Dismissed

Shrishailappa S/O Shivarayappaj Nidavani v. P Govindraju

Karnataka HC8 Dec 2020CRL.A/100090/2015

Case brief

AI extract

What is this about?

This criminal appeal challenged the acquittal of the respondent for an offence under Section 138 of the Negotiable Instruments Act. The High Court held that the accused successfully rebutted the statutory presumption by proving, via employment records, that he was not present at the place of the alleged loan transaction on the relevant date. Consequently, the appellate court dismissed the appeal.

What did the court decide?

The criminal appeal was dismissed; the acquittal of the respondent by the trial court was upheld.

Shrishailappa S/O Shivarayappaj Nidavani Vs P Govindraju — Cheque Dishonour | Karnataka HC (2020)

¶1

IN THE HIGH COURT OF KARNATAKA

¶2

DHARWAD BENCH

¶3

DATED THIS THE 8^TH DAY OF DECEMBER 2020

¶4

BEFORE

¶5

THE HON’BLE MR.JUSTICE RAVI V.HOSMANI

¶6

CRIMINAL APPEAL No.100090 OF 2015

¶7

BETWEEN

¶8

SHRISHAILAPPA S/O SHIVARAYAPPAJ NIDAVANI AGE:58 YEARS, OCC:AGRICULTURE R/O HALAKUSUGAL, TQ. NAVALAGUND, DIST. DHARWAD.

¶9

...APPELLANT

¶10

(BY SRI.GIRISH S HIREMATH, ADVOCATE)

¶11

AND

¶12

P.GOVINDRAJU

¶13

AGE: MAJOR, OCC. SERVICE A.G.M. BRANCH MANAGER LIC OFFICE R/O JAMAKHANDI, DIST. BAGALKOT

¶14

…RESPONDENT

¶15

(BY SRI.A.C.DESAI, ADVOCATE FOR SRI.J S SHETTY & ASSTS, ADVOCATE)

¶16

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT OF ACQUITTAL DATED 30.01.2015 PASSED IN CC NO.73/2010 BY THE CIVIL JUDGE AND JMFC., NAVALAGUND AND ACCORDINGLY CONVICT THE RESPONDENT FOR THE

¶17

¶18

OFFENCE PUNISHABLE UNDER SECTION 138 OF NI ACT.

¶19

THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY, THE COURT, DELIVERED THE FOLLOWING:

¶20

JUDGMENT

¶21

Challenging the judgment dated

¶22

30.01.2015 passed by Civil Judge and JMFC, Navalgund in CC No.73/2010 acquitting the accused for the offence under Section 138 of the Negotiable Instrument Act, (herein after referred to as “N.I.Act” for short),

¶23

complainant is in appeal.

¶24

Brief facts giving rise to this

¶25

appeal are as under:

¶26

A complaint was filed on 12.08.2009 stating that complainant is a resident of Dharwad and holder of LIC policies. Accused was working in LIC, Dharwad

¶27

¶28

branch. They were known to each other and had developed friendship. The accused used to borrow money from complainant for his family necessities and return the said amounts, from time to time. As such, during December-2008, accused borrowed a sum of Rs.2,00,000/for his family necessities promising to return it within two months. Based on assurance, complainant lent a sum of Rs.2,00,000/- on 13.12.2008. When complainant demanded payment, accused issued him a cheque bearing No.58575 dated 13.02.2009 drawn on LIC Employees Co-operative Bank Limited, Dharwad branch for a sum of Rs.2,00,000/-. When it was presented for payment on 30.05.2009, cheque was returned unpaid with endorsement “Funds insufficient”.

¶29

¶30

Thereafter, complainant issued statutory

¶31

notice by RPAD to accused on 25.06.2009. Accused received it on 26.06.2009. Despite receipt, he failed to reply or make payment, thereby constraining complainant to file a private complaint under Section 200 of the Code of Criminal Procedure,1973 (herein after referred to as ”Cr.P.C.” for short). After recording sworn statement of complainant and issuance of summons, accused entered appearance, denied the charges and sought trial.

¶32

In support of his case, complainant

¶33

got himself examined as PW1 and got marked five documents as Exhibits P.1 to P.5. Thereafter, incriminating material was explained to accused, which was denied. His statement under Section 313 of Cr.P.C.

¶34

¶35

was recorded. Thereafter, accused led defence evidence by examining himself as DW1. He got marked five documents as Ex.D.1 to D.5.

¶36

Assailing judgment of trial Court, learned counsel Sri.Girish Hiremath submitted that non-examination of R.I.Sullad was not fatal, as there was no dispute about signature of accused on the cheque in question. Even when, complainant was entitled for presumption under Section 118 and 139 of NI Act, as per law laid down in the case of RANGAPPA VS. SRI MOHAN, reported in ( 2010)11 SCC 441, trial Court placed burden of proving complaint averments erroneously upon complainant. Further, there was failure by accused to rebut such presumption. Such being the

¶37

¶38

case, acquittal was totally unjustified. Impugned order has led to miscarriage of justice.

¶39

Learned counsel further submitted that complainant had examined himself as PW.1 and got marked the cheque - Ex.P1, bank endorsements-Exs.P2 and P3, statutory notice- Ex.P4, postal slip- Ex.P4A and RPAD acknowledgment- Ex.P5. The contents of the same established all the ingredients of Section 138 of N.I. Act.

¶40

On the other hand, learned counsel

¶41

Sri.A.C.Desai, counsel appearing for Sri.J.S.Shetty Associates submitted that accused was not working at Dharwad on the date of transaction. In fact, he was working at Jamakhandi, which was established by

¶42

¶43

him by producing a letter issued by his employer as per Ex.D1. It was further submitted that though accused admitted other loan transactions, which were prior to the one in question and that he had repaid it and there was no subsisting debt. Further, accused contended that cheque was given to one R.I.Sullad at the time of taking loan of Rs.10,000/- from him. After repayment, when accused demanded return of cheque, he was told it was misplaced or destroyed.

¶44

The learned counsel further submitted that accused also led evidence and examined himself as DW1. He produced documents viz., a certificate issued by Manager of LIC as Ex.D-1 to show that he was working at Jamakhandi on the date of alleged loan transaction; a letter by LIC

¶45

¶46

Employees Co-operative Bank Ltd., Branch Dharwad as Ex.D-2; ledger account extract of accused as Ex.D3; return slip as Ex.D4 and a leave availed certificate issued by Branch Manager of LIC as Ex.D5. Based on the above documents, it was submitted that accused not only rebutted the presumption in favour of complainant, but also established genuine doubt about loan transaction and that acquittal by trial Court had further fortified his innocence. On the above grounds sought for dismissal of appeal.

¶47

I have heard learned counsel for both parties and perused impugned

¶48

judgment and records.

¶49

¶50

Indeed, in the complaint, complainant has stated that during December-2008, accused borrowed a loan of Rs.2,00,000/- for family necessities with a promise to repay within two months. But, failed to repay when complainant demanded and issued cheque-Ex.P1 towards discharge of debt. The cheque when presented was returned unpaid. Despite service of statutory notice, accused failed to repay the amount.

¶51

During oral evidence of PW.1, it is

¶52

elicited by accused that at the time of borrowing money on 13.02.2008, accused issued the cheque in question. The money was given inside a hotel and at that time accused, complainant and R.I.Sullad were present. It is seen that accused had taken

¶53

¶54

a clear stand that he was not working at Dharwad, on the date of loan transaction or on the date of issuance of cheque. To support this assertion, a certificate issued by the Branch Manager, LIC- Ex.D1 was produced.

¶55

On perusal of Ex.D1, it is seen that between 19.10.2005 to 27.05.2007 accused was working at the Divisional Office, Dharwad and from 28.05.2007 to 16.05.2010, accused was working at the Divisional office, Jamakhandi. During December - 2008, accused took leave only on 23.12.2008. Exs. D1 to D5 give a clear indication that accused was working at Jamakhandi during December2008. Therefore, probability of accused being present at Dharwad on the date of

¶56

¶57

transaction is rendered doubtful. Thus, it is

¶58

held that accused rebutted presumption available in favour of complainant.

¶59

The next question that arises would be, ‘whether complainant has sufficiently explained away the doubt by establishing presence of accused at Dharwad, on the date of transaction?’ PW1 admitted that R.I.Sullad was present at the time of handing over loan amount to accused. His non-examination as a witness would be a circumstance to be considered. From perusal of entire cross - examination of DW.1, it is seen that complainant failed to elicit any admission from accused regarding loan transaction or his presence at Dharwad on the relevant date, which also requires consideration.

¶60

¶61

From the examination of contents of documents Ex.P1 to P5 and oral evidence of PW.1, there is nothing to establish the foundational fact that there exists loan transaction between complainant and accused. When all the above circumstances are considered together, a reasonable doubt about the complainant’s case does arise. Hence, it is held that the conclusion of trial Court, acquitting accused is justified.

¶62

Though, it was also contended that as it was accused’s case that cheque was given to R.I. Sullad, his non-examination by accused is also a material circumstance to be considered. It is held that after accused rebutted the presumption in law, the evidence will have to be evaluated on the basis of proof beyond reasonable doubt by

¶63

¶64

placing burden of proof on the prosecution. But, in this case, complainant has failed to do so. Therefore, the reasons assigned and conclusions drawn by the trial Court are with reference to the evidence on record. The same are neither perverse nor suffer from any material irregularity.

¶65

In the result, there is no merit in

¶66

the appeal. Appeal is dismissed.

¶67

JUDGE

¶68

HMB

¶69

Sd/-

Shrishailappa S/O Shivarayappaj Nidavani v. P Govindraju

Case brief

What is this about?

What did the court decide?

Shrishailappa S/O Shivarayappaj Nidavani v. P Govindraju

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Nagappa S/O Basappa Karavinakoppa, Vs Tukaram Narayan Gouda

State of Karnataka Vs K.Venkatareddy S/O. Narayanareddy

M/S Shriram Transport Finance Co. Vs Nijagunappa Ningappa Hadimani

Parbhakar S/O. Basappa Katagi Vs G.Krishnareddy S/O. Nagareddi

M/S Shriram Transport Finance Co. Vs Eshwarappa Naikar S/O. Bhuthappa

M/S Shriram Transport Finance Co. Vs Shivappa S/O. Hulugappa