Karnataka High Court
Ahammadraja Khan vs M Aayubkhan Rajvi on 31 May, 2022
Bench: Mohammad Nawaz
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF MAY, 2022
BEFORE
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO.457 OF 2018
BETWEEN
AHAMMADRAJA KHAN,
S/O. LATE AMMERJANSAB,
AGED ABOUT 35 YEARS,
TRANSPORT BUSINESS,
R/O. DOOR NO.503/6,
NEAR CHALTI PAILWAN AUTO STAND,
CHAMARAJAPETE,
DAVANAGERE - 577 002. ... APPELLANT
[BY SRI. M.V. HIREMATH, ADVOCATE]
AND
M. AAYUBKHAN RAJVI,
S/O. MAHAMMUDKHAN,
AGED ABOUT 53 YEARS,
TRANSPORT BUSINESS AND
OWNER OF GOODS LORRY VEHICLE,
1ST FLOOR, DOOR NO.188,
ON ALI PROVISION STORE,
2ND MAIN, 13TH CROSS, AZAADNAGAR,
DAVANGERE - 577 001. ... RESPONDENT
[BY SRI. HAREESH BHANDARY T., ADVOCATE]
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
DATED 16.02.2018 PASSED BY THE COURT OF THE JUDICIAL
MAGISTRATE FIRST CLASS, III COURT, DAVANAGERE, IN
C.C.NO.277/2017 FOR THE OFFENCE PUNISHABLE UDNER
SECTION 138 OF N.I. ACT AND CONVICT THE RESPONDENT AND
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PASS SUCH OTHER ORDER/RELIEF AS THIS HON'BLE COURT DEEM
FIT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE AND
ALLOW THE APPEAL IN THE INTEREST OF JUSTICE AND EQUITY.
THIS CRIMINAL APPEAL COMING ON FOR ADMISSION,
THROUGH VIDEO CONFERENCE/PHYSICAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the complainant against
the judgment of acquittal passed by the trial Court in
respect of an offence punishable under Section 138 of
N.I. Act.
2. Heard both sides and perused the materials
on record.
3. It is the case of the complainant that the
accused is well known to him since many years as there
was business transactions between them. On
31.12.2016 for his business purpose, the accused
obtained a loan of Rs.2,50,000/- from the complainant
agreeing to repay the same within one and half month.
After the said period when the complainant demanded
the amount back, the accused issued a cheque bearing
No.844560 dated 30.03.2017 drawn on UCO Bank,
Davanagere for a sum of Rs.2,50,000/- towards
repayment of the loan. When the said cheque was
presented for collection through his banker, Syndicate
Bank, Chamrajpet Branch, Davanagere for encashment,
the same was returned on 03.04.2017 with an
endorsement "funds insufficient" in the account of the
accused. Thereafter, the complainant got issued a legal
notice dated 24.04.2017 and inspite of due service of the
said notice on the accused, he failed to make the
payment and therefore committed offence punishable
under Sections 138 and 142 of N.I. Act.
4.The specific defence taken by the accused was
that in respect of a vehicle bearing Registration No.AP-
29-TB-1575, the complainant executed a General Power
of Attorney on 14.06.2016 in favour of the accused and
at that time he received two blank signed cheques and
blank stamp paper as security. Subsequently, as per the
terms of the GPA, the vehicle was re-surrendered to the
complainant in the month of January 2017. However,
the complainant retained the cheques which were taken
as security and informed the accused that the cheques
were misplaced. Later, one of the cheque was misused
by making a false claim.
5. The learned counsel for appellant has
contended that the accused has admitted his signature in
the cheque and the cheque also belongs to him and
therefore there is a legal presumption available in favour
of the complainant by virtue of Sections 118 and 139 of
the N.I. Act. He contends that the complainant by
marking the statements of his bank account as per Ex.P8
has been able to show the source of income. He
contends that on the relevant date i.e. 31.12.2016 there
was a transaction withdrawing a sum of Rs.2,01,000/-
from his account and therefore contends that the
complainant has established the initial burden and the
accused has failed to rebut the presumption. He submits
that the trial Court on a wrong appraisal of the material
on record has erroneously acquitted the accused.
Therefore, seeks to allow the appeal.
6. Learned counsel for the accused on the other
hand has contended that the complainant has
suppressed the material facts of the delivery of the
vehicle to the accused and in the cross-examination he
has not denied the execution of Ex.D1 i.e. the Power of
Attorney executed by him. Further submits that as per
Ex.P9 which is got marked by the complainant himself, a
sum of Rs.1,30,000/- was received by the complainant
and the balance was Rs.45,000/-. He therefore contends
that the amount mentioned in the cheque is nowhere
concerned with any loan taken by the accused and it is a
false claim made by the complainant, which has been
properly appreciated by the trial Court and after giving
reasons, the complaint was dismissed by the trial Court.
He therefore seeks to dismiss the appeal.
7. Ex.D1 is a General Power of Attorney which is
marked through PW.1. The said GPA was executed by
the complainant in favour of accused with regard to a
lorry bearing Registration No.AP-29-TB-1575. As per
Ex.P9 which is dated 14.06.2016, the said vehicle was
received by the accused and at that time the
complainant is said to have received a sum of
Rs.1,30,000/- and there was a balance of Rs.45,000/-,
which was agreed to be paid within 15 to 20 days.
Ex.P10 is the delivery note dated 01.06.2016, in which
the accused confirmed of having taken the delivery of
the vehicle after paying the part payment amount of
Rs.1,30,000/- stating that the balance is Rs.45,000/-.
8. The case of the complainant is that for
business purpose, the accused received a sum of
Rs.2,50,000/- from the complainant on 13.12.2016.
Admittedly, there is no document executed on the said
date. The amount mentioned in Ex.P8 i.e., the
statement of accounts, on the relevant date does not
show that the said amount was paid to the accused. On
the other hand, it is seen that a sum of Rs.2,01,000/-
was transferred to one Bhavani Enterprises. According
to the complainant the cheque dated 30.03.2017 for a
sum of Rs.2,50,000/- was issued by the accused after
one and half month from the date of lending the loan.
The accused has specifically denied of having issued any
cheque for the said sum. He has specifically stated that
two blank signed cheques were issued to the
complainant, when the vehicle bearing registration
No.AP-29-TB-1575 was leased in his favour by the
complainant. The complaint is silent about the
transaction which has taken place in respect of the
vehicle. However, complainant has admitted in his
evidence about the GPA which is marked as Ex.D1 dated
14.06.2016.
9. According to the complainant, the accused
issued the cheque for a sum of Rs.2,50,000/-. The trial
Court has noticed the difference in the inks used to write
the cheque and the signature of the accused. Hence, the
defence of the accused that blank signed cheque was
received by the complainant at the time of delivery of
the vehicle looks probable. The trial Court has also
observed that the version of the complainant with regard
to advancing a huge sum of money to the accused
without taking any document or any proof or evidence is
not believable. The trial Court has come to the
conclusion that the defence of the accused that the
alleged cheque Ex.P1, was given to the complainant as a
security towards the GPA executed by him in respect of
his transport vehicle appears more probable than the
version of the complainant that the cheque was issued
by the accused towards discharge of hand loan of
Rs.2,50,000/-. After giving reasons the trial Court has
held that the complainant has failed to establish by
cogent and convincing evidence, the fact of issuance of
the cheque for discharge of legally enforceable debt.
10. The findings recorded by the trial Court
cannot be said to be either perverse or illegal. The
accused has been able to discharge his liability by
rebutting the presumption available in favour of the
complainant. Therefore, the appeal fails and accordingly
dismissed.
Sd/-
JUDGE
HB/-
