Allowed

Sri Somashekaraiah K v. Sri K M Bandi Rangaiah

Karnataka HC10 Dec 2020CRL.A/893/2017

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed the criminal appeal filed by the complainant against the acquittal of the respondent. The Court found the trial Judge erred in not appreciating evidence establishing a debt and ignoring statutory presumptions under Sections 139 and 20 of the Negotiable Instruments Act, finding the accused guilty of cheque dishonour.

What did the court decide?

Accused convicted under Section 138 of the Negotiable Instruments Act and directed to pay a fine of Rs.2,20,000/- comprising compensation to the complainant and amount to the State Exchequer.

Sri Somashekaraiah K Vs Sri K M Bandi Rangaiah — Cheque Dishonour | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^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.893/2017

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BETWEEN:

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SRI SOMASHEKARAIAH K S/O LATE KEMPEGOWDA, AGED ABOUT 56 YEARS, R/AT No.69, 2^ND CROSS, RAJAREDDY LAYOUT, BESIDE M.S.RAMAIAH ENCLAVE, NAGASANDRA POST BANGALORE - 560 073. ..APPELLANT

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(BY SRI RAMACHANDRA, ADVOCATE)

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AND:

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SRI K M BANDI RANGAIAH S/O MUDDARANGAIAH, AGED ABOUT 64 YEARS, R/AT No.15, 5^TH CROSS, 7^TH MAIN BHUVANESHWARINAGAR, T.DASARAHALLI, BANGALORE - 560 057. ..RESPONDENT

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(BY SRI D M MANJUNATH, ADVOCATE – ABSENT)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT OF ACQUITTAL DATED 28.03.2017 PASSED BY

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THE XVIII A.C.M.M., BENGALURU IN C.C.No.11795/2013 – ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT.

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

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JUDGMENT

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Appeal is directed against the Judgment dated 28.03.2017 passed in C.C.No.11795/2013 by the XVIII ACMM, Bengaluru, wherein accused came to be acquitted for the offence punishable under Section 138 of the Negotiable Instruments Act. Being aggrieved by the said Judgment complainant has come in appeal.

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In order to avoid confusion and overlapping parties are referred in accordance with the ranks held by them before the trial court.

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3. The substance of the case is complainant filed a

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private complaint under Section 200 Cr.P.C against the accused for the offence punishable under Section 138 of Negotiable Instruments Act and said case was registered and cognizance was taken. The complainant and accused are known to each other for the past ten years. The accused is a retired school teacher and during third week of February, 2012 he approached complainant and requested complainant for a hand loan of Rs.2,00,000/- for discharge of loan borrowed for his daughter’s marriage. Considering the request of accused, complainant lent Rs.2,00,000/- on 15.03.2012 to the accused. At the time of borrowal accused agreed to repay the loan within three months. After lapse of said period the complainant approached accused and accused was unable to pay and instead of paying accused issued a post dated cheque for Rs.2,00,000/dated

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20.01.2013 drawn on the Bharath Co-operative Bank, Vijaynagar Branch, Bengaluru. When presented for payment it was returned unpaid with endorsement “Funds Insufficient” dated 27.01.2013. The complainant got issued a legal notice on 14.02.2013 and notice was duly served on accused. Accused neither made payment nor sent any reply. Complaint came to be filed.

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Learned trial Judge was accommodated with oral evidence of PW-1 and DW-1 and DW-2 and documentary evidence Ex.P-1 to Ex.P-6 on behalf of complainant and Ex.D-1 to D-9 on behalf of accused.

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Learned counsel for complainant submits that complainant was an employee in HMT which is a sick unit and basically he was getting a salary of Rs.40,000/- and that he is now getting salary

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intermittently. Learned counsel would submit he responded to the request of a friend who was known to him for years but after receiving said amount he has caused loss to the complainant who is suffering because of breach of trust.

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Accused has admitted that in year 2005-06 he had borrowed Rs.10,000/- and Rs.20,000/- from the complainant and at that time deposited two blank signed cheques, two blank signed demand promissory notes including Ex.P-1-cheque under signature and drawn on the Bharath Co-operative Bank and as per endorsement dated 27.01.2013 the said cheque was dishonoured. Ex.D-2 is a cheque book record slip. As per this document on 28.08.2003 accused had obtained ten cheque leaves bearing Nos.591371 to 591380. Ex.D-2 does not contain cheque leaves. The very cheque Ex.P-1 is contended to be not issued by

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accused. In this connection he has also examined Bank Manager. As per the evidence of complainant he was keeping Rs.2,00,000/- cash in his house for his son’s marriage and gave it to the accused. The evidence of the complainant that without charging any interest advanced huge amount of Rs.2,00,000/- to accused is highly impossible. Accused is not a relative of the complainant to advance loan without charging interest. During cross examination of DW-1 it was suggested that in order to perform the marriage of his son, complainant himself borrowed a sum of Rs.1,00,000/- from HMT Co-operative Society. EX.P-6 bank passbook was also produced to prove the financial capacity of the complainant that he is an employee. The account of the complainant is also credited with the sum during February and March as per the entry and totally it is about Rs.16,964.05.

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7. In the circumstances when the bank manager

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has affirmed that cheque was issued from his bank and it pertains to accused account.

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Thus contextual inference that could be drawn is cheque was issued by accused. He quoted different reason. According to him during the year 2005-06 he had borrowed Rs.10,000/- and Rs.20,000/- and at that time he issued two blank promissory notes and two blank cheques in one context. In different context he takes divergent inference regarding non issuance of cheque. Accused besides denying transaction takes up special plea of execution of promissory note.

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This is not a case of bare denial by the accused.

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He presents the circumstances how the cheques reached, who misused. In this connection he is firm

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and assertive. Thus he has to establish the same but fails to do so.

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Learned trial Judge goes on reminding the case in favour of accused without grounds. Further presumption under Section 139 and Section 20 of the Negotiable Instruments are not complied in accordance with the principles. He never discusses the presumption available to the holder of a negotiable instrument. When the accused takes up a special plea apart from regular denial the onus is on him to establish the circumstances regarding special plea taken by him which is not the case. Complainant was an HMT employee as it has become sick unit, he is getting salary intermittently.

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In the context and circumstances having admitted the issuance of cheque however claimed to

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be in different context. Now the accused started

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auditing the financial capacity of the complainant.

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Learned trial Judge failed to evaluate the evidence before it. It is established that there was a legally recoverable debt which is explained by circumstances and context and oral evidence of the parties and documentary evidence. The Judgment

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dated 28.03.2017 is liable to be set aside.

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Hence, the following:

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ORDER

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Appeal is allowed and accused is found guilty for the offence punishable under Section 138 of the Negotiable Instruments Act. Accused is directed to pay fine of Rs.2,20,000/- within three months out of which Rs.2,10,000/- be payable to the complainant as compensation and Rs.10,000/- to be adjusted to the State Exchequer. In case of default in payment of fine

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accused shall undergo simple imprisonment for a

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period of one year.

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Sd/JUDGE

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SBN

Sri Somashekaraiah K v. Sri K M Bandi Rangaiah

Case brief

What is this about?

What did the court decide?

Sri Somashekaraiah K v. Sri K M Bandi Rangaiah

Case brief

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What did the court decide?

What the court decided

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