Karnataka High Court
M/S. Aradhana Granite Works vs Sri.Shiva Shankar Reddy on 15 February, 2024
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CRL.A.No.619 of 2014
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CRL.A.No.618 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL No.619 OF 2014(A)
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CRIMINAL APPEAL No.618 OF 2014(A)
IN CRL.A.NO.619/2014:
BETWEEN:
M/S ARADHANA GRANITE WORKS,
SUPPLIERS OF CRUSHER JELLY,
(BLUE METALS) #383, 17TH 'C' MAIN,
15TH CROSS, 4TH SECTOR,
H.S.R LAYOUT, BENGALURU-34,
REP. BY ITS PROPRIETOR,
M. GOPALAPPA.
...APPELLANT
(BY SRI. NAGENDRA KUMAR .K, ADVOCATE)
AND:
SRI. SHIVA SHANKAR REDDY,
PROPRIETOR,
MARUTHI ENTERPRISES,
#2239, DEVAKI NANDAN
I FLOOR, 16TH CROSS, 24TH MAIN,
HSR LAYOUT, I SECTOR,
BENGALURU-560 102.
...RESPONDENT
(BY SRI U.J. HARI PRASAD, ADVOCATE)
THIS APPEAL IS FILED UNDER SECTION 378 OF THE CODE
OF CRIMINAL PROCEDURE, PRAYING TO SET ASIDE THE ORDER
DATED 18.6.14 PASSED BY THE XX ADDL.C.M.M., BENGALURU IN
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CRL.A.No.619 of 2014
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CRL.A.No.618 of 2014
C.C.NO.5454/2013-ACQUITING THE RESPONDENT/ACCUSED FOR
THE OFFENCE P/U/S 138 OF N.I. ACT.
IN CRL.A.NO.618/2014:
BETWEEN:
M/S ARADHANA GRANITE WORKS,
SUPPLIERS OF CRUSHER JELLY,
(BLUE METALS) #383, 17TH 'C' MAIN,
15TH CROSS, 4TH SECTOR,
H.S.R LAYOUT, BENGALURU-34,
REP. BY ITS PROPRIETOR,
M. GOPALAPPA.
...APPELLANT
(BY SRI. NAGENDRA KUMAR .K, ADVOCATE)
AND:
SRI. SHIVA SHANKAR REDDY,
PROPRIETOR,
MARUTHI ENTERPRISES,
#2239, DEVAKI NANDAN
16TH CROSS, 24TH MAIN,
HSR LAYOUT, I SECTOR,
BENGALURU-560 102.
...RESPONDENT
(BY SRI U.J. HARI PRASAD, ADVOCATE)
THIS APPEAL IS FILED UNDER SECTION 378 OF THE CODE
OF CRIMINAL PROCEDURE, PRAYING TO SET ASIDE THE ORDER
DATED 18.6.14 PASSED BY THE XX ADDL.C.M.M., BENGALURU IN
C.C.NO.3112/2013-ACQUITING THE RESPONDENT/ACCUSED FOR
THE OFFENCE P/U/S 138 OF N.I. ACT.
THESE APPEALS HAVING BEEN HEARD AND RESERVED ON
06.02.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
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CRL.A.No.619 of 2014
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CRL.A.No.618 of 2014
JUDGMENT
Appellant/complainant in both these appeals feeling
aggrieved by judgment of Trial Court on the file of XX
A.C.M.M., Bengaluru in C.C.No.3112/2013, dated
18.06.2014 filed these appeals.
2. Parties to the appeal are referred with their
ranks as assigned in the Trial Court for the sake of
convenience.
3. The parties to both these appeals are common,
but on two separate cheques issued for the same
transaction two different cases have been registered. The
evidence has been lead independently, further the
common question of law is involved in both these appeals.
Hence, both these appeals are taken for disposal by this
common judgment.
4. Heard the arguments of both sides.
5. After hearing arguments of both sides and on
perusal of the Trial Court records in both the cases, so also
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the impugned judgment under appeal in respective cases,
the following points arise for consideration:
1) Whether the impugned judgment of Trial
Court in acquitting the accused in both the
cases for the offence punishable under
Section 138 of N.I.Act is perverse, capricious
and legally not sustainable?
2) Whether interference of this Court is
required?
6. On careful perusal of oral and documentary
evidence placed on record in Crl.A.No.619/2014, it would
go to show that complainant is business man running
business under the name and style "M/s Aradhana Granite
Works And supplier of Crusher Jelly". Accused is also
business man and running the business under name and
style M/s Maruthi Enterprises and as such, the accused is
well acquainted with the complainant from past two years.
Accused requested for supply of crushed jelly on various
dates and was due to an amount of Rs.9,63,000/-. When
complainant demanded to repay the aforesaid due
amount, accused had issued four cheques out of which
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cheque bearing No.312521 for Rs.3,00,000/- and cheque
bearing No.312522 for Rs.2,00,000/- have been honoured
and encashed by complainant. The fourth cheque bearing
No.312524 for a sum of Rs.2,50,000/- dated 16.12.2012
drawn on Chartered Sahakari Bank Niyamitha Ex.P.1 was
issued for lawful discharge of debt. Complainant presented
the said cheque through his banker Bank of Baroda and
the same was dishonoured vide bank endorsement Ex.P.2
dated 18.02.2012 as "Exceeds Arrangement". Complainant
issued demand notice dated 02.01.2013 Ex.P.3 through
RPAD and the postal receipt is produced at Ex.P.4. The
demand notice is duly served to accused vide
acknowledgement card Ex.P.5. Accused in spite of due
service of demand notice has neither replied to the
demand notice nor paid the amount covered under the
cheque. Therefore, complainant has filed complaint on
30.01.2013.
7. The requisite particulars in Crl.A.No.618/2014
on the very same transaction is to the effect that the
cheque issued by accused bearing No.312523 on
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16.11.2012 for Rs.2,00,000/- drawn on Chartered
Sahakari Bank Niyamitha was issued for lawful discharge
of debt regarding the remaining balance amount Ex.P.1.
Complainant presented the said cheque through his
banker Bank of Baroda and the same was dishonoured
vide bank endorsement dated 17.11.2012 Ex.P.2 as
"Exceeds Arrangement". Complainant issued demand
notice dated 03.12.2012 Ex.P.3 through RPAD. The postal
receipt is produced at Ex.P.4 and the demand notice is
duly served to accused vide acknowledgement card Ex.P.5.
Accused in spite of due service of demand notice has
neither replied to the demand notice nor paid the amount
covered under the cheque. Therefore, the complainant has
filed the complainant on 27.12.2012.
8. If the above referred evidence of PW.1 in both
the cases are appreciated with the aforementioned
documents, then it would go to show that, complainant
has complied all the necessary legal requirements in
terms of Section 138(a) to (c) of Negotiable Instruments
Act, 1881(hereinafter for brevity referred to as "N.I.Act").
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Complainant has filed complaint within a period of one
month from the date of accrual of cause of action
in terms of Section 142(1)(b) of N.I.Act. Therefore,
statutory presumption in terms of Section 118 and 139 of
N.I.Act will have to be drawn in both the cases.
9. Accused has not disputed the transaction and
issuance of cheque. However, it is the defence of accused
that he has paid the entire amount, but complainant has
misused the two cheques to file this two separate cases
against accused for dishonour of cheque. Accused during
course of cross-examination of PW.1 in both the cases has
challenged the authority of complainant to file this
complaint representing M/s Aradhana Granite Works. The
burden is on accused to prove that he has paid entire
amount due to the complainant and two cheque have been
misused by complainant.
10. In this context of the matter, it is useful to refer
the judgment of Hon'ble Apex Court in Basalingappa Vs.
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Mudibasappa reported in 2019 Cr.R. page No. 639 (SC),
wherein it has been observed and held that:
"Presumption under Section 139 is
rebuttable presumption and onus is on accused
to raise probable defence. Standard of proof
for rebutting presumption is that of
preponderance of probabilities. To rebut
presumption, it is open for accused to rely on
evidence laid by him or accused can also rely
on materials submitted by complainant in order
to raise a probable defence. Inference of
preponderance of probabilities can be drawn
not only from materials brought on record by
parties, but also by reference to circumstances
upon which they rely. It is not necessary for
accused to come in witness box in support of
his defence. Section 139 imposed an
evidentiary burden and not a presumptive
burden".
11. The Hon'ble Apex Court in it's latest judgment
in Rajesh Jain v/s Ajay Singh reported in 2023 SCC
OnLine SC 1275, wherein it has been observed and held
that, once issuance of cheque with signature of accused is
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either admitted or proved then, statutory presumption will
have to be drawn in favour of the complainant.
In view of the principles enunciated in both the
aforementioned judgment, it is evident that the accused to
probabilise his defence can rely on his own evidence or
also can rely on material submitted by complainant. It is
not necessary for the accused to step into witness box to
probabilise his defence.
12. In the present case accused to probabilise his
defence apart from relying on material produced by
complainant in both the cases also got himself examined
as DW.1. Whether, the said material evidence placed on
record by accused can be accepted as a rebuttal evidence
to displace statutory presumption available in favour of
complainant or not has to be decided.
13. Looking to the tenor of cross-examination of
PW.1 in both the cases, it would go to show that accused
did not dispute having placed order with the complainant
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for supply of crushed jelly and he was in due to an amount
of Rs.9,63,000/-. However, it is suggested to PW.1 that
accused has issued blank signed cheque at the time of
placing order and out of that two cheques have been
misused by complainant, PW.1 has denied the said fact.
The cross-examination of PW.1 in both the cases would
also goes to show that, out of four cheques issued by
accused two cheques have been encashed by complainant
totally amounting to Rs.5,00,000/-. It is suggested to
PW.1 in cross-examination that accused has paid cash of
Rs.4,63,000/- and even after collecting the said amount
did not return the two cheques of accused given as a
security at the time of placing the order. The said
suggestion has been denied by PW.1. The above referred
evidence brought on record during cross-examination of
PW.1 would go to show that accused admits the
transaction and payment of Rs.5,00,000/- out of due
amount of Rs.9,63,000/-. It is specific assertion of
complainant that he receives cheque for payment for
every transaction made from proprietorship concern. The
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same has not been denied by accused during cross-
examination of PW.1. Otherwise also, if at all the case of
accused is to be accepted for payment of Rs.4,63,000/- as
cash and accused did not return the two blank signed
cheque, then nothing has prevented the accused to obtain
necessary endorsement or receipt for having paid cash of
Rs.4,63,000/-. Indisputably, the demand notice in both
the cases is duly served to accused and he has not chosen
to reply the same by making any proper foundation of his
defence in denying the cash transaction and to put forth
his claim that he has paid the entire amount on the first
available opportunity. The claim of accused having been
paid entire amount has been only suggested in the cross-
examination of PW.1 which has been denied by witness.
Accused has not produced any documents evidencing the
cash payment of Rs.4,63,000/-. When the transaction was
entered into by accepting the order placed by accused on
drawing proper invoices and part payment by way of
cheques is admitted by accused, then it was naturally
expected from accused being businessman necessarily
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obtain due acknowledgement or receipt for having paid
cash of Rs.4,63,000/- balance amount in complete
satisfaction of the amount due to the complainant.
Therefore, in view of the facts and circumstances of the
case and the way in which the transaction was being
addressed by both the parties to the case, it would go to
show that, the transaction is duly evidenced by way of
documents. Therefore, under these circumstances the
claim of accused that he has paid cash of Rs.4,63,000/-
and the complainant has misused the two blank signed
cheque remains silent without taking any action against
complainant after making payment for withholding the
cheque drawn by accused cannot be accepted.
14. Accused during course of cross-examination of
PW.1 in both the cases has contended that complainant
has not produced any documents relating to transaction
and the ownership of the shop that he is proprietor of M/s
Aradhana Granite Works. The Trial Court has recorded
finding that the complainant has not produced any
documents that he is proprietor of M/s Aradhana Granite
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Works and complainant has no authority to file the case
against accused. What is claimed by accused in cross-
examination of PW.1 is non production of documents
relating M/s Aradhana Granite Works and the complainant
is the proprietor of the said proprietorship concern. The
complainant has rightly described the complainant as
"M/s Aradhana Granite Works suppliers of Crusher Jelly
represented by it's proprietor M Gopalappa". The said fact
has not been denied by accused by giving reply to the
demand notice on the first available opportunity, secondly
even during cross-examination of PW.1 complainant
M Gopalappa was the proprietor of "M/s Aradhana Granite
Works" has not been specifically denied in the cross-
examination of PW.1 would only reveal that complainant
has not produced any documents to show that he is the
proprietor of M/s Aradhana Granite Works. The Trial Court
on the basis of judgment of Hon'ble Apex Court relied by
the learned counsel for accused in Milind Shripad
Chandurkar Vs. Kalim M. Khan and another
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reported in 2011 CrLJ 1912, wherein it has been
observed and held as under:
"Negotiable Instruments Act-Sections 138 and
142-Complainant by sole proprietary concern-
Documents must be produced to prove. Mere
statement in the affidavit in this regard, is not
sufficient to meet the requirement of law".
15. In the said case before the Hon'ble Apex Court,
the claim of complainant that he was proprietor of the
proprietorship concern has been denied. Whereas, in the
present case accused has admitted the proprietorship
concern of complainant represented by M Gopalappa,
since, the part payment made to him representing the
proprietorship concern. Therefore, for the remaining
amount due to the complainant to which cheque has
been issued by accused cannot deny that
M Gopalappa is not the proprietor of M/s Aradhana Granite
Works. Therefore, when the accused accepted M
Gopalappa as the proprietor of M/s Aradhana Granite
Works for the part payment made by him and for
remaining amount cannot deny the authority of M
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Gopalappa being the proprietor of M/s Aradhana Granite
Works. Accused also cannot claim that non production of
document relating to the proprietorship concern of M/s
Arachana Granite Works is fatal to the case of prosecution.
Accused has not specifically denied that M Gopalappa is
proprietor of M/s Aradhana Granite Works. On the contrary
he admits the authority of M Gopalappa being proprietor of
M/s Aradhana Granite Works, since the payment made by
accused is accepted by him and for the remaining amount
cannot deny the authority of M Gopalappa being the
proprietor of M/s Aradhana Granite Works. Therefore, the
principles enunciated in the aforementioned judgment of
Hon'ble Apex Court has no application to the facts of
present case. The Trial Court has misread the
judgment of Hon'ble Apex Court in the light of the above
referred evidence placed on record in the present case.
Therefore, the finding recorded by Trial Court that
complainant/PW.1 M Gopalappa is not the proprietor of
M/s Aradhana Granite Works and has no
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authority to initiate the proceedings against accused
cannot be legally sustained.
16. When once the issuance of cheque in both the
cases is proved by complainant out of the material
evidence placed on record and the accused has filed to
prove by way of rebuttal evidence to displace the statutory
presumption, then the statutory presumption in terms of
Section 118 and 139 of N.I.Act continues to operate in
favour of complainant. In the present case for the reasons
recorded above, it has been observed and held that
accused has failed to probabilse his defence. Therefore, it
will have to be held that complainant in both the cases has
proved that accused has committed an offence punishable
under Section 138 of N.I.Act.
17. Now question that remains is regarding
imposition of sentence in both the cases. The Trial Court
while exercising it's power for imposition of sentence must
keep in mind the nature of transaction, the evidence
placed on record, the circumstances under which the
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cheque in question was issued by accused, so also other
attending circumstances. If the said factors are taken into
consideration and the evidence on record is appreciated,
then it is evident that accused having already paid more
than half of the amount due to complainant and in view
of the facts and circumstances of the case if accused is
sentenced to pay a fine of Rs.2,60,000/- and in default of
payment of fine shall under simple imprisonment for 3
months is ordered in Crl.A.No.619/2014 is ordered will
meet the ends of justice. Similarly if the accused is
sentenced to pay a fine of Rs.2,10,000/- and in default of
payment of fine shall undergo simple imprisonment for 3
months in Crl.A.618/2014 is ordered will meet the ends of
justice. Consequently, proceed to pass the following:
ORDER
Appeal filed by appellant/complainant in
Crl.A.No.619/2014 and 618/2014 are hereby allowed.
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The judgment of Trial Court on the file of XX ACMM,
Bengaluru in C.C.No.5454/2013 and C.C.No.3112/2013
dated 18.06.2014 are hereby set aside.
Accused in C.C.No.5454/2013 is convicted for the
offence punishable under Section 138 of N.I.Act and
sentenced to pay fine of Rs.2,60,000/- and in default of
payment of fine shall undergo Simple Imprisonment for 3
months.
In exercise of power under Section 357 of Cr.P.C.,
out of the fine amount Rs.2,55,000/- is ordered to be paid
to the complainant as compensation and remaining
Rs.5,000/- is ordered to be defrayed as prosecution
expenses.
Accused in C.C.No.3112/2013 is convicted for the
offence punishable under Section 138 of N.I.Act and
sentenced to pay fine of Rs.2,10,000/- and in default of
payment of fine shall undergo Simple Imprisonment for a
period of 3 months.
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In exercise of power under Section 357 of Cr.P.C.,
Rs.2,05,000/- is ordered to be paid to the complainant as
compensation and remaining Rs.5,000/- is ordered to be
defrayed as prosecution expenses.
Registry to send back the records to Trial Court with
a copy of this order.
SD/-
JUDGE
GSR
