Karnataka High Court
Sri G L Jagadish vs Smt Vasantha Kokila on 19 February, 2021
Author: H.P.Sandesh
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF FEBRUARY, 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL APPEAL NO.176/2011
BETWEEN:
SRI G.L. JAGADISH,
S/O SRI G.N. LINGAPPA,
AGED ABOUT 52 YEARS,
RESIDING AT NO.29, 3RD MAIN,
BASAVESHWARA HOUSING SOCIETY LAYOUT,
VIJAYANAGAR, NEAR BTS DEPOT,
BENGALURU-40. ... APPELLANT
[BY SRI H. RAMACHANDRA, ADVOCATE FOR
SRI H.R. ANANTHA KRISHNA MURTHY AND ASSOCIATES
- (THROUGH V.C.)]
AND:
SMT. VASANTHA KOKILA,
W/O LATE N.R. SOMASHEKHAR,
AGED ABOUT 58 YEARS,
RESIDING AT NO.322, 8TH MAIN,
3RD STAGE, 4TH BLOCK,
BASAVESHWARANAGAR,
BENGALURU. ... RESPONDENT
[BY SRI K.R. LAKSHMINARAYANA RAO, ADVOCATE]
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF
CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 06.07.2010
PASSED BY THE P.O. FTC-II, BENGALURU IN CRL.A. NO.470/2009
AND CONFIRMING THE ORDER DATED 27.05.2009 PASSED BY THE
XXII ACMM AND XXIV ASCJ, BENGALURU IN C.C.NO.17229/2004
CONVICTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 138 OF NI ACT.
2
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 06.02.2021 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
This appeal is filed praying this Court to set aside the
judgment of acquittal dated 06.07.2010 passed in
Crl.A.No.470/2009, on the file of the Presiding Officer, Fast Track
Court - II, Bangalore, and to confirm the order dated
27.05.2009 passed in C.C.No.17229/2004, on the file of the XXII
ACMM and XXIV ASCJ, Bangalore, for the offence punishable
under Section 138 of the Negotiable Instruments Act ('NI Act' for
short).
2. The factual matrix of the case is that the
complainant/appellant herein had filed a private complaint under
Section 200 of Cr.P.C. for the offence punishable under Section
138 of the NI Act alleging that the accused/respondent had
availed hand loan of Rs.5,00,000/- and in turn, on demand gave
the subject matter of the cheque and when the same was
presented, it was dishonoured for want of sufficient funds.
Hence, the complaint was filed. The complainant and the
accused have led their evidence before the Trial Court and the
Trial Court after considering the material on record, convicted
the accused for the offence punishable under Section 138 of the
NI Act and sentenced her to pay Rs.6,00,000/-. Being aggrieved
by the same, the accused filed an appeal before the Appellate
Court and the Appellate Court reversed the finding of the Trial
Court and acquitted the accused. Hence, the present appeal is
filed by the complainant before this Court.
3. The learned counsel for the appellant in his
arguments vehemently contend that the Appellate Court has
given the finding while reversing the finding of the Trial Court
that the complainant admitted that the son of the accused is
looking after the business after the death of his father. Hence,
the accused seeking the financial help does not arise. The other
ground for reversal of the judgment is that the date of loan
transaction is not specified. The complainant has also not
produced the documents for having source of Rs.5,00,000/- and
no other loan documents are produced before the Trial Court.
The defence of the accused before the Trial Court is that she lost
the cheque. The learned counsel in his argument vehemently
contend that the reasoning given by the Appellate Court is
erroneous. It is admitted that the complaint was given after
service of notice and D.W.1 in the cross-examination
categorically admitted financial problems and constraints.
Though, the accused denied the address, but admitted in the
cross-examination and both the Trial Court and the Appellate
Court have come to the conclusion that notice against the
accused is served, inspite of no reply was given to the notice.
When such being the case, the Appellate Court ought to have
drawn the presumption in favour of the complainant and instead
of the reasons was given they are not acceptable. The accused
has not disputed the signature available on the cheque. Hence, it
requires interference of this Court.
4. The learned counsel for the appellant in support of
his arguments relied upon the judgment of the Apex Court in the
case of N. HARIHARA KRISHNAN v. J. THOMAS reported in
AIR 2017 SC 4125. Referring this judgment, the learned
counsel would vehemently contend that the plea of payee that
he was unaware of fact that cheque drawn on account and name
of Company and no sufficient reason advanced by payee for
condoning such delay, cannot be a ground and the said
contention cannot be accepted.
5. The learned counsel also relied upon the judgment of
the Apex Court in the case of UTTAM RAM v. DEVINDER
SINGH HUDAN AND ANOTHER reported in (2019) 10 SCC
287. Referring this judgment, the learned counsel brought to
the notice of this Court that inconsistencies regarding the
amount due, not made out, as amount due stood crystallized in
written document against which cheque in question was issued.
The defence that cheque book was lost/stolen or that cheque
was misused was completely without basis. The acquittal
judgment was reversed and directed the accused to pay twice of
the amount of cheque as fine and cost of litigation of
Rs.1,00,000/-.
6. The learned counsel also relied upon the judgment of
this Court passed in Crl.A.No.1191/2011 dated 03.11.2020,
wherein this Court also reversed the acquittal order. The same
is applicable to the facts of the case on hand. Hence, it requires
interference of this Court.
7. Per contra, the learned counsel for the respondent
would vehemently contend that the case of the complainant is
that the accused had availed hand loan of Rs.5,00,000/-. The
learned counsel would contend that there is lack of pleadings
and the date of transaction is not mentioned either in the
complaint or in the legal notice. It is admitted that no other
documents are obtained while advancing the loan. The learned
counsel would contend that the cheque is of the year 1990 and
the same was given in 2004. The date of the cheque is also not
mentioned in the complaint or in the notice. The FSL report is
also in favour of the accused that the hand writing on the cheque
are not in the hand writing of the drawer of the cheque. The
learned counsel would contend that the accused had rebutted
the case of the complainant and the Appellate Court has rightly
reversed the judgment of the Trial Court.
8. The learned counsel for the respondent relied upon
the judgment of this Court in the case of S. TIMMAPPA v. L.S.
PRAKASH reported in 2010 (5) KCCR 3397, wherein it is held
that the provision of Section 139 of the NI Act does not
contemplate existence of debt as a matter of legal presumption.
The Court held that the drawee of cheque has to prove the
existence of debt or liability.
9. The learned counsel also relied upon the judgment of
this Court in the case of H. MANJUNATH v. SRI A.M.
BASAVARAJU reported in ILR 2014 KAR 6572, wherein it is
held that the complainant has merely mentioned the date of
issuance of cheque without material particulars of the
transaction and Ex.P.1 makes it manifest that except signature
all other entries are in different handwriting.
10. The learned counsel also relied upon the judgment of
the Apex Court in the case of JOHN K. ABRAHAM v. SIMON c.
ABRAHAM AND ANOTHER reported in 2014 CRI.L.J. 2304,
wherein it is held that for drawing presumption under Section
118 read with Section 139 of the NI Act burden is heavily upon
the complainant. Complainant not sure as to who wrote cheque
nor aware as to when and where existing transaction took place
for which cheque was issued by accused.
11. The learned counsel relied upon the judgment of the
Apex Court in the case of K. SUBRAMANI v. K. DAMODARA
NAIDU reported in 2015 AIR SCW 64, wherein it is held that
the complainant had no source of income to lend sum of Rs.14
lakhs to accused. He failed to prove that there is legally
recoverable debt payable by accused to him. It held that the
acquittal is proper.
12. The learned counsel also relied upon the judgment of
the Apex Court in the case of BASALINGAPPA v.
MUDIBASAPPA reported in (2019) 5 SCC 418, wherein the
Apex Court held that the evidence adduced on behalf of the
complainant does not prove source of income and only accused
has to do preponderance of probability and inference can be
drawn.
13. The learned counsel also relied upon the order of this
Court passed in Crl.A.No.2784/2012 dated 11.11.2020, wherein
this Court held that when a probable defence is set up by the
accused, burden of explaining the same is on the complainant
and standard of proof applicable for evaluating such explanation
would be proved beyond reasonable doubt.
14. In reply to the arguments of the learned counsel for
the accused, the learned counsel for the complainant would
contend that in paragraph No.3 of the affidavit it is categorically
mentioned regarding lending the loan and the accused also relied
upon the document Ex.D.5 and notice issued as against the
accused was served and the signature is not disputed and no
reply was given. When such being the case, the Appellate Court
ought to have drawn the presumption and nothing has been
discussed in the judgment of the Appellate Court with regard to
the presumption is concerned. Hence, it requires interference of
this Court.
15. Having heard the learned counsel for the
complainant and the learned counsel for the accused, the point
that arise for the consideration of this Court is:
(i) Whether the Appellate Court has committed an
error in reversing the finding of the Trial Court
and acquitting the accused for the offence
punishable under Section 138 of the NI Act?
16. Keeping in view the contentions raised by both the
learned counsel for the complainant and learned counsel for the
accused, this Court has to re-appreciate the material available
on record, since there are divergent findings before this Court.
The Trial Judge after perusing both oral and documentary
material available on record i.e., the evidence of P.W.1, the
documents at Exs.P.1 to 8, the evidence of D.W.1 and the
documents at Exs.D.1 to 6, convicted the accused for the offence
punishable under Section 138 of the NI Act. The Appellate Court
has reversed the finding of the Trial Court mainly on three
grounds that the complainant has admitted in the cross-
examination that after the death of his father, son of the
accused is looking after the business, the date of the loan
transaction is not specified and no documents are produced for
having the source of Rs.5,00,000/-. This Court has to evaluate
the evidence available on record before forming its opinion.
17. On perusal of the records, particularly the complaint
averments, no doubt it is clear that the date of loan transaction
is not mentioned by the complainant. The complainant only says
that he is a retired employee and the accused is a friend of the
complainant. The family of the accused is running the transport
business. The accused requested the complainant for financial
assistance for transport business, as the accused was in financial
difficulties. Hence, the complainant gave an amount of
Rs.5,00,000/-. The accused though agreed to repay the
amount, did not repay. But on persistent demand, issued the
subject matter of the cheque. On perusal of the complaint, it is
clear that for repayment of the amount, cheque dated
24.06.2004 was given and when the same was presented, it was
dishonoured and the notice was sent. Though the accused
denied her signature on the postal acknowledgement in the
cross-examination, the complainant admits that the said
signature is not that of the accused. But both the courts held
that notice was served on her.
18. It is also pertinent to note that in the appeal memo
and in the affidavit the very same address was given by the
accused. Both the Courts relied upon the material on record and
accepted the service of notice on the accused. The main
reasoning given by the Appellate Court is that P.W.1 admitted in
the cross-examination that the son of the accused is continuing
the business after the death of his father. No doubt, in the
cross-examination of P.W.1 it is admitted that the date of loan
transaction is not mentioned either in the complaint or in the
notice. It is admitted that the cheque is of the year 1990 series.
It is also admitted that the cheque contains two signatures and if
any corrections, normally small signature would be made. It is
elicited that except the cheque, no other documents are
collected for having lent the amount. It is also elicited that the
accused is having rental income. It is also admitted that the son
of the accused is continuing the business of transport. It is
elicited that from last 20 years, they are known to each other
and both of them are visiting the respective houses. The
document Ex.D.1 is also confronted to P.W.1 for having
purchased the buses by the complainant in 2003. The son of the
accused stood as surety for the said transaction. However, it is
suggested to P.W.1 in the cross-examination that the cheque
was given for clearing the loan of Rs.5,00,000/- and the said
suggestion was denied by P.W.1. It is suggested that P.W.1
stole the cheque from the house of the accused and the
complaint was given and the same was denied.
19. D.W.1 in her affidavit denied the case of the
complainant. The accused disputed the address and claims that
correct address is No.322, III Stage, IV Block,
Basaveshwaranagar, Bangalore. The affidavit of the accused is in
the line of the answers elicited from the mouth of P.W.1. The
accused contended that the contents of the cheque in dispute is
not in her hand writing and she has not approached the
complainant for financial assistance.
20. In the cross-examination, a suggestion was made
that she has obtained the OD facility in Sri Matha Mahila Co-
operative Bank by pledging the buses and the same was denied.
However, she admits that her two sons are sureties for the said
transaction, but gives an explanation that the same is for
different purposes. When the document Form No.32 was
confronted to her, she admits having availed OD facility. The
document Ex.D.9 is marked. It is also admitted that she was
due for an amount of Rs.5,00,000/- to Sri Matha Mahila Co-
operative Bank on 28.06.2005 and the said document is marked
as Ex.P.10. She also admits that when her son visited foreign,
she availed OD facility, but she claims that the address
mentioned in Ex.P.10 does not belongs to her. The witness was
confronted with the appeal memo. She admits that the address
mentioned in the complaint is also mentioned in the appeal
memo and so also in the affidavit and the same is marked as
Ex.P.11. But she claims that the contents in paragraph No.5 of
Ex.P.11 are false. It is elicited that she gave the complaint for
loss of cheque on 15.07.2004 after return of the cheque and in
the complaint the subject matter of the cheque is not mentioned.
D.W.1 admits that one Sujay also has filed the complaint against
her. In terms of Ex.D.2, the amount has been paid.
21. Having perused the material available on record,
though the complainant has not mentioned the date of the loan
transaction, but it is emerged in the evidence that both of them
were cordial and having acquaintance for a period of 20 years.
It is important to note that the cheque issued in favour of the
complainant is of the year 2004. The accused counsel himself
has got elicited in the cross-examination of P.W.1 that the
complainant had purchased three buses in the year 2003
specifically mentioning the date 21.08.2003, 08.08.2003 and
07.07.2003 and also got marked the document Ex.D.1
confronting the same. P.W.1 admitted that the son of the
accused stood as surety. Hence, it is clear that both the families
were cordial and the very reasoning given by the Appellate Court
that there is no loan document between the parties except the
cheque is erroneous and failed to take note of the relationship
between the parties. When such being the case, when the
cheque was issued, the Appellate Court ought not to have come
to the conclusion that not obtaining other documents from the
accused, is a ground for acquittal. The Appellate Court
committed an error in coming to such a conclusion.
22. Insofar as the source of income of the complainant is
concerned, it is the finding of the Appellate Court that no
documents are produced. When P.W.1 was cross-examined, the
accused counsel himself suggested with regard to the financial
capacity of the complainant for having purchased three buses in
2003. The Appellate Court ought not to have come to such a
conclusion that the complainant is not having source of income.
It is important to note that the Appellate Court while reversing
the finding of the Trial Court gave the reason that P.W.1 has
admitted that the son of the accused has continued the business
after the death of his father. The main case of the complainant
is that the accused was having financial difficulties and hence the
accused had approached the complainant. It is important to note
that in the cross-examination of D.W.1 though the accused
claims that they are having 35 buses and not having any
financial constraint, in the cross-examination admitted that they
have availed the loan from Sri Matha Mahila Co-operative Bank.
Though at the first instance denied the suggestion that buses are
pledged and OD facility was taken, on confrontation of the
document Ex.P.9, the accused admitted in the cross-examination
that in 2005 D.W.1 was due for a sum of Rs.5,00,000/- in favour
of Sri Matha Mahila Co-operative Bank. It is also admitted that
while sending her son to Foreign, OD facility was taken. The
Appellate Court failed to take note of the admissions elicited
from the mouth of accused. Though the accused claims that they
are financially strong, but the fact that they were financially
having problems is not considered by the Appellate Court.
23. It is also important to note that the counsel
appearing for the complainant brought to the notice of this Court
that in the appeal memo filed before the Appellate Court, a
ground was taken that there were financial transaction between
the complainant and the accused and the cheque was given for
different purpose. But in the cross-examination of P.W.1, a
suggestion was made to P.W.1 that cheque was given for
clearance of Rs.5,00,000/- and the same is available in
paragraph No.4 of the cross-examination of P.W.1. Though
P.W.1 denied the same, but the accused admitted the issuance
of the cheque for clearing of Rs.5,00,000/-. All these materials
have not been properly appreciated by the Appellate Court. No
doubt, as contended by the learned counsel for the accused,
date of loan transaction has not been mentioned. I have already
pointed out that it is the case of the complainant that when the
accused was under financial constraints, the loan was taken and
not disputed the fact that the cheque was given in 2004.
Though contended that date of cheque has not been mentioned,
the date of cheque is specific on the cheque.
24. The contention of the learned counsel for the
accused is that FSL report is in favour of the accused, but the
same is in respect of the remaining hand writings available on
the cheque. The Apex Court in the judgment in the case of
Uttam Ram (supra) has categorically held that if any contents
are in different hand writing and if defence is taken as cheque
was lost, the burden lies on the accused to prove the same. The
Apex Court in the case of BIR SINGH v. MUKESH KUMAR
reported in (2019) 4 SCC 197 held that even if other writings
are in different hand writing, the same cannot be a ground to
acquit the accused. In the case of Uttam Ram (supra), the
Apex Court also held that if defence is taken that cheque was
lost, the same has to be proved. But in the case on hand, it has
to be noted that the complaint was given subsequent to the
receipt of legal notice and not prior to the legal notice and also it
is categorically admitted that while lodging the complaint, the
cheque number is also not mentioned. It is also suggested to
D.W.1 in the cross-examination that one Sujay had filed a case
against the accused and the accused admits the same. When
such being the case, when the complaint was given subsequent
to the receipt of legal notice, the very defence that cheque was
lost cannot be accepted.
25. The principles laid down in the judgments referred
by the accused counsel regarding no date of loan transaction and
also presumption cannot be drawn in favour of the complainant
cannot be accepted. In the case on hand, though answers are
elicited from the mouth of P.W.1 for having not mentioned the
date of transaction, the cheque was of the year 1990, that itself
is not rebutting the evidence of the complainant. This Court
does not find any preponderance of probabilities in favour of the
accused having perused both oral and documentary evidence
placed on record except non-mentioning of the date of loan
transaction. This Court has already given the finding that the
complainant and accused family are having acquaintance from
the last 20 years and the transaction was taken place.
Admittedly, between the complainant and the accused there
were financial transaction and the fact that the accused was
having financial constraints for sending her son to foreign is
admitted. The Appellate Court ought to have appreciated the
evidence in a right perspective and the same has not been done.
The reasoning assigned by the Appellate Court is erroneous and
the same is not based on the material available on record. The
judgments relied upon by the learned counsel for the accused
are not applicable to the facts of the case in view of the ratio laid
down by the Apex Court in the case of Uttam Ram (supra) and
in the case of Bir Singh (supra). Hence, it requires interference
of this Court.
26. In view of the discussions made above, I pass the
following:
ORDER
(i) The appeal is allowed.
(ii) The impugned order of acquittal, dated
06.07.2010 passed in Crl.A.No.470/2009 is
hereby set aside.
(iii) The order of the Trial Court dated 27.05.2009
passed in C.C.No.17229/2004, is restored.
The accused is directed to pay the amount
within eight weeks and if she fails to make the
payment, the Trial Court is directed to proceed
in accordance with law.
Sd/-
JUDGE
MD
