Shri.Shashidhar S/O ... vs Shri.Mallappa S/O Tamanappa ...
2022 Latest Caselaw 1836 Kant

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             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

        DATED THIS THE 07TH DAY OF FEBRUARY, 2022

                          BEFORE

         THE HON'BLE MR. JUSTICE M.NAGAPRASANNA

             CRIMINAL APPEAL NO.100292 OF 2015

BETWEEN:

SHRI SHASHID
S/O SHIVSHARNAPPA MALIPATIL
AGE: 38 YEARS
OCC.: LEGAL OFFICER SRIRAM CHITS (K)
PVT. LTD., BAGALKOT
R/O BASV NILAY,
NEAR RURAL POLICE STATION
LAXMI NAGAR, BAGALKOT
TQ. & DIST.: BAGALKOT.
                                                 ... APPELLANT
(BY SRI N.L.BATAKURKI, ADVOCATE)

AND:

SHRI MALLAPPA
S/O TAMMANNAPPA GANIGER
AGE: 50 YEARS
OCC.: BUSINESS
C/O GIRISH MEDICALS, MUDALAGI
TQ.: GOKAK, DIST.:BELGAVI.
                                              ... RESPONDENT

(BY SRI G.B.NAIK & SRI P.G.NAIK, ADVOCATES)


     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF
CR.P.C., PRAYING TO ADMIT THE APPEAL AND CALL FOR THE
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RECORDS FROM COURT BELOW AND SET ASIDE THE JUDGMENT
PASSED BY ADDL. CIVIL JUDGE & JMFC, BAGALKOT IN CC
NO.288/2010 DTD.17.10.2015 AND CONVICT THE ACCUSED /
RESPONDENT HEREIN FOR THE O/U/S.138 OF NEGOTIABLE
INSTRUMENTS ACT.


     THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                              JUDGMENT

The appellant is before this Court calling in question the

judgment and order passed by the Additional Civil Judge & JMFC,

Bagalkot in Criminal Case No.288 of 2010 dated 17th October, 2015

by which, the trial Court has acquitted the respondent of the offences

punishable under Section 138 of the Negotiable Instruments Act,

1881 ('the Act' for short).

2. Heard Sri.N.L.Batakurki, learned counsel appearing for

appellant and Sriyuths.G.B.Naik and P.G.Naik, learned counsel

appearing for respondent.

3. Brief facts leading to the filing of the present appeal, as borne

out from the pleadings, are as follows:-

For the sake of convenience the description of parties will be

referred to as obtaining in the trial Court. The complainant and

accused are close relatives. Following such acquaintance, the accused

appears to have approached the complainant and requested him to

advance a hand loan of Rs.2,50,000/- for his family necessities. The

complainant appears to have advanced the loan of Rs.2,50,000/- to

the accused. It is the case of the complainant that since he was a

close relative of the accused, he did not insist on execution of any

agreement on the ground that he would pay back the amount within a

short span of time. The complainant claims to have made repeated

requests and demands but the accused did not pay back the amount.

4. On 01-05-2009 the accused issued a cheque bearing

No.008057 for a sum of Rs.2,50,000/- drawn on Mudalagi Co-

operative Bank Limited in order to discharge the liability. When the

cheque was presented on 08-05-2009 it was returned with an

endorsement 'payment stopped by the drawer'. After receipt of the

endorsement, a statutory notice was caused upon the accused and

later, proceedings were instituted by registration of a complaint under

Section 200 of the Cr.P.C. for offence punishable under Section 138 of

the Act. The complainant in order to prove his case marked about 5

documents as Exs.P1 to P5 and examined himself as PW-1. On the

other hand, the accused marked documents as Exs.D1 to D12 and

examined himself as DW-1. Based upon the documents produced

and evidence let in, the trial Court by its judgment dated 17th October

2015, acquitted the accused of the offence punishable under Section

138 of the Act. It is this order that is called in question in the subject

appeal.

5. The learned counsel appearing for the appellant/complainant

would submit that the very act of the accused issuing the cheque is

proof enough to show that it was a legally enforceable and

dischargeable debt.

6. On the other hand, the learned counsel representing the

respondent/accused would support the judgment passed by the trial

Court acquitting the respondent on the ground that it was not a

legally enforceable debt and there was no occasion for the accused to

have borrowed the money or given a cheque towards that amount.

7. I have given my anxious consideration to the submissions

made by the respective learned counsel appearing for the parties and

perused the material on record.

8. The afore-narrated facts are not in dispute and are, therefore,

not reiterated. The reason for issuance of cheque is what is to be

noticed in the case at hand. The accused got himself examined as

DW-1 and deposed that he has not borrowed any loan from the

complainant and there was no need for him to borrow any amount.

On the documents side, the accused produced Exs.D1 and D2 which

would show that he was a landlord owning lands. Ex.D3 to D6

demonstrates that he has supplied sugarcane to Godavari

Biorefineries for an amount of Rs.1,45,000/- and likewise he has

produced several receipts of sugarcane trade. Therefore, on a perusal

of the said documents what could be unmistakably gathered is that

the accused himself between 2007 and 2010 had sufficient funds in

his bank account and there was no occasion for him to borrow any

loan much less in a sum of Rs.2,50,000/- from the complainant. All

this evidence that was produced before the trial Court has gone un-

rebutted.

9. The trial Court, by considering all the documents that were

produced has rendered cogent reasons to reject the claim of the

complainant that the cheque was issued on 01-05-2009 by the

accused against a legally dischargeable debt, notwithstanding the fact

that the accused had admitted his signature in Ex.P1. But, the

presumption under the Act being rebuttable, it has been duly

rebutted by the accused before the trial Court, against which, there is

no evidence produced by the complainant.

10. It is germane to notice the following reasoning rendered by

the trial Court, which is in my considered view, is cogent for having

passed the order of acquittal.

"22. On perusal of the averments made in the complaint, it has been stated that "On the assurance given by the accused that accused will pay the hand loan amount within span of period. But in spite of repeated request and demands made by the complainant, the accused has postponed to make repayment of said hand loan on 1.5.2009 he has issued a cheque.

23. Further it is important to note that as per the complaint averments accused has issued the cheque in question on 1-5-2009 and not prior to that, and further during he course of cross examination of DW1 also the advocate for the complainant has suggested that the cheque in question was issued on 1-5-2009 there by it is the specific case of the complainant that the Exp1 was issued on 1-5-2009. But during the course of cross examination the Pw1 he has deposed that accused has issued the cheque to him on 25-4-2008 that is on the same day on which the alleged loan was advanced. There is a contradiction in the evidence of the PW1 with respect to the date of issuance of cheque in question. This creates the doubt in the mind of this court with respect to the transaction as stated by the complainant. ]

24. Accused got examined himself as D.W.1. He in his examination-in-chief has deposed that he has not borrowed any loan from the complainant and there is no occasion for the accused person to borrow loan from the complainant because of the reason that he is having sufficient income from his business and as well as from the agriculture lands. There by the question of executing cheques in favour of the complainant will not arise at all. He in his examination -in-chief he has stated that his brother Kallappa was the elder son of the family and he is looking after the business and as well as the management of the family. He is running a medical shop at Mudalagi and one Ramappa who is brother of the accused person was also looking after the business of the medical shop. Whenever the accused person goes out of the medical shop for some other business either for agriculture purpose or other purpose, he used to keep the cheques signed by him so that the business of the medical shop should run smoothly. Recently i.e., at the time of alleged transaction there was misunderstanding between Ramappa and Kallappa and at that time the said Ramappa has taken the cheques from the medial shop and in turn after verifying the documents in medical shop, they noticed that these cheques were stolen by said Ramappa. As he noticed that cheques were stolen he has issued a letter to the Branch Manager of Mudalagi co-operative bank to stop the payment with respect to the cheque which is marked as Exp1. The said instruction is marked as Ex.D7. The said Ramappa who is close relative of the complainant and he, by colluding with each other he has given cheque to them and filed this case through them. The fact came to the notice of the accused when they received statutory notice form the complainant. Hence, he sought to dismiss the case of the complainant on the ground that there was no transaction between the complainant and the accused and he ha snot at all executed any cheques in favour of the complainant in order to discharge the liability and it has also been stated that there is no occasion for him in order to raise loan from the complainant as he is having sufficient income.

25. During the course of cross-examination of D.W.1, the advocate for complainant has suggested that on 25.4.2008 this accused and his brothers has obtained loan of Rs.2,50,000/- each, this accused has obtained loan of Rs.2,50,000/- from this complainant and the brothers of the accused Kallappa has obtained loan of Rs.2,50,000/- from one sadananda Turmandi and another brother Girish has obtained Rs.2,50,000/- from one Rajashekhar. As per captioned suggestion it is their case that on 25.4.2008 the loan was obtained by all the accused brothers. Similarly all the complainant brothers has filed totally six cases against the accused brothers and it is there case that in the month of April 2008 an amount of Rs.2.50,000- 00 has been availed by the accused brothers and in the month of October 2008 Rs.128000 has been obtained by the accused brothers.

26. This version of the complainant that all the three accused brothers on both occasion that is on April 2008 and on October 2008 all of them at a time they have approached the complainant and his brothers and all of them have borrowed the same amount of loan that is Rs.2,50,000 and 1,28,000-00 and the entire loan amount was advanced by the complainant brothers on the same day and at a time that to without obtaining the any security this version of the complainant cannot be believed as it is against the real probabalities.

27. During the course of cross examination of the accused the advocate for the complainant has suggested that at the time of availing the loan the complainant has insisted the accused to execute bond for the purpose of security. On careful perusal of the suggestion made by the advocate for the complainant that at the time of advancing loan, the complainant has insisted the accused person to execute the loan document in his favour, but he has not executed the said loan document. Now on perusal of the averments made in the complaint it is contrary to the suggestion made by the advocate for the complainant in the

cross-examination. On perusal of the complaint, it has been stated that "Accused being close relative of the complainant, had not insisted the accused to execute the hand loan document, the another was given on good faith between the complainant and the accused." The averments, made in the complaint and as well as the suggestion made during the course of cross-examination of D.W.1 are contrary to each other. At one stretch it has been stated that they have not insisted the accused to execute loan document. On the other hand it has been submitted that they have insisted to execute loan document. There is totally contradictions in the version of the complainant.

28. The accused in order to show that he is having sufficient income he has produced Ex.D1 to D2. On perusal of the said documents it can be seen that he is having lands and further in order to prove that he is having sufficient income from agriculture lands he has produced Ex.D3 to D6. On perusal of Ex.D3 it shows that he supplied sugarcane to Godavari Biorefineries Ltd in the year 2008 and from the said supply he has got Rs 145982. Similarly on perusal of Ex D5 it can be seen that he has supplied sugarcane to the above said company and from which he has received Rs14292. When the accused is having sufficient income there was no necessary for him to borrow the loan during 2008.

29. On perusal of all these documents it is clear that there was no transaction between the accused and the complainant in 2008 and the accused has not issued cheque in favour of the complainant in order to discharge the loan amount and more over the accused has rebutted the presumption drawn in favour of the complainant.

30. Even though the accused has admitted the signature on the cheque Ex.P1, but he has rebutted the

presumption drawn under section 139 of N.I.Act and he has proved that there was no debt which is illegally enforceable in between him and the complainant.

31. The advocate for complainant has relied upon case reported in 2015 CCC 156 in a case between Gurpadaswamy Vs.M.Partha and in this case it was held that Presumption mandated by Section 139 of the Act does indeed include existence of legally enforceable debt or liability-Presumption was however a rebut table - On perusal of the said case it is true that the presumption U/sec.139 is helpful to the complainant. However, the said presumption is rebuttable presumption. Here in the instant case the accused has rebutted the existence of legally enforceable debt."

Therefore, I do not find any error in the sound reasoning rendered by

the trial Court to interfere with the order of acquittal.

The Appeal lacks merit and is dismissed.

Sd/-

JUDGE bkp