Karnataka High Court
Sri. Lawrence D'Souza vs Sri. P Veluswamy on 13 December, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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CRL.A No. 2264 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO. 2264 OF 2018
BETWEEN:
SRI. LAWRENCE D'SOUZA,
S/O SRI PELIX D'SOUZA,
AGED ABOUT 46 YEARS,
RESIDING
JOSEPH NAGAR, 1ST CROSS,
B.H.ROAD,
SHIVAMOGGA - 577 201.
...APPELLANT
(BY SRI. HARIKESH SINGH AND SRI. RAVI .T.N, ADVOCATES)
AND:
SRI. P. VELUSWAMY,
M/S. SRI. MURUGAN TRADERS,
AGED ABOUT 44 YEARS,
R/AT KUNNATHURAPALYAM,
Digitally NAGAMMAPUDUR POST,
signed by ANNUR - 641 653,
SOWMYA D
TAMILNADU.
Location: ...RESPONDENT
High Court (BY SRI. K.A. CHANDRASHEKARA, ADVOCATE)
of
Karnataka THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO
SET ASIDE THE ORDER OF THE LEARNED PRINCIPAL SESSIONS
JUDGE, SHIVAMOGGA DATED 01.12.2018 IN
CRL.A.NO.68/2018 AND CONFIRM THE ORDER DATED
17.07.2018 PASSED BY THE II ADDITIONAL CIVIL JUDGE AND
JMFC, SHIVAMOGGA IN C.C.NO.2344/2016 - ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I.
ACT.
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CRL.A No. 2264 of 2018
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the complainant challenging
the judgment of acquittal passed by the Principal Sessions
Judge, Shivamogga, in Crl.A.No.68/2018, dated
01.12.2018, whereby the learned Sessions Judge reversed
the judgment of conviction and order of sentence passed
by II Additional Civil Judge and JMFC, Shivamogga, in
C.C.No.2344/2016, dated 17.07.2018, for the offence
punishable under Section 138 of the Negotiable
Instruments Act, 1881 (for short 'N.I. Act').
2. For the sake of convenience, the parties herein
are referred with the original ranks occupied by them
before the trial Court.
3. The brief factual matrix leading to the case are
as under:
The complainant is the proprietor of L.J. Trades
which is dealing with commercial trading for last four
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years. Accused was trading with complainant and as per
the cordial relationship, the accused has purchased maize
from complainant on credit basis on 22.06.2015, worth of
Rs.3,60,000/- by promising the complainant that amount
will be paid within one month. It is also alleged that in the
meanwhile, one person by name Manjapnna one of the
broker has loaded the maize of R.S.P. Traders bill of
Hassan from Shikaripura and transported to Kerala on
26.02.2015 but the said Maize load was rejected and
thereafter, the complainant transported the said maize to
the accused through his agent Veluswamy. The amount
was not paid till today and when complainant insisted for
repayment, the accused has issued the cheque bearing
No.501130 drawn on Canara Bank in favour of
complainant. When the said cheque was presented for
encashment, the same was dishonoured for 'Funds
Insufficient'.
4. Thereafter, the complainant has got issued a
legal notice to the accused and the said legal notice was
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served on the accused on 22.04.2016. Inspite of service of
notice on accused, he did not respond nor repaid the
cheque amount. Hence, the complaint was lodged by the
complainant before the learned Magistrate under Section
200 of Cr.P.C. alleging that the accused has committed an
offence under Section 138 of the N.I. Act.
5. Thereafter, the learned Magistrate recorded the
sworn statement of complainant and after perusing the
records, he has taken cognizance of the offence and issued
a process against the accused. Accused has appeared
through his counsel and was enlarged on bail. The plea
under Section 138 of the N.I. Act was recorded and
accused denied the same.
6. The complainant was got examined as PW1 and
he placed reliance on twelve documents marked at Ex.P1
to Ex.P12. After conclusion of the evidence of the
complainant, the statement of accused under Section 313
Cr.P.C. was recorded and the case of the accused is of
total denial and he asserted that excess amount is being
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sought. However, accused has not lead any defence
evidence.
7. The learned Magistrate after appreciating the
oral and documentary evidence, convicted the accused
under Section 255(2) of Cr.P.C. for the offence punishable
under Section 138 of the N.I. Act and he sentenced him by
imposing a fine of Rs.3,80,000/- with default sentence.
Being aggrieved by this judgment of conviction and order
of sentence, the accused has approached the learned
Principal Sessions Judge, Shivamogga, in
Crl.A.No.68/2018. The learned Sessions Judge after re-
appreciating the oral and documentary evidence, has set
aside the judgment of conviction and order of sentence
passed by the learned Magistrate and acquitted the
accused for the offence punishable under Section 138 of
the N.I. Act.
8. Being aggrieved by this judgment of acquittal
passed by the learned Sessions Judge, the complainant is
before this Court by way of this appeal.
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9. Heard the arguments advanced by the learned
counsel for appellant/complainant and learned counsel for
the respondent/accused. Perused the records.
10. The learned counsel for appellant would
contend that this appeal is against divergent opinions
expressed by both the Courts below. He would contend
that the cheque is dated 01.03.2016 and the maize was
being transported on 22.06.2015 and this cheque was
issued towards payment of the purchase of maize amount
to the tune of Rs.3,60,000/-. He would also asserts that
the payment of Rs.13,40,000/- is not under serious
dispute, but it has nothing to do with the present
transaction in this case and he would contend that entire
payment of Rs.13,40,000/- is made through RTGS. He
would also assert that regarding Rs.3,60,000/- due, no
cross-examination was made and invited the attention of
the Court to the cross-examination of PW1 wherein he has
reiterated the case of the complainant. Hence, he would
contend that though the learned Magistrate has properly
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appreciated the oral and documentary evidence, the
learned Sessions Judge has failed to properly appreciate
the same and analyze the same. Hence, he would contend
that on assumptions and presumptions, the learned
Sessions Judge has acquitted the accused by reversing the
judgment of conviction, which has resulted in miscarriage
of justice. Hence, he would seek for allowing the appeal by
restoring the judgment of conviction and order of sentence
passed by the trial Court.
11. Per contra, the learned counsel for
respondent/accused would contend that as per the
complainant, the liability is for Rs.3,60,000/- and the
records and admissions given by complainant disclose that
Rs.13,40,000/- is already paid. He would also assert that
this payment was neither referred in the statutory notice
nor in the complaint and in the cross-examination, PW1
has admitted that the cheque was issued as a security
prior to supply of maize and there is an admission that the
said cheque has been misused. Hence, he would contend
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that the entire amount due to the complainant is
admittedly paid and cheque obtained earlier was misused
and hence, he would contend that the complainant has
failed to establish that the cheque was issued towards
legally enforceable liability. He would further assert that
the trial Court has failed to appreciate this aspect in
proper perspective, but the learned Sessions Judge has
properly appreciated the factual aspects and has rightly
acquitted the accused. Hence, he would assert that the
judgment of acquittal passed by the learned Principal
Sessions Judge does not suffer from any perversity or
illegality so as to call for any interference. Hence, he
would seek for dismissal of the appeal.
12. Having heard the arguments and after perusing
the oral and documentary evidence, now the following
point would arise for consideration:
"Whether the judgment of acquittal passed
by the Principal Sessions Judge, Shivamogga in
Crl.A.No.68/2018 reversing the judgment of
conviction of the II Additional Civil Judge and
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JMFC, Shivamogga in C.C.No.2344/2016 is
perverse, arbitrary or erroneous so as to call for
interference in this appeal?"
13. It is an undisputed fact that Ex.P1-cheque
belongs to the account of the accused and it bears his
signature. Hence, under Section 139 of the N.I. Act
drawing presumption to the effect that the cheque was
issued towards legally enforceable liability is mandatory.
However, it is not a conclusive presumption and it is a
rebuttable presumption. Apart from that, the accused is
required to rebut the presumption either on the basis of
the evidence and documents adduced by the complainant
or by cross-examining him or by leading his own evidence
or producing any documents in this regard. However, the
standard of proof for complainant and accused differs and
accused is required to prove his defence on the basis of
preponderance of probability only. If the accused creates
any dent in the case of the complainant, then, the onus
again shifts on the complainant to substantiate his claim.
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14. It is the specific contention of the complainant
that the maize worth of Rs.3,60,000/- was supplied to the
accused on 22.06.2015 and towards repayment of this
amount, this cheque came to be issued. On perusal of the
entire complaint pleadings, there is no assertion in the
complaint that the accused and complainant were trading
earlier to this transaction and earlier to this transaction,
complainant did supplied any goods to the accused and
there was some due to be paid by the accused to the
complainant. This assertion is completely silent in the
complaint, examination-in-chief as well as in the legal
notice. A simple assertion is made regarding transaction
dated 22.06.2015.
15. But in the cross-examination, the complainant
tried to make out a case that accused was due to him
Rs.15,00,000/-. He further asserts in his cross-
examination that, except cheque amount, the rest of the
amount pertaining to other transactions was paid by the
accused. But what are the other transactions held between
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the complainant and accused, when it was held and in
respect of which goods it was held was never pleaded by
the complainant.
16. As per the case of the complainant, he
delivered maize worth of Rs.3,60,000-/- on 22.06.2015 to
the accused. At the outset, there is no pleading as to the
quantity of the maize and value of the maize. However,
the complainant has also admitted in his cross-
examination that from 23.06.2015 onwards i.e., next date
of the alleged transaction pertaining to this case till
11.12.2015, he received Rs.13,40,000/- from accused.
Though he asserts that this was pertaining to earlier
transactions, there is absolutely no pleading as to what
was the earlier transaction and in the absence of any
pleadings and production of any documents in this regard,
the contention of the complainant that the accused and
complainant were trading prior to 22.06.2015 cannot be
accepted. Even complainant has not produced any
documents to show that prior to 22.06.2015 accused was
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due to the tune of either Rs.15,00,000/- or Rs.13,40,000/-
as asserted by him.
17. All along, it is the specific assertion of the
complainant that the maize was supplied on 22.06.2015
and subsequently, on persistent demand, the cheque came
to be issued towards payment of delivery of maize. But in
the cross-examination PW1 i.e., the complainant has
admitted that he has obtained a blank cheque prior to
delivery of jowar and same has been misused by him by
collecting Rs.13,40,000/- from accused. This material
admission in cross-examination dated 16.02.2018 on page
8 in last para of PW1 reads as under:
"¢£ÁAPÀ 23.6.2015 jAzÀ ¢£ÁAPÀ 11.12.2015gÀ vÀ£ÀPÀ
DgÉÆæAiÀÄÄ MlÄÖ gÀÆ.13,40,000 ºÀtªÀ£ÀÄß £À£Àß SÁvÉUÉ dªÀiÁ
ªÀiÁrgÀÄvÁÛgÉ CAzÀgÉ ¸Àj. £Á£ÀÄ eÉÆüÀªÀ£ÀÄß ¤ÃqÀĪÀ ¥ÀƪÀðzÀ°è
DgÉÆæ¬ÄAzÀ SÁ° ZÉPÀÄÌ ¥ÀqÉzÀÄ PÉÆArzÀÄÝ CzÀ£ÀÄß zÀÄgÀ¥ÀAiÉÆÃUÀ
¥Àr¹PÉÆAqÀÄ DgÉÆæ¬ÄAzÀ gÀÆ.13,40,000 UÀ¼À£ÀÄß dªÀiÁ
ªÀiÁr¹ PÉÆArgÀÄvÉÛÃ£É CAzÀgÉ ¸Àj. DgÉÆæAiÀÄÄ £À£ÀUÉ ºÉZÀÄѪÀj
ºÀtªÀ£ÀÄß ¤ÃrzÀ PÁgÀt CªÀgÀÄ EzÀgÀ §UÉÎ «ZÁj¹zÀÝPÉÌ £Á£ÀÄ ¸ÀļÀÄî
¥ÀæPÀgÀt ºÀÆrgÀÄvÉÛÃ£É CAzÀgÉ ¸ÀjAiÀÄ®è."
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18. Though it is submitted that it is a stray
admission, but considering the fact that the complainant
has not pleaded and produced any documents in respect of
earlier transaction, either of maize or jowar and
documents regarding exact due, this admission cannot be
taken as a stray admission and it is a fatal admission. It is
the specific assertion of the accused that the complainant
is demanding an excess amount and he is required to
rebut the presumption on the basis of preponderance of
probability. The cross-examination of PW1 discloses that
he has not produced any documents regarding due from
complainant to the tune of Rs.15,00,000/- as asserted or
transaction to the tune of Rs.15,00,000/-. But his
admission discloses that he received Rs.13,40,000/-
income and coupled with this, he admitted that the cheque
was received prior to supply of jowar. Hence, it is evident
that the accused has rebutted the presumption available in
favour of complainant under Section 139 of the N.I. Act. In
that event, the complainant ought to have produced
relevant documents regarding earlier transaction and
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though he claims in his cross-examination that he had no
impediment for producing the documents in this regard, he
has not produced any documents and as such, adverse
inference is required to be drawn as against him. In view
of the rebuttal of the presumption, the complainant is
required to prove that the cheque was infact issued
towards legally enforceable liability. But the evidence on
record and especially the cross-examination of PW1,
speaks a different story.
19. In view of the decision of the Apex Court
reported in 2023 LiveLaw (SC) 46 [RAJARAM S/O
SRIRAMULU NAIDU (SINCE DECEASED) THROUGH LRS
VS. MARUTHACHALAM (SINCE DECEASED) THROUGH
LRs], the accused is at liberty to rebut the presumption
even by way of cross-examination or pleadings or
documents relied by the complainant and the same is
applicable to the case in hand as by way of cross-
examination, accused has exposed the claim of the
complainant. Hence, the complainant has failed to
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establish the fact that the cheque-Ex.P1 was issued
towards legally enforceable liability, as asserted. When
there is no legally enforceable liability, question of
convicting the accused for the offence under Section 138
of the N.I. Act does not arise at all. Though it is argued
that there is no reply to the legal notice, but that itself
does not establish the claim of the complainant and in
view of decision cited supra, even in the absence of reply,
the accused can rebut the presumption by way of cross-
examination.
20. The learned Magistrate did not appreciate any
of these aspects and failed to consider rebutabble
evidence and especially the admissions given by PW1. The
learned Sessions Judge has appreciated all these aspects
in proper perspective and has rightly set aside the
judgment of conviction and order of sentence passed by
the learned Magistrate by acquitting the
accused/respondent herein. No perversity or illegality is
found in the judgment of acquittal passed by the learned
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Sessions Judge. Hence, the point under consideration is
answered in the negative and accordingly, I proceed to
pass the following:
ORDER
(i) The appeal stands dismissed.
Sd/-
JUDGE
DS
