Karnataka High Court
Ms Zeeba Gulam Sheikh vs Sri Bikba Mujafer on 19 December, 2023
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CRL.A No. 118 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S RACHAIAH
CRIMINAL APPEAL NO. 118 OF 2022 (A)
BETWEEN:
MS ZEEBA GULAM SHEIKH
D/O GULAB UMMER MIYA SHEIKH
AGED ABOUT 35 YEARS
REPRESENTED BY HER GPA HOLDER
SRI. GULAM UMMER MIYA SHAIKH
S/O LAL MIYA SHEIKH
AGED ABOUT 60 YEARS
BOTH APPELLANT AND HER GPA HOLDER ARE
R/AT "ZEEBA MANZIL", ANANDA RAO COMPOUND
OPP. HONDA SHOWROOM
PUTTUR VILLAGE, SANTHEKATTE POST
UDUPI TALUK & DISTRICT - 574 111.
...APPELLANT
(BY SRI. AMRUTHESH C, ADVOCATE)
AND:
SRI BIKBA MUJAFER
S/O BIKBA ASLAM
MAJOR
R/AT KESARKODI NEW COLONY
SHIROOR POST
KUNDAPUR TALUK
UDUPI DISTRICT - 576 201.
...RESPONDENT
(BY SRI. NISHIT KUMAR SHETTY, ADVOCATE)
THIS CRL.A IS FILED U/S.378(4) CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT DATED 08.11.2021 PASSED IN
CRL.A.NO.41/2021, ON THE FILE OF PRINCIPAL DISTRICT AND
SESSIONS JUDGE, UDUPI AND ETC.,
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED
ON 10.10.2023, COMING ON FOR PRONOUNCEMENT OF JUDGMENT,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
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CRL.A No. 118 of 2022
JUDGMENT
1. This Criminal Appeal is filed by the appellant /
complainant, being aggrieved by the judgment and order
dated 08.11.2021 in Crl.A. No.41/2021 on the file of the
learned Principal District and Sessions Judge, Udupi, wherein
the Appellate Court acquitted the respondent herein /
accused for the offence under Section 138 of the Negotiable
Instruments Act (for short 'N.I Act').
2. The rank of the parties in the Trial Court will be
considered henceforth as per their rankings for convenience.
Brief facts of the case are as under:
3. The complainant and the accused are the
appellant and the respondent respectively. The complainant
/ appellant has sold her boat to the accused / respondent
for a sum of Rs.65,00,000/- and entered into an agreement
of purchase with the respondent. It is stated in the
complaint that out of Rs.65,00,000/-, Rs.55,00,000/- was
paid to the complainant and for the remaining balance, the
accused had issued a cheque. When it was presented for
encashment, it came to be dishonoured as 'Funds
insufficient' and the said aspect has been brought to the
knowledge of the accused by way of issuance of the notice.
The accused after receipt of the notice, issued reply as per
Ex.P5 and contended that the total transaction in respect of
the sale of the boat was Rs.85,00,000/- and the entire
amount has been paid to the daughter of the GPA Holder /
complainant who has endorsed the receipt of the entire
amount and she had given no objection certificate to transfer
the boat in favour of the respondent / accused and the
cheque in question was issued as a security at the time of
entering into agreement of sale. Even after receipt of entire
amount, the complainant presented the cheque for
encashment to gain wrongfully. Therefore, the respondent /
accused had asked the complainant to return the cheque.
The complainant has considered the said reply as untenable
and not accepted the reply and filed a private complaint
before the jurisdictional Magistrate. The Magistrate took
cognizance and proceeded with the case.
4. To prove the case of the complainant, the GPA
Holder of the complainant was examined as PW.1 and got
marked 6 documents namely Exs.P1 to P6. On the other
hand, the accused examined one witness as DW.1 and got
marked 3 documents as Exs.D1 to D3.
5. The Trial Court after appreciating the oral and
documentary evidence on record, recorded the conviction
against the accused / respondent for the offence under
Section 138 of N.I. Act and sentenced to pay fine of
Rs.10,05,000/-. Being aggrieved by the same, the
respondent preferred an appeal before the Appellate Court
and the Appellate Court set aside the judgment of conviction
and order of sentence and acquitted the respondent. Hence
this appeal.
6. Heard Shri Amruthesh C, learned counsel for the
appellant and Shri Nishit Kumar Shetty, learned counsel for
the respondent.
7. It is the submission of learned counsel for the
appellant that the order of the Appellate Court in acquitting
the respondent is erroneous and perverse and opposed to
the facts and evidence on record and therefore, the same is
liable to be set aside.
8. It is further submitted that, the signature and
issuance of the cheque has been admitted by the accused,
however, denied the liability stating that the entire amount
had been paid. The said contention though not accepted by
PW.1, the Appellate Court recorded the acquittal on the
ground that the complainant has not proved the case beyond
all reasonable doubt is perverse and illegal.
9. It is further submitted that the evidence of PW.1
which clearly indicates that the Ex.D1 was executed for the
purpose of availing the loan from the Bank. Mere showing
the amount of Rs.85,00,000/- and also obtaining the
signature in the Form No.VI along with the affidavit is not
sufficient to rebut the presumption. The Trial Court
considering the said documents which are marked as Exs.D2
and D3 and opined that the accused was not due to the
complainant which is against the evidence on record and it is
perverse and the same is liable to be set aside. Making such
submission, the learned counsel for the appellant prays to
allow the appeal.
10. Per contra, learned counsel for the respondent
vehemently justified the judgment and order of acquittal
passed by the Appellate Court and submitted that the
accused / respondent consistently stated in the reply notice
that he had paid the entire amount and the transaction was
of Rs.85,00,000/- and not as Rs.65,00,000/-. After receipt
of the entire amount, Form No.VI and affidavit which are
marked as Exs.D2 and D3 were issued by the complainant /
appellant. When the complainant admitted that those
documents were executed by the owner of the boat to
transfer the boat in the name of the accused, the liability in
respect of the cheque would not arise. The Appellate Court
has rightly recorded the acquittal after considering the oral
and documentary evidence on record properly. Therefore,
interference with the said findings may not be warranted.
Making such submission, the learned counsel for the
respondent prays to dismiss the appeal.
11. Having heard learned counsel for the respective
parties and also perused the findings recorded by the
Appellate Court in acquitting the respondent, the points
which would arise for my consideration are:
i) Whether the findings of the Appellate Court in
acquitting the respondent are appropriate and
sustainable?
ii) Whether the appellant has made out grounds
to interfere with the findings of the Appellate
Court?
12. This Court being the Appellate Court, when it has
to deal with the appeal against the acquittal, it is necessary
to keep in mind the double presumption which is available
against the accused. The legal principle is that the accused
is presumed to be innocent unless prosecution proves that
he is held to be guilty of the offence. Whereas in a case
under Section 138 of N.I. Act, the complainant need not
prove his case at the initial stage and only he has to comply
the requirements for the provision under Section 138 of N.I
Act. The initial burden lies on the accused to rebut the
presumption.
13. Now, it is relevant to refer to the judgment of the
Hon'ble Supreme Court for better understanding the
proposition of law in respect of Negotiable Instruments Act.
In the case of RAJESH JAIN v. AJAY SINGH, Special
Leave Petition (Criminal) No.12802/2022 dated
9.10.2023, para No.56 reads thus:
"56. At the stage when the courts concluded
that the signature had been admitted, the
Court ought to have inquired into either of
the two questions (depending on the method
in which accused has chosen to rebut the
presumption): Has the accused led any
defense evidence to prove and conclusively
establish that there existed no debt/liability
at the time of issuance of cheque? In the
absence of rebuttal evidence being led the
inquiry would entail: Has the accused proved
the nonexistence of debt/liability by a
preponderance of probabilities by referring to
the 'particular circumstances of the case'?"
On careful reading of the dictum of the Hon'ble Supreme
Court, when the signature had been admitted by the
accused, the burden lies on the accused to rebut the
presumption and the accused has to prove the non-existence
of debt or liability by raising the presumption which is
preponderance of probability.
14. Coming to the present case, the appellant and
the respondent have entered into an agreement of sale
dated 23.02.2016 which is marked as Ex.D1 wherein it is
stated that the total sale consideration of the boat was
Rs.85,00,000/-. As on the date of agreement of sale,
Rs.30,00,000/- was paid. As per the contention of the
accused, he said to have paid the amount of Rs.33,25,000/-
by way of Demand Draft and one more Demand Draft dated
02.07.2016 was drawn in favour of 'Silva Marine Parts' for a
sum of Rs.21,75,000/-. According to the accused, the entire
amount was paid to the complainant and the cheque was
issued as a security at the time of entering into agreement of
sale.
15. On careful reading of evidence of PW.1, PW.1 in
the cross-examination had admitted that on 23.02.2016, he
has received Rs.30,00,000/- by way of cash and on
03.06.2016, he has received Rs.33,25,000/- by way of
Demand Draft. However, PW.1 has not admitted that the
amount of Rs.21,75,000/- was received by way of Demand
Draft, but it was received by way of cash. It is also admitted
that the daughter of the PW.1 had issued 'no due certificate'
to transfer the boat which she has sold in favour of the
accused.
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16. Now, it is relevant to refer to the provision under
Section 58 of the Indian Evidence Act which reads as under:
"Section 58. Facts admitted need not be
proved. --No fact need to be proved in any
proceeding which the parties thereto or their
agents agree to admit at the hearing, or
which, before the hearing, they agree to
admit by any writing under their hands, or
which by any rule of pleading in force at the
time they are deemed to have admitted by
their pleadings: Provided that the Court may,
in its discretion, require the facts admitted to
be proved otherwise than by such
admissions."
On careful reading of the above said provision, it makes it
clear that, the admitted fact need not be proved. When
Exs.D1, D2 and D3 and also Ex.P5 clearly disclose that the
complainant has received full and final settlement amount,
the contention of the accused that the cheque was issued as
a security at the time of execution of the sale agreement
appears to be correct. On considering the entire documents
and also evidence of PW.1, it can be construed that the
presumption raised in favour of the complainant under
Section 139 of the N.I. Act stood rebutted. The complainant
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has to disprove that he has not received the entire amount
as stated by the respondent.
17. However, the complainant has failed to prove that
the amount stated in the cheque was due and the accused
has to pay the said amount. In the light of the observations
made above, I am of the considered opinion that the
complainant has failed to establish that the accused is liable
to pay the amount mentioned in the cheque. The findings of
the Appellate Court in recording the acquittal which appeared
to be appropriate and interference with the said findings is
not required to be warranted.
18. In the light of the observations made above, the
points which arose for my consideration are answered as:
Point No.(i) : in the "Affirmative"
Point No.(ii) : in the "Negative"
19. Hence, I proceed to pass the following;
ORDER
i) The Criminal Appeal stands dismissed.
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ii) The judgment and order of acquittal dated
08.11.2021 in Crl.A. No.41/2021 on the file of the
learned Principal District and Sessions Judge,
Udupi, is confirmed.
Sd/-
JUDGE
Bss
