Dismissed

Sri v. Sanjeeva v Sri D Mukunda Naik

Karnataka HC18 Dec 2021CRL.A/1572/2017

Case brief

AI extract

What is this about?

In this criminal appeal under Section 378(4) CrPC, the appellant-changed complainant appealed against the trial Court's acquittal of the respondent under Section 138 NI Act. The Court held that the complainant failed to prove the claim beyond reasonable doubt despite prima facie evidence, as the defence successfully rebutted the presumption by adducing credible evidence of settlement.

What did the court decide?

Criminal Appeal No.1572 of 2017 is dismissed. The acquittal of the appellant/respondent in C.C. No.27054/2015 is affirmed.

Sri v Sanjeeva Vs Sri D Mukunda Naik — Cheque Dishonour | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF DECEMBER, 2021

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BEFORE:

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THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ

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CRIMINAL APPEAL No.1572 OF 2017

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BETWEEN:

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SRI. V. SANJEEVA S/O. SHIVAIAH AGED ABOUT 60 YEARS, R/AT NO.31, 2^ND MAIN 14^TH CROSS, S.P. EXTENSION MALLESHWARAM BENGALURU-560 003. ... APPELLANT

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[BY SRI. DEEPAK WAGLE M. ADVOCATE FOR SRI. KESHAVA BHAT A., AND SRI. G.L. MOHAN MAIYA, ADVOCATES-PH]

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AND:

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SRI. D. MUKUNDA NAIK AGED ABOUT 52 YEARS A.P.S. COMMERCE COLLEGE N.R.COLONY, BENGALURU-560 019. … RESPONDENT

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[BY SRI. D. NAGARAJA REDDY, ADVOCATE-PH]

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C, PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 12.06.2017 PASSED BY THE XVI ADDL. C.M.M., BANGALORE IN C.C. NO.27054/2015 - ACQUITTING THE RESPONDENT/ACCUSED FOR OFFENCE P/U/S 138 OF THE N.I. ACT.

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THIS CRIMINAL APPEAL COMING ON FOR ADMISSION THROUGH VIDEO CONFERENCE/PHYSICAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This is a complainant’s appeal against the

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Judgment and Order dated 12.06.2017 passed in C.C. No.27054/2015 by the trial Court, acquitting the accused/respondent of an offence punishable under Section 138 of the Negotiable Instruments Act [hereinafter referred to as ‘N.I. Act’ for short].

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Heard both side and perused the records of

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the case.

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The complainant has stated that he was working at A.P.S. Commerce College, N.R.Colony, Bengaluru, and the accused was also an employee of the

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said college, as such both of them were colleagues and knew each other. The accused had borrowed a sum of `2,63,000/- from him, to meet his urgent necessities and

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in discharge of the same, issued a cheque dated 17.06.2015 bearing No.785949, drawn on the Karnataka State Cooperative Apex Bank Limited, Jayanagara Market

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Complex Branch, Bengaluru. When the said cheque was presented through his banker, the same came to be returned dishonoured due to ‘Funds Insufficient’ in the account of the accused on 25.06.2015. The accused was called upon to make the payment by issuing a legal notice on 20.07.2015 through RPAD. The accused gave untenable reply to the said notice and failed to honour the cheque. Hence, committed an offence punishable under Section 138 of the N.I. Act.

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4. Accused has admitted that both of them were

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working at APS Commerce College. He has taken a specific defence that he had borrowed a sum of `2,68,000/- from the complainant between 06.04.2011 and 04.08.2012 on various occasions and towards security, he had issued three blank cheques, one bearing No.776380 drawn on SBM., Basavanagudi Branch, Bengaluru and two cheques bearing Nos.785949 and 785950, both drawn on The Karnataka State Cooperative Apex Bank, Jayanagara Branch. Subsequently,

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he repaid a sum of 75,000/- on 01.02.2013 and 25,000/- on 26.03.2013 by way of cheque and sought time to repay the remaining amount of 1,68,000/-. However, the complainant remitted two out of three cheques issued by him as stated above i.e, one bearing No.776320 drawn on SBM for 2,02,000/- and other cheque bearing No.785950 drawn on The Karnataka State Co-operative Apex Bank in the name of his wife Smt. Prameela R.Bhat for an amount of 1,40,500/-. Both the cheques got dishonoured and therefore the complainant and his wife issued two legal notices on 01.07.2013 in respect of those two cheques. Subsequently, the matter was settled for a sum of 1,95,000/-, out of which a sum of `1,68,000/- being the principal amount and an amount of Rs.27,000/- towards interest was paid to the complainant in the year 2013 itself. At the time of settlement, two cheques in respect of which the complainant got issued the legal notices were returned by him. However, in spite of repeated request, the cheque in question was not returned and on

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the other hand, the same was misused and a false complaint was filed.

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Before the trial Court, the complainant was examined as P.W.1. He has got marked Exs.P1 to 10. The accused got himself examined as D.W.1 and got marked Exs.D1 to 5.

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It is the contention of the learned counsel for the appellant that the cheque belong to the accused and the signature on the said cheque is also not in dispute and therefore there is a legal presumption in favour of the complainant. He would contend that the accused has admitted that there were financial transactions with the complainant and he has admitted that the cheque in dispute belongs to him and it bears his signature. He contends that the accused has not led any evidence regarding settlement and payment of `1,95,000/- to the complainant in the year 2013, as such the accused has failed to rebut the presumption.

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The accused who is examined as D.W.1 has admitted that the cheque in dispute belongs to him and it bears his signature. However, he has stated that after

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the settlement with the complainant, he has not borrowed any loan nor there was any financial

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transaction with him.

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In the cross-examination, P.W.1 has stated that out of the loan amount of `2,63,000/-, he paid some amount by way of cash and some amount by way of cheque. As per Ex.P3 i.e. legal notice, the said amount was paid to the accused between 26.04.2011 and 04.08.2012. P.W.1 has admitted the documents marked

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by defence viz. Exs.D1 to 5. The defence taken by the accused is set-out in the reply notice at Ex.P10. The complainant has admitted that he has returned the cheques referred to in Exs.D2 and 3. In the reply notice, the accused has taken a specific defence that he borrowed a sum of `2,63,000/- from the complainant from 26.04.2011 to 04.08.2012. In the complaint, there

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is no mention as to when a sum of `2,63,000/- was paid

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by the complainant to the accused. Though it is stated that the said amount was paid by way of cash as well as through cheques, no documents are forthcoming.

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The averments in Ex.D2 goes to show that the complainant has claimed that the accused had borrowed a total sum of 1,68,000/- and towards repayment of the sum including interest, he issued a cheque dated 26.06.2013 bearing No.776380 drawn on SBM Basavanagudi Branch, Bengaluru, for a sum of 2,02,000/-. Further, the averments in Ex.D3 shows that the complainant’s wife claimed that the accused had borrowed a total sum of 1,00,000/- from her by way of two installments of 50,000/- each on 08.04.2011 and 19.08.2011 respectively promising to pay the said amount with interest at 18% p.a. In this regard, the accused is said to have issued a cheque dated 17.06.2013 bearing No.785950 drawn on The Karnataka State Co-operative Apex Bank Limited, Jayanagara

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Market Complex Branch, Bengaluru, for a sum of 1,40,500/-. According to the accused, subsequent to dishonour of those two cheques, there was a settlement between the parties and as per the said settlement he cleared the said amount by paying 1,50,000/- and another sum of `45,000/-. P.W.1 in his crossexamination has stated that the said settlement was not towards the present transaction.

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The trial Court has taken into consideration that the pass book of the accused was confronted and marked as Ex.D4, in which relevant entries dated 01.02.2013 by way of cheque 75,000/- and on 26.02.2013 by way of cheque 25,000/- are marked as Ex.D4(a) and Ex.D4(b) respectively. The complainant in his cross-examination has denied that after receipt of the legal notices as per Ex.D2 and 3, the accused had returned `1,00,000/- as per the relevant entries. On the other hand, he has stated that the said entries are not related to the present case. Therefore in such

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circumstances, the onus is once again shifted to him to prove the existence of any other transactions, in respect of which the said payments are made by the accused. However, the complainant has failed to prove about any other transactions as claimed.

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In the cross-examination of P.W.1, for the first time he has stated that the accused had initially taken Rs.2,68,000/-. Even in Ex.P3-legal notice, it is mentioned that the accused had executed necessary documents at the time of receiving the loan amount which is reiterated in the evidence. However, in the cross-examination, he has stated that he has not collected any documents from the accused at the time of lending loan to him.

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From the above evidence and material on

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record, the trial Court has rightly come to the conclusion that the complainant has miserably failed to prove his case beyond reasonable doubt. The defence taken by the accused is more probable and reliable and the

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presumption available in favour of the complainant has been rebutted by the defence by adducing evidence and also by way of cross-examination of the complainant. No grounds are made out to interfere with the impugned Judgment of acquittal passed by the trial Court. Hence, Criminal Appeal is dismissed.

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Sd/JUDGE

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Ksm*

Sri v. Sanjeeva v Sri D Mukunda Naik

Case brief

What is this about?

What did the court decide?

Sri v. Sanjeeva v Sri D Mukunda Naik

Case brief

What is this about?

What did the court decide?

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