Dismissed

Abdulrazak v. Shankar S/O Devappa Hosamani

Karnataka HC10 Jun 2013CRL.A/609/2008

Case brief

AI extract

What is this about?

In this criminal appeal against acquittal under Section 138 of the Negotiable Instruments Act, the High Court upheld the trial court's decision. The court held that the existence of a defence document issued by counsel for a third party successfully rebutted the statutory presumption of a genuine debt. Consequently, the appeal was dismissed.

What did the court decide?

The criminal appeal was dismissed, and the order of acquittal was upheld without remittal.

Abdulrazak Vs Shankar S/O Devappa Hosamani — Cheque Dishonour | Karnataka HC (2013)

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IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD

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DATED THIS THE 10^TH DAY OF JUNE 2013

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BEFORE

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THE HON’BLE MR.JUSTICE A.S.PACHHAPURE

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CRIMINAL APPEAL NO.609/2008

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BETWEEN:

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ABDULRAZAK S/O BAPUSAB HAWALDAR AGE:36 YEARS R/O MALAPUR, DHARWAD DIST:DHARWAD

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… APPELLANT

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(BY SRI:J S SHETTY, ADV)

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AND:

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SHANKAR S/O DEVAPPA HOSAMANI AGE:MAJOR R/O SUB JAIL ROAD SAIDAPUR, DHARWAD

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…RESPONDENT

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(BY SRIYUTHS:B D HIREMATH, G S HIREMATH & D B KALLANAGOUDRA, ADVS)

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THIS CRL.A IS FILED UNDER SECTION 378(4) OF CR.P.C. PRAYING TO SET ASIDE THE ORDER OF ACQUITTAL DATED 05.01.2008 PASSED BY THE PRL. CIVIL JUDGE (SR.DN.) AND PRL. JMFC, DHARWAD IN CC NO.619/2006 BY CONVICTING THE ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT.

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THIS CRL.A COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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The appellant has challenged the judgment and order acquitting the respondent for the charge under Section 138 of Negotiable Instruments Act (hereinafter referred to as ‘NI Act’ for short) on a trial held by the JMFC, Dharwad.

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The appellant is said to have advanced a sum of Rs.83,000/to the respondent who in turn issued a cheque for the said sum dated 03.04.2006 and when the cheque was presented for encashment, it returned with an endorsement of insufficient funds. The appellant issued notice, it was not complied, therefore, he approached the Court below with a complaint under Section 200 Cr.P.C. to initiate action against the respondent.

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In a trial, the complainant examined himself as PW1 and got marked the documents Exs.P1 to P4. The respondent was examined

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himself as DW1 and one witness as DW2 and got marked the documents Exs.D1 to D6. The statement of accused was recorded under Section 313 Cr.P.C. The Trial Court after hearing the counsel for both the parties and on appreciation of the material on record, acquitted the respondent for the charge under Section 138 of NI Act. Aggrieved by the judgment and order of acquittal, the present appeal has been filed.

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Learned Counsel for the appellant submits that the approach of Trial Court is erroneous and illegal and he submits that when the signature on the cheque is not in dispute, a presumption arise under Section 139 of NI Act and this presumption is not rebutted by the respondent. So also, it is his contention that Ex.D1 is a created and concocted document, which was produced for the first time during the trial. As this fact is not within the knowledge of the appellant till the argument was heard, he requests for an additional opportunity to lead

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evidence and therefore, seeks remittal of the matter.

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On the other hand, learned Counsel

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for the respondent supports the judgment and order of the Trial Court and he contends that there is ample material on record to rebut the presumption.

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Learned Counsel for the appellant has placed reliance on the decision of Apex Court reported in LAWS(SC)-2010-5-19 (Rangappa Vs Mohan), wherein the Apex Court after considering the provisions under Section 139 of the Act held that the presumption arose in case where the signature of the cheque is either admitted or proved and therefore, placing reliance on this decision, it is his contention that the evidence adduced could have been accepted by the Trial Court to award conviction. He has also relied on the decision of Apex Court reported in LAWS(SC)-2001-10-164 (K N Beena

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Vs Muniyappan), wherein the same principle is laid by the Apex Court.

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There is no dispute so far as

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presumption that arise under Section 139 of the Act, but at the same time, it is necessary to note that presumption that arose is rebuttable and the respondent has to establish defence on principle of preponderance of probabilities so as to rebut the said presumption as the signature on the cheque Ex.P1 is not in dispute. But as could be seen from the allegation made in the complaint, PW1 states that this cheque was issued towards repayment of sum of Rs.83,000/Nowhere in the complaint it is stated that blank cheque was issued by the respondent towards repayment of the dues and that is he who has filled the contents of cheque.

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As could be seen from the cheque (Ex.P1), the signature is in different hand and different ink whereas the contents of cheque are in different hand and in different ink.

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Therefore, a presumption could be raised that the cheque was a blank at the time when it was issued. Furthermore, even if a blank cheque is to be accepted, there must be an allegation to that effect in the complaint. In the absence of such allegation, it has to be held that the cheque that was received by the complainant

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was only signed or is a blank cheque.

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The defence of the respondent is that he had taken some loan from Babusab Mulla and this cheque was issued to him and as he was a person who had mental disorder. The complainant has misused the cheque and after filling the blanks it has been presented. It is no doubt true that respondent has not replied to the notice, but at the same time, it is relevant to note the defence of respondent, wherein he states that he received Ex.D1 - the notice which was kept in an envelope produced at Ex.D1(a). Ex.D1 relates to H W Hombal, who is not the accused (respondent) in the case. So this

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notice has no nexus of whatsoever type of demand made by the complainant in the complaint. In the cross examination of PW1, he has clearly admitted the issuance on Ex.D1 and also the signature on Ex.D1 by the counsel Sri.G S Savadatti and this fact is not disputed in the cross examination.

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As could be seen from the signature

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of the counsel in Ex.P3 and that of Ex.D1 there is similarity and in the absence of dispute that the counsel signed Ex.D1, it cannot be said that the said notice was not signed by the appellant and the respondent. So, the contents of Ex.D1 and the defence taken by the respondent could be held to be sufficient to rebut the presumption that arise under Section 139 of NI Act. It is in these circumstances that the Trial Court has granted an order of acquittal.

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This appeal is against the judgment and order of acquittal. The appellate Court will be slow in interfering with such orders. Even if

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a second view is possible, the one accepted by the Trial Court cannot be disturbed. Though learned Counsel requests for additional opportunity to lead evidence, having cross examined DW1 on the notice - Ex.D1, I do not think any necessity to remit the matter afresh for giving an additional opportunity.

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In the result, the appeal fails and it is dismissed.

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Sd/JUDGE

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*bgn/-

Abdulrazak v. Shankar S/O Devappa Hosamani

Case brief

What is this about?

What did the court decide?

Abdulrazak v. Shankar S/O Devappa Hosamani

Case brief

What is this about?

What did the court decide?

What the court decided

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Cases cited

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