N S Ramarao vs Nazirsab
2023 Latest Caselaw 3550 Kant

                           1


   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 21ST DAY OF JUNE, 2023

                         BEFORE

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

         CRIMINAL APPEAL NO.223 OF 2012

BETWEEN:

N S RAMARAO
S/O NADIG SRINIVAS RAO
AGED ABOUT 82 YEARS
AGRICULTURIST,
R/O HOLEHONNUR KOTE
BHADRAVATHI TQ

                                          ...APPELLANT
(BY K CHANDRASHEKAR, ADVOCATE)

AND:

NAZIRSAB
S/O BASHA SAB @ BUDEN SAB
AGED ABOUT 59 YEARS
ARECA MERCHANT
R/O HULIMATTI CAMP
SIDLIPURA
BHADRAVATHI TALUK
                                      .....RESPONDENT

(BY SMT. N.SHARADHA, ADVOCATE)

   THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE
THE JUDGMENT PASSED IN C.C.NO.1105/2008 ON THE FILE
OF THE I ADDL. CIVIL JUDGE AND JMFC., BHADRAVATHI
DATED 12.12.2011 AND ALLOW THIS APPEAL AS PRAYED FOR
WITH COSTS, IN THE INTEREST OF JUSTICE AND EQUITY.

     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED    ON    15.06.2023, COMING   ON   FOR
                               2


PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:

                       JUDGMENT

This is complainant's appeal challenging the acquittal

of respondent/accused for the offence punishable under

Section 138 of N.I.Act.

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 accused

and one Sayad of Hullimatti through the mediation of

complainant, entered into a contract on 14.07.2006 with

Sri.Kudli Arya Akshobya Tirtha Kudli Mutt (for short 'Kudli

Mutt'), to purchase sugarcane and areca crop situated in 2

acres of garden land belonging to the Kudli Mutt for a total

sum of Rs.1,10,000/-. He paid Rs.501/- as advance.

Accused promised to pay 50% of the balance before

Ganesha Chaturthi and remaining on or before 25.12.2006.

As agreed, accused removed the crops and paid

Rs.50,000/- before Ganesha festival through a bearer

cheque. Complainant encashed the said amount and

credited it to the Kudli Mutt authorities on 05.10.2006.

3.1 With regard to the balance, accused issued a

cheque bearing No.406819 dated 28.01.2007 (for short

subject cheque) for a sum of Rs.50,000/- and requested

the complainant to present it for encashment after four

months. Accordingly, on 28.05.2007, when complainant

presented the said cheque for encashment, it was returned

with endorsement "insufficient funds". Complainant got

issued a legal notice. However, accused has sent an

evasive reply. Without any alternative, complainant has

filed the complaint. Though the amount is payable to the

Kudli Mutt, it is to be paid through complainant as was

done earlier. Therefore, complainant has chosen to file the

complaint.

4. Before the trial Court accused has put in his

appearance and contested the matter. He has pleaded not

guilty and claimed trial.

5. In support of his case, complainant has

examined himself as PW-1, one witness as PW-2. He has

relied upon Ex.P1 to 13.

6. During his statement under Section 313 Cr.P.C

accused has denied the incriminating evidence.

7. In fact he has stepped into witness box by

examining himself as DW-1. However, no document has

been marked on his behalf.

8. Vide the impugned judgment and order, the trial

Court dismissed the complaint holding that the complainant

has no locus standi to file the complaint. He has also failed

to prove that the cheque in question was issued towards

repayment of any legal recoverable debt or liability. The

trial Court held that the accused has rebutted the

presumption under Section 118 and 139 of the N.I.Act.

However, the complainant has failed to discharge the onus

that has shifted on him by establishing that he is authorized

by the Kudli Mutt to file the complaint and that accused

owed a sum of Rs.50,000/- to the Kudli Mutt and issued the

cheque in question.

9. Being aggrieved by the impugned judgment and

order, the complainant has filed this appeal, contending

that the impugned judgment and order is erroneous,

contrary to the facts and circumstances of the case. The

trial Court has not taken into consideration the oral as well

as the documentary evidence placed on record. Having

regard to the fact that accused admitted issue of cheque,

the defence taken by him is highly improbable. The trial

Court has also not appreciated the fact that the earlier

cheque issued by the accused was in the name of

complainant and after realizing the said sum, he has

credited it into the account of the Kudli Mutt. Since the

cheque in question was issued towards the repayment of

the part of the amount due, the fact that no provision is

made for the remaining sum of Rs.9,500/- would not affect

the credibility of the complainant's case. When the

complainant has proved the payment of Rs.50,000/- being

the first instalment, the trial Court ought to have accepted

the case of the complainant that the subject cheque was

issued towards repayment of balance consideration of

Rs.50,000/- and prays to allow the appeal, convict the

accused and sentence him appropriately.

10. On the other hand learned counsel representing

the accused supported the impugned judgment and order

and submitted that according to the complainant the sum

due under the subject cheque is towards the Kudli Mutt.

However, complainant has failed to prove under what

authority he has chosen to file complaint and how the

subject cheque reached his hand. In the absence of any

authority issued by the Kudli Mutt, the complainant is not

having any locus standi to maintain the complaint. Even

otherwise on merits also, the complainant has failed to

prove that the cheque in question was issued towards

repayment of any legally recoverable debt or liability. In

the light of defence established by the accused, the trial

Court has rightly rejected the case of the complainant and

dismissed the complaint and prays to dismiss the appeal

also.

11. Heard arguments and perused the record.

12. According to the complainant, accused entered

into a agreement with Kudli Mutt and purchased the areca

nut and sugarcane crop raised in two acres of land

belonging to Kudli Mutt and towards repayment of part of

the sale consideration of Rs.50,000/- issued the cheque in

question in favour of the Kudli Mutt. It is contended by the

complainant that the total worth for which the accused

purchased the said crop is Rs.1,10,000/-. Out of it, he paid

Rs.501/- as advance. In respect of the first instalment, he

paid Rs.50,000/- by way of a bearer cheque and in fact it

was realized by complainant and credited into the account

of Kudli Mutt. With regard to remaining sum of Rs.50,000/-

he issued the subject cheque and requested the Swamiji to

present it after four months. Accordingly, on 28.05.2007,

when complainant presented the said cheque, it was

returned dishonored for insufficient funds.

13. Accused has admitted that he entered into an

agreement to purchase the sugarcane and areca nut crops

in two acres belonging to the Kudli Mutt and in fact he

harvested 50% of the crop and paid Rs.50,000/-. However,

before he could harvest the remaining 50% of the crop, it

was found that complainant and PW-2 Vadiraja, who were

employed in the Kudli Mutt had sold the said crop to some

other person and therefore, accused could not harvest

them. In fact he had issued the subject cheque in favour of

the Kudli Mutt by way of security. When he could not get

the remaining 50% of the crops, he approached the

Swamiji and requested him to return the cheque. However,

Swamiji informed that writer has left the job and cheque

was with him and after he return he will return the cheque.

In that way he could not get back the cheque. Alleging that

accused along with PW-2 who were removed from the

services of the Mutt have taken away the subject cheque

and filed the complaint.

14. In other words accused has contended that

since he could not harvest the remaining 50% of the crops,

he had no liability to pay Rs.50,000/- and misusing the

cheque which was given by way of security, the

complainant has filed a false complaint. In the light of the

specific defence taken by the accused, heavy burden is on

the complainant to prove that he is authorized by the Kudli

Mutt to file complaint. Though in the light of the Section

118 and 139 of N.I.Act, a presumption is operating in

favour of the complainant that the cheque in question was

issued by the accused towards repayment of any debt or

liability, heavy burden is on the complainant to prove that

accused has harvested the entire crop and he had paid

Rs.50,000/- towards the first half and the subject cheque

was issued towards the balance.

15. Admittedly, according to the complainant the

cheque in question is issued towards repayment of

Rs.50,000/- towards Kudli Mutt Swamiji. In other words,

the alleged liability of accused is towards the said Kudli

Mutt. Therefore, the complaint ought to have been filed in

the name of the Kudli Mutt. Admittedly, the complainant is

not prosecuting the complaint on behalf of the Kudli Mutt.

In fact in the complaint there are no averments that he has

been authorized by the Kudli Mutt to file the complaint and

to represent the Kudli Mutt. Through the cross-examination

of PWs-1 and 2, the accused has proved that both of them

have been removed from the services of the Kudli Mutt on

the ground of misconduct. Of course PWs-1 and 2 have

denied that they misused the funds of the Kudli Mutt and

therefore, they were removed from service. However, they

have not placed any record to show that they have been

removed from the Kudli Mutt for the reasons other than

what was suggested by the accused.

16. When the complaint is not filed by the Kudli

Mutt and complainant is not acting on behalf of the Kudli

Mutt and he has no authority to prosecute the complaint,

he cannot plead that accused owed Rs.50,000/- to the Kudli

Mutt and issued the cheque towards repayment of the

same. If at all the cheque in question was issued in favour

of the Kudli Mutt, absolutely there was no hindrance or

prohibition to submit the said cheque to the account of the

Kudli Mutt. The complainant has not explained as to how

the cheque in question was issued in his name. When he is

not representing the Kudli Mutt, it cannot be accepted that

accused has issued the cheque in question in the name of

complainant for and on behalf of the Kudli Mutt.

17. The very fact that the cheque bares the name of

the complainant goes to support the defence of the accused

that he had issued a blank cheque by way of security to the

amount which would be due from him after he harvest the

balance crops. Complainant has relied upon Ex.P4 to show

that earlier instalment of Rs.50,000/- paid by the accused

through cheque is realized by him and it is paid into the

hands of PW-2 and he has received it on behalf of the Kudli

Mutt. Ex.P4 is a receipt stated to have been issued by PW-2

in favour of PW-1 saying that he has received Rs.50,000/-

on behalf of the Kudli Mutt towards payment of sugarcane

crop grown in the land of the said Kudli Mutt. However, this

documents does not state whether the said amount was

paid by the accused. In fact according to the complainant,

the said sum of Rs.50,000/- was paid by way of bearer

cheque. However, this receipt does not state that the said

amount was received from accused by way of bearer

cheque and complainant has credited it to his account and

paying the cash in the hands of PW-2. In fact the

complainant has also not produced his account extract to

show that the said sum of Rs.50,000/- were paid by the

accused through his account by way of a bearer cheque.

18. Admittedly, accused is not a signatory to Ex.P4.

Having regard to the specific allegations that both PWs-1

and 2 acted contrary to the interest of the Kudli Mutt and

have been removed from the services of Kudli Mutt, at no

stretch of imagination, it could be accepted that this receipt

prove the fact that Rs.50,000/- which is reflected in the

said receipt was paid by the accused and it is towards

repayment of the 50% of the crops collected by the

accused. When the subject cheque was issued by the

accused in favour of the Kudli Mutth, if accused has

harvested the entire crop and failed to pay the balance

consideration, absolutely there was no impediment for the

cheque to be presented by the Swamiji or on behalf of the

Kudli Mutt and file the complaint in the name of the Kudli

Mutt or the Swamiji as the case may be. The accused has

taken up a specific defence that when he contacted the

Swamiji and requested to return the cheque in question, he

expressed his inability saying that the writer has taken

away the cheque and he will return it as soon as the writer

returns.

19. Having regard to the fact that the complainant

as well as PW-2 are removed from the Kudli Mutt, the

possibility of complainant having come in possession of the

cheque while leaving the Kudli Mutt and presenting in his

name cannot be ruled out. Therefore, despite the fact the

presumption is operating that accused has issued the

cheque in question towards repayment of any legally

recoverable debt or liability, having regard to the specific

defence taken by him that accused is not having any locus

standi to present the cheque in his name and file the

complaint, the accused has rebutted the said presumption.

Of course despite accused taking up a specific defence, the

complainant has not chosen to lead any evidence to show

that he has been authorized by the Kudli Mutt to file the

complaint and prosecute the same. Taking into

consideration all these aspects, the trial Court has rightly

rejected the case of the complainant and accepted the

defence of the accused.

20. In the light of the oral and documentary

evidence placed on record by both parties and more

specifically in the light of the specific defence taken by the

accused, this Court is of the considered opinion that this is

not a fit case to interfere with the conclusions arrived at by

the trial Court. In the result appeal fails and accordingly, I

proceed to pass the following:

ORDER

(i) Appeal filed by the complainant is dismissed.

(ii) The impugned judgment and order of the

trial Court is confirmed.

(iii) The Registry is directed to send back the trial

Court record along with copy of this

judgment to the trial Court forthwith.

Sd/-

JUDGE

RR