Sarvamangala Gururaj Bijapur vs Abdulsab K Annigeri
2021 Latest Caselaw 3368 Kant

            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

       DATED THIS THE 22ND DAY OF SEPTEMBER, 2021

                        BEFORE

       THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

              CRIMINAL APPEAL NO.2725/2013

BETWEEN:

SMT.SARVAMANGALA GURURAJ BIJAPUR
AGE: 44 YEARS, OCC: BUSINESS,
R/O.BYAHATTI PLOT, II CROSS,
DESHPANDE NAGAR, HUBLI.
                                              ...APPELLANT
(BY SRI.M.L.VANTI, ADV. FOR
    SRI.V.M.SHEELVANT, ADV.)

AND:

SHRI.ABDULSAB K. ANNIGERI
AGE: 55 YEARS, OCC: BUSINESS,
R/O.NOORJAHAN MANJIL,
GOKUL ROAD, HUBLI.
                                             ...RESPONDENT
(BY SRI.P.L.SATHYAMOORTHY, ADV.)

       THIS APPEAL IS FILED UNDER SECTION 378(4) OF
CR.P.C. SEEKING TO ALLOW THIS APPEAL AND SET ASIDE THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 10.06.2013
PASSED BY THE JMFC II-COURT, HUBLI, IN C.C.NO.1905/2005
AND CONVICT THE ACCUSED.


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




                           JUDGMENT

This appeal is filed by the appellant/complainant

challenging the judgment of acquittal passed by the JMFC-

II, Hubballi in C.C.No.1905/2005 whereby the learned

Magistrate has acquitted the respondent/accused for the

offence punishable under Section 138 of Negotiable

Instruments Act.

2. For the sake of convenience, the parties herein

are referred with the original ranks occupied by them

before the trial court.

3. The brief facts leading to the case are that,

complainant is a business woman and had business

transactions with the accused. It is alleged that accused

has purchased L & T Machine (JCB) bearing No.KA-25/M-

8411 for a sum of Rs.10,50,000/- from the complainant. It

is alleged that he has issued a cheque dated 25.04.2005

for a sum of Rs.3,50,000/- drawn on Federal Bank, Station

Road, Hubballi towards partial discharge of balance sale

consideration. When the complainant has presented the

said cheque, it was bounced for insufficient of funds. Later,

the complainant has got issued notice to the accused

calling upon him to make payment of the cheque amount.

The accused has given evasive reply through his counsel.

Hence, it is alleged that accused has committed offence

under Section 138 of N.I.Act and the complaint came to be

filed under Section 200 of Cr.P.C.

4. The learned Magistrate after having taken

cognizance has recorded the sworn statement of the

complainant and then issued process against the accused.

The accused has appeared through his counsel and was

enlarged on bail. He has also denied the accusation. Then

the complainant was examined herself as P.W.1 and one

witness was examined as P.W.2. The complainant has also

placed reliance on 19 documents which are marked at

Exs.P1 to P19. The statement of the accused under Section

313 of Cr.P.C. was recorded to enable him to explain the

incriminating evidence appearing against him in the case

of the prosecution. The case of the accused is of total

denial. The accused has got examined himself as D.W.1

and he placed reliance on 20 documents marked at Exs.D1

to D20. Further, the copy of Ex.P19 was also got marked

as Ex.C1, which was produced along with the complaint.

5. After having heard the arguments and

perusing the records, the learned Magistrate has come to

the conclusion that the complainant has failed to prove

that cheque Ex.P1 came to be issued towards discharge of

legally enforceable debt and hence, acquitted the accused.

Being aggrieved by this judgment of acquittal, the

appellant/complainant has filed this appeal under Section

378(4) of Cr.P.C.

6. Heard the arguments advanced by the learned

counsel for the appellant/complainant and the learned

counsel for the respondent/accused. Perused the trial court

records.

7. Learned counsel for the appellant/complainant

would contend that the judgment of acquittal passed by

the trial court is opposed to law, facts and probabilities of

the case. He would contend that signature on the cheque

is undisputed and indemnity bond marked at Ex.P19

clearly establish the debt of Rs.3,50,000/- and the trial

court has failed to appreciate the oral and documentary

evidence placed on record. He would also contend that

agreement was for Rs.10,50,000/- and towards discharge

of the said debt, the cheque for a sum of Rs.3,50,000/-

was issued and Rs.5,00,000/- was already deposited to

HDFC bank and balance is required to be discharged.

Hence, it is contended that, on verification of Exs.P1 and

P19, it is evident that cheque was issued towards legally

enforceable debt and hence, he would contend that the

trial court has committed an error in acquitting the

accused holding that entire debt under Ex.P19 is repaid by

the accused.

     8.    Per   contra,     learned    counsel   for        the

respondent/accused   would    contend   that   Ex.P19   is    a

disputed document and he has disputed his signature on

Ex.P19 and Ex.P19 and Ex.C1 clearly disclose that it is a

manipulated document. On perusal of the records, it is

evident that transaction for Rs.10,50,000/- is undisputed

and the accused has already paid Rs.1,50,000/- by way of

cheque to the complainant, the balance was paid by him to

KSFC. He would contend that complainant has issued NOC

and therefore, the bank has issued NOC for removal of

hypothecation and now it cannot lie in the mouth of the

complainant that there is due to the tune of Rs.3,50,000/-.

He would contend that initially the cheque is issued

towards security and the same is being misused by the

complainant and as such, he sought for dismissal of the

appeal.

9. Having heard the arguments and perusing the

records, it is an undisputed fact that cheqe Ex.P1 was

issued by the respondent/accused and it bears his

signature. Though accused has made a half-hearted

attempt to challenge the signature on Ex.P1, but he has

failed in his attempt. Further, the bank endorsement does

disclose that cheque was not returned for variation in the

signature. Under these circumstances, when the cheque

belongs to the accused and when his signature is admitted,

the presumption under Sections 118 and 139 of N.I.Act are

required to be drawn in favour of the complainant. Further,

there is no dispute regarding technical aspects in respect

of presentation of the cheuqe and issuance of notice etc.

10. There is no dispute of the fact that complainant

and accused have entered into an agreement of sale in

respect of L & T (JCB) bearing No.KA-25/M-8411 on

04.06.2004 for a sum of Rs.10,50,000/-. Ex.D1 is

confronted to P.W.1 in the cross-examination and as per

the recitals of Ex.D1, which is admitted by the complainant

that Rs.1,50,000/- was paid by the accused and agreed to

pay the balance amount of Rs.9,00,000/- being the

outstanding loan with KSFC on the said vehicle. According

to the complainant, the accused has paid Rs.5,00,000/-

towards repayment of the loan to KSFC and for balance

amount, the cheque Ex.P1 for Rs.3,50,000/- came to be

issued. But according to the accused, he has discharged

entire claim amount by paying amount to KSFC, as such,

the complainant has issued NOC and the vehicle was

transferred in the name of the accused.

11. The complainant is relying on Ex.P19 indemnity

bond alleged to have been executed by the accused.

Interestingly, the accused has denied the execution of

indemnity bond and his signature on Ex.P19. On perusal of

the Ex.P19, it is evident that there is reference in respect

of issuance of four cheques including Ex.P1. But very

interestingly, Ex.C1 is equally relevant document and it is

produced along with the complaint and all the recitals in

Ex.P19 and Ex.C1 are one and the same, except the date

affixed. In Ex.P19, the date on page No.2 is shown to be

18.03.2006. The records disclose that, as on that date, the

entire consideration of loan of Rs.10,50,000/- was paid by

the accused to the bank and the to the complainant, but

on perusal of Ex.C1, it is evident that the date is shown as

18.03.2005. When the same document bears two

signatures and Ex.C1 claims to be the Xerox copy of

Ex.P19, there cannot be two inconsistent dates in this

regard and hence, one of the document is manipulated as

both the documents are produced by complainant.

12. Ex.D1 is undisputed document between the

parties and it is an agreement regarding purchase of L & T

(JCB) bearing KA-25/M-8411. As per the recitals of Ex.D1,

the complainant agreed to sell the JCB for Rs.10,50,000/-

and she has received Rs.1,50,000/- in advance. This

agreement and recitals thereunder are not under dispute.

This agreement is dated 04.06.2004. It is evident that

earlier to execution of Ex.D1 itself there are certain

transactions and prior to execution of Ex.D1, Exs.P7 and

P8 came to be issued for a sum of Rs.3,50,000/-, which

was admittedly dishnoured for insufficient of funds. Very

interestingly, the complainant has not initiated any action

against the accused in this regard, but again entered into

an agreement under Ex.D1. But, very interestingly, under

Ex.D1, there is no reflection of the earlier transactions

which were transpired between the parties.

13. All along, it is the specific case of the accused

that he has paid the entire consideration of Rs.10,50,000/-

towards full settlement of sale consideration under Ex.D1.

In this context, he placed reliance on Exs.D2 to D13.

Ex.D6, D7, D8, D11, D12, D13, D18, D19 and D20 does

establish that the accused has paid the total sum of

Rs.10,50,000/- to the complainant. Out of this amount,

Rs.1,50,000/- under Ex.D20 is paid directly to the

complainant and rest of the amount is credited to KSFC

towards loan account. Hence, it is evident from these

documents that the accused has paid Rs.10,50,000/- as on

31.03.2005 towards purchase of JCB from the

complainant. Payments made by the accused were

acknowledged by the complainant and she had requested

the KSFC to issue NOC for cancellation of hypothecation

standing in the name of KSFC. This is evident from Ex.P11,

which is the letter written by KSFC dated 23.06.2005.

Further, Ex.D2 shows that hypothecation in the name of

KSFC was cancelled and the vehicle was transferred in the

name of the accused by creating hypothecation in favour

of the HDFC bank with effect from 02.04.2005. If at all,

there is no clearance of the entire dues, the complainant

would not have given NOC or addressed a letter to the

KSFC to issue NOC for discharge of hypothecation. Hence,

evidence on record clearly disclose that the accused has

discharged the liability under the agreement of sale and

admittedly, the liability of the parties is under Ex.D1 and

the documents produced by the accused disclose that he

has paid Rs.8,50,000/- to KSFC and Rs.1,50,000/- to the

complainant. The records further disclose that complainant

has assured KSFC that she would repay the outstanding

amount standing in her own account with KSFC and her

personal loan account with KSFC was closed on

03.08.2005, which is evident from Ex.P16.

14. Ex.P1 is dated 25.04.2005 said to have been

issued in the name of the complainant for Rs.3,50,000/-.

When the records itself disclose that accused has already

paid the entire sale consideration as on 31.03.2005 by

clearing the dues with the KSFC, question of issuance of

Ex.P1 on 25.04.2005 does not arise at all. As observed

above, the complainant herself has requested the KSFC to

issue NOC for transfer of ownership of the vehicle in the

name of the accused and the RTO has transferred the

ownership of the vehicle in the name of the accused with

effect from 02.04.2005 and later hypothecation was

created with the HDFC bank. Under these circumstances,

question of accused again paying Rs.3,50,000/- under

Ex.P1 does not arise at all.

15. The complainant has failed to establish that as

on the date of issuance of alleged cheque Ex.P1, there is

any liability of the accused to pay Rs.3,50,000/- under the

purchase agreement pertaining to the JCB. Hence, by

producing the documents, the accused has rebutted the

presumption available in favour of the complainant under

Section 139 of N.I.Act by showing that payment with KSFC

was cleared by the accused. Under these circumstances,

when the accused has rebutted the presumption by

showing that there are no dues to be paid by him, the

burden again shifts on the complainant to establish that

Ex.P1 cheque was issued towards existing legally

enforceable debt as on that date, but no such evidence is

forthcoming in this regard. The complainant has failed to

establish that Ex.P1 is issued towards legally enforceable

debt of Rs.3,50,000/-. The trial court has considered all

this material evidence including oral and documentary

evidence and appreciated the same in proper perspective.

It has analyzed oral and documentary evidence in detail

and arrived at a just conclusion.

16. Under no stretch of imagination, the judgment

of trial court can be said to be erroneous or illegal so as to

call for any interference. Looking to these facts and

circumstances, the complainant has failed to establish that

cheque was issued towards legally enforceable debt.

Hence, the trial court is justified in acquitting the

respondent/accused and as such question of interfering

with the said judgment does not arise at all. Accordingly, I

proceed to pass the following:

ORDER

The criminal appeal is dismissed.

Sd/-

JUDGE

MBS/-