Allowed

Sri U D Manjunatha v. Sri Nagaraju

Karnataka HC24 Nov 2020CRL.A/1232/2011

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed the criminal appeal against acquittal under Section 138 of the Negotiable Instruments Act. The court found that the trial judge erred in stripping the statutory presumption of consideration without sufficient evidence to disprove it. Consequently, the appeal was allowed, acquittal set aside, and accused convicted.

What did the court decide?

Acquittal set aside; Respondent convicted; fine of Rs. 3,85,000 ordered with option of simple imprisonment for one year in case of default.

Sri U D Manjunatha Vs Sri Nagaraju — Cheque Dishonour | Karnataka HC (2020)

¶1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶2

DATED THIS THE 24^TH DAY OF NOVEMBER, 2020

¶3

BEFORE

¶4

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

¶5

CRIMINAL APPEAL No.1232/2011

¶6

BETWEEN:

¶7

SRI U D MANJUNATHA S/O LATE DEVEGOWDA AGED ABOUT 45 YEARS, , COFFEE PLANTER HOSATHOTA ESTATE ULUVAGILU VILLAGE R/O KABBINAHALLI POST CHIKMAGALUR TALUK.

¶8

...APPELLANT

¶9

(BY SRI VINOD GOWDA, ADVOCATE)

¶10

AND:

¶11

SRI NAGARAJU S/O RANGASWAMY CLERK IN MOUNTAIN VIEW COLLEGE, VIDYANAGAR, CHIKMAGALUR DISTRICT. …RESPONDENT

¶12

(BY SRI M SHARASS CHANDRA, ADVOCATE)

¶13

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT/ORDER OF ACQUITTAL DATED 30.09.2011 PASSED BY THE II-ADDITIONAL CIVIL JUDGE AND JMFC,

¶14

¶15

CHIKAMAGALUR IN C.C.No.2659/2006- ACQUITTING THE RESPONDENT/ACCUSED FOR OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT.

¶16

THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY THE COURT THROUGH VIDEO CONFERENCE AT BENGALURU DELIVERED THE FOLLOWING:

¶17

JUDGMENT

¶18

The appeal is directed against the judgment dated 30-9-2011 passed by the learned II Additional Civil Judge and JMFC at Chikmagaluru in Criminal Case No.2659/2006, wherein the accused came to be acquitted in the complaint presented under Section 200 Cr.P.C. later cognizance taken for the offence punishable under Section 138 of Negotiable Instruments Act. Being aggrieved by the same, the complainant is in appeal.

¶19

In order to avoid confusion and overlapping,

¶20

the parties are addressed in accordance with the ranks held by them before the trial court.

¶21

¶22

3. The complainant claim that he is a Coffee

¶23

Planter. He owns more than 10 acres of Coffee Plantation. Accused purchased coffee seeds from the complainant worth Rs.3,30,000/- and subsequently towards repayment of the same, he issued the cheque bearing No.365114 dated 3.3.2006 for Rs.3,30,000/drawn on Syndicate bank, Chikmagaluru, in favour of the complainant. On presentation, it came to be dis-

¶24

honoured on 17.3.2006 with endorsement ‘accounts

¶25

closed’. A legal notice was got issued on 7.4.2006 through registered post. Though the notice was served untenable reply was furnished by the accused. After going though the case of the complainant, cognizance was taken by the trial judge for the offence punishable under Section 138 of Negotiable Instruments Act.

¶26

¶27

Accused appeared and contested the case,

¶28

plea of accusation has been readover and explained

¶29

and he pleads not guilty and claims to be tried.

¶30

Before the learned trial Judge, complainant

¶31

got examined himself as PW1-U.D.Manjunatha and got

¶32

examined Lakshmisha Varna as PW2 and got marked

¶33

the following documents:

¶34

“Ex.P-1 - One Challen Ex.P-2 - One cheque Ex.P-3 - Endorsement Ex.P-4 - Copy of Legal notice Ex.P-5 - Reply Notice Ex.P-6 - Postal Acknowledgment Ex.P-7 - Certificate of posting Ex.P-8 & 9 - RTC’s”

¶35

On the other hand accused himself is

¶36

examined as DW1 and got marked the following documents.

¶37

“Ex.D-1 - Postal unserved Cover Ex.D-2 - Salary Certificate Ex.D-3 - Certified copy Service Register”.

¶38

¶39

Upon conclusion of the trial, learned trial

¶40

judge found the accused not guilty of the offence and acquitted him of the charges. Against which, the complainant is before this court.

¶41

Learned counsel for complainant Sri. Vinod

¶42

Gowda submits that the learned trial judge found that there was no legally recoverable debt and consideration is not passed. Trial judge also found that the cheque was not issued against the existing liability.

¶43

Learned counsel for Accused/respondent Sri.

¶44

Sharass Chandra would submit that there is no existing liability for issuing the cheque by the accused. He never purchased any coffee seeds. The complainant never deals in coffee seeds and not maintained any documents regarding credit sale nor produced the same to the court regarding credit sale.

¶45

¶46

Learned counsel for complainant would

¶47

submit RTC extract, Ex.P8 and 9 would establish that the complainant is a coffee grower. Ex.P8 is the RTC

¶48

extract of survey No.11 measuring an extent of 3 acres 22 guntas, wherein the name of Manjunatha is shown in column No.9 as the owner. So also in Ex.P9.

¶49

The scope of the case for the offences punishable under Section 138 of N.I. Act involved the negotiable instrument and it is not totally a civil suit. The types of negotiable instruments are: promissory note, Bill of exchange and cheque. As a matter of fact, cheque is defined as a bill of exchange drawn in favour of payee on a banker to pay the amount mentioned therein. A holder of a cheque is presumed to be a holder in due course. As a matter of fact, it is presumed that a person who holds a negotiable instrument which includes a cheque for consideration

¶50

¶51

in good faith. This presumption is not irrebutable. It is just like any other rebutable presumption. There are always grounds open to the other party to dislodge the presumption relating holder and holder in due couse.

¶52

In this case, the cheque is given according to the complainant is towards the payment of price of the coffee seeds. Regard being had to the fact that there is no details of quantity of coffee seeds and its price. Regard being had to the fact complainant tells in his oral evidence about the same. But the question herein is the initial responsibility is on the accused to show that the cheque was not given by accident or by oversight. In this connection, it is further necessary to mention in any given proceedings which is advisory in nature, the proceedings go on the basis of assertion and denials. Those material preposition which are

¶53

¶54

asserted and denied resulted in the bone of

¶55

contention.

¶56

The preponderance of probability and that proof of the averments or assertion decides the fate of the case. The counter to pleadings or the complainant is of several types. One of them is, total denial in which the complainant has to establish his case to the satisfaction of the court. Evasive denial. Denial for the sake of denial without any substance being in it are to be looked into to eschew the exaggeration or clarification of oversight so on and so forth.

¶57

The other kind of counter may be denial with specific stand. In the present case cheque amount is claimed at Rs.3,30,000/- which is denied by the accused. It is not a total denial. Regarding the existence of the cheque, he has an explanation which is volunteered by him and shows that he had

¶58

¶59

borrowed an amount of Rs.50,000/- from one Jagadeesh who is the brother of the complainant and the said amount was settled. But Jagadeesh played mischief. Instead of handing over the cheque back to the accused, he colluded with the complainant facilitating him in rising a claim of debt of

¶60

Rs.3,30,000/-.

¶61

Thus according to the accused matter is a day light cheating, deceit and fraud. Incidentally, no proceedings are initiated by the accused against the complainant or his brother. Not even a notice has been issued. This analysis became necessary that apart from making a denial in tandum against a case be it a pleading or the complainant’s averments when one takes up a specific stand regarding the incident or offence as in the present case regarding the possession of the cheque to the complainant. There is a version which the accused believed to have and that

¶62

¶63

has to be demonstrated by him before the court by establishing the circumstances that such mis use of cheque has happened in all probability. Whether it is defendant or accused whenever a special plea is offered or volunteered the onus is on him to prove the same. Here, the allegation or the special plea or the defence of the accused does not traveled a centimeter beyond the allegations. The allegations or suspicion cannot replace the proof. Evasive denial or denial for the sake of denial without there being any substance in it can not find recognition in law.

¶64

The learned trial judge went on discussing

¶65

on the matter regarding the liability, business, maintenance of ledger and finally legally recoverable debt. No doubt, the presumption is in position of the negotiable instruments it is not for legally recoverable debt. Legally recoverable debt will be established in accordance with its own rule. If a case is on the basis

¶66

¶67

of pronote it is only on pronote. If it is on the basis of cheque, it is only on the basis of cheque. Except the claim there is no explanation for the same. I find the trial judge seriously erred in considering the case, applying the legal principles, more particularly the provisions of Section 139,138, 118 and 20 of N.I. Act. In the present set of circumstances, I find the judgment passed by the learned trial judge cannot be allowed to sustain and further it is liable to be set aside.

¶68

For the afore assigned reasons, the appeal is allowed.

¶69

The order of acquittal dated 30-09-2011 passed in C.C.No.No.2659/2006 by the II Additional Civil Judge and JMFC, Chikamagalur, is set aside.

¶70

The respondent/accused is held guilty for having committed the offence punishable under Section 138

¶71

¶72

of N.I. Act and he is sentenced to pay a fine amount of Rs.3,85,000/- within a period of 2 months.

¶73

Out of which, Rs.3,80,000/- shall be paid to the complainant as compensation and remaining Rs.5,000/- shall be adjusted to State account. In case of failure to comply the same, accused shall undergo simple imprisonment for a period of one year.

¶74

Send the copy of the judgment to the trial court for further formalities.

¶75

Sd/JUDGE

¶76

tsn*

Sri U D Manjunatha v. Sri Nagaraju

Case brief

What is this about?

What did the court decide?

Sri U D Manjunatha v. Sri Nagaraju

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

M/S Networth Stock Broking Limited Vs Smt Shanthala

H P Siddappa Vs Siddappa

M/S Rolastar Private Limited Vs M/S Hvac Systems Pvt. Ltd.

Mr Karthikeyan Balu Vs State of Karnataka

Smt Gangamma W/O Late Basappa Vs Mr Thippeswamy S/O Shivarudrappa

Mr Mohammed Saleem Vs Mr Abdul Rahim Hussain