Pandu T Mendon vs Udaya Bhaskar
2023 Latest Caselaw 7040 Kant

                               1         CRL.A.NO.1312/2010


       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 6TH DAY OF OCTOBER, 2023

                             BEFORE

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

            CRIMINAL APPEAL NO.1312 OF 2010

   BETWEEN:

   PANDU T.MENDON,
   S/O LATE THANIYA SALIAN,
   AGED ABOUT 60 YEARS,
   R/O KUDRUKERE VIA MALPE,
   UDUPI TALUK AND DISTRICT.

                                             ...APPELLANT
   (BY SMT.THANIMA BEKAL, ADVOCATE FOR
    SRI HAREESH BHANDARY T., ADVOCATE)

   AND:

1 . UDAYA BHASKAR,
    S/O LATE BABU POOJARY,
    AGED ABOUT 56 YEARS,
    R/O NATIONAL STEEL,
    ADI-UDUPI,
    AMBALPADY POST,
    UDUPI TALUK.

2 . M/S NATIONAL STEEL
    ADI-UDUPI,
    AMBALPADY POST,
    UDUPI TALUK.
                                         .....RESPONDENTS

   (BY SRI ROHIT URS D., ADVOCATE FOR
    SRI T.NARAYAN POOJARY, ADVOCATE)

       THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
   OF CODE OF CRIMINAL PROCEDURE PRAYING TO ALLOW THE
   APPEAL AND SET-ASIDE THE JUDGMENT AND ORDER DATED
   20.09.2010 MADE IN CRL.A.NO.135/2008 BY THE COURT OF
                                    2            CRL.A.NO.1312/2010


FAST TRACK JUDGE, UDUPI DISTRICT AT UDUPI AND
CONFIRM THE ORDER PASSED IN C.C.NO.4604/2004 BY THE
COURT OF III ADDL.CIVIL (JR.DN.) AND JMFC, UDUPI DATED
17.05.2008 AND CONVICT THE ACCUSED AND DIRECT THE
ACCUSED / RESPONDENT TO PAY THE COMPLAINANT DOUBLE
THE AMOUNT COVERED UNDER THE ABOVE SAID CHEQUE, IN
THE INTEREST OF JUSTICE.

     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED    ON    05.07.2023, 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 impugned judgment

and order dated 20.09.2010 in Crl.A.No.135/2008, by

which the Sessions Court allowed the appeal filed by the

accused challenging his conviction and sentence passed

by the trial Court in C.C.No.4604/2004 dated

17.05.2008, for the offence punishable under Section

138 of the Negotiable Instruments Act, 1881 (for short,

'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

No.1 is the managing partner of accused No.2. Accused 3 CRL.A.NO.1312/2010

No.1 borrowed hand loan of Rs.1,25,000/- from the

complainant during the month of January 2003,

promising to repay the same within three months.

However, he failed to keep up with his promise and on

repeated request and demand issued cheque No.073730

dated 10.02.2004 for a sum of Rs.1,25,000/-. When

complainant presented it for realization, it was

dishonoured on the ground that the 'Account closed'.

Complainant got issued a legal notice dated 13.02.2004.

Though duly served, accused has not paid the amount

due under the cheque. Without any alternative, the

complainant has filed the complaint.

4. After due service of notice, accused has

appeared before the trial Court and contested the

matter. He has taken up a specific defence that he has

not availed any hand loan from the complainant and the

cheque in question was not issued towards repayment of

any legally recoverable debt or liability. On the other

hand, he has taken up a specific plea that he had

borrowed loan of Rs.1,00,000/- from M/s Balarama 4 CRL.A.NO.1312/2010

Finance and Investments, Malpe of which the

complainant was the managing partner. At that time

Blank cheques bearing Nos.73729 to 73732 from accused

and cheque No.42817 belonging to his brother

Gangadhar were taken by way of security. Though he

has repaid the loan, cheques were not returned. To make

unlawful gain, misusing one such cheque the complainant

has filed this complaint And prayed to dismiss the

complaint.

5. In support of his case, complainant examined

himself as PW-1 and got marked Exs.P 1 to 4.

6. During the course of his statement under

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

incriminating evidence.

7. He has stepped into the witness box and

examined himself as DW-1. He has relied upon Exs.D1 to

9.

8. The trial Court accepted the contention of the

complainant and convicted the accused and sentenced 5 CRL.A.NO.1312/2010

him to pay fine of Rs.1,30,000/- in default to undergo

simple imprisonment for six months.

9. Aggrieved by the same, accused approached

the Sessions Court in Crl.A.No.135/2008. Vide the

impugned judgment and order, the Sessions Court

allowed the appeal and set aside the conviction and

sentence.

10. Aggrieved by the same complainant is before

this Court contending that the impugned judgment and

order passed by the Sessions Court is highly illegal,

arbitrary and unreasonable. The Sessions Court has

failed to appreciate the evidence placed on record in

proper perspective. By placing reliance on the decision in

Krishna Janardhan Bhat, which is subsequently over

ruled by the Hon'ble Supreme Court, it has wrongly held

that complainant has failed to prove that there is legally

enforceable debt and failed to raise the presumption

under Sections 118 and 139 of N.I.Act and prays to allow

the appeal, set aside the impugned judgment and order

and to restore the judgment and order of trial Court.

6 CRL.A.NO.1312/2010

11. On the other hand, the learned counsel

representing the accused submitted that admittedly,

complainant was the managing partner of M/s Balarama

Finance and Investments. Accused had borrowed loan

from the firm and at that time he had issued few blank

cheques and misusing one such cheque, the complainant

has filed false complaint. The very fact that the cheque

leaf in question is printed before the year 2000, supports

the defence of the accused and appreciating the defence

of the accused, the Sessions Court has rightly set aside

the impugned impugned judgment and order of the trial

Court and prays to dismiss this appeal also.

12. Heard elaborate arguments of both sides and

perused the record.

13. Accused admitted the fact that the cheque in

question belongs to him, drawn on his account

maintained with his banker and it bears his signature. In

the light of the same, presumption under Sections 118

and 139 of N.I.Act is attracted to the effect that the 7 CRL.A.NO.1312/2010

cheque was issued towards repayment of any legally

recoverable debt or liability. Therefore, the burden is on

the accused to prove that it was not issued towards

repayment of any legally recoverable debt or liability. On

the other hand it is for him to prove the circumstances

under which the cheque has reached the hands of

complainant.

14. The fact that complainant and others were

running a Finance by name M/s Balarama Finance and

Investments and he was the managing partner is not in

dispute. During the course of his cross-examination, the

complainant has admitted that both accused and his

brother had borrowed loan from the said finance during

1999 and they have repaid the same during 2002-03

and they had executed the relevant documents. Though

he has admitted that periodically, they were submitting

returns to the concerned authority regarding the financial

transactions carried out by the said institution, the

complainant has not produced any documents to show 8 CRL.A.NO.1312/2010

what all are the records maintained in respect of the said

loan borrowed by complainant and his brother.

15. In this regard, he has taken up a defence that

after closure of the finance run by them and he sold all

the records along with old newspapers and as such they

are no longer available with them which is not

convincing. This fact assumes importance in the light of

defence taken by the accused that at the time of taking

the said loan, he and his brother had issued blank

cheques. The complainant has admitted that alleging that

he has misused blank cheques given by him, accused

had approached the concerned police and he was

summoned to the police station and counseled, the

complainant has also denied that misusing the blank

cheque given by his brother, a complaint was filed

through one Damodar Kotian and appeal filed in respect

of the said complaint is also pending before the High

Court.

16. The accused is banking upon the fact that the

cheque in question is printed before the year 2000 and it 9 CRL.A.NO.1312/2010

supports the fact that it was issued before the year 2000

and in his capacity as the managing partner he was in

possession of the same and misusing it, complainant has

filed this complaint to make unlawful gain.

17. In addition to challenging the case of the

complainant that he has borrowed Rs.1,25,000/- the

accused has also challenged his capacity to lend the said

amount and cross-examined complainant on this aspect.

Complainant has deposed that he had sold a boat during

1996-97 and out of the said amount, he has paid

Rs.1,25,000/- to the accused. However, the complainant

has not produced any documents to show that he had

sold a boat and was in receipt of money. Moreover, from

1996-97 till 2004, the complainant had kept the said

money in his house is hard to believe. Moreover, the

cheques of the said series were utilized by the accused

during the relevant point of time and it creates doubt as

to whether he has kept the subject cheque separately to

issue to the complainant. This fact also supports the

defence of the accused that the said cheques were issued 10 CRL.A.NO.1312/2010

before 2000 when he borrowed loan from M/s Balarama

Finance and Investments.

18. Through the evidence placed on record more

particularly as per Ex.D8, the accused has proved that

the account in question was closed on 03.11.2000 itself,

and as such it would be doubtful whether accused has

issued the cheque subsequent to the closure of the said

account. Since the closure of the account was long prior

to the date on which he has allegedly borrowed loan from

the complainant, it cannot be said that he got the

account closed and subsequent to the issuing of cheque

in question to the complainant.

19. On the other hand, it supports the defence of

accused that the cheque was issued long before 2000

while borrowing loan from M/s Balarama Finance and

Investments, accused has resisted the complainant

contending that he is in possession of blank cheques

given by him. In fact, in the reply statement also, the

accused has taken up such a contention at the earliest

available opportunity. In the complaint, the complainant 11 CRL.A.NO.1312/2010

has very conveniently not disclosed the fact of accused

having sent reply disputing his claim.

20. In the light of the evidence placed on record

by the accused, this Court is of the considered opinion

that the accused has rebutted the presumption, shifting

the burden on the complainant to prove his case beyond

reasonable doubt and also his capacity to lend

Rs.1,25,000/-. However, the complainant has failed to

discharge the burden shifted on him. On re-appreciation

of the oral and documentary evidence placed on record,

the Sessions Court has rightly come to the conclusion

that the complainant has failed to discharge the burden

placed on him and allowed the appeal filed by the

accused by setting aside the conviction imposed by the

trial Court. In the light of these facts and circumstances,

this court finds no reasonable grounds to interfere with

the impugned judgment and order. In the result, the

appeal fails and accordingly the following:

ORDER

(i) The appeal filed by the complainant is

hereby dismissed.

                              12             CRL.A.NO.1312/2010


    (ii)    The impugned judgment and order dated

20.09.2010 on the file of Fast Track Judge,

Udupi District is confirmed.

(iii) The Registry is directed to send back the

trial Court records along with copy of this

Judgment forthwith.

Sd/-

JUDGE

RR/CLK