Mr B Bhagat Ram vs H.P. Shivananda Hegde
2023 Latest Caselaw 435 Kant

   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 6TH DAY OF JANUARY, 2023

                       BEFORE

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

         CRIMINAL APPEAL NO.121 OF 2012

BETWEEN:

MR B BHAGAT RAM
S/O B. SUBRAMANYA
AGED 36 YEARS,
KANYADI HOUSE,
DHARMASTHALA VILLAGE & P.O.
BELTHANGADY TALUK

                             ...COMPLAINANT / APPELLANT

(BY SRI. N.SUKUMAR JAIN, ADVOCATE)

AND:

H.P. SHIVANANDA HEGDE
AGED 54 YEARS,
S/O H.P. PADMANABHA HEGDE,
PROP: VIKRAM TRAVELS
K.R. ROAD, KARANGALPADY,
KODIALBAIL, MANGALORE

                              ...ACCUSED / RESPONDENT

(BY SRI S.RAJASHEKAR, ADVOCATE)

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) OF THE CODE OF CRIMINAL PROCEDURE PRAYING TO
a) EXAMINE THE LEGALITY, PROPRIETY AND CORRECTNESS
OF THE PROCEEDINGS AND THE IMPUGNED ORDER /
JUDGMENT DATED 07.12.2011 IN C.C.NO.574/2006 ON THE
FILE OF THE CIVIL JUDGE AND JMFC BELTHANGADY D.K.; b)
SET ASIDE THE JUDGMENT DATED 07.12.2011 PASSED BY
THE CIVIL JUDGE AND JMFC BELTHANGADY D.K., IN THE
CASE C.C.NO.574/2006 AND PUNISH THE ACCUSED/
                                  2                  Crl.A.No.121/2012



RESPONDENT IN ACCORDANCE WITH LAW, IN THE INTEREST
OF JUSTICE AND EQUITY.

     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED    ON    14.11.2022, COMING   ON   FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:


                          JUDGMENT

Being aggrieved by the dismissal of complaint filed by

him under Section 200 Cr.P.C. against the

respondent/accused alleging offence punishable under 138

of N.I.Act, complainant has filed this appeal under Section

378(4) Cr.P.C.

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 was

working under the accused. At the time of leaving

employment, accused was due in a sum of Rs.5,20,000/-

i.e., Rs.3,00,000/- towards security deposit and

Rs.2,20,000/- towards arrears of salary. To discharge the

said liability, accused issued cheque bearing No.479409

dated 05.06.2004 for a sum of Rs.5,20,000/- drawn on

State Bank of Hyderabad, Mangaluru Branch. When

complainant presented for collection, it was returned with a

memo dated 08.06.2004 with an endorsement "account

closed".

3.1 It is further case of the complainant that he

issued a legal notice dated 15.06.2004, calling upon the

accused to pay the amount due under the cheque.

However, accused has sent an evasive reply. He has not

fulfilled his liability arising out of the cheque in question

and thereby committed the offence punishable under

Section 138 of N.I.Act.

4. After due service of summons, accused

appeared and contested the matter.

5. He has pleaded not guilty and claimed trial.

6. In support of his case, complainant got himself

examined as PW-1. He has examined the Manager of the

Bank as PW-2 and relied upon Ex.P1 to 20.

7. During the course of his statement under

Section 313 of Cr.P.C, accused has denied the incriminating

evidence.

8. On the other hand accused has stepped into the

witness box and examined himself as DW-1. He has relied

upon Ex.D1 to 6.

9. Vide the impugned judgment and order, the trial

Court has dismissed the complaint. Aggrieved by the same,

complainant has filed this appeal.

10. During the course of argument, learned counsel

representing the complainant submitted that the impugned

judgment is contrary to law and material placed on record.

The trial Court has exercised its jurisdiction wrongly and

dismissed the complaint. It has failed to appreciate that the

accused has admitted his signature in the cheque in

question. The trial Court has also failed to appreciate that

the stop payment endorsement is inserted in the ledger

after receipt of notice from the complainant. The trial Court

has erred in holding that the cheque in question was not

issued towards payment of the arrears of the salary,

especially when the letter demanding the salary is produced

and marked at Ex.D5. The trial Court has erred in holding

that the cheques were issued in blank and it is contrary to

Ex.D1. The trial Court has also not appreciated the

admissions given by the accused during his cross-

examination. The findings of the trial Court are inconsistent

with the evidence placed on record and prays to interfere

with the impugned judgment and order.

11. On the other hand learned counsel for accused

submitted that after appreciating the oral and documentary

evidence placed on record in its right perspective, the trial

Court has rightly dismissed the complaint and prays to

dismiss the appeal also.

12. Heard arguments and perused the record.

13. The fact that accused is/was running a travel

agency and complainant was employed by him as a travel

agent is not is dispute. Complainant claims that he was a

regular employee with fixed salary, whereas accused has

contended that as a tourist guide, the remuneration

payable to complainant was based on the work done i.e.,

based on the period during which he accompanied the

tourists as tourist guide and as such there was no fixed

remuneration. Complainant has relied upon Ex.P7 a

certificate dated 17.06.1995 said to have given by accused

stating that "complainant is working as a Assistant Tour

Manager since two years and his services are excellent".

14. During the course of his evidence, the

complainant has deposed that he was paid salary in a sum

of Rs.8,000/- p.m. However, he has not produced any

documents to evidence this fact. At least he could have

produced his account extract to show that he has been

regularly paid salary to the tune of Rs.8,000/- p.m.

Consequently, complainant has failed to prove what exactly

was the salary or remuneration paid to him by the accused

- whether it was a fixed amount or an amount based on

periodical tours which the complainant had accompanied as

tourist guide or Asst. Tour Manager.

15. It is the definite case of the complainant that at

the time of joining the service with the accused, he had

deposited a sum of Rs.3,00,000/- as a security deposit and

the said amount was due from the accused. He has also

contended that Rs.2,20,000/- was due from the accused to

him by way of arrears of salary and towards repayment of

the same, accused has issued the subject cheque, which is

marked at Ex.P1. If Rs.2,20,000/- is divided by Rs.8,000/-

then the arrears of salary would be for a period of two

years three months. Now the question would be whether

for nearly two years three months, accused was due to pay

salary to the complainant and inspite of it, he continued to

serve the accused.

16. Accused has disputed that he had taken security

amount in a sum of Rs.3,00,000/- from the complainant

and any sum towards arrears of salary let alone

Rs.2,20,000/- was due from him to the complainant. It is

not in dispute that Ex.P1 cheque belongs to the accused

and it bears his signature. In this regard he has taken up a

definite contention that as tourist guide, complainant used

to accompany the travel guests and at that time towards

expenses of the tour, accused used to hand over blank

signed cheques to the complainant and Ex.P1 is one such

cheque.

17. According to the accused while the remaining

cheques in that series were used, complainant represented

him that Ex.P1 cheque was lost and therefore, he wrote a

letter to the Bank to stop payment as long back as

03.02.2000 and after leaving the job of accused,

complainant has utilised the said cheque and filed the false

case. Only after receipt of the legal notice, he came to

know that Ex.P1 was not lost and complainant had falsely

represented him. In the light of presumption under Section

118 and 139 of N.I.Act, working in favour of the

complainant, the burden is on the accused to establish that

Ex.P1 cheque was not issued in favour of the complainant

towards repayment of any debt or liability and on the other

hand it is misused by him. If accused is able to discharge

this onus, then the burden shifts on the complainant to

prove the circumstances under which Ex.P1 cheque came to

be issued in his favour by the accused.

18. At the outset it is relevant to note that in the

legal notice at Ex.P3 the complainant has not chosen to

state in respect of which liability, the accused has issued

cheque at Ex.P1. It only state that the cheque is issued

towards discharge of legal liability. There was no

impediment for the complainant to state that out of

Rs.5,20,000/-, Rs.3,00,000/- is the security deposit made

by him at the time of joining the service of accused and

remaining Rs.2,20,000/- is the arrears of salary. Though in

the complaint, the complainant has stated that

Rs.2,20,000/- is towards arrears of salary, he has not

stated what is the period for which the said sum is due.

Even in his evidence also the said details are not

forthcoming.

19. In fact during his cross-examination,

complainant who is examined as PW-1 is not in a position

to state for which period the said sum was due. Absolutely,

no calculations are forthcoming. Only during his cross-

examination he has claimed that he was paid monthly

salary of Rs.8,000/- which fact is disputed by the accused,

who has specifically stated that complainant was paid as

per the tours he attended. As already discussed there was

no impediment for the complainant to produce documents

such as account extract to show that every month he was

paid Rs.8,000/- or during which month lesser amount was

paid. In the absence of the same, there is nothing on

record to show that he was paid salary of Rs.8,000/-p.m

and for certain period, the entire Rs.8,000/- or a portion of

it was not paid and the cheque at Ex.P1 was issued also

towards repayment of arrears of salary.

20. In fact in his reply notice at Ex.P5, the accused

has in unequivocal terms disputed that there was any

liability on him to pay Rs.5,20,000/- and the cheque in

question was issued towards repayment of the same. He

has specifically stated that at the time of tours, he used to

issue blank cheques to enable the complainant to realize

the amount as and when required and out of the same

Ex.P1 cheque was represented to be lost and he suspect

that in the year 2000, the complainant has misused some

of the cheques and he is trying to blackmail him.

21. Ex.D2 is the letter dated 03.02.2000 addressed

by the accused to his banker to stop payment of cheque at

Ex.P1 i.e., cheque No.479409 on the ground that it is

stated to be lost. In the said letter, he has specifically

stated that it is blank signed cheque which corroborate with

his contention that he used to issue blank cheques to

enable the complainant to realize the amount as and when

required. Ex.D6 is the account statement produced by the

accused to show that in the said series all the cheques

except Ex.P1 was realized and in respect of Ex.P1 he has

issued stop payment instructions as long back as 2000, at a

time when it cannot be imagined that anticipating filing of a

complaint in the year 2004, he would give such

instructions, when admittedly, according to the complainant

the cheque in question was issued on 05.06.2004, after a

lapse of four years.

22. Having regard to the fact that except the

signature the contents of Ex.P1 are not in the handwriting

of the accused also supports his defence that it was blank

when issued by him into the hands of complainant during

the year 2000. Considering the fact that all the other

cheques in the said series were encashed during 2000 also

supports the defence of the accused that Ex.P1 was issued

during 2000, when it was blank and complainant

represented him that it was lost by him. Immediately he

had written a letter to the Bank to stop payment by

specifically stating that it was reportedly lost while on tour

by Bhagath Ram, who is complainant herein.

23. Complainant has not explained as to what was

the necessity for him to deposit Rs.3,00,000/- with the

accused by way of security and what was the nature of his

work which demanded such security deposit. It is relevant

to note that according to the complainant he joined the

service of accused during 1992 and since then part of the

salary was due to him. In 1992, Rs.3,00,000/- was

substantially big amount. The complainant is not in a

position to establish how he was able to pay Rs.3,00,000/-

to the accused by way of security. In the absence of

establishing the requirement of depositing such a huge

amount and also producing necessary documents, the

complainant has failed to prove that a huge sum of

Rs.3,00,000/- was deposited by him with the accused by

way of security.

24. In fact as admitted by him, on 19.12.2003,

complainant has written a letter to the accused requesting

him to pay arrears of salary as per Ex.D5. In this letter,

there is no reference to he having deposited security

amount of Rs.3,00,000/-. He has not demanded refund of

the said amount. This also creates a doubt as to the

veracity of the complainant's claim towards repayment of

Rs.3,00,000/-. According to this document, he left the

services of the accused in the year 2003 and after much

persuasion the accused has issued Ex.P1 cheque on

05.06.2004. As admitted by the complainant, Ex.D1 record

slip of cheque book containing the details of the transaction

for which cheques are issued, is in his handwriting. In this

document as against cheque No.479409 i.e., Ex.P1 no

details are forthcoming i.e. in whose favour the said cheque

was issued.

25. This also supports the defence of the accused

that the said cheque was represented to be lost and

therefore, he has given stop payment letter to the Bank.

Though the complainant claim that during 2003 he resigned

from the post and in the year 2004, accused gave cheque

at Ex.P1, during his cross-examination he has deposed that

the cheque in question was given to him by the accused

even before he gave his resignation. This is inconsistent

with his claim that after resigning from the job and after

much persuasion, in the year 2004 accused issued cheque

at Ex.P1. On the other hand, his evidence supports the case

of the accused that during 2000 itself, Ex.P1 cheque was

given by him to the complainant while he was conducting

the tours as a tourist guide. At page No.4 of his cross-

examination, PW-1 has stated that from 2001 till accused

gave him cheque at Ex.P1, he met accused only once which

is contrary to his evidence that in 2003 he submitted his

resignation.

26. The complainant has chosen to examine the

Manager of the Bank as PW-2 with regard to the entry

made in the stop payment register at the instance of

accused. Instead of helping the complainant, the evidence

of PW-2 is helpful to the defence of the accused. He has

produced the stop payment register maintained by the

Bank at Ex.P12, wherein the last entry is with regard to the

stop payment instructions given by the accused and it is

dated 03.02.2000. The learned counsel for complainant

submitted that this is an entry made subsequent to the

filing of the complaint as an after thought. However,

perusal of this document goes to show that this is a normal

entry. So far as the gap between the last but one and the

last entry, which is pertaining to Ex.P1 made at the

instance of accused, the last but one entry relates to 13

cheques and therefore, the details of each of the cheques is

noted and as such there is a gap between the said entry

and the last entry. However, at no stretch of imagination it

could be accepted that this entry is made subsequently at

the instance of accused. Long before Ex.P1 was presented

for encashment, during the year 2000 itself the accused

has issued instructions for stop payment of the subject

cheque. Therefore, it cannot be accepted that as an after

thought stop payment instructions is given and accordingly,

in the stop payment register insertions have been made

subsequently.

27. The complainant has relied upon Ex.P8 stated to

be a letter dated 14.03.2002 written by the accused to the

father of complainant stating that he has given him

financial help at a crucial time and he would repay the

same. The accused has denied and disputed that this letter

at Ex.P8 is written by him. Ex.P8 bears the signature in

Kannada of the person who allegedly wrote it. Admittedly,

the accused has not put his signature on Ex.P1 or other

documents in Kannada. The complainant has not produced

any documents of accused bearing his signature in Kannada

and therefore, the complainant has failed to prove that this

letter was written by the accused and in the said letter he

has acknowledged the financial assistance by father of the

complainant.

28. Even where the contents of this document i.e.,

Ex.P8 are accepted as true, then also this letter does not

refer to any liability incurred by the accused towards the

complainant. It refers to the allegedly financial assistance

given by the father of the complainant. Admittedly, father

of the complainant has not filed any suit against the

accused for recovery of amount due under the said letter. It

is not the case of the complainant that Ex.P1 cheque was

issued towards repayment of the liability referred to in

Ex.P8. Therefore, this document is not of much help to

improve the case of the complainant. Though during his

cross-examination, accused has admitted that he had taken

some financial assistance from the father of the

complainant, he has specifically disputed that the letter at

Ex.P8 is written by him to the father of the complainant.

29. Thus, from the above discussion, I hold that

despite the presumption under Section 118 and 139 of

N.I.Act in favour of the complainant, through the material

placed on record the accused has proved that Ex.P1 cheque

was given to the complainant when it was blank, that too in

the year 2000 and after he represented it to have lost, he

has sent stop payment instructions to the Bank. Through

the material placed on record, accused has proved that

while working as tourist guide complainant has retained a

blank cheque and based on it, he had filed a false

complaint.

30. Therefore, the burden shifts on the complainant

to prove the circumstances under which the said cheque

came to be issued in his favour and that it is issued towards

repayment of any debt or liability incurred by him and

accused is liable to pay the amount due under the said

cheque. However, inspite of leading elaborate evidence, the

complainant has failed to discharge the said burden.

31. After examining the entire material placed on

record in the right perspective, the trial Court has come to

a correct conclusion that the allegations against accused

are not proved beyond reasonable doubt and acquitted him.

I find no perversity in the conclusions arrived at by the trial

Court. Absolutely, no grounds are made out to interfere

with the well reasoned judgment of the trial Court. In the

result the appeal filed by the complainant fails and

accordingly, I proceed to pass the following:

ORDER

(i) Appeal filed by the complainant under

Section 378(4) of Cr.P.C is dismissed.

(ii) The impugned judgment and order dated

07.12.2011 in C.C.No.574/2006 on the file

of Civil Judge & JMFC., Belthangady, D.K, is

confirmed.

(iii) Registry is directed to return the trial Court

records along with copy of this judgment

forthwith.

Sd/-

JUDGE

RR