A Hanumanthaiah vs T N Ramesh
2022 Latest Caselaw 3403 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 28TH DAY OF FEBRUARY, 2022

                        BEFORE

   THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

             CRIMINAL APPEAL No.951/2011
BETWEEN:

A. HANUMANTHAIAH
S/O LATE ANDANAPPA
AGED ABOUT 57 YEARS
R/AT NO.32, 3RD MAIN
KAMAKSHIPALYA
BANGALORE-560 079
                                           ....APPELLANT

(BY SRI. N.SHIVA KUMAR, ADVOCATE)

AND:

T.N. RAMESH
S/O NIJAGUNAIAH, PROPRIETOR OF
M/S. ANANYA ENTERPRISES
NO.119, 5TH MAIN, 4TH CROSS
MULLAKATTAMMA, BADAVANE
NAGARBHAVI II STAGE
BANGALORE-560 086

ALSO RESIDING AT:
NO.001, BLOCK 'C'
MANTHRI GREEN APARTMENTS
SAMPIGE ROAD, MALLESHWARAM
BANGALORE-560 003
                                        .... RESPONDENT

(BY SRI. M.G. SATEESHA, ADVOCATE)
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      THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED
27.07.2011 PASSED BY THE XVI ADDL. C.M.M., BANGALORE
CITY     IN  C.C.NO.21754/2008    -   ACQUITTING   THE
RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF
N.I.ACT.

     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 22.02.2022, COMING ON FOR
'PRONOUNCEMENT JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:

                          JUDGMENT

This appeal is filed under Section 378(4) of Cr.P.C.

by the appellant/complainant herein challenging the

judgment of acquittal dated 27.07.2011 passed by the XVI

Additional Chief Metropolitan Magistrate, Bengaluru, in

C.C. No.21754/2008, whereby the learned Magistrate has

acquitted the accused/respondent herein for offence

punishable under Section 138 of N.I. Act.

2. For the sake of convenience, the parties shall

be referred with the original ranks occupied by them

before the trial Court.

3. The brief factual matrix leading to the case is as

under:-

The complainant and accused are well-acquainted

with each other. On 19.11.2007, the accused-T.N.

Ramesh has entered into a Memorandum of Understanding

with one Mr. S. Bose and Mr. Srihari as first parties. It is

further alleged that the said Memorandum of

Understanding was entered into by all the parties to settle

the existing dispute, which had arisen in respect of two

properties owned by Mr. Bose and Mr. Srihari and as per

the said Memorandum of Understanding, the matter was

settled amongst them including the accused herein. The

complainant further states that, for mediation and

settlement of the said transaction between the accused

and said owners of the disputed property, the accused had

agreed to pay a sum of Rs.5,00,000/- to the complainant

and accordingly, after completion of settlement of dispute

among the above parties, the accused has issued a cheque

in question in favour of complainant with a request to

present it for encashment during 2nd week of August,

2008. When the complainant has presented the said

cheque through his banker, the same was bounced for

'Insufficiency of Funds'. Thereafter, the complainant has

got issued legal notice under RPAD, which was returned

'as not claimed'. The notice issued under Certification of

Posting was served on the accused. But, he has not come

forward to make payment of the cheque amount and

complainant has filed a complaint under Section 200 of

Cr.P.C. alleging that the accused has committed an

offence under Section 138 of the NI Act.

4. After submission of the complaint, learned

Magistrate has taken cognizance of the offence alleged and

has also recorded sworn statement of the complainant. As

there were sufficient grounds to proceed against the

accused, he issued process against the accused and the

accused has appeared through his counsel and was

enlarged on bail. The accusation was read-over and

explained to him and he pleaded not guilty.

5. The complainant has got examined himself as

PW.1 and fifteen documents were marked as Ex.P1 to

Ex.P15. Then the statement of accused under Section 313

of Cr.P.C. was recorded to enable the accused to explain

incriminating evidence appearing against him in the case

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

However, he himself has got examined DW.1 and one

witness by name B.C. Shankar was examined as DW.2.

6. After having heard the arguments, the learned

Magistrate has come to a conclusion that the complainant

has failed to prove that the cheque came to be issued

towards legally enforceable debt and as such acquitted the

accused/respondent herein. Being aggrieved by this

judgment of acquittal, the complainant has filed this

appeal.

7. Heard arguments advanced by the learned

counsel for appellant and learned counsel for

respondents/accused. Perused the records.

8. Learned counsel for appellant would contend

that the judgment of acquittal is opposed to principles of

law and probabilities of the case. He would also contend

that the trial Court has failed to draw presumption in

favour of complainant under Section 139 of NI Act, when

the cheque and signature came to be admitted. He would

also contend that, admittedly there was a Memorandum

of Understanding between the parties on 19.11.2007,

which is evidenced by Ex.P16 (MOU) and the complainant

having settled the land dispute amongst the accused and

other two persons, is entitled for mediation fees of

Rs.5,00,000/- and as such, the accused has issued a

cheque towards settlement fees. He would contend that

the trial Court has failed to properly appreciate the oral

and documentary evidence and the judgment of acquittal

is perverse and calls for interference. As such, he would

seek for allowing the appeal by setting aside the impugned

judgment of acquittal and sought for convicting the

accused.

     9.      Per   contra,        learned         counsel     for

respondent/accused    would       support   the    judgment   of

acquittal.   He would contend that there           is no money

transaction between the accused and complainant, and

even on perusal of Ex.P16 (MOU), there is no reference

regarding payment of Rs.5,00,000/- to complainant, who

was 3rd party in the said agreement. He would also

contend that, there is no recital regarding the complainant

mediating the dispute and the cheque was issued only as

security towards Ex.P16 (MOU) and that has been

misused by the complainant. He would contend that the

case made-out by the complainant is not supported by

documentary evidence and when there is no material

evidence regarding existence of legally enforceable debt,

the presumption under Section 138 of NI Act stands

rebutted and hence, he would contend that the learned

Magistrate is justified in acquitting the accused. Hence, he

would seek for dismissal of the appeal.

10. Having heard the arguments advanced by the

learned counsels appearing on both sides, now the

following point would arise for my consideration:-

Whether the judgment of acquittal passed by the trial Court is perverse, capricious and arbitrary so as to call for any interference by this Court?

11. It is important to note here that the cheque

belongs to accused and the complainant is holder of the

cheque in due course. Hence, initial presumption is in

favour of the complainant under Section 139 of NI Act

regarding issuance of cheque towards legally enforceable

debt. However, the said presumption is not a conclusive

presumption, but it is a rebuttable presumption. It is for

the accused to rebut presumption by leading cogent

evidence and cross-examining the witnesses of

prosecution.

12. The complainant was examined as PW.1 and in

his examination-in-chief filed by way of an affidavit, he has

reiterated the averments made in the complaint. He has

mainly relied on Ex.P16 (MOU) dated 19.11.2007. During

cross-examination, PW.1 denied the suggestion that there

was no money transaction between him and accused. As

such, it is evident that the complainant has tried to make-

out a case of money transaction between himself and

accused. On perusal of recitals of the complaint, it is

evident that the complainant has specifically asserted that

there was some dispute in respect of landed property

between the accused and Mr.S.Bose as well as Sri. Srihari

and the complainant has mediated and settled the said

dispute between them. It is his further specific case that,

towards mediation charges, the accused has agreed to pay

Rs.5,00,000/- and he has issued a cheque in this regard.

As such, the contention of the complainant clearly

establish that he has extended his services to accused

towards settlement of the dispute under Ex.P16 (MOU)

and as a consideration to the said service, the accused

has issued the cheque in question.

13. On perusal of Ex.P16, there is absolutely no

mention regarding complainant mediating the dispute and

his fees are being fixed at Rs.5,00,000/- for extending the

services as Mediator. In Ex.P16, Mr. Bose and Mr. Srihari

are the parties to first part and accused is a party to the

second part, while complainant and one Mr. B.C. Shankar

are parties to the third part. Interestingly, the said Sri.

B.C. Shankar, who is a party in third part along with

complainant was examined on behalf of accused as DW.2.

As referred above in Ex.P16, there is no reference that,

accused has agreed to pay Rs.5,00,000/- to the

complainant as remuneration or commission or

consideration towards mediation charges. Further, the

complainant has not produced any material document to

show that in pursuance of Ex.P16, there was any

agreement between himself and accused. Ex.P16 only

disclose regarding agreement of payment of Rs.42 Lakhs

to Mr.S.Bose and Sri. Srihari. The appellant/accused is

the second party to first part and under Ex.P16 if any

obligations are not complied, it shall not have any effect

with a right to first party to initiate necessary legal steps.

Consideration Rs.42 Lakhs was in respect of re-

conveyance deed to be executed to the first party to

second party i.e, accused. When complainant has

specifically alleged that the cheque was issued in

pursuance of Ex.P16 as a commission or remuneration

towards mediation charges, he is required to substantiate

the said contention, as recitals of Ex.P16 do not disclose

this aspect. Further, it is also evident from the evidence

and admissions given by PW.1 that Ex.P16 (MOU) was not

materialized and in that view of the matter, question of

payment of mediation fees also does not arise at all.

14. The complainant has also tried to place reliance

on Ex.S1 (Xerox copy of Memorandum of Understanding).

But, it is important to note here that, accused is not a

party to Ex.S1 and it was the brother of accused, who was

a party to Ex.S1. Hence, no importance can be attached

to Ex.S1. Further, there is also no reference in Ex.S1 that

complainant has played any role in getting executed Ex.S1

in pursuance of non-materialisation of Ex.P16. Apart from

that, the so-called another third party to Ex.P16 Sri B.C.

Shankar was examined as DW.2 and he did not support

the case of the complainant and he has specifically

deposed that the cheque was issued as a security to the

complainant and there was no agreement regarding

payment of commission towards mediation charges. When

complainant has failed to establish that he has mediated

between the accused and the said Mr. S.Bose as well as

Mr. Srihari for resolving their dispute, he claiming

mediation charges does not arise at all. Further, as per

his own admission, Ex.P16 did not materialized and even

in Ex.P16 or in Ex.S1, there is no reference regarding the

complainant mediating the dispute between the parties

and there was any agreement for payment of

Rs.5,00,000/- to the complainant, as charges or

commission etc. The complainant has not produced a

piece of evidence to show that, apart from Ex.P16, there is

any other agreement regarding payment of commission or

mediation charges. His trump-card is Ex.P16. But, Ex.P16

is silent in this regard. Hence, it is evident that the

cheque (Ex.P1) under dispute was not at all issued

towards any legally enforceable debt. As such, the

accused has rebutted the presumption available in favour

of the complainant. The complainant has failed to

establish the ingredients of Section 138 of NI Act

regarding cheque under Ex.P1 being issued towards any

legally enforceable debt. The learned Magistrate has

considered all these aspects in detail and appreciated the

oral as well as documentary evidence in accordance with

law. Further, he has analyzed the question of law in

detail and arrived at a just decision and thereby acquitted

the accused. Hence, the judgment of the learned

Magistrate cannot be said to be erroneous or illegal so as

to call for interference by this Court.

15. Looking to these facts and circumstances of the

case, I am constrained to answer the point under

consideration in negative and proceed to pass the

following:-

ORDER

The appeal is dismissed. The judgment of acquittal dated 27.07.2011 passed by the trial Court viz., XVI Additional Chief Metropolitan Magistrate, Bengaluru, in C.C. No.21754/2008, stands confirmed.

Sd/-

JUDGE

KGR*