Sri M C Puttegowda vs Sri M C Krishnappa
2023 Latest Caselaw 5270 Kant

                          1               Crl.A.No.40/2011



   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 04TH DAY OF AUGUST, 2023

                       BEFORE

           THE HON'BLE MS.JUSTICE J.M.KHAZI

           CRIMINAL APPEAL NO.40 OF 2011

BETWEEN:

SRI. M.C. PUTTEGOWDA
S/O. LATE NEELAGIRI CHENNEGOWDA,
AGED ABOUT 58 YEARS,
RESIDENT OF NO.79/1, 2ND FLOOR,
JOGUPALYA MAIN ROAD,
ULSOOR,
BENGALURU - 560 008.
                                           ...APPELLANT
(BY SRI. A. LOURDU MARIYAPPA, ADVOCATE)

AND:

SRI. M.C. KRISHNAPPA,
S/O. LATE NEELAGIRI CHENNEGOWDA,
AGED ABOUT 57 YEARS,
RESIDING AT NO.208, NAGARBHAVI
II STAGE, 12TH BLOCK,
BENGALURU - 560 002.
                                      .....RESPONDENT
(BY SRI. A.S.MAHADEVA SWAMY AND
    SRI. S.ANIL KUMAR, ADVOCATES)

    THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF CODE OF CRIMINAL PROCEDURE PRAYING TO SETTING
ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED
26.11.2010 PASSED BY THE HON'BLE XXII-ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE AND XXIV ADDITIONAL
SMALL CAUSES JUDGE, BENGALORE IN C.C.NO.24936/2007
ACQUITTING THE ACCUSED PERSONS FOR THE OFFENCE
PUNISHABLE UNDER SECTION 138 OF THE NEGOTIABLE
INSTRUMENTS     ACT   AND    CONVICT   THE   ACCUSED/
                                  2                 Crl.A.No.40/2011



RESPONDENT UNDER SECTION 138 OF THE NEGOTIABLE
INSTRUMENTS ACT OR BE PLEASED TO REMAND THE MATTER
TO THE TRIAL COURT IN THE INTEREST OF JUSTICE AND
EQUITY.

     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED    ON    14.06.2023, COMING   ON   FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:

                       JUDGMENT

This appeal is by complainant challenging the

acquittal of respondent/accused for the offence

punishable under Section 138 of Negotiable Instrument

Act (for short, 'N.I. Act').

2. For the sake of convenience, the parties are

referred to by their rank before the trial Court.

3. It is the case of the complainant that he and

accused are real brothers. For his legal necessity,

accused borrowed a sum of Rs.15,21,250/- and towards

repayment of the same issued cheque for a sum of

Rs.15,21,250/-. When complainant presented it for

realization, it was dishonored for want of sufficient funds

in his account. Complainant got issued a legal notice and

it is duly served on the accused. However, he has sent an

evasive reply and hence the complaint.

4. After due service of summons, accused has

appeared and contested the matter. He pleaded not

guilty and claimed trial.

5. In support of his case, complainant examined

himself as PW1 and got marked Exs.P1 to 8.

6. During the course of his statement U/sec.313

Cr.P.C. accused has denied the incriminating evidence.

7. Infact, accused has examined himself as DW1,

the Manager of State Bank of Mysore on which the

cheque in question was drawn as DW2. He relied upon

Exs.D1 to 11.

8. Vide the impugned judgment and order, the

trial Court dismissed the complaint.

9. Being aggrieved by the same, complainant

has come up with this appeal contending that the

impugned judgment and order is illegal, perverse,

capricious and as such, liable to be set aside. The trial

Court has failed to appreciate the oral and documentary

evidence placed on record and come to a wrong

conclusion that the charge leveled against the accused is

not proved. The trial Court has wrongly placed the

burden on the complainant despite presumption

U/section 118 and 139 of N.I. Act. Though the

complainant has filed detailed objections, the trial Court

has erred in accepting the report of the handwriting

expert and failed to provide opportunity to the

complainant to subject the handwriting expert to cross-

examination. The trial Court has erred in holding that

there is insertions in the cheque. It has also erred in

holding that the complainant had no financial capacity to

lend Rs.15,21,250/-. Though the accused has failed to

rebut the presumption U/sec. 139 of N.I. Act, the trial

Court has erred in accepting his defence and acquitting

the accused.

10. Heard arguments of both sides and perused

the record.

11. Thus, complainant prosecuted the accused on

the allegations that he borrowed hand loan of

Rs.15,21,250/- for his legal necessity and issued the

subject cheque towards repayment of the same.

However, it was dishonored for want of sufficient funds in

his account and after issuing statutory notice and getting

an evasive reply, he has filed the complaint.

12. Though accused admit his relationship with

the complainant and that the subject cheque belongs to

him drawn on his account maintained with his banker, he

has disputed that he borrowed hand loan of

Rs.15,21,250/- from the complainant and issued the

subject cheque towards repayment of the same. He has

taken up a specific defence that during February, 2000

when his relationship with complainant was cordial, he

was in need of Rs.52,250/- and towards payment of

same, complainant issued him a cheque for Rs.52,250/-

and in turn, he i.e. accused issued the subject cheque

specifying the amount Rs.52,250/- in figure leaving

remaining entries blank. However, accused did not

encash the cheque issued by complainant as he was able

to get the money elsewhere and by misusing the subject

cheque which he had issued to the complainant and

adding numerical '1' before '5' and in between '2',

complainant has made the cheque for Rs.15,21,250/-

and presented it to the bank.

13. The accused has also taken up a defence that

he had issued stop payment instruction to the bank on

14.06.2002 itself and despite the same, complainant has

managed to get a false endorsement from the bank that

the subject cheque was dishonored for insufficient funds

instead of 'stop payment instructions'. The accused has

also contended that on 05.11.2003, he got converted his

individual account into joint account with his wife and the

cheques subsequent to the said date are required to be

signed by both himself and his wife. Despite the same,

the bank has illegally dishonored the cheque on the

ground of insufficient funds instead of stop payment

instructions as well as for cheque not bearing the joint

signature of his wife.

14. Accepting the defence of the accused, the trial

Court has dismissed the complaint, also on the ground

that the complainant has failed to prove the legal

necessity of the accused and also his financial capacity to

advance huge sum of Rs.15,21,250/-.

15. At the outset, it is relevant to note that

complainant and accused are real brothers. Both of them

were employees of NGEF Factory. A partition suit was

pending between them. Since the accused admit that

cheque in question belongs to him drawn on his account

maintained with the banker, presumption under Section

118 and 139 of NI Act is attracted to the effect that

cheque in question was issued towards repayment of

legally recoverable debt or liability. Consequently, the

burden shifts on the accused to prove that cheque was

not issued towards repayment of any debt or liability and

to establishes the circumstance in which the cheque it

reached the hands of the complainant.

16. To discharge this burden the accused has

entered the witness box and reiterated the defence taken

by him. It is pertinent to note that accused has produced

the original blank cheque issued by complainant for sum

of Rs.52,250/- drawn on his account. Infact during his

cross examination at page No.3, complainant has

admitted that he has issued the said blank cheque to the

accused and it is marked as Ex.D.1. However during the

examination in chief of D.W.1 accused, instead of

marking the documents from Ex.D.2 onwards, once again

the documents are marked Ex.D.1 onwards. Thus two

documents have marked as Ex.D.1 i.e. deposition of

complainant given before the Civil Court in suit filed for

partition and the blank cheque issued by complainant for

sum of Rs.52,250/-.

17. The amounts specified in Ex.D.1 cheque

issued by the complainant to the accused match the

amount claimed by the accused for which he had issued

Ex.P.2-cheque to the complainant. The complainant is

not having any explanation as to why he issued Ex.D.1

cheque to the accused. The issue of Ex.D.1 cheque by

the complainant to the accused and the fact that accused

has not enchased it probabilize the defence of accused

that after arranging the said sum from other source he

did not chose to present it for encashment and in lieu of

same accused had issued Ex.P.2 cheque to the

complainant.

18. Now coming to the defence of the accused

that he had issued a blank cheque for Rs.52,250/- and

complainant has inserted numeral "1" twice i.e. before

"5" and in between "2" and made it as Rs.15,21,250/-.

Infact he has got the said cheque examined by the hand

writing expert who has given report that said insertions

are not in the same hand writing as that of remaining

writing. The complainant has not filed objections to the

said report. He has also not chosen to examine the hand

writing expert, though he has made allegations that trial

Court did not provide him opportunity to file objections

and also to examine the hand writing expert.

19. It appears after anticipating some mischief on

the part of complainant, accused has given

representation to his bank as per Ex.P.9 dated

14.06.2022 stating that he has issued a cheque for

Rs.52,500/- to his brother M.C.Puttegouda i.e.

complainant and instructed the bank that if the said

cheque is presented for encashment, payment should be

stopped. Though he has not specifically noted the cheque

number, he has given the series of the numbers of the

said cheque. Despite such instructions, the bank instead

of stopping payment has returned it dishonored for want

of sufficient fund.

20. Infact after the subject cheque was

dishonored, accused has written a letter to manager as

per Ex. D.7 as to why his instructions were not carried

out and on the other hand the said cheque was

dishonored for want of sufficient fund.

21. Infact as per Ex.D.10 the accused has

requested the bank to convert his individual account

No.1922, on which subject cheque is drawn as joint

account in the name of himself and his wife and that the

said account to be managed by both of them requiring

their signatures for passing cheques. Ex.P.11 is the

application for conversion of said single account as joint

account. It contains the specimens signature of accused

and his wife.

22. In fact the evidence of D.W.2-Tayyanna

manager SPM NGEF branch supports the defence of the

accused that he had given stop payment instructions and

also requisition to convert the individual account of

accused as joint account along with his wife. During

course of his evidence D.W.2 has specifically deposed

that the said account is converted into joint account.

During his cross examination he has deposed that the

same cheques which were issued in respect of the

individual accounts could be utilized for dealing with joint

account. Despite the fact that accused has instructed the

bank to stop payment, got his individual account

converted into joint account requiring signature of

accused and his wife, the bank has erred in dishonoring

the cheque on the ground of insufficient funds, instead of

giving endorsement as payment stopped by the drawer

and also that the cheque requires joint signature of

accused and his wife.

23. After the cheque was dishonored and

complainant sent statutory notice, as per Ex.D.7 the

accused has addressed a letter to the manager

confronting him as to why the payment was not stopped

for want of signature of his wife and stop payment

instructions were given by him. The manager has sent an

evasive reply. It appears since complainant was an

employee of NGEF factory for nearly 30 years and had

transactions with said bank, he has managed to get an

endorsement to file complaint against the accused, or

else there is no explanation for the bank to dishonored

the cheque on the ground of funds insufficient instead of

returning it for stop payment instructions or atleast for

want of joint signature of his wife.

24. As rightly contended by the accused, even for

naked eye, the insertion made in the figures by changing

the amount in Ex.P.2 from Rs.52,250/- to Rs.15,21,250/-

is visible. Ofcourse there is evidence of hand writing

expert to that effect. Moreover the complainant has failed

to prove the legal necessity for which accused borrowed

huge sum of Rs.15,21,250/- and also his capacity to lend

the said amount.

25. Considering the overall oral and documentary

evidence placed on record by the complainant as well as

the accused the trial Court has come to the correct

conclusion that by preponderance of probabilities, the

accused has rebutted the presumption under Section 118

and 139 of N.I.Act, but the complainant has failed to

prove the allegations made against accused beyond

reasonable doubt and acquitted him. The findings of the

trial Court is based on legal evidence placed on record

and this Court finds no perversity and there are no

justifiable reasons to interfere with the said findings. In

the result appeal fails and according the following:

ORDER

i. Appeal filed by the complainant is dismissed.

ii. The impugned judgment and order of the trial Court is confirmed.

iii. Registry is directed to send back trial court records along with copy of this judgment forthwith.

Sd/-

JUDGE

RR