Sri Suman B Pirgal vs Sri Anthony George
2023 Latest Caselaw 440 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.1189 OF 2011

BETWEEN:

SRI SUMAN B PIRGAL
AGED ABOUT 40 YEARS
S/O SRI B D PIRGAL
NO.94, B V K IYENGAR ROAD,
BANGALORE - 560 053
                              ...COMPLAINANT / APPELLANT

(BY SRI. MOHAMMED MUJASSIM, ADVOCATE)

AND:

SRI ANTHONY GEORGE
C/O. AQUA ACE PACKED DRINKING WATER
AQUA MIND SPRINGS,
NO.17/A, H A FARM POST,
COFFEE BOARD LAYOUT,
MARIYANAPALYA, HEBBAL
BANGALORE - 560 024
                             ...ACCUSED / RESPONDENT

(BY SRI. V.ANAND, ADVOCATE)

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) OF THE CODE OF CRIMINAL PROCEDURE PRAYING TO
CALL FOR THE RECORDS IN C.C.NO.1298/2007 FROM THE
COURT    OF   THE   XV  ADDL.   CHIEF  METROPOLITAN
MAGISTRATE, BANGALORE, PERUSE THE SAME AND SET
ASIDE   THE    IMPUGNED   ACQUITTAL   ORDER   DATED
20.07.2011, CONVICT THE ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 138 OF THE NEGOTIABLE
INSTRUMENTS ACT AND SENTENCE THE RESPONDENT TO
PAY FINE AND PASS SUCH OTHER ORDERS AS MAY BE
                                2               Crl.A.No.1189/2011



DEEMED FIT IN THE CIRCUMSTANCES OF THE CASE, IN THE
INTEREST OF JUSTICE AND EQUITY.

     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED    ON    01.12.2022, COMING   ON   FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:


                      JUDGMENT

This is complainant's appeal filed under Section

378(4) Cr.P.C., challenging the acquittal of the accused for

the offence punishable 138 of N.I.Act by the trial Court.

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 is an

Auditor by profession and accused is his customer. Accused

borrowed a sum of Rs.3,50,000/- from the complainant to

meet his urgent business requirement, promising to repay

the same within a couple of months. However, he failed to

repay the loan as promised by giving one or the other

reason. When insisted upon by the complainant, he issued

cheque dated 29.08.2006 for Rs.3,50,000/-. When

presented for realization on 29.08.2006, it was dishonoured

with endorsement "payment stopped by drawer".

3.1 Complainant tried to contact the accused and

appraise him of dishonour of the cheque. However, he

avoided to meet him. Therefore, complainant got issued a

legal notice dated 07.09.2006. Though duly served on the

accused, he has neither complied with the said notice nor

sent any reply and without any alternative, complainant

has filed the complaint.

4. Based on the sworn statement of the

complainant, the trial Court took cognizance.

5. After due service of summons, accused

appeared and contested the matter.

6. He has pleaded not guilty and claimed trial.

7. In order to prove the allegations against the

accused, complainant examined himself as PW-1 and got

marked Exs.P1 to 11.

8. During the course of statement under Section

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

evidence.

9. On the other hand, accused entered into the

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

upon Exs.D1 to 11.

10. Vide the impugned judgment and order the trial

Court dismissed the complaint.

11. Being aggrieved by the same, the complainant

is before this Court.

12. During the course of arguments, learned

counsel representing the complainant submitted that the

impugned order is illegal, arbitrary and not sustainable in

law. The learned trial Court has acquitted the accused on

technical grounds. There is no application of judicial mind

to the facts and circumstances of the case. The trial Court

has erred in dismissing the appeal on the ground that in the

complaint complainant has not stated the exact date on

which the loan was borrowed; that there is contradiction in

the evidence of PW-1 that the loan advanced is

Rs.3,00,000/- whereas in the complaint he has pleaded it

as Rs.3,50,000/-; that there is difference in the ink so far

as signature of the accused and the rest of the writing are

concerned. The findings of the trial Court are contrary to

the facts, circumstances and probabilities of the case and

prays to allow the appeal.

13. On the other hand, learned counsel representing

accused supported the impugned judgment and order and

submitted that after considering the oral and documentary

evidence placed on record, the trial Court has come to a

correct conclusion and prays to dismiss the appeal.

14. Heard the arguments of both sides and perused

the record.

15. At the outset it is relevant to note that

according to the complainant, accused has borrowed a sum

of Rs.3,50,000/- and issued the cheque at Ex.P-2 towards

repayment of the same. Though the accused has not sent

reply to the legal notice disclosing his defence, during the

course of trial, he has taken up a specific contention that he

had borrowed hand loan in a sum of Rs.1,00,000/- from the

complainant and at that time had issued a blank cheque

with his signature. He has also claimed that out of the said

amount, he has paid substantial sum towards interest and

principal, however, misusing the blank cheque available

with him, the complainant has filed a false complaint to

make wrongful gain.

16. Having regard to the fact that accused admit

that Ex.P2 cheque is drawn on his account maintained with

his Banker and it bears his signature, presumption under

Sections 118 and 139 of N.I. Act is acting in favour of the

complainant and therefore, burden is on the accused to

prove that he has borrowed loan of Rs.1,00,000/- only and

towards repayment of the same, he had issued the cheque

in question when it was blank. If the accused is able to

rebut the presumption which is in favour of the

complainant, then it becomes necessary for the

complainant to prove that accused has borrowed a sum of

Rs.3,50,000/- and for dishonour of the said cheque, he is

liable to be convicted and punished.

17. Before filing the complaint, complainant has

issued a legal notice to the accused calling upon him to

repay the amount due under the cheque. Though it is duly

served on him, the accused has not chosen to send any

reply. Admittedly, he has not complied with the

requirement of the said notice.

18. As rightly held by the trial Court, the

complainant has not pleaded the date on which accused has

borrowed a sum of Rs.3,50,000/- from him. Though

specifying the exact date of borrowing is not essential,

having regard to the specific defence taken by the accused

that he borrowed only a sum of Rs.1,00,000/- and towards

repayment of the same, had issued a blank cheque, the

requirement of atleast stating the approximate time during

which accused had borrowed the loan from him becomes

essential. For reasons best known to him, the complainant

has not come up with this detail. Moreover, he has not

adduced any evidence to show that he had the financial

capacity to advance the said sum. It is true that the

accused has not challenged the financial capacity of the

complainant. However, production of evidence to show that

at the time when he allegedly advanced the loan to the

accused, he was in possession of Rs.3,50,000/- would

corroborate with the case of the complainant.

19. As rightly observed by the trial Court, it is the

definite case of the complainant that accused borrowed a

sum of Rs.3,50,000/- from him. In the complaint, legal

notice as well as in his affidavit evidence, complainant has

reiterated the said fact. However, for the first time during

his cross examination, he has deposed that the amount

borrowed by the accused is Rs.3,00,000/-. He has claimed

that accused had agreed to pay interest at 18% p.a.

However, earlier to this the complainant has not chosen to

disclose whether accused had agreed to pay any interest, if

so, at what rate. On the other hand, during the course of

his evidence, accused has pleaded that on Rs.1,00,000/-

borrowed by him, complainant had taken interest at the

rate of 2% per month and in this way, he has paid more

than Rs.2,00,000/- towards interest itself. Of course,

complainant has denied suggestion made to this effect

during his cross examination.

20. Though the complainant admit of having

received certain sum towards interest, he is not in a

position to state exactly the amount so paid by the

accused towards interest. Since the complainant is an

auditor and an educated person, it would be reasonable to

expect that he would maintain an account as to the amount

received by him from the accused which would have helped

him in calculating the rate at which the interest is imposed

and the principal amount. For reasons best known to him,

complainant has not chosen to maintain any such account.

21. Through the cross examination of PW-1, the

accused has got marked Exs.D-1 to 11 which are receipts in

the form of chits and hand writing in the note book towards

payment of certain sum by the accused to the complainant.

The complainant is not in a position to explain what are

these amounts which are received by him through Exs.D-1

to 11. It is contended by the accused that these are certain

sum paid by him towards interest.

22. During the course of arguments, learned

counsel representing the complainant submitted that these

may be the amount received by the complainant towards

the service rendered by him to the accused. As an auditor,

complainant is expected to issue regular receipts and not

these chits and it cannot be accepted that these are the

consideration received by him for the service rendered.

23. As already noted the accused has taken up a

specific defence that the cheque at Ex.P-2 was issued blank

with his signature and the rest of the details are entered by

the accused either in his own handwriting or through his

staff by name Kailash. It is admitted by the complainant

that Ex.D6 and entry in a note book regarding payment of

Rs.5,000/- by the accused is in the handwriting of his staff

by name Kailash Chand. A suggestion is made to the

complainant that Ex.P2 cheque is also in the handwriting of

said Kailash. Of course complainant has denied the said

suggestion.

24. However, under Section 73 of the Evidence Act,

the trial Court has compared the handwriting in Ex.D1 with

the contents of Ex.P2 and found that they are of one and

the same person. This observation of the trial Court is

correct. However, the findings of the trial Court that by

filling up the cheque, the complainant is guilty of material

alteration is incorrect. The provisions of Section 138 of

N.I.Act are applicable even to a blank signed cheque

whereby the drawer of the cheque authorises the holder of

the cheque to fill the details. However, in the present case,

the complainant has failed to prove that the amount

borrowed by the accused was Rs.3,50,000/-. The evidence

led by the complainant is contradictory to the case put forth

by him. In order to justify the receipt of interest, it appears

the complainant during the course of his evidence has

claimed that accused had agreed to pay the interest at 18%

p.a. and therefore reduced the amount borrowed by the

accused as Rs.3,00,000/-. The legal notice at Ex.P5 does

not state that the amount of Rs.3,50,000/- due from the

accused includes interest of Rs.50,000/-.

25. On the other hand, during the course of his

evidence, the accused has clearly deposed that he had

borrowed a sum of Rs.1,00,000/- and issued the cheque at

Ex.P2 and it was blank except his signature and later on

complainant has filled it up according to his requirement.

Through Ex.D1 to 11, the accused has also proved that he

had paid various sums towards interest. Even though he

has been cross-examined at length, the complainant has

failed to prove that Ex.P2 cheque was issued by the

accused with all the particulars filled up. The complainant

has also produced income tax returns at Ex.P9, Exs.P10

and 11 are stated to be the enclosures of Ex.P9. From

these documents also, complainant is not in a position to

prove that at the relevant point of time he has advanced a

sum of Rs.3,50,000/- to the accused by way of hand loan.

Considering the oral and documentary evidence placed on

record, the trial Court has come to a correct conclusion that

the complainant has failed to prove the allegations against

accused beyond reasonable doubt.

26. On the other hand accused by way of his oral

evidence and Ex.D1 to 11 has established that there was

some loan transaction between him and complainant and

towards the same he had issued a cheque at Ex.P2 and

thereby rebutted the presumption. However, the

complainant has failed to discharge the burden shifted on

him. Therefore, the trial Court is justified in acquitting the

accused and I find no reason to interfere with the well

reasoned judgment of the trial Court 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

20.07.2011 in C.C.No.1298/2007 on the file

of XV Addl.CMM, Bengaluru, is hereby

confirmed.

(iii) Registry is directed to return the trial Court

records along with copy of this judgment

forthwith.

Sd/-

JUDGE

RR