Dismissed

Sri K Venkataraju v. Sri B H Srinivasa

Karnataka HC9 Dec 2020CRL.A/193/2016

Case brief

AI extract

What is this about?

The Karnataka High Court dismissed the criminal appeal filed by the complainant against the acquittal of the accused in a cheque dishonour case. The court held that since the principal liability had been discharged by the primary debtor before the criminal case was filed, the cheque amount was not legally recoverable. The trial court's acquittal was confirmed.

What did the court decide?

The appeal was dismissed and the order of the trial court acquitting the respondent was confirmed. The matter regarding the outstanding fine was remanded to the trial court.

Sri K Venkataraju Vs Sri B H Srinivasa — Cheque Dishonour | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF DECEMBER, 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.193/2016

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BETWEEN:

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SRI K VENKATARAJU S/O KONDAIAH AGED ABOUT 39 YEARS No.620, No.19^TH MAIN “A” BLOCK, SAHAKARA NAGAR BANGALORE – 560 092.

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…APPELLANT

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(BY SRI K CHANDRANATH ARIGA, ADVOCATE)

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AND:

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SRI B H SRINIVASA S/O SRI HANUMANTHARAYAPPA AGED ABOUT 41 YEARS No.11, NEAR GANESHA TEMPLE BANDIKODIGENAHALLI JALA HOBLI BANGALORE NORTH TALUK – 560 013.

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…RESPONDENT

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(BY SRI N KRISHNAMURTHY, ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT

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DATED 23.12.2015 PASSED BY THE XVIII ADDITIONAL C.M.M., BANGALORE IN C.C.No.9663/2014-ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I.ACT.

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

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JUDGMENT

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The appeal is directed against the judgment dated 23-12-2015 passed in C.C.No.9663/2014 by the learned XVIII Additional CMM, Bangalore, wherein the complaint presented under Section 200 Cr.P.C. came to be rejected and accused was acquitted for

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the offence punishable under Section 138 of N.I. Act.

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In order to avoid confusion and overlapping,

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the parties herein are referred to in accordance with their rankings as held by them before the trial court.

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The brief facts of the case is that, the complainant and accused were acquainted with each other. Their friendship passed through so many years.

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During the first week of November 2013, accused visited the complainant’s house and informs the complainant that his close relatives are trying to sell the land which belongs to them and in this connection, accused insisted the complainant to purchase the land. The complainant agreed for the same. Totally, the complainant paid a sum of Rs.10,00,000/- by way of cash to the accused and the remaining amount to be paid at the time of registration. The complainant submits that to the shock and dismay, on 10^th January 2014, complainant informed that his relatives are not in a position to sell the said property and accordingly, the amount will be returned together with interest at 2% per month by way of cash. When complainant demanded, accused issued two cheques dated 16-012014 for Rs.5,00,000/- each drawn on HDFC Bank Limited, Yelahanka Branch, Bangalore. The said cheques were issued by the accused assuring the

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complainant that cheques would be honoured if they are presented. Later, on presentation the cheques came to be dishonoured on 21.1.2014 with an endorsement ‘Accounts closed’. Legal notice came to be issued by the complainant on 6.2.2014 and thereafter, complainant filed a case on 15.3.2014.

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After filing of the complainant cognizance of the offence was taken and after recording sworn statement in pursuance of summons, presence of the accused was secured. Statement of the accused was recorded and he pleaded not guilty.

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Learned trial judge was accommodated with the oral evidence of PW1 and documentary evidence of Exs.P1 to P7 on behalf of complainant and oral evidence of DWs-1 to 4 and documentary evidence of Exs.D1 to D4 on behalf of accused.

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Upon conclusion of trial, learned trial judge

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acquitted the accused. Being aggrieved by the same, complainant has approached this court in this appeal.

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Learned counsel Sri. K. Chandranath Ariga

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appearing for appellant/complainant would submit that a calculated fraud is played by the accused. First accused lured the complainant for buying a site which belonged to his relatives and in the process complainant paid Rs.10,00,000/- by cash and having received the same, it was further agreed that another sum of Rs.10.00 lakhs would be given at the time of registration of the property. But things did not happen and there was no symptoms of getting the land registered. In fact, on demand accused issued the cheques which were dishonoured and thereafter the complainant followed the procedure contemplated under Section 138 of Negotiable Instruments Act and

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a complaint came to be filed by him and it was

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registered in CC No.9663/2014.

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Learned counsel for appellant further submits

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that, the learned trial judge despite the overwhelming evidence available in favour of complainant acquitted the accused and also imposed the cost of Rs.50,000/-

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Learned counsel Sri.Krishna Murthy for accused/respondent would submit that the

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complainant has literally played fraud on the accused. It was admitted that the accused and the complainant had negotiations wherein the land that was likely to be sold by the relatives of the accused could be procured for a sum of Rs.1.60 crores per acre and asked the complainant to buy. In this connection, complainant paid an amount of Rs.10,00,000/- in cash

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and issued two cheques of Rs.5,00,000/- each. Totally an amount of Rs.20,00,000/-. However, on

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presentation, the cheques came to be dis honoured thus amount paid by the complainant was limited to Rs.10,00,000/-. The dishonoured cheque for Rs.10,00,000/- is as per Ex.D3. Thereafter, it was the complainant who went near the house of accused and insisted for repayment of the amount and finally accused issued one cheque in favour of the complainant and another cheque in favour of one Venkataraju who is stated to be the father-in-law of the complainant and that is forthcoming from the cross examination of DW4-K.Narayana, father- in- law of the complainant. As stated earlier the complainant had given Rs.10,00,000/- in cash and two cheque for Rs.10,00,000/- and the cheques on presentation was dishonoured as per Ex.D3 filed on behalf of accused. In the further circumstances of the case the complainant pressurized the accused for the amount what was given under his mediation and the accused

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was compelled to issue two cheques of Rs.5,00,000/each. Above all these, it could be seen that the complainant and his father-in-law received Rs.10,00,000/- i.e. Rs.5,00,000/- each which was given through cheques.

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Meanwhile, it is also seen that at the time of payment, the complainant as stated above issued cheque for Rs.10,00,000/- apart from cash of Rs.10,00,000/-. However, the cheques were not honoured. It is stated that two cheques were issued by the accused as a security for the return of the amount by the owner of the property Ravishankar.

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In the cross examination of DW4-K. Narayana, it is elicited that the amount of

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Rs.5,00,000/- that was credited to his account was the one that was payable by Ravishankar who is stated to be the owner of the property on whose

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behalf accused mediated and another in the name of Sri Venkataraju for Rs.5,00,000. Totally amount of Rs.10,00,000/- in two cheques that were issued in the present case by the accused was presented, dishonoured, notice issued, criminal case filed and cognizance was taken an on the dismissal of the complaint, the complainant is in appeal.

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To a question, learned counsel for complainant submits the amount of Rs.5,00,000/- on 23.5.2013 in the name by Venkataraju and another Rs.5,00,000/- in the name of one K. Narayana was received from Ravishankar. That shows from the land owner an amount of Rs.10,00,000/- was received. Thus, there is payment of Rs.10,00,000/- back to the complainant by the owner Ravishankar and the same is received and it is full proof. Then there is all probability and moreover reliability in the submission of learned counsel for accused that his two cheques

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were obtained as a security for payment of

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Rs.10,00,000/- by Ravishankar. The complainant also stated to have issued a cheque for Rs.2,50,000/- as per Ex.D1 to the accused promising the same was a commission for the transaction and on presentation

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said cheque also came to be dishonoured.

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From the above, the following points are clear:

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The transaction took place regarding the purchase of property that was mediated by the accused on behalf of one Ravishankar who is stated to be the owner of the property and the complainant on the other hand is the purchaser;

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The amount of Rs.10,00,000/- in cash and Rs.10,00,000/- in cheques were issued by the complainant by way of consideration;

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Nodoubt, cash of Rs.1,00,000/- was received but the cheques came to be dishonoured. However, the sellar did not followed further proceeding over that.

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Thereafter, the complainant pressurized the accused to ensure that their money is safe and they should get back and as a security two cheques were issued by the accused as per Exs.P1 and 2 both got dishonoured against which a criminal case came to be filed and which came to be dismissed on the ground that there did not exist legally recoverable debt. However, on 23.5.2013 2 cheques were issued from the account of Ravishankar of Rs.5,00,000/- each and the amount was promptly deducted and shown under the column meant for withdrawal. Thus, money what the complainant paid for the land safely went back to his cash chest. The present complaint is filed on the basis of the cheques, the liability of which was already discharged.

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The issuance of cheque of Rs.2,50,000/as a commission becomes in significant as the transaction did not materialized. The accused did not file any complaint. Filing of the present case is in respect of the cheque amount which was not due and on behalf of whose security it was issued for the repayment of the money by Ravishankar. Even after receiving the money

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from the primary liability holder Ravishankar, the complainant has took it to the level of filing the complaint in order to make profit.

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For the aforesaid reasons, the appeal is dismissed.

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The order passed by learned trial Judge dated 23-12-2015 in CC No.9663/2014 acquitting the accused for the offence punishable under Section 138 of N.I. Act is confirmed.

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However, the matter regarding the payment of Rs.50,000/-, is concerned the trial court is at liberty to go ahead with the proceedings regarding the imposing of fine and issuance of show cause notice and it shall be completed within one month from the date of receipt of the copy of this order.

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Sd/-

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JUDGE

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tsn*

Sri K Venkataraju v. Sri B H Srinivasa

Case brief

What is this about?

What did the court decide?

Sri K Venkataraju v. Sri B H Srinivasa

Case brief

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What did the court decide?

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