Smt Suneeta Sachin vs Sri M Ramesha Naik
2022 Latest Caselaw 5550 Kant

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      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 28TH DAY OF MARCH, 2022

                         BEFORE

          THE HON'BLE MR. JUSTICE K.NATARAJAN

              CRIMINAL APPEAL No.847/2015

BETWEEN

SMT SUNEETA SACHIN RACHANAIKAR
WIFE OF SRI SACHIN RACHANAIAKAR
AGED ABOUT 35 YEARS
RESIDING AT NO.8/1A, 4TH MAIN,
5TH STAGE,
NEAR PATTALAMMA TEMPLE,
VADDARAPALYA, BANASHANKARI
BENGALURU - 560 061.                  ... APPELLANT

(BY SRI B.C. VENKATESH, ADVOCATE)

AND

SRI M RAMESHA NAIK
SON OF LATE NAGAPPA NAIK
AGED ABOUT 55 YEARS,
RESIDING AT NO.106,
4TH CROSS, GAVIPURAM EXTENSION,
BANGALORE-560 019

ALSO AT ABC CONSULTANT
REAL ESTATE BUSINESS, NO.11,
S N COMPLEX,
UTTARADHIMATH ROAD,
BASAVANAGUDI,
BANGALORE-560 004.

ALSO AT NO.3/2,
I MAIN ROAD, MOUNT JOICE,
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NEXT TO SRI SHARDA NIKETHAN ASSOCIATION (REGD)
HANUMANTHANAGAR,
BANGALORE - 560 090.                  ... RESPONDENT

(BY SRI M RAMESHA NAIK, PARTY IN PERSON)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT DATED
19.05.2015 PASSED BY XXII ADDL.CMM, BANGALORE IN
C.C.NO.5067/2014 - ACQUITTING THE RESPONDENT/ACCUSED
FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I.
ACT.

     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 17.03.2022 THIS DAY, THE COURT
MADE THE FOLLOWING:

                         JUDGMENT

This appeal is filed by the appellant complainant

under Section 378(4) of Cr.P.C for setting aside the

judgment of acquittal passed by the 22nd ACMM Bangalore

in CC no. 5067/2014 dated 19.5.2015 for having acquitted

the respondent for the offence punishable under Section

138 of Negotiable Instruments Act, 1881 (herein referred

as NI Act).

2. Heard the arguments of learned counsel for the

appellant and respondent party-in-person.

3. The rank of the parties before the trial court is

retained for convenience.

4. The case of the appellant complainant is that

the accused approached the complainant for investing

money on a site which is said to have been formed by

BEML Co-operative society and the complainant agreed to

purchase the site. The complainant has paid Rs.8 lakhs as

hand loan by way of cheque No.495961 drawn on SBI and

the same has been encashed by this accused on 14.2.2012

with a promise to repay the same. As on 14.2.2012, the

accused approached the complainant and handed over

copy of the receipt for Rs.3,66,000/- and again

approached on 12.5.2012 requested to handover the

cheque for Rs.18 lakhs in the name of the accused so as to

process the allotment of site in the name of the

complainant. Accordingly, the complainant issued a

cheque for Rs.18 lakhs vide cheque no.495964 drawn on

SBI and also paid Rs.94,920/-by way of Demand Draft for

registration expenditure and further amount Rs.17,100/-

and Rs.2,07,000/- by cash towards the stamp duty and

incidental charges. The accused brought one Ravi Kumar

who is said to be secretary of said Society and got

registered sale deed in the name of the complainant

thereby the complainant came to know that the accused

committed fraud and the said Ravi Kumar and Naryan

Reddy were not the Chairman and Secretary of the

Society. Therefore, demanded back the money of

Rs.29,19,320/- from the accused. The accused for the

repayment of the same issued cheque bearing No.770889

for Rs.10 lakh, cheque No.777221 for Rs.9,19,000/-

another cheque No.770890 for Rs.10 lakhs dated

10.8.2012 all the cheques are drawn on Thyagaraj Co-

operative Bank Ltd. One cheque for Rs.10 lakh bearing

No.770889 has been encashed and on further demand by

the complainant, accused collected back cheque

No.770890 for Rs.10 lakh and paid amount of

Rs.4,50,000/- by cash and issued another cheque for Rs.4

lakh vide cheque no 833917 and paid Rs.1,50,000/- by

cash and another cheque 833917 of Rs.4 lakhs with an

assurance that the cheque will be honoured. The

complainant presented the cheque to her bank, the same

was returned with endorsement "Funds insufficient" vide

endorsement dated 6.12.2013. The accused has collected

Rs.14,69,000/- and issued the cheques which were

dishonoured. Therefore notice was issued which was duly

served on the accused and he has not replied. Hence,

complaint came to be filed against the respondent-

accused.

5. After appearance of the accused, plea was

recorded. He has denied the charges. The complainant

examined herself as PW1 and got marked 20 documents.

The accused statement was recorded under Section 313

Cr.P.C. He has denied the incriminating evidence against

him but not chosen to lead any defence evidence except

marking Exs.D1 and D2. After hearing the arguments the

trial Court found that the accused not guilty and acquitted

vide impugned judgment, which is under Challenge.

      6.     Learned      Counsel   for   the    appellant     has

contended    that   the   amount has      been    paid    by   the

complainant to accused through cheques and the accused

himself brought some person in the name of Secretary of

the BEML Employees' Co-operative Society and got

executed the sale deed in his favour and the said sale deed

has been returned to the accused. The accused undertook

to pay the money and accordingly, he had issued cheques

towards recoverable debt. Therefore, the observation of

the trial court that there is no legal recoverable debt, is not

correct and the same is liable to be set aside. Hence,

prayed for allowing the appeal.

7. Per contra, the respondent - party in person

has contended that Ganganna, one of his friends, brought

one Ravi Kumar and executed the sale deed in favour of

the complainant as Secretary of BEML Employees' Co-

operative Society and the amount was paid to the said

Ravi Kumar and Ganganna. The said Ganganna had also

given a cheque to the respondent which was dishonoured.

A complaint under Section 138 of NI Act filed in C.C.

No.9641/2013 was ended in conviction and the said

Ganganna was ordered by the magistrate to pay

Rs.1,19,50,000/-. The complainant has also filed a

complaint to the CCB police where the said Ganganna was

arrested and he was in judicial custody and the case is still

pending. Therefore, he has contended that there is no

amount payable by the respondent-accused to the

complainant and there is no liability for payment of any

debt by the respondent. Hence, prayed for dismissing the

appeal.

8. Having heard the arguments of learned

Counsel for the parties and perusal of the records, the

points that arise for consideration in this appeal are as

follows:

      (i)    Whether the cheque issued               by the
             respondent     for    discharging    his   debt,
             which was dishonoured, is legally an

enforceable debt, and thereby committed an offence under Section 138 of NI Act.

(ii) Whether the judgment of acquittal calls for any interference ?

9. On perusal of records, the complainant

examined herself as P.W.1 and got marked 20 documents.

Exs.P.1 to 3 are the cheques, Exs.P.4 to 6 are the

endorsements, Exs.P.7 to 9 are the bank challans, Ex.P.10

is legal notice, Ex.P.11 to 13 are postal receipts, Exs.P.14

to 16 are the postal acknowledgements, Ex.P.17 is account

statement, Ex.P.18 is the pass book, Ex.P.19 is FIR,

complaint with final report and Ex.P.20 is the copy of the

complaint.

10. The respondent, cross examining P.W.1, has

not entered witness box but got marked two documents

Exs.D.1 and 2 in the cross examination, which is nothing

but an admitted document. The clear case of the

appellant-complainant is that she entered into sale

agreement with the respondent-accused as the

respondent-accused offered to sell a site belongs to BEML

Society. Admittedly, the sale consideration has been

received by the respondent accused. However, the sale

deed was executed by one Ravi Kumar, who is said to be

the Secretary of the BEML Society. The respondent though

received money from the appellant-complainant through

cheques, but in turn, he has paid the same to one

Ganganna and the said Ravi Kumar. The sale deed was

duly executed before the Sub Registrar. The appellant also

paid miscellaneous expenditures including stamp duty.

The respondent was one of the witnesses to the sale deed.

That means, the sale consideration paid by the

complainant for purchasing the site was rooted through the

respondent and in fact, received by the said Ganganna

through Ravi Kumar who is executor of the sale deed. The

reference in this regard available in the sale deed is

produced by the parties before this Court, wherein it was

stated that the purchaser paid sale consideration to the

vendor, the BEML Co-operative society represented by its

Secretary, Ravi Kumar and it does not say that the said

amount has been paid to the accused and then transferred

to the vendor. However, it was an internal mutual

adjustment between the complainant and the respondent

for the purpose of purchasing the site. Subsequently, it

appears that the said Ravi Kumar is not the Secretary of

the BEML Society and he is falsely claiming himself as the

Secretary and also that, no such site is available.

Therefore, the complainant wants back the said sale

consideration. Therefore, the respondent who was the

middle man between Ravi Kumar and Ganganna in respect

of the said sale transaction, has undertaken to pay the sale

consideration and has issued a cheque. Issuance of

cheque, signature on the cheque and issuance of notice

are all not in dispute.

11. As regards the liability which is legally

recoverable from the respondent-accused in question, the

respondent-accused has taken the contention that he

came to know that the said Ravi Kumar is not the

Secretary of the Society and his friend Ganganna has

played fraud on him and therefore, he has filed a

complaint to the CCB police for cheating, which was

numbered as C.C. No.9641/2013. The said Ganganna also

issued some cheques to the respondent-accused which

also came to be dishonoured. The respondent filed

complaint against him under Section 200 of Cr.P.C. read

with Section 138 of N.I. Act. The said case in C.C.

No.9641/2013 was ended in conviction and there was a

direction to the said Ganganna to pay Rs.1,19,50,000/- to

this respondent as the said Ganganna undertaken to repay

the amount and he is said to be in jail on the complaint

filed by the respondent before the CCB police.

12. During cross examination, the respondent got

marked documents as per Exs.D1 and 2, which reveal the

complaint filed by the complainant against respondent for

having purchased the site and payment made by her for

the purpose of purchasing the site. The said complaint

was filed by her to Rajarajeswarinagar police on

24.12.2015. Subsequently, there was an irrevocable

agreement entered into between the respondent and the

complainant in respect of the same site and the second

party the respondent accused herein authorized the first

party the appellant herein to prosecute and defend the

lawful action, suits and claims, and to refer the matter to

the arbitration. Condition No.3 of the agreement reveals

that the first party in the complaint received

Rs.29,19,000/- as full and final settlement from the

respondent by way of three cheques for Rs.10.00 lakhs

each and Rs.9,19,000/- and the complainant deposited the

original title deeds to the respondent accused. This

document clearly shows that the respondent issued the

cheques for discharging his liability for having received the

amount in respect of site which was sold in the name of

the complainant, even though the vendor has no title and

it was a fraudulent sale deed. The trial Court has

committed an error in accepting the contention of the

respondent that, if any dispute arises, the matter should

be referred to the arbitrator. Condition No.2 of the

agreement authorizes only suit etc. and condition No.3

states terms for having paid money to the complainant by

the respondent through cheques. The trial Court has

misconceived the fact and the agreement entered into

between the parties where the respondent has agreed to

pay Rs.29.00 lakhs by way of settlement under irrevocable

agreement as per Ex.D.2.

13. Apart from that, the respondent has already

received cheques from Ganganna which were dishonoured,

and therefore, he filed a complaint under Section 138 of

the Act and the said case was ended in conviction. The

judgment in the said case is produced by the respondent

party-in-person, which is registered as C.C. No.9641/2013,

wherein the Magistrate has directed Ganganna to pay

Rs.1,19,50,000/- as compensation to the complainant

therein i.e. the respondent herein. In the said judgment,

it is clearly revealed that the cheque was issued by the

said Ganganna for having received money from the

respondent for the purpose of executing the sale deed in

favour of the complainant Sunitha and others. The

respondent himself has stated in his complaint about

execution of sale deed in the name of the complainant in

respect of site No.81, and after the settlement, the

accused received cheques for Rs.90,74,240/- and he was

succeeded in getting conviction against Ganganna and he

is entitled to receive Rs.1,19,50,000/-. In other words,

the amount received by the respondent from the

complainant which was given to Ganganna, subsequently,

he has received back the said amount by filing a complaint

under Section 138 of Act, thereby it is the respondent

accused has to discharge his debt payable to the

complainant towards three cheques which were paid by

him through Ex.D.2 the irrevocable agreement.

14. It is also an admitted fact that the respondent

also filed a criminal case against Ganganna and others for

having received money and for cheating so many people in

the name of BEML Housing Society. Such being the case,

the complainant discharged the initial burden of proving

the debt or liability payable by the respondent in respect of

the sale transaction and in view of the agreement Ex.D.2,

the respondent given three cheques and one of the

cheques was honoured and Rs.10.00 lakhs has been

encashed by the complainant and another cheque for

Rs.10.00 lakhs, he has taken back by paying cash of

Rs.4,50,000/- and issued other two cheques for

Rs.1,50,000/- and Rs.4.00 lakhs, which were dishonoured

along with the cheque for Rs.9,19,000/-, totally

Rs.14,69,000/-, those three cheques were dishonoured.

Once the accused made part payment towards his

discharge of liability and he cannot deny the remaining

payment of Rs.14,69,000/- for having issued three

cheques. Therefore, I hold that the respondent has failed

to rebut the presumption available in favour of the

complainant and the trial Court under misconception of

fact and the wrong conclusion, has acquitted the

respondent on the ground that it is a civil dispute and they

have to approach the arbitrator and thereby, the findings

of the trial Court regarding acquitting the respondent

requires to be interfered with.

15. Accordingly, the appeal is allowed. The

judgment of acquittal passed by the trial Court in C.C

No.506/2014 dated 19.05.2015 is hereby set aside.

The respondent-accused is found guilty and

convicted for the offence punishable under Section 138 of

the Act. The respondent is sentenced to pay fine of

Rs.16.00 lakhs and in default of payment of fine, he shall

undergo simple imprisonment for one year.

Out of the fine amount, Rs.15,75,000/- is ordered to

be given to the complainant as compensation under

Section 357 of Cr.P.C. and remaining amount shall be paid

to the State Exchequer.

Office is directed to send back the trial Court records

immediately and copy of this judgment to the trial Court

for taking further action.

Sd/-

JUDGE

akv/CS