Karnataka High Court

Basanagouda S/O. Shivanagouda ... vs Imam Hussain S/O. Rajesab ... on 25 September, 2021

Author: Rajendra Badamikar

                             -1-



              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

         DATED THIS THE 25TH DAY OF SEPTEMBER, 2021

                           BEFORE

      THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

                    CRL.A.NO.2571 OF 2012

BETWEEN
BASANAGOUDA S/O. SHIVANAGOUDA KURAHATTI
AGE: 63 YEARS, OCC: AGRICULTURE,
R/O. ANNIGERI, TQ: NAVALGUND,
DIST: GADAG.
                                               ...APPELLANT

(BY SRI. NAVEEN CHATRAD, ADVOCATE)

AND
IMAM HUSSAIN S/O. RAJESAB BETAGERI
AGE: 46 YEARS,
OCC: ATTENDER IN CANARA BANK,
GADAG BRANCH, GADAG.
                                             ...RESPONDENT

(BY SRI. LINGESH KATTIMANI, AMICUS CURIAE)

      THIS CRIMINAL APPEAL IS FILED U/S 378(4) R/W 401 OF
CR.P.C. SEEKING TO SET ASIDE THE JUDGEMENT AND ORDER
DATED 09.01.2012 PASSED BY THE DISTRICT & SESSIONS
JUDGE,     GADAG,    IN   CRL.A.NO.7/11   CONFIRMING   THE
JUDGEMENT AND ORDER DATED 19.01.2011 PASSED BY THE
PRL. SENIOR CIVIL JUDGE & CJM, GADAG, IN C.C.NO.66/2005
AND CONSEQUENTLY CONVICT THE RESPONDENT/ACCUSED
FOR THE OFFENCES P/U/S 138 OF NI ACT.
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       THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:


                           JUDGMENT

This appeal is filed by the appellant-complainant

against the judgment of acquittal passed in

C.C.No.66/2005 by the Principal Senior Civil Judge and

CJM, Gadag dated 19.01.2011 whereby the learned

Magistrate has acquitted the accused-respondent herein

for the offence punishable under section 138 of the N. I.

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 factual matrix leading to the case are

that the complainant and accused are belonging to

Annigeri village and are well acquainted with each other

and developed friendship as well as relationship. That out

of the said friendship and confidence between them the

accused requested the complainant for hand loan for his

domestic purpose as well as construction of house and on

26.06.2003, the complainant has advanced hand loan of

Rs.1,32,000/- to the accused and the accused promised to

repay the said loan amount within three months. After

three months, the complainant requested the accused to

repay the said amount of Rs.1,32,000/- but the accused

went on postponing the same on one or the other pretext.

Ultimately, when the complainant insisted on 15.10.2003,

the accused has issued a post dated cheque for

Rs.1,32,000/- drawn on Canara Bank with request that the

cheque may be presented only after 31.10.2003.

Subsequently, again he went on requesting the

complainant for postponement of presentation of the

cheque and ultimately on 05.04.2004, the complainant

presented the said cheque for encashment. The said

cheque was dishonored for the reason "insufficient funds"

and same was communicated to the complainant on

19.04.2004. Then, the complainant issued a legal notice to

the accused on 23.04.2004 and on 24.04.2004 it was

served on him. The accused gave evasive and false reply

and he has failed to repay the amount. Hence, the

complainant was constrained to file a private complaint.

On the basis of the private complaint filed by the

complainant, the learned Magistrate after taking

cognizance has recorded the sworn statement of the

complainant and issued process against the accused. The

accused appeared before the learned Magistrate through

his counsel and was enlarged on bail. The accusation made

against him for the offence punishable under section 138

of the N. I. Act was denied by him. Then the complainant

got examined himself as PW1 and one witness was also

examined on his behalf as PW2. He has also placed

reliance on eight documents marked as per Ex.P1 to Ex.P8.

Thereafter, the statement of the accused under Section

313 of Cr.P.C., came to be recorded in order to explain the

incriminating evidence appearing against the accused. The

case of the accused is of total denial. The accused in his

statement recorded under Section 313 of Cr.P.C. has

asserted that the cheque was handed over to one

Srishailappa in respect of loan availed by him and he did

not transact with the complainant. He also got examined

himself as DW1 and placed reliance on Ex.D1 to Ex.D3.

After having heard the arguments and perusing the

records, the learned Magistrate has acquitted the accused

of the charges leveled against him by setting him free.

4. Being aggrieved by this judgment, the

complainant initially preferred an appeal before the learned

District and Sessions Judge in Criminal Appeal No.7/2011

but the said appeal came to be dismissed on the ground

that it is not maintainable. Hence, he filed this appeal

subsequently, along with application for condonation of

delay. The application for condonation of delay was

allowed and appeal was admitted for hearing.

5. The respondent though served, did not choose

to appear before the Court and as such Sri. Lingesh

Kattimani was appointed as Amicus Curiae for representing

the respondent-accused to assist the Court.

6. Heard the arguments advanced by the learned

counsel for appellant and the learned Amicus Curiae. The

learned counsel for the appellant would contend that the

Trial Court has erred in acquitting the accused and has

failed to notice the fact that there is presumption in favour

of the complainant under section 139 of the N. I. Act and

burden is on the accused to rebut the said presumption.

He would also contend that the accused has taken

inconsistent defence and he was also a banker and his

evidence disclose that he has not discharged his burden of

rebuttal of presumption available in favour of the

complainant under section 118 and 139 of the N. I. Act. He

would contend that the judgment of acquittal passed by

the Trial Court is erroneous, arbitrary and capricious and it

has resulted in miscarriage of justice. Hence he would seek

for allowing the appeal by setting aside the impugned

judgment.

7. Per contra, the learned Amicus Curiae would

contend that the Trial Court has rightly acquitted the

accused by appreciating the oral and documentary

evidence. He would also contend that the complainant

being a banker has advanced such a huge amount without

any security and he has also not made any enquiry

regarding legal necessity of the accused. He would also

contend that by examining himself as DW1 and producing

Ex.D2 and Ex.D3 the accused has rebutted the

presumption available in favour of the complainant and

there is no material evidence to show that the cheque was

issued towards legally enforceable debt. Hence, he would

seek for dismissal of the appeal.

8. Having heard the arguments and perusing the

records, now the following point would arise for my

consideration:

"Whether the judgment of the trial court is erroneous, arbitrary and capricious so as to call for interference by this Court?"

9. As per the case of the prosecution, the accused

had availed hand loan of Rs.1,32,000/- from the

complainant on 26.06.2003. Further, it is the specific

assertion that in order to repay the said hand loan, he

issued a cheque dated 31.10.2003 and when the said

cheque was presented for collection, it was dishonored for

the reason "insufficient funds". The accused has not denied

that the cheque belongs to him. He has also not disputed

his signature on the cheque. But he has set up the defence

that cheque was issued to one Srishailappa, who was

relative of the complainant, as a security in respect of the

loan availed by him to the tune of Rs.60,000/- and the

said amount was repaid but cheque was not returned by

Srishailappa and the said cheque is being misused by the

complainant. This defence is set up during the course of

cross-examination by the accused. Even the same defence

is set up by him during his evidence, when he was

examined as DW1.

10. It is to be noted here that the complainant is

the holder of the cheque in due course. Ex.P1 is the

cheque and accused admits his signature. It is also to be

noted here that the accused is working in the bank

pertaining to which this Ex.P1 is issued and hence, he

knew the consequences of issuing the cheque. Section 139

of the N. I. Act draws a presumption in favour of the

holder of the cheque in due course. Section 139 of the N.

I. Act reads as under:

139. Presumption in favour of holder.--It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.

11. Hence the complainant being the holder of the

cheque in due course and as the accused has admitted his

signature on the cheque, now initial statutory presumption

under section 139 of the N. I. Act is in favour of the

complainant. It is for the accused to rebut the said

presumption by placing cogent material on the basis of

preponderance of probabilities. At the outset, admittedly,

the complainant was a retired bank employee and after his

retirement, he claims to be an agriculturist. Accused in his

cross-examination, admits that the family of the

complainant is a well to do family in the village, having

good financial reputation. The accused has nowhere denied

the financial capacity of the complainant to advance the

loan but very interestingly the Trial Court on its own

presumed and assumed certain aspects and gone to the

extent of considering the financial status of the

complainant which is not challenged by the accused. As

per the decision of the Hon'ble Apex Court in the case of

Rangappa Vs Mohan reported in AIR 2010 SC 1898, it

is mandatory for the Courts to draw a presumption in

favour of the holder of the cheque in due course and the

burden shifts on the accused to rebut the said

presumption. Further, it is alleged that the presumption is

in respect of issuance of cheque regarding legally

enforceable debt. The accused was examined himself as

DW1 and in his examination-in-chief he stick on to the

defence that he availed loan of Rs.60,000/- from

Srishailappa and he has returned it, claiming that at the

time of availing the loan he had issued a blank cheque by

executing a bond, which clearly establish that the accused

was in need of the amount. There is no material evidence

placed to show that he has returned the said amount to

Srishailappa. However there is no evidence forthcoming as

to why he has issued blank cheque in favour of

Srishailappa. Very interestingly the accused has issued

reply to the legal notice issued by the complainant and the

reply notice is marked at Ex.P5. In reply notice, accused

has nowhere asserted that he has transacted with

Srishailappa and cheque was issued to Srishailappa. On

the contrary, he made allegations against the complainant

in his reply notice stating that the complainant has

committed theft of the cheque from the house of the

accused and filed false complaint. This relevant portion of

the reply notice marked at Ex.P5 on page No.2 reads as

under:

       "¤ªÀÄä      £ÉÆÃn¹£À         ¸ÀégÀÆ¥À      ¢.       £ÉUÆ
                                                              É Ã²AiÉÄÃ§¯ï

E£ï¸ÀÆÖçªÉÄAmï DåPïÖ PÁAiÉÄÝAiÀÄ PÀ®A 138 gÀ CrAiÀÄ°è ºÁUÀÆ ¨sÁgÀwÃAiÀÄ zÀAqÀ ¸ÀA»vÉ PÀ®A 420 gÀ CrAiÀÄ°è M¼ÀUÉÆ¼ÀÄîªÀ¢®è, ºÁUÀÆ ¸ÀªÄÀ xÀð¤ÃAiÀÄªÁUÀÄªÀÅ¢®è. ¤ªÀÄä ¥ÀPÀëUÁgÀ ºÁUÀÆ £ÀªÄÀ ä ¥ÀPëÀUÁgÀgÀ £ÀqÄÀ ªÉ AiÀiÁªÀÅzÉÃ ºÀtPÁ¹£À ªÀéªÀºÁgÀ £ÀqÉ¢gÀÄªÀ¢®è. £ÀªÄÀ ä ¥ÀPëÀUÁgÀ ºÁUÀÆ ¤ªÀÄä ¥ÀPÀëUÁgÀgÀ £ÀqÄÀ ªÉ ¸ÉßÃºÀªÅÀ 20-25 ªÀµÀð ¸ÉßÃºÀ,

¨ÁAzsÀªÀå, M¼ÉîAiÀÄ MqÀ£Ál ElÄÖPÆ É AqÀÄ §A¢zÀÄÝ EvÀÄÛ, ¸À£ï 2003 gÀ°è ¸ÀzÀjAiÀÄªÀjªÀðgÀ ¸ÉßÃºÀzÀ°è ªÀÄ£À:¸ÁÜ¥ÀªÁV CzÀgÀ ¸ÉÃqÀÄ wÃj¹PÉÆ¼Àî¨ÉÃPÉ£ÄÀ ßªÀ EgÁzÉ¬ÄAzÀ £ÀªÀÄä ¥ÀPÀëUÁgÀgÀÄ vÀªÀÄä ªÀÄ£ÉAiÀÄ §¼ÀPÉUÁV vÀªÄÀ ä SÁvÉ¬ÄgÀÄªÀ ¸À» ªÀiÁrzÀ SÁ° ZÉPï£ÀÄß £ÀªÄÀ ä ¥ÀPëÀUÁgÀgÀ ªÀÄ£É¬ÄAzÀ PÀ¼ÀÄªÀÅ ªÀiÁrPÉÆAqÀÄ 7 wAUÀ¼À £ÀAvÀgÀ F jÃw ºÉzÀj¹ ¨ÁèPÀªÉÄÃ¯ï ªÀiÁr ¨ÉÃPÁAiÉÄÝÃ²ÃgÀ ºÀt ªÀ¸Æ À ° ªÀiÁqÀÄªÀ vÀAvÀæªÀ£ÀÄß ¤ªÀÄä ¥ÀPÀëUÁgÀ §¼À¹gÀÄvÁÛgÉAzÀÄ ¸ÀàµÖÀªÁUÀÄvÀÛzÉ. 2003 jAzÀ ¤ªÀÄä ¥ÀPëÀUÁgÀgÀ AiÀiÁªÀÅzÉÃ jÃw¬ÄAzÀ ¸ÉßÃºÀ (ªÀ) ¸ÀA¥ÀPÀð ªÀUÉÊgÉ EgÀÄªÀÅ¢®è."

12. The accused has placed a specific defence in

his reply notice and in the evidence during the course of

cross-examination of the complainant he has set up a new

defence of issuing cheque to one Srishailappa. But that

defence was not set up while issuing the reply. In the

cross-examination, DW1 i.e. accused admitted his

signature on Ex.P1 as Ex.P1(a) and admittedly, accused is

working in the bank and he should be knowing the

consequences of issuing a blank cheque. He has also

admitted that the family of the complainant is financially

sound and admittedly, complainant was a director of KCC

Bank, which is an undisputed fact and he retired later. He

claims that from July 1993 to 2004 he has worked in

Canara Bank. He has also admitted that when the cheque

under Ex.P1 came for encashment, he was working in the

same bank and he received information that his cheque is

presented for encashment and he has admitted that he did

not issue any instructions for stop payment or he did not

give any notice to the complainant in this regard. This part

of cross-examination of DW1 on page No.4 in Para No.2

reads as under:

"2. dÄ¯ÉÊ 1993 jAzÀ 11.10.2004 gÀªÀgÉUÉ £Á£ÀÄ UÀzÀÄV£À PÉ£ÀgÁ ¨ÁåAQ£À°è PÉ®¸À ªÀiÁrzÉÝÃ£É. ¤¦-1 ZÉPÀÄÌ £ÀUÀ¢ÃPÀgÀtPÁÌV ¨ÁåAQUÉ §AzÁUÀ £Á£ÀÄ CzÉÃ ±ÁSÉAiÀÄ°è PÉ®¸À ªÀiÁqÀÄwÛzÉÝ J£ÀÄßªÀÅzÀÄ ¸Àj. D ZÉPÄÀ Ì £ÀUÀ¢ÃPÀgÀtPÁÌV §AzÁUÀ £ÀªÀÄä ¨ÁåAQ£À ªÀåªÀ¸ÁÜ¥ÀPÀgÄÀ F jÃw ZÉPÀÄÌ §A¢zÉ JAzÀÄ £À£ÀUÉ w½¹zÀÝgÀÄ. £ÁªÀÅ JA¥Áè¬Ä¸ï ZÉPï ¥ÀqÉAiÀÄ®Ä £ÀªÀÄä ªÉÄÃ¯Á¢üPÁjUÀ½AzÀ ¥ÀgÀªÁ¤UÉ ¥ÀqÉ¢gÀÄvÉÛÃªÉ. £Á£ÀÄ F ZÉPÀÄÌ ¤ÃrzÀ £ÀAvÀgÀ £ÀªÀÄä ¨ÁåAQ£À ±ÁSÉAiÀÄ°è F £ÀA§j£À ZÉPÀÄÌ £ÀUÀ¢ÃPÀgÀtPÉÌ §AzÀ°è £ÀU¢ÃPÀgÀtUÉÆ½¸À¨ÉÃr JAzÀÄ ¤zÉÃð±À£À ¤Ãr®è. ZÉPÄÀ Ì £ÀUÀ¢ÃPÀgÀtPÁÌV §AzÁUÀ £Á£ÀÄ

§¸À£ÀUËqÀæjUÉ ¤ªÉÆäA¢UÉ £Á£ÀÄ ªÀåªÀºÁgÀ ªÀiÁr®è ªÀÄvÀÄÛ ZÉPÀÌ£ÀÄß ¤Ãr®è JAzÀÄ DPÉëÃ¦¹ £ÉÆÃn¸ÀÄ ¤Ãr®è. £Á£ÀÄ ¤ÃrgÀÄªÀ £ÉÆÃn¸ÀÄ GvÀÛgÀzÀ°è §¸À£ÀUËqÀÄæ £À£Àß ªÀÄ£ÉUÉ §AzÀÄ ZÉPÀÌ£ÀÄß PÀ¼îÀvÀ£À ªÀiÁrPÉÆAqÀÄ ºÉÆÃVzÁÝgÉ JAzÀÄ §gÉ¬Ä¹®è , DzÀgÉ CzÀ£ÄÀ ß ºÀÄZÀÑªÀÄä£ÀªÀgÀ ªÀQÃ®gÀÄ §gÉ¢zÁÝgÉ.

13. It is also important to note here that he did not

lodge any complaint against the complainant for having

stolen the cheque as referred in his reply notice. He has

also admitted in further cross-examination in para No.3

that he has not taken any action against the counsel for

having issued notice without his instructions. He claims

that he has not issued any instructions to his counsel for

issuing reply notice regarding commission of theft by

complainant. But he claims that he has not initiated any

action. Hence, it is evident that the accused is taking

inconsistent stands. His defence in reply notice is

completely contrary. Further he claimed that he had

transacted with one Srishailappa and returned his amount

in presence of three witnesses i.e. Hazarathsab, Chandsab

Yeligar and Abdulsab Ole but they were not examined.

Hence, it is evident that the accused is taking false defence

and his defence establishes that he has not rebutted the

presumption available in favour of the complainant under

Section 139 of N. I. Act. The accused is a banker and when

the cheque came for encashment in his own bank, it was

brought to his notice and he has not issued any notice to

the complainant in this regard or issue instruction for stop

payment on the ground that the cheque was not issued for

legally enforceable debt. The conduct of the accused itself

establishes that the he is blowing hot and cold

simultaneously and his defence is not sufficient to rebut

the presumption and he has failed to rebut the

presumption on the basis of preponderance of

probabilities. The Trial Court has unnecessarily considered

the financial status of the complainant when it is not in

issue and has gone to the extent of complainant making

enquiry regarding need of the accused and the provisions

of Income Tax Act etc., which are not the defences of the

accused. Looking to these facts and circumstances, it is

evident that the Trial Court has completely misread the

evidence and misinterpreted the provisions of law and the

judgment of acquittal passed by the Trial Court is

erroneous and illegal and it is arbitrary as well as

capricious, which suffers from infirmities and it calls for

interference. The services rendered by the Amicus Curiae

in assisting the Court for hearing the matter are

appreciated. Hence, looking to these facts and

circumstances, I am compelled to answer the point under

consideration in the affirmative and proceed to pass the

following:

ORDER

The appeal is allowed.

The impugned judgment of acquittal dated 19.01.2011 in C.C.No.66/2005 passed by the Principal Senior Civil Judge and CJM, Gadag is hereby set aside and the accused is found guilty and he is convicted for the offence punishable under section 138 of the N. I. Act and sentenced to pay fine of Rs.2,00,000/-. In default to pay the fine amount, the accused

shall undergo simple imprisonment for a period of six months.

The fine amount shall be deposited before the Trial Court within a period of six weeks from today.

Out of the fine amount, Rs.1,75,000/- is ordered to be released in favour of the complainant as compensation and Rs.25,000/- is ordered to be credited to the State Account.

Send back the Trial Court Records to the Trial Court with copy of this order with a direction to Trial Court to secure the accused/respondent for serving sentence.