence, the defence of the accused appears to be

more probable and trustworthy, considering the

inconsistent evidence lead by the complainant. As such,

the presumption under Section 139 of N.I.Act stands

rebutted by the accused. As such, the burden again shifts

on the complainant to establish that the cheque was issued

towards discharge of legally enforceable debt and he had

financial capacity and there was close relationship between

the parties so as to advance hand loan without any

interest or security. It is hard to accept that the

complainant has advanced such a huge amount for the

first time to the accused, who was not closely related or

associated with him, without any security and without

charging interest. Hence, the conduct of the complainant

itself is doubtful. Though the presumption is in favour of

the complainant, the same is rebutted by the accused and

non-examination of the accused cannot be termed as fatal,

as he has discharged his burden by producing material

evidence and cross-examination of the witnesses.

13. Learned counsel for the respondent/accused

has placed reliance on the following decisions:

i. Basalingappa Vs. Mudibasappa reported in AIR 2019 SC 1983.

ii. Vijay Vs Laxman reported in AIR online 2013 SC 423.

iii. C.Antony Vs K.G.RAghavan Nair reported in AIR 2003 SC 182.

iv. Veerappa Sayappa Vs B.A.Chandramouli reported in AIR online 2021 KAR 1509.

v. H.A.Veerachari Vs Manjappa reported in AIR online 2021 KAR 232.

     vi.         Amzad     Pasha      Vs   H.N.Lakshmana
                 reported in 2011 ACD 365(KAR).

     vii.        K.S.Suju Vs O.Saji reported in AIR online
                 2019 KER 1199.

     viii.       S.Thimappa Vs L.S.Prakash AIR 2011
                 (NOC) 77 (KAR).

In the instant case also, there is no reference of date

of advancement of loan. Further, the evidence disclose

that there are glaring, inconsistent evidence regarding

advancement of amount as claimed by the

appellant/complainant. Further, the appellate court has re-

appreciated the evidence in detail and hence, set aside the

order of the trial court. The respondent/accused by cogent

evidence has rebutted the presumption available in favour

of the complainant. Hence, the principles enunciated in the

above cited decisions relied on by the learned counsel for

the respondent/accused are directly applicable to the facts

and circumstances to the present case on hand.

14. Under these circumstances, looking to these

facts, it is evident that the complainant has failed to

establish that the accused has issued cheque under Ex.P1

towards legally enforceable debt. Hence, the trial court has

committed an error in convicting the accused and the