Sri. V.Yogananda vs Sri.Annappa Prabhu
2023 Latest Caselaw 2084 Kant

                           1             CRL.A.NO.183/2012



    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 30TH DAY OF MARCH, 2023

                        BEFORE

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

          CRIMINAL APPEAL NO.183 OF 2012

BETWEEN:

SRI. V.YOGANANDA,
S/O D.VENUGOPAL NAIDU,
AGED ABOUT 45 YEARS
NO.161, 4TH CROSS, 7TH MAIN,
1ST STAGE, BANASHANKARI,
BANGALORE - 560 050.
                               ...COMPLAINANT / APPELLANT

(BY SRI. V.LAKSHMIKANTH RAO, ADVOCATE)

AND:

SRI. ANNAPPA PRABHU,
S/O LATE K.U.P. PRABHU,
AGED ABOUT 53 YEARS,
VAJAPEYAM GARDEN, 6TH CROSS,
ASHOKNAGAR, N.R.COLONY,
BANGALORE.
                                ...ACCUSED / RESPONDENT

(BY SRI RAMACHANDRA G.BHAT, ADVOCATE)

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) OF THE CODE OF CRIMINAL PROCEDURE PRAYING TO
a) ADMIT THE APPEAL; b) SET ASIDE THE IMPUGNED
JUDGMENT OF ACQUITTAL IN CRL.APL.NO.446/2008 AND
ORDER DATED 06.05.2009 PASSED BY THE LEARNED
SESSIONS JUDGE, BANGALORE RESERVING THE JUDGMENT
OF THE POWER COURT AND CONVICT THE RESPONDENT AND
CONFIRMING THE JUDGMENT IN C.C.NO.31426/2006 PASSED
BY THE XVI ACMM AT BANGALORE, IN THE INTEREST OF
JUSTICE AND EQUITY.
                                2              CRL.A.NO.183/2012



     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED    ON    09.03.2023, COMING   ON   FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:


                      JUDGMENT

This appeal filed under Section 378(4) of Cr.P.C, is by

the complainant challenging the acquittal of accused by the

Sessions Court, thereby reversing his conviction and

sentence imposed by the trial Court for the offence 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. Complainant filed a private complaint under

Section 200 Cr.P.C. against accused alleging offence

punishable under Section 138 of N.I.Act. Complainant and

accused are employees of BHEL. It is the case of the

complainant that accused being the owner of site No.61,

measuring 40' x 60' feet situated at REMKO House Building

Society (BHEL), Pattanagere, Kengeri Hobli, agreed to sell

the said site to complainant for a sum of Rs.5,00,000/- and

executed a sale agreement dated 14.08.2003 by receiving 3 CRL.A.NO.183/2012

Rs.4,75,000/- as advance. He agreed to execute the sale

deed by receiving balance consideration of Rs.25,000/-

within a period of two months.

3.1 There was a covenant that if the purchaser fails

to pay the balance and get the sale deed executed within a

period of two months, the entire advance would be

forfeited. On the other hand if accused fail to execute the

sale deed, then he shall pay the double the advance

amount to the complainant. Alleging that despite offering

balance consideration of Rs.25,000/-, accused did not come

forward to execute the sale deed. On the other hand he

issued a cheque for a sum of Rs.9,50,000/- being the

double amount of advance received by him for his failure to

execute the sale deed. The complainant has alleged that

when he presented the cheque for encashment, it was

returned with endorsement "funds insufficient". Therefore,

after issuing legal notice and on failure of the accused to

comply with the said notice, he filed the complaint.

4. After recording sworn statement of the

complainant, the trial Court took cognizance. In response to

the service of summons, accused appeared and contested 4 CRL.A.NO.183/2012

the complaint, mainly contending that he never agreed to

sell the site in question to the complainant or anyone else,

especially when at the time of alleged sale agreement, the

guidance value of the said site was Rs.6,00,000/- and

market value was Rs.28,80,000/-. At the time of alleged

sale agreement, he was admitted as in-patient in the

hospital and was undergoing treatment. It is also

contended by the accused that complainant along with

some other employees of the factory have high handedly

taken his signature to some blank stamp papers and

cheques and utilizing the same, complainant has managed

to file the complaint. During the cross-examination of the

complainant, accused has taken up a specific defence that

complainant never had the financial capacity to pay

Rs.4,75,000/- as on the alleged date of sale agreement. In

the light of the specific defence taken by the accused,

burden is on the complainant to prove among other things

his financial capacity to pay a sum of Rs.4,75,000/- to the

accused and that accused has executed the sale agreement

in question etc. 5 CRL.A.NO.183/2012

5. During the course of his arguments, learned

counsel appearing for the complainant submitted that the

impugned judgment and order is contrary to law and

evidence. It is improper and incorrect. The Sessions Court

has committed grave error in holding accused not guilty

and thereby reversing the judgment and order of the trial

Court. The Sessions court has allowed the appeal only on

the ground that the complainant has failed to establish his

financial capacity to pay the amount under the sale

agreement. It is a matter of civil dispute and the same

cannot be decided in this case.

5.1 He would further submit that in the light of the

presumption available under Section 118 and 139 of the

N.I.Act, the Sessions Court has erred in reversing the well

reasoned judgment of the trial Court. It has failed to

appreciate the presumption operating against the accused.

In support of his argument, the learned counsel for

complainant has relied upon the following decision:

(i) P.Rasiya Vs. Abdul Nazeer & Anr.1

AIR Online 2022 SC 1375 6 CRL.A.NO.183/2012

6. On the other hand learned counsel for accused

supported the impugned judgment and order of the

Sessions Court and submitted that in the light of the

specific defence taken by the accused and on failure of the

complainant to prove his capacity to pay Rs.4,75,000/- and

also the inherent defects in the case of the complainant,

the Sessions Court has rightly allowed the appeal and

acquitted the accused and prays to dismiss the appeal.

6.1 In support of his arguments, he has relied upon

the following decisions:

(i) Kamala S Vs. Vidyadharan M.J & Anr.2

(ii) Krishna Janardhan Bhat Vs. Dattatraya G.

Hegde3

(iii) M/s Q Soft System and Solutions Pvt. Ltd Vs.H.N.Giridhar4

(iv) Basalingappa Vs. Mudibasappa5

(v) John K.Abraham Vs. Simon C.Abraham and Anr.6

(2007) 5 SCC 264

AIR 2008 SCW 738

ILR 2008 KAR 643

AIR 2019 SC 1983

2014 Crl.LJ 2304 7 CRL.A.NO.183/2012

6.2 In the light of the principles enunciated in the

above decisions, it is necessary to examine whether the

allegations against the accused are proved beyond

reasonable doubt and whether the Sessions Court is

justified in reversing the judgment and order of the trial

Court.

7. Heard arguments of both sides and perused the

record.

8. During the course of his evidence, complainant

has reiterated the complaint averments. He has produced

Ex.P1 to 11, including the sale agreement at Ex.P.11 which

is marked subject to objection raised by learned counsel for

the accused. Having regard to the fact that accused admits

that Ex.P2 Cheque is drawn on the account maintained by

him with the Bank and it bears his signature and having

regard to the fact that it was presented to the Bank and

dishonoured on the ground of insufficiency of funds and

after issuing legal notice at Ex.P4 which is served on the

accused and in response to which he has sent a reply at

Ex.P10, the presumption under Section 118 and 139 of N.I.

Act is operating in favour of the complainant. Therefore, 8 CRL.A.NO.183/2012

the burden is on the accused to prove the circumstances

under which the complainant has allegedly taken his

signature to blank papers and cheques and also to

demonstrate that complainant has no financial capacity to

pay a sum of Rs.4,75,000/- on 14.08.2003, when the sale

agreement at Ex.P11 has allegedly come into existence.

8.1 To discharge this burden, the accused has

chosen to cross-examine PW-1 at length. During his cross-

examination, it is elicited through the complainant that

during 2003, he has taken loan of Rs.9,00,000/- from State

Bank of India to construct house. With regard to the

payment of Rs.4,75,000/- to the accused vide Ex.P11,

complainant has stated that he had paid the said amount

by withdrawing the same from his Provident Fund Account

i.e., during September 2004 he has withdrawn a sum of

Rs.3.39 lakhs from his Provident Fund Account. It is

relevant to note that the sale agreement is dated

14.08.2003 and the complainant is not having any

explanation as to from where he could lay his hands to pay

a sum of Rs.4,75,000/- to the accused, when he has

allegedly withdrawn a sum of Rs.3.39 lakhs from his 9 CRL.A.NO.183/2012

Provident Fund Account during September 2004 which is

subsequent to the sale agreement.

8.2 Of course, complainant has not produced any

documents to show that during September 2004 he has

withdrawn a sum of Rs.3.39 lakhs from his Provident Fund

Account and also to show that as on the date of alleged

sale agreement at Ex.P11, he had a sum of Rs.4,75,000/-

at his disposal. It is also elicited during his cross-

examination that he has intimated his company about

payment of Rs.4,75,000/- to the accused towards purchase

of the site. The cross-examination of complainant creates a

doubt as to the veracity of his claim of having paid a sum of

Rs.4,75,000/- to the accused towards purchase of the site

in question.

8.3 During the cross-examination of complainant it

is also elicited that for having failed to execute the sale

deed, he has not issued any legal notice calling upon the

accused to receive Rs.25,000/- and executed the sale deed.

It is also pointed out through his cross-examination that

though the property in question is only a vacant site, in the

alleged sale agreement at Ex.P11, it is described as a 10 CRL.A.NO.183/2012

house, but in the Schedule once again it is noted as a site.

In this regard he has come up with an explanation that if it

were to be only a vacant site, there was prohibition for

registering the document and therefore, it was deliberately

noted as a house. Of course complainant has not placed

any document on record to show that at that point of time

vacant sites were not registered. A suggestion is made to

the complainant that since he and his supporters have

forcibly taken the signatures of accused on blank papers

and cheques, in a hurry, they have created Ex.P11 with

false contents.

8.4 It is pertinent to note that the wife of accused

has lodged a criminal complaint against the complainant

and others alleging harassment, stalking and also giving

threat of kidnapping their children. She has also issued a

legal notice to the complainant. In turn complainant has

sent reply to the said notice, but in the said reply there is

no reference to accused having executed the sale

agreement dated 14.08.2003. Similarly in Ex.P11 the

alleged sale agreement the fact of accused having handed

over original title deeds is also not forthcoming which fact 11 CRL.A.NO.183/2012

is admitted by the complainant during his cross-

examination. It is also elicited through the complainant that

a civil suit is filed by one Kempanna against the accused

alleging that he has executed a sale agreement in his

favour and to the said sale agreement, complainant is a

witness. This also creates a doubt as to the veracity of his

claim about the accused having received Rs.4,75,000/- and

agreeing to sell the site to him.

8.5 Through his evidence accused has produced

Ex.D8 to show that from 19.05.2006 to 09.06.2006 he was

on leave. DW-2 Dr.Umesh Jalihal is the Doctor who has

treated the accused at Ramaiah Hospital. He has deposed

that he has issued Ex.D5 which is a computer extract. The

documents produced by accused creates a doubt as to the

availability of accused for executing the sale agreement at

Ex.P11. Even where the documents relied upon by the

accused are not taken into consideration, then also the

complainant has failed to establish that he had the financial

capacity to pay Rs.4,75,000/- as on 14.08.2003 and in

consideration of the same, accused has executed the sale

agreement at Ex.P11 and on his failure to fulfill the said 12 CRL.A.NO.183/2012

promise, he has issued a cheque at Ex.P2 for a sum of

Rs.9.5 lakhs.

8.6 The accused having established that

complainant had no financial capacity to pay Rs.4,75,000/-

to him, has rebutted the presumption under Section 118

and 139 of the N.I.Act. However complainant has failed to

discharge the onus which is shifted on him. The trial Court

without taking into consideration all these aspects, simply

on the basis of presumption has convicted the accused.

However, the Sessions Court after due consideration of all

these aspects, has rightly allowed the appeal filed by the

accused and acquitted him. I find no reason to interfere

with the findings of the Sessions Court. In the result,

appeal filed by the complainant fails and accordingly, I

proceed to pass the following:

ORDER

(i) Appeal filed by the complainant is dismissed.

(ii) The judgment and order of the Sessions Court reversing the judgment and order of the trial Court and acquitting the accused is confirmed.

13 CRL.A.NO.183/2012

(iii) The registry is directed to send back the trial Court records along with copy of this judgment to the trial court.

Sd/-

JUDGE

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