07.05.2014 passed in C.C.No.13970/2003 for the offence
punishable under Section 138 of N.I. Act.
2. Heard the learned counsel appearing for the
3. The factual matrix of the case of the
complainant/appellant before the Trial Court that the
Cheque dated 09.05.2003 for repayment of the said amount.
returned with an endorsement as 'insufficient funds'. After
through UCP. Hence, the complainant filed the complaint.
4. The Trial Court took the cognizance and the accused
did not plead guilty and claims for trial. In order to prove the
documents at Ex.P1 to P10. On the other hand, the accused
to DW7 and got marked the documents at Ex.D1 to D16.
5. The accused appeared and took the specific defence
Kempegowda got filed this complaint through the complainant.
the Cheque on 25.03.2003. Hence, there is no any liability to
6. The Trial Court at the first instance, acquitted the
directed to dispose of the same within a time bound period.
any evidence. The Trial Court having considered both oral and
Rs.30,000/- not Rs.3,00,000/-. The Trial Court also taken note
accepted the theory of the accused. Being aggrieved by the said
7. The main contention of the learned counsel for the
documents were placed on record at Ex.P1 to P10. It is also
contend that in view of Sections 118 and 139 of N.I. Act, the
discharging of debt or liability. But the Trial Court fails to take
the basis of request to stop the payment in terms of Ex.D2. The
signature. The same was not mentioned in Ex.D15 regarding the
25.03.2003 was acknowledged on the very same day.
8. The counsel further contend that in the evidence of
fact into consideration. The counsel would vehemently contend
10. Per contra, the learned counsel appearing for the
acquittal is on two times. Earlier also, at the first round, the
this Court and this Court remanded the matter to the Trial Court.
Ex.P4 and P6 are issued by Besagarahalli Branch. The evidence
25.03.2003. The document which have been placed before the
substantiate the defence of the accused. It is the specific case
early point of time itself. The defence is consistent and stop
payment was also given prior to the Cheque. The defence was
and hence, it does not require any interference of this Court.
11. Having heard the learned counsel appearing for the
2. What order?
Point No.1:
12. Having heard the learned counsel appearing for the
respective parties and also on perusal of the material on record,
it discloses that it is the case of the complainant that the
accused had approached the complainant from the month of
January to March 2003 and requested for hand loan of
Rs.3,00,000/- assuring to repay the same within a month as he
is awaiting clearance of bill being passed by the Government for
contract work and issued the Cheque dated 09.05.2003. It is
also the case of the complainant that the subject matter of the
Cheque was presented twice but the same was returned with an
endorsement 'insufficient funds' on both the occasions. Hence,
the complainant filed the complaint. The complainant in support
of his case, he examined himself as PW1 and also got marked
the documents at Ex.P1 to P10. The case of the complainant is
that notice issued through UCP was served.
13. On the other hand, it is the contention of the
accused that there was no such transaction and Cheque was
issued in favour of Rajamma since she was running a chit
business and two cheques were issued in her favour and two
pronotes and sale deed was executed when accused was due in
terms of Ex.D1 and the said sale deed was executed by the wife
of the accused. It is also the contention of the accused that stop
payment letter was given to the bank in the year 2003 itself in
terms of Ex.D2 and the complaint was given to the police as per
Ex.D3 and acknowledgment was issued at Ex.D4 and copy of the
complaint given to the Deputy Registrar of Society is marked at
Ex.D6 and statement of witnesses were recorded in terms of
Exs.D5, D7, D8, D9, D10, D11 and copy of the order passed by
the Deputy Registrar, Mandya at Ex.D12 and copy of FIR at
Ex.D13 and certified copy of the marriage card is produced at
Ex.D14 to establish that the complainant's son married the
daughter of Rajamma and Kempegowda and bank account
statement also placed on record as per Ex.D15.
14. Having considered both oral and documentary
evidence placed on record, it discloses that from the mouth of
PW1 it is elicited that he gave the money to the accused by way
of cash and he was having money to construct his building and
he was having a site very next to his house. But he says that he
gave the money of 100 and 50 denominations in total four
bundles and he reiterated voluntarily that he gave four bundles
and he gave the Cheque mentioning the amount and he gave
only one Cheque and the accused himself has mentioned the
date as 10.05.2003 and he admits that endorsement was issued
by Vishveshwara Grameena Bank, Maralaga and the same was
sent to his bank and he admits that Ex.P4 was given by
Besagarahalli bank. It is suggested that stop payment was
given on 25.03.2003 itself and same was denied stating that he
was not aware of the same. He admits that there was a
differences between Kempegowda and the complainant in
connection with dowry case and given the complaint in the year
2005 and the same was withdrawn in the year 2006. He also
admits that marriage of the complainant's son and daughter of
Kempegowda was registered prior to the marriage. The defence
theory was suggested to PW1 that only one Cheque was
returned and another Cheque was not returned and made use of
the same for filing of this complaint and same was denied.
15. The other witness is PW2 who speaks about having
witnessed for payment of Rs.3,00,000/- and the accused gave
the Cheque. In the cross-examination, he admits that he did not
count the amount whether it was Rs.3,00,000/- and except the
Cheque, no other document was obtained at the time of
transaction and he admits that he is a tenant of the complainant.
16. The accused also examined himself as DW1 and he
reiterated the defence in his affidavit and he was also subjected
to cross-examination and he also relies upon the documents
which have been placed before the Court. He admits that he
came to know about the dishonour of Cheque after the issuance
of notice to him through his counsel. He admits his signature
and also Cheque belongs to him. He admits that he gave the
complaint on 15.09.2003 to the Deputy Registrar. He admits
correction of date in the complaint in Ex.D6. He admits that
after the issuance of notice in terms of Ex.P7, he gave the
complaint on 15.09.2003 in terms of Ex.D6. He admits that in
Ex.D2, he has mentioned that the Cheque was given to the
complainant to file the case and teach a lesson to him. He also
admits that when the letter was given in terms of Ex.D2, the
marriage of the complainant's son and also the daughter of
Rajamma and Kempegowda was not performed. He also admits
that he did not attend the marriage of Gnyana Murthy and
Poornima which was held on 15.10.2003 but admits that the
marriage of Gnyana Murthy and Poornima is a love marriage and
the same was happened prior to that. It is suggested that Ex.D2
was created for the purpose of this case and the same was
denied. It is suggested that Ex.D5 was created for the purpose
of this case and the same was denied. He admits that after the
issuance of notice in terms of Ex.P7, he has not taken any
action. He further admits that on 15.05.2003, he was not
having the amount of Rs.3,00,000/-. He admits that after the
issuance of notice in terms of Ex.P7, he did not make any
payment but he says that he was not having any liability hence,
he has not paid any amount. He also admits that issuance of
Ex.P2 in 2000 is towards security of chit transaction, but no
document is placed on record in this regard. He admits that he
gave the statement before the Deputy Registrar on 22.11.2003
and admits that before giving the statement in terms of Ex.D10,
Ex.P7 notice was already served on him. It is suggested that in
order to avoid the payment in favour of the complainant after
the issuance of notice in terms of Ex.P7, gave the complaint
against Kempegowda and Rajamma and also Deputy Registrar of
Co-operative Society and the same was denied.
17. DW2 is the Bank Manager and in his evidence he
deposed that if accused has given the representation as per
Ex.D2, they used to put the seal and date and he says that
inspite of Ex.D2, giving of endorsement as insufficient fund is not
correct and the bank which was in existence at Maddur taluk,
Maralaga was shifted in the month of February 2003 to
Besagarahalli. This witness was subjected to cross-examination
wherein he admits that Ex.P2 belongs to accused and also
admits that when the Cheque was presented, not having the
sufficient fund and to that effect, they have given the
endorsement. He admits that Ex.D2 original was not received by
him but his predecessor might have received the same which
was signed by C J Chinnaswamy. He admits that in a case of any
stop payment, direction was given and they used to give an
endorsement referred to drawer. In the present case, they have
not given any such endorsement. He admits that in the inward
register, if any letter was addressed to the bank, they used to
mentioned the same and also they used to put inward number
and date in the said register. He also admits that there is no
such inward register number and date in Ex.D2 but says that the
Branch Manager has signed the same and also he cannot tell
inward number and date in Ex.D2. It is suggested that the same
was not given to the bank hence, not mentioned the inward
number and date and same was denied. He also categorically
admits that if any letter was given, they used to put the seal and
signature on the copy of the said letter also and no such seal
and number was put on Ex.D2 but date was mentioned in Ex.D2.
He admits that only there is an initial. He also admits that the
initial found in Ex.D2 and also letter which he brought, there is a
difference and Xerox copy was marked as Ex.D2(1) and also in
Ex.D2, account number is also not mentioned and in Ex.D16 also
not been certified and also there is no any reference in Ex.D6
that a 'stop payment' was given and there was no difficulty to
give an endorsement to refer to drawer and also he does not
know the reasons for giving and endorsement as 'insufficient
funds' and he cannot tell whether said letter was given on
25.03.2003 and no document to that effect and he can produce
the inward register if direction was given if it is available.
18. The other witness is DW3 and the said witness has
turned hostile. DW4 is the wife of DW3 and she also turned
hostile in the cross-examination regarding sale transaction. DW5
speaks that did not return one Cheque by Kempegowda and
Rajamma and speaks about the sale deed executed in favour of
the mother of the Kempegowda by the wife of accused and
speaks that Kempegowda and Rajamma were doing the chit
business and accused is one of the member of the said chit
transaction. In the cross-examination he admits that he does not
know any transaction was taken place between the accused and
the complainant and he also does not know in which name
Kempegowda and Rajamma were running the chit business.
DW7 was the member and President of Maralaga Gram
Panchayath and deposed that he knows the accused and he also
speaks about the chit transaction. He also says that he does not
about the transaction between the complainant and the accused
and also does not know why this case has been registered.
19. Having re-assessed the material on record, it
discloses that the Trial Court mainly relies upon the document at
Ex.D2 - stop payment letter in coming to the conclusion that
stop payment letter was given prior to the issuance of Cheque.
In order to consider that document, the Court has to take note
of the evidence of DW2 wherein there are categorical admission
from the mouth of DW2 that when any letter was given for stop
payment, there will be an entry in the inward register and no
such inward register is placed before the Court and also he
undertaken to produce the same, if any direction was given if
the same is available but not placed the same on record. It is
also important to note that if no amount in the account, they
used to issue the endorsement as insufficient funds. But in the
case on hand, it is clear that an endorsement was given that
insufficient funds. It is also important to note that DW2
categorically admitted that when the stop payment direction was
given, they used to issue an endorsement as referred to drawer.
Further, admits that in the case on hand, no such endorsement
was given as referred to drawer. Hence, it is clear that the very
document of Ex.D2 is doubtful since if such stop payment was
given, they would have issued an endorsement as referred to
drawer instead of issuing the endorsement as insufficient funds.
It is also important to note that DW2 categorically admitted that
if any letters are received, the same will be mentioned in the
inward register and also they used to mention the inward
number and date and no such inward number and date was
mentioned in the document at Ex.D2. Only, he says that it
contains the signature of the Bank Manager. But the said Bank
Manager was not examined before the Court. He categorically
says that in inward register which number and date was
mentioned in respect of Ex.D2 is not forthcoming. DW2 also says
that seal and number was not put at Ex.D2 and inspite of these
answers are elicited from the mouth of DW2, the Trial Court
accepted the case of the accused since, the very admission given
by DW2 creates the doubt. Apart from that DW2 categorically
admits that in Ex.D2, it has not contains the full signature and
only initial is found and also even admits that in the copy
brought by the Manager and also in the endorsement, initials are
different and also Ex.D16 which brought by him also not certified
and there was no any objection to certify the same and also
categorically admits that in Ex.D16 there is no any reference of
giving of stop payment and not to encash the same and also
there is no any endorsement in Ex.D16 about dishonouring of
Cheque. When these answers are elicited from the mouth of
DW2, the document at Ex.D2 ought not to have been relied upon
by the Trial Court. The Trial Court mainly relying upon the
document at Ex.D2, acquitted the accused. Having considered
these admissions, document of Ex.D2 cannot be relied upon
hence, the Trial Court committed an error relying upon the said
document.
20. No doubt, the Trial Court also given other reason
that the complainant has given the amount in 100 and 50
denominations of four bundles in total Rs.30,000/- not
Rs.3,00,000/- and also held that the oral evidence of PW1
cannot be more relied upon when the document of Ex.P2 Cheque
was given. But it is the duty cast upon the accused to explain
what made him to issue a Cheque for Rs.3,00,000/- with his
signature and he is not an innocent and illiterate and no such
explanation was given. Only took the specific defence that the
Cheque was given in favour of Rajamma and Kempegowda. It is
the case of the accused that same was given with reference to
the chit fund transaction. DW1 in is cross-examination
categorically admits that he was a member of chit fund but no
document is placed before the Court and he categorically admits
that no document is placed on record to show that he was the
member of the chit transaction. It is also important to note that
the Trial Court relied upon the other documents of 'D' series. It
is important to note that Ex.D1 is of the year 2002-03 and there
was a sale deed but no dispute with regard to the same since the
said document is a registered document. It is also important to
note that when the document of sale deed was executed in
terms of Ex.D1, there was no any dispute between the accused
and Kempegowda and Rajamma. But in the case on hand, there
was a reference in the document at Ex.D2 that Rajamma and
Kempegowda threatened that they are going to file a case
through A C Krishna Murthy who is the complainant in the
present case wherein a reference was made the subject matter
of Cheque. I have already pointed out that there is no any
inward number and date in the said document. Hence, it is clear
that the document at Ex.D2 was created for the purpose of this
case subsequent to the receipt of notice.
21. It is also important to note that DW1 categorically
admits that he has received the notice at Ex.P7. Hence, it is
clear that notice issued to the respondent/accused was served
and he categorically says that having received the notice only he
came to know about the dishonour of Cheque. But in the cross-
examination of DW1, he categorically admits that the other
proceedings initiated before the Deputy Registrar of Co-operative
Society was after the receipt of the notice. It is important to
note that DW1 categorically admits that when he gave the
Cheque in favour of Kempegowda and Rajamma in terms of
Ex.P2 as security, but he is not having any document to show
that the said Cheque was given towards security and also
categorically admits that for having subscribed the chit, no
document is placed before the Court to show that Rajamma and
Kempegowda have issued any document in connection with the
said chit transaction. He categorically admits that he gave the
complaint against Kempegowda and Rajamma on 15.09.2003
and at that time, he had already completed three chits. He
categorically admits that date was corrected in Ex.D6 in page
No.4 and he cannot tell on what date, he collected Ex.D6 to D14.
But voluntarily stated that same was taken subsequent to the
order. He says that Ex.D1 was issued on 01.06.2007 and he
admits that in Ex.D6, there is no seal certifying the same and
also he admits that Ex.D12 registration of case number as
36/2004 but he cannot tell the status of the case. He admits
that in terms of Ex.D3, he made the complaint against the
complainant. He categorically admits that in respect of Ex.P7,
when the same was served on him on 04.07.2003 but he did not
give any reply. But he gave the complaint to the Deputy
Registrar of Society. He admits that Ex.D4 - NCR was obtained
on 23.09.2003 subsequent to Ex.P7-notice. He categorically
admits that notice was served prior to the Ex.D4 and Ex.D6 was
given on 15.09.2003 that is also subsequent to the service of
notice of Ex.P7. He admits that the marriage was registered in
terms of Ex.D14 on 15.10.2003. But he claims that Ex.D2 was
given on 25.03.2003 and also the contents of Ex.D2 was also
extracted in the cross-examination of DW1 and this endorsement
is very clear that on the date of the letter dated 25.03.2003, the
marriage of the complainant's son and the daughter of
Kempegowda and Rajamma was not performed. Hence, the
question of reference as co-parents-in-law is very doubtful and
before the marriage that too in the month of March, making the
reference as co-parents-in-law is doubtful. Apart from that it
was a love marriage and marriage was also registered even prior
to the marriage and same is evident from the record. It is
important to note that even after service of notice at Ex.P7, DW1
categorically admits that he has no taken any action even after
the service of notice. When these answered are elicited from the
mouth of DW1, the same was not taken note of by the Trial
Court while discussing the material on record. Even on
15.01.2003, he was not having the amount of Rs.3,00,000/- in
his account and categorically admits that after service of notice
also, he did not make any payment as demanded in Ex.P7 but he
voluntarily stated that he has no liability. He categorically
admits that Ex.P2 was given in 2000 towards the chit transaction
but he was not having any document in this regard. When these
answers are elicited from the mouth of DW1, the Trial Court not
considered the same in a proper perspective since, he
categorically admits that before making the statement as per
Ex.D10, already notice in terms of Ex.P7 was served on DW1.
Hence, it is clear that the documents which have been placed on
record at 'D' series came into existence subsequent to the
service of notice which was served in terms of Ex.P7 and the
Trial Court fails to take note of all these materials on record and
accepted the defence theory of the accused hence, the very
approach of the Trial Court is erroneous.
22. It is important to note that the Cheque is admitted
and signature is also admitted and probable defence was not
proved and mere examination DW1 and DW2 in respect of
defence is concerned and their evidence is not credible and other
witnesses are only a formal witnesses with regard to that they
are the subscribers of the chit transaction and none of them
have placed any record to show that Rajamma and Kempegowda
were running a chit business and even more number of persons
have subscribed in the chit but no material is placed in this
regard but the Trial Court blindly accepted the defence of the
accused and comes to an erroneous conclusion and ought to
have taken presumption under Section 139 of N.I. Act. Instead
of the evidence of complainant is rebutted by placing cogent
evidence before the Court, created a story stating that a Cheque
was given and stop payment was made even before issuance of
Cheque and the same was accepted by the Trial Court without
looking into the documentary evidence in a proper perspective
and hence, the Trial court committed an error in acquitting the
accused.
23. The judgment relied upon by the counsel appellant
referred supra in the case of RAJESH JAIN is aptly applicable to
the case on hand wherein the Apex Court held that when the
complainant remained consistent and signature of accused on
Cheque was unchallenged, allowing presumption as to legally
enforceable debt to take effect, High Courts erroneously
questioned complainant's lack of evidence to support loan claim
instead of focusing on whether accused had successfully
discharged his burden to show absence of any debt at time of
issuing cheque. In the case on hand also though defence was
led and examined number of witnesses, the very evidence of
DW1 and DW2 is not credible and created the document of
Ex.D2 but the Trial Court relied upon the said document even
though, the same has not been proved and author of the
document who had received the letter was also not examined
and the evidence of DW2 goes against the accused wherein he
deposed that there is no inward number or date in the letter
which was given to the bank and even Ex.D16 is also not
discloses anything about the reference of letter was given to the
bank and inward register also not placed before the Court
though DW2 admits that he can produce the same before the
Court, same was not produced. Inspite of it, the Trial Court
committed an error in dismissing the complaint and accepting
the theory of defence of the accused when the defence was also
not credible. Hence, the Trial Court erroneously proceeded in
the matter against the material on record. Thus, it requires
interference of this Court. Hence, I answer the above point as
affirmative in coming to the conclusion that the Trial Court
committed an error in accepting the defence theory.
Point No.2:
24. In view of the discussions made above, I pass the
following:
ORDER
The appeal is allowed.
The impugned judgment of acquittal dated
07.05.2014 passed in C.C.No.13970/2003 is set
aside. Consequently, the accused is convicted for
the offence punishable under Section 138 of N.I. Act.
The accused is directed to pay a fine of
Rs.5,00,000/- within a period of two months. In
default of payment of fine amount, the accused shall
undergo simple imprisonment for a period of one
year. If the amount of Rs.5,00,000/- is deposited,
ordered to pay the amount of Rs.4,80,000/- in
favour of the appellant and an amount of
Rs.20,000/- shall vest with the State.
Sd/-
(H.P. SANDESH)
JUDGE
SN
