Allowed

Sri P S Prakash v. Sri R M Jayappa

Karnataka HC2 Nov 2020CRL.A/1209/2011

Case brief

AI extract

What is this about?

The High Court allowed three criminal appeals filed by a complainant against acquittals in cheques bounce cases. The Court found the trial court's judgment incomplete as it relied on unsubstantiated denials regarding signatures and the complainant's borrowing capacity. Pending fresh inquiry, the matter was remanded.

What did the court decide?

Impugned judgments set aside; matters remanded to trial court for fresh disposal after giving full opportunity to examine witnesses and produce documents.

Sri P S Prakash Vs Sri R M Jayappa — Cheque Dishonour | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF NOVEMBER, 2020

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BEFORE

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THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO

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CRIMINAL APPEAL No.1209/2011, CRIMINAL APPEAL No.1210/2011 AND

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CRIMINAL APPEAL No.1211/2011

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IN CRL.A.No.1209/2011

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BETWEEN:

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SRI P S PRAKASH AGED ABOUT 45 YEARS S/O LATE L P SIDDALINGAPPA OCC:AGRICULTURE, RESIDENT OF GOPENAHALLI, CHANNAGIRI TALUK DAVANAGERE DISTRICT. ...APPELLANT

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(BY SRI S V PRAKASH, ADVOCATE)

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AND:

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SRI R M JAYAPPA AGED ABOUT 56 YEARS S/O MAHADEVAPA OCC:AGRICULTURE, R/AT 1^ST CROSS, BEHIND MEENAKSHIBHAVAN, T.G.N. LAY OUT, SHIMOGA CITY. …RESPONDENT (BY SRI GURURAJ JOSHI, ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ACQUITTAL DATED 7.10.2011 PASSED BY THE SR.C.J. & JMFC., CHANNAGIRI IN C.C.No.21/2011 (OLD No.867/2011)-ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT.

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IN CRL.A.No.1210/2011

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BETWEEN:

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SRI P S PRAKASH AGED ABOUT 45 YEARS S/O LATE L P SIDDALINGAPPA OCC:AGRICULTURE, RESIDENT OF GOPENAHALLI, CHANNAGIRI TALUK DAVANAGERE DISTRICT. ...APPELLANT

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(BY SRI S V PRAKASH, ADVOCATE)

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AND:

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SRI R M JAYAPPA AGED ABOUT 56 YEARS S/O MAHADEVAPA OCC:AGRICULTURE, R/AT 1^ST CROSS, BEHIND MEENAKSHIBHAVAN, T.G.N LAY OUT, SHIMOGA CITY. …RESPONDENT

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(BY SRI GURURAJ JOSHI, ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 7.10.2011 PASSED BY THE SR.C.J. & JMFC., CHANNAGIRI IN C.C.No.22/2011 (OLD No.903/2007) ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT.

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IN CRL.A.No.1211/2011

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BETWEEN:

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SRI P S PRAKASH AGED ABOUT 45 YEARS S/O LATE L P SIDDALINGAPPA OCC:AGRICULTURE, RESIDENT OF GOPENAHALLI, CHANNAGIRI TALUK DAVANAGERE DISTRICT. ...APPELLANT

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(BY SRI S V PRAKASH, ADVOCATE)

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AND:

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SRI R M JAYAPPA AGED ABOUT 56 YEARS S/O MAHADEVAPPA OCC:AGRICULTURE, R/AT 1^ST CROSS, BEHIND MEENAKSHIBHAVAN, T.G.N LAY OUT, SHIMOGA CITY.

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…RESPONDENT

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(BY SRI GURURAJ JOSHI, ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ACQUITTAL DATED 7.10.2011 PASSED BY THE SR.C.J. & JMFC., CHANNAGIRI IN C.C.No.30/2011 (OLD No.866/2007) ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT.

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THESE CRIMINAL APPEALS ARE COMING ON FOR FINAL HEARING THIS DAY, THE COURT THROUGH VIDEO CONFERENCE AT BENGALURU DELIVERED THE FOLLOWING:

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JUDGMENT

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Heard learned counsel Sri S.V.Prakash for

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appellant (common in all the appeals) through VC and learned counsel Sri Gururaj Joshi for

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respondent/accused (common in all the appeals) who has appeared before the court.

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All the criminal appeals are preferred by one P.S.Prakash/complainant against the judgment passed by the trial court in Criminal cases. The details

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are as under:

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Sl. No.	Criminal Appeal No.	CC No.	Result and date of disposal
1.	1209/2011	21/2011 (old No. 867/2007	Acquitted the accused on 7-10-2011
2.	1210/2011	22/2011 (old No. 903/2007	Acquitted the accused on 7-10-2011
3	1211/2011	30/2011 (old No. 866/2007	Acquitted the accused on 7-10-2011

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As the matter involves three different

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cheques, complainant chose to file three separate cases and the learned trial judge has acquitted the accused in all the three cases and aggrieved by the

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same, the complainant has come in three appeals.

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The common disposal of these three cases arise as both the complainant and accused persons are same, the amount claimed to be due by the accused to the complainant is Rs.50,000/- in each case.

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In order to avoid confusion and overlapping

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the parties hereinafter are addressed in accordance with the rankings given to them before the trial court.

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The claim of the complainant in all the cases is that, accused approached him for the purpose of financial assistance and borrowed the sum of Rs.1,50,000/- on 01-12-2006 by way of hand loan

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in order to counter the house hold expenses,

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clearance of loan amount. Towards the repayment of the said amount he issued three post dated cheques in favour of the complainant each for Rs.50,000/-. The complainant claims the said cheques when presented were dishonoured with an endorsement as ‘accounts closed and account blocked’. In this connection, the cheque numbers, name of the bank connecting the case number before the trial court and before this court, date of issuance of cheques, date of presentation of cheques, date of dishonour and date

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of issuance of legal notice are as under:

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Sl. No	Crl.Appeal No.	C.C.No.	Drawn On	Cheque No. and date	Date of presentation/ dishonour/ endorsement and date of legal notice
1.	1209/2011	21/2011 (old No. 867/2007	Indus Ind Bank, Shimoga	082812 15.3.2007	10.7.2007 11-7-2007 (Account blocked) 19.7.2007
2.	1210/2011	22/2011 (old No. 903/2007	Indus Ind Bank, Shimoga	082810 18.2.20007	28.6.2007 30.6.2007 (Account closed) 9.7.2007
3.	1211/2011	30/2011 (old No. 866/2007	Indus Ind Bank, Shimoga	082811 28.2.2007	3.7.2007 11.7.2007 (account blocked) 19.7.2007

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Subsequently, the complainant had filed the complaint under Section 200 of Cr.P.C for the offence punishable under Section 138 of Negotiable

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Instruments Act.

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The learned trial Judge took cognizance of

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the offence and recorded the sworn statement of the

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complainant and after finding a prima facie case, registered the case against the accused and issued process. The accused on service of summons entered appearance and denied the claim of the complainant.

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Plea was read over and explained to the accused, he

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pleaded not guilty and came to be tried.

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The learned trial judge on the basis of the oral and documentary evidence available in each of the case acquitted the accused holding that there is difference in the name of the bank in the notice and

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the complaint, capacity of the complainant regarding paying loan of Rs.1,50,000/- and violation of provisions of Section 269 SS of Income Tax Act, 1961. Against which, complainant has presented these appeals.

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Learned counsel Mr.S.V. Prakash appearing for the complainant/appellant would submit that the learned trial judge has acquitted the accused on technical ground though there was no substantial defect or lapse in the case. He would further submit that the learned trial judge came to a finding that the signature found on the cheques was made by the accused, however has relied upon the reasons that are not relevant. The learned trial judge failed to apply the provisions relating to presumption in case of negotiable instrument.

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Learned counsel for accused Sri.Gururaj

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Joshi would submit that the learned trial judge has identified the main mistake or the material defect in the notice regarding the very name of the bank that vitiated the validity of the notice itself. He would submit that in the notice issued by the complainant to the accused in connection with all the three cases, the name of the bank is referred as ‘Indian bank’. Learned counsel would submit that trial judge has come to a clear finding regarding capacity of the complainant to lend loan and found lack of material to hold that he has sufficient capacity to lend to accused. In this connection, learned counsel for accused has relied upon Section 269 SS of Income Tax Act, 1961.

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In the whole context and circumstances of the case, there is absolute denial by the accused regarding borrowing of loan, issuing of cheques,

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signature on the cheques and lending capacity of the complaint.

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The oral and documentary evidence available

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in each of the case is,

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In Crl.A.No.1209/2011 (CC 21/2011 (old No.867/2007)

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“ Witnesses examined for the Complainant:

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PW1- Jayappa PW2- Praveen

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Witnesses examined for the accused:

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DW1 Jayappa R.M.

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Documents exhibited by the Complainant:

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Ex.P1 Cheque Ex.P1(a) Signature Ex.P2 Bank endorsement Ex.P3 Acknowledgment Ex.P4 Office copy of notice Ex.P5 Vakalathnama Ex.P5(a) Signature of DW1

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Documents exhibited by the Accused:

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Ex.D1 Copy of Identity card.

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In Crl.A.No.1210/2011 (CC 22/2011 (old No.903/2007)

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Witnesses examined for the Complainant:

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PW1- Prakash PW2- Praveen

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Witnesses examined for the accused:

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DW1 Jayappa R.M.

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Documents exhibited by the Complainant:

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Ex.P1 Cheque Ex.P1(a) Signature Ex.P2 Bank endorsement Ex.P3 Postal cover Ex.P4 Receipt Ex.P5 COP receipt Ex.P6 Office copy of notice Ex.P7 Vakalathnama Ex.P7(a) Signature of DW1

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Documents exhibited by the Accused:

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Ex.D1 Copy of Identity card.

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In Crl.A.No.1211/2011 (CC 30/2011 (old No.866/2007)

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Witnesses examined for the Complainant:

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PW1- Prakash PW2- Praveen

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Witnesses examined for the accused:

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DW1 Jayappa R.M.

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Documents exhibited by the Complainant:

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Ex.P1 Cheque Ex.P1(a) Signature Ex.P2 Bank endorsement Ex.P3 Acknowledgment Ex.P4 Office copy of notice Ex.P5 Ledger extract. Ex.P6-8 Vakalathnama Ex.P6(a) Signature of DW1 Ex.P7(a) -doEx.P8(a) -do-

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Documents exhibited by the Accused:Nil.”

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Before this court, learned counsel for accused/respondent has relied upon the following decisions:

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“1. M.S.Narayan Menon Vs State of Kerala –SCdecided on 4.7.2006 (Para No.35,32,45,50 and 52)

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B.Krishna Reddy Vs Syed and another – AIR2019-5123.

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K.Prakashan Vs P.K.Surendran SC-Decided on 10.10.2007- (Para No.9 and 10)

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Basalingappa Vs Mudibasappa – 2019-5SCC-418-(Para 11, 23, 24, 27-30)

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Nitinbhai Vs Manaubhai – 2011-9-SCC-638Regarding Section 326 of Cr.P.C.(Para No.16 to 19)”

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The learned trial judge in para-17 of the Judgment observes about the total denial on the part of the accused. It is specifically observed that the signature found on the cheque does not belonged to the accused nor it is made by him. As against this, PW1 in his oral evidence has reiterated his complaint averments in each of the cases. The complainant also got examined the Manager of Indus Ind Bank as PW2 in each of the cases. In his evidence, PW2 has spoken that the accused is the customer of Indus Ind bank and stated that cheques belonged to the accused maintained by the bank and also produced the true copy of the ledger extract maintained by the accused in his bank.

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The learned counsel for complainant submits

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that all the three cheques were issued by the accused under his signature. However, it has been strongly submitted by learned counsel Sri. Gururaj Joshi for the accused that the signature on the cheque is not admitted by the accused. However, learned counsel for complainant submits that contextual reading of para No.18 in CC No.21/2011 in Crl.A.No.1209/2011 shows that the signature made on the cheque is of the accused and further submits that the evidence of the Manager of the bank shows that the signature found on cheques were made by accused. Learned counsel for complainant and accused both would submit that they are having materials to prove regarding making or not making of the signature of the accused on the cheque. In this connection, the specimen signature of the accused has not come for comparison.

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In the whole set of circumstances,

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considering the quantum of amount is Rs.1,50,000/-. Complainant is stated to be an agriculturist. It cannot be stated at once without materials regarding the means available to the complainant to lend. But the learned counsel Sri. Gururaj Joshi for accused would submit that complainant is a name sake agriculturist and had no sufficient amount. Even on this count also learned counsel for the complainant and the accused submit that they have materials to prove their respective stance.

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In the overall circumstances of the case, I

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find that the signature is denied by the accused, however asserted by the complainant. Both the counsel submit that specimen signature of the accused obtained by the bank would throw light in the case. Insofar as wrong mentioning of the name of the

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bank is concerned, I do not find that it is to be read seriously in between the lines in the light of the admission made by bank manager regarding holding of account by the accused. However, on the items which is stated above, the present judgment in all the three cases appear to be incomplete as it is based on incomplete evidence and liable to be set aside and the matters are to be remanded to the trial court for consideration afresh.

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For the aforesaid reasons, all the three appeals filed by the complainant/appellant are allowed.

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The impugned judgment passed by the trial judge in all the cases are set aside and the matters are remanded to the trial court for fresh disposal in accordance with law, after giving full opportunity to both the parties and also giving opportunity to them

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to examine the witnesses and to produce documents

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in support of their contention.

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The parties shall appear before the trial court on 18-12-2020, without waiting for the notice from the trial court.

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The trial court shall endure to dispose of the

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matters as early as possible.

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