Karnataka High Court
Sri R Sudheer vs Sri Abdul Wahab on 6 January, 2023
Bench: J.M.Khazi
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.394 OF 2010
BETWEEN:
SRI R SUDHEER
SON OF LATE RUDROJI RAO
AGED 44 YEARS
RESIDENT OF 1ST CROSS,
HOSAMANE EXTENSION
SHIMOGA CITY
PRESENTLY WORKING IN
APEX BANK
MYSORE ROAD,
BANGALORE - 560 039
...COMPLAINANT / APPELLANT
(BY SRI. S.V.PRAKASH, ADVOCATE)
AND:
SRI ABDUL WAHAB
SON OF SHEIK ADAM SAB
AGED 44 YEARS
RESIDENT OF MAIN ROAD
RML NAGAR, SHIMOGA CITY
...ACCUSED / RESPONDENT
(BY SRI. S.ASHOKA, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) OF THE CODE OF CRIMINAL PROCEDURE PRAYING TO
a) SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL
DATED 31.10.2010 PASSED IN CRIMINAL APPEAL
NO.149/2007 BY THE LEARNED PRINCIPAL SESSIONS JUDGE,
SHIMOGA AND RESTORE THE JUDGMENT AND ORDER OF
2 Crl.A.No.394/2010
CONVICTION DATED 14.12.2007 PASSED IN
C.C.NO.204/2003 BY THE I ADDL. CIVIL JUDGE (JUNIOR
DIVISION) & J.M.F.C., SHIMOGA, AND AWARD COST OF THE
PROCEEDINGS AND / OR PASS SUCH OTHER SUITABLE
JUDGMENT AND ORDER WHICH THIS HON'BLE COURT MIGHT
DEEM IT PROPER IN THE FACTS AND CIRCUMSTANCES OF
THIS CASE, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED ON 15.11.2022, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
Being aggrieved by impugned judgment and order
dated 31.10.2009 in Criminal Appeal No.149/2007 passed
by the Principal Sessions Judge, Shivamogga, thereby
allowing the appeal filed by the accused and setting aside
his conviction and sentence in C.C.No.204/2003 dated
14.12.2007 on the file of I Additional Civil Judge & JMFC,
Shivamogga, complainant has filed this appeal under
Section 378(4) of 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 and
accused are long standing friends. Accused had demolished
an old structure situated near Manasa Nursing Home and
was intending to form commercial sites and sell. He was in
need of money and assured the complainant that he would
sell one of the site to him or if not possible, would pay back
the money. He promised to settle the matter in a short
period. Accordingly, complainant lent him a sum of
Rs.80,000/-.
3.1. However, later he came to know that accused
has already entered into an agreement for sale of the entire
site to third party. Therefore, he requested the accused to
pay back the money borrowed from him. In this regard, on
13.05.2001, on being approached by the complainant,
accused paid a sum of Rs.2,000/- in cash and for remaining
amount of Rs.78,000/-, he issued a cheque dated
21.05.2001 with an assurance that complainant can get the
money on presentation. However, when the complainant
presented the said cheque, it was returned dishonoured
with an endorsement "Account Closed". The act of
deception of accused in issuing the cheque drawn on an
account which is closed is also an offence punishable under
Section 138 of N.I.Act.
3.2. After the cheque was returned dishonoured,
complainant got issued a legal notice dated 24.05.2001 to
the accused. It is duly served on him on 26.05.2001.
However, the accused failed to comply with the notice. He
has also not sent any reply and hence, the complaint.
4. After due service of summons, accused
appeared and contested the case. He pleaded not guilty
and claimed trial.
5. In order to prove the case, complainant got
himself examined as PW-1 and two witnesses as PWs-2 and
3. He has got marked Exs.P-1 to 7.
6. During the course of statement under Section
313 of Cr.P.C, accused has denied the incriminating
evidence. In response to question No.5 he has stated that
the cheque in question was issued by him, but it was in
respect of some other transaction. In response to question
No.6 with regard to closure of his account, he has admitted
that the account was closed, but he had issued the cheque
before closure of the account with regard to some other
transaction.
7. Accused has not chosen to lead evidence on his
behalf.
8. Vide the judgment and order dated 14.12.2007,
the trial Court convicted the accused and sentenced him to
undergo imprisonment for three months and pay fine of
Rs.1,00,000/- towards the cheque amount in default to
undergo SI for 6 months. Out of the fine amount,
complainant was ordered to be paid compensation in a
sum of Rs.95,000/-.
9. Accused challenged the same in
Crl.A.No.149/2007. Vide the impugned judgment and
order, the Sessions Court acquitted the accused.
10. Against the same, complainant has filed this
appeal.
11. During the course of arguments, learned
counsel for complainant submitted that impugned order is
not speaking order and it lacks application of mind. The
learned Sessions Judge has not appreciated the evidence in
proper perspective. He has not taken into consideration the
presumption under Section 139 of the NI Act. The Sessions
Court has not appreciated the fact that except denying the
incriminating evidence under Section 313 of Cr.P.C., the
accused has not lead any evidence and thereby, the
accused has failed to prove that Ex.P-1 cheque was issued
in connection with the transaction as per Ex.D-1, especially
when the accused does not dispute the issue of the cheque
in question.
11.1 He would further submit that the Sessions
Court has erred in accepting the defence of the accused
that the subject cheque was issued in connection with the
loan transaction between Dadapeer's brother by name
Rafeeq as a security and that complainant had assured that
after repayment of the said loan, the cheque would be
returned. By making the said suggestion, the accused has
admitted that the cheque in question is issued by him and
bears his signature. However, the accused has failed to
prove the defence taken by him. In the absence of any
evidence to establish the said defence, the Sessions Court
has erred in setting aside a well reasoned judgment passed
by the trial Court. By not sending any reply to the legal
notice, the accused has failed to put forth his defence.
Therefore, the subsequent defence taken by him at trial is
an after thought.
11.2 Learned counsel for the complainant would
further submit that the findings of the Sessions Court that
the cheque in question is subsequent to the date of closure
of the account, and as such, the provisions of Section 138
of the N.I.Act is not attracted is contrary to the judgment of
the Hon'ble Apex Court. The complainant had no occasion
to suspect that the accused has given the cheque
subsequent to closure of his account. The Sessions Court
has failed to draw presumption under Section 139 of the NI
Act. The findings of the Sessions Court are contrary to the
evidence placed on record and as such, perverse and prays
to allow the appeal and restore the judgment of the trial
court.
12. In support of his contentions, learned counsel
for the complainant has relied upon the following decision:
i) N.E.P.C. Micon Limited And Others Vs.
Magma Leasing Limited1
(N.E.P.C. Micon Limited's case)
1999 (4) SCC 253
13. On the other hand, learned counsel representing
the accused supported the impugned judgment and order
and prays to dismiss the appeal.
14. In support of his contentions, learned counsel
for the accused has relied upon the following decision:
i) Urban Co-Operative Credit Society Vs.
State Of Gujarat And Anr.2
(Urban Co-operative Credit Society's case)
15. Heard arguments of both sides and perused the
record.
16. It is not in dispute that Ex.P-1 Cheque is drawn
on the account of accused in Andhra Bank. According to the
complainant, while demolishing an old building and
promising to form commercial sites and sell one of the site
to him, accused borrowed a sum of Rs.80,000/-. After
complainant came to know that already accused has
entered into sale agreement with someone else, when he
insisted upon repayment of the said loan, accused paid a
2003 Criminal Law Journal 3292 (Gujarat High Court)
sum of Rs.2,000/- in cash and for the remaining
Rs.78,000/-, he issued Ex.P-1 cheque.
17. Accused dispute that he has borrowed
Rs.80,000/- and towards repayment of part consideration,
he has issued Ex.P-1 cheque to the complainant. He has
specifically contended that complainant had advanced loan
to a relative of the accused and towards the security of the
said loan, complainant had taken a blank cheque from the
accused and misusing the same, he has filed a false
complaint.
18. Having regard to the fact that by taking such a
defence, accused is admitting that the cheque in question is
drawn on his account and it bears his signature, the
presumption under Sections 118 and 139 of the Negotiable
Instruments Act is in favour of the complainant and
therefore, the burden is on the accused to prove the
circumstances in which he issued the said cheque.
19. The trial Court accepting the case of the
complainant had convicted the accused. However, the
Sessions Court has acquitted him mainly on the ground that
there are no averments in the complaint as well as in the
notice that the complainant has advanced a sum of
Rs.80,000/- by way of loan to the accused, the fact of
payment of loan, the date of advancement of the loan to
the accused and the date of the presentation of the cheque
to the Bank. One of the grounds urged for acquitting the
accused is that by the time Ex.P-1 cheque came to be
allegedly issued, the account of accused was already closed
and while closing the account, the Banker would take back
all the cheques and therefore, it is doubtful whether after
closure of the account, accused was able to issue the
cheque at Ex.P1 and under these circumstances, the
defence of the accused that the cheque in question was
issued towards security of loan advanced by complainant to
one of his relative is more probable. Keeping in mind the
grounds on which the Sessions Court has acquitted the
accused, it is necessary to examine the evidence placed on
record and to ascertain whether the Sessions Court was
justified in setting aside the judgment of the trial Court.
20. As noted earlier, the fact that Ex.P-1 Cheque
was drawn on the account maintained by the accused with
the Andhra Bank and it bears his signature is not in
dispute. Consequently, the presumption under Sections 118
and 139 of the N.I.Act is in favour of the complainant and
the onus shift on the accused to prove the circumstances in
which he has alleged issued the cheque in question. Though
in the complaint, the exact date on which the loan was
advanced and the date on which accused issued the cheque
are not specifically pleaded, the overall reading of the
complaint makes it evident that in connection with
demolition of an old building, accused was in need of
financial assistance and complainant has advanced
Rs.80,000/- to him is forthcoming from the complaint.
Similarly, the fact of issue of cheque dated 21.05.2001 by
the accused is also pleaded in the complaint. The date on
the cheque is the date on which it is stated to be issued
unless it is the specific case of the complainant that it was a
post dated cheque. Therefore, the non mentioning of the
date on which the accused issued the cheque is immaterial.
21. At the outset, it is relevant to note that the
accused has not sent any reply to the legal notice issued by
the complainant. He do not dispute the fact of receipt of the
legal notice. Therefore, at the earliest available opportunity,
by sending reply notice accused has not disclosed his
defence. There was no impediment for him to send the
reply and dispute the claim of the complainant that Ex.P-1
Cheque is issued towards repayment of legally recoverable
debt. In the absence of the same, I am of the considered
opinion that the defence taken by the accused is an after
thought.
22. It is also relevant to note that accused was
running a proprietorship concern by name Micro Armiture
and rewinding work. The Ex.P-1 Cheque belongs to the said
proprietorship concern. PW-1 was cross examined as to
whether he had any transaction with the said proprietorship
concern. From the very averments of the complaint, it is
evident that the transaction between the complainant and
the accused is a personal one and it does not relate to the
proprietorship concern. Since it is a proprietorship concern,
the possibility of accused using the cheques relating to the
said concern for his personal use cannot be ruled out.
Therefore, there is no impediment for the complainant to
prosecute the complaint against the accused based on such
cheque.
23. During his cross examination, complainant has
admitted that except the cheque at Ex.P-1, there is no
other agreement between him and the accused. Though
there is an averment to the effect that accused has
promised to sell a commercial site to him and borrowed a
sum of Rs.80,000/-, it is nobody's case that there was any
agreement between complainant and accused for purchase
of the said site. Therefore, in order to prove the fact of
financial transaction between complainant and accused,
there is no need for any other document apart from Ex.P-1
Cheque. Therefore, cross examination to that effect is of no
consequence.
24. From the testimony of PW-3 - Manager of the
Andhra Bank, it is proved that on 18.10.2000 itself, the
accused has closed the account. However, the cheque at
Ex.P-1 is dated 21.05.2001 i.e., subsequent to the closure
of the said account. On this basis, accused is contending
that Ex.P-1 was issued when it was blank and it was issued
as a security towards the loan transaction between
complainant and his relative. To this effect, he has relied
upon Ex.D-1. This defence of the accused could be
accepted if contents of Ex.D-1 are held to be proved and
accused has anything to do with this agreement.
25. As per the contents of Ex.D-1, it is an
agreement entered into between the complainant R.Sudeer
and one M.G. Rafeeq. This document state that on
22.05.2000, Dadapeer the brother of M.G.Rafeeq has
issued a cheque in favour of complainant in respect of loan
taken by his brother Rafeeq and in that connection, the
complaint filed by the complainant is pending. Ex.D1
further state that one Mohammed Saleem of Harihar, the
brother-in-law of Rafeeq has intervened and issued a
cheque dated 22.05.2000 drawn on his NRE account, SBM
Harihar and therefore, complainant agreed to return the
cheque which was issued by Dadapeer after taking it from
the Court. Thus, Ex.D-1 nowhere refers to accused whose
name is Abdul Wahab having given any cheque in respect
of the transaction between Rafeeq and complainant in
which transaction, the brother of Rafeeq viz., Dadapeer and
later on his brother-in-law Mohammed Saleem intervened.
26. Therefore, Ex.D-1 has nothing to do with the
Ex.P1 cheque. It is altogether a different transaction
between complainant and Rafeeq, to whose rescue initially
Dadapeer came and on his failure to satisfy the cheque, his
brother-in-law Mohammed Saleem of Harihar intervened
and issued a cheque drawn on his NRE account in SBM
Harihar. Therefore, the defence of the accused that Ex.P-1
cheque was issued in connection with Ex.D-1 and the same
has been misused by the complainant is not correct and
absolutely there is no truth in the said contention. In fact,
the trial Court has rightly rejected the said defence.
However, the Sessions Court wrongly accepted Ex.D-1 as
the basis for issue of Ex.P-1 cheque by the accused and
that it is being misused by the complainant to file the
present complaint.
27. When once the accused has failed to probabalize
the defence taken by him, thereby he has failed to rebut
the presumption under Section 139 of the NI Act.
Therefore, the burden does not shift on the complainant to
prove the circumstances under which the said cheque came
to be issued by the accused in his favour. In this
connection, it is relevant to note that the Hon'ble Supreme
Court in the case of N.E.P.C. Micon Limited's referred to
supra, has held that the offence under Section 138 of the
NI Act is attracted even in respect of account which is
closed.
28. However, the decision in Urban Co-Operative
Credit Society's case relied upon by the accused referred
to supra is not applicable to case on hand, as in that case a
post dated cheque was issued by an officer of the company
and before the due date, he resigned from the office and as
such, it was held that he is not liable. Moreover, it has
come in the evidence that prior to the issuance of the
cheque, the (Company's) account was closed and amount
was transferred to other institution. On appreciation of the
facts, the Hon'ble Gujarat High Court held that offence
under Section 138 of the NI act is not made out. However,
this decision is not applicable to the facts and
circumstances of the present case.
29. Thus, from the above discussion, I am of the
considered opinion that the complainant has proved the
allegations against the accused beyond reasonable doubt.
At the same time, accused has failed to probabalize his
defence. Therefore, the trial Court was justified in
convicting and sentencing him accordingly. However, the
Sessions Court erred in interfering with the well reasoned
judgment of the trial Court. The findings of the Sessions
Court are contrary to the evidence placed on record and as
such, it is perverse. Therefore, the impugned judgment and
order of the Sessions Court is liable to be set aside and the
judgment and order of the trial Court is to be restored and
accordingly, I proceed to pass the following:
ORDER
i) Appeal is allowed.
ii) The impugned judgment and order dated
31.10.2009 in Crl.A.No.149/2007 on the file
of the Principal Sessions Judge, Shivamogga
is set aside.
iii) The judgment and order dated 14.12.2007 in
C.C.No.204/2003 on the file of I Additional
Civil Judge (Jr.Dn.) & JMFC., Shivamogga is
restored. The trial Court is at liberty to
proceed against the accused in accordance
with law.
iv) Registry is directed to return the trial Court
and Sessions Court records along with copy
of this judgment forthwith.
Sd/-
JUDGE
MDS
