Allowed

Mr.Ananda Rao Goraknath Scindia v. Smt.Ulhasini Kamble

Karnataka HC23 Mar 2021CRL.RP/24/2015

Case brief

AI extract

What is this about?

High Court allowed criminal revision petition, setting aside High Court Conviction and sentencing Appellate Court order. Judgment quashed sentence, acquitted accused under Section 138 NI Act on grounds of insufficient evidence, disputed signatures, and admitted blank cheque.

What did the court decide?

Impugned judgment of conviction and sentence dated 29.11.2014 set aside. Accused acquitted. Bond cancelled. Deposit refunded.

Mr.Ananda Rao Goraknath Scindia Vs Smt.Ulhasini Kamble — Cheque Dishonour | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU (THROUGH VIDEO CONFERENCING)

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DATED THIS THE 23^RD DAY OF MARCH, 2021

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BEFORE

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THE HON’BLE MRS.JUSTICE M.G.UMA

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CRIMINAL REVISION PETITION NO.24 OF 2015

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BETWEEN:

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MR.ANANDA RAO GORAKNATH SCINDIA S/O MR.GORAKNATH RAO.S. AGED ABOUT 41 YEARS, W/AT M/S. S.G.SHIVAGANGA DIAGNOSTIC CENTER, NO.140/4, 2^ND MAIN, 3^RD BLOCK, THYAGARAJANAGARA OPP. THYAGARAJANAGARA BUS STOP BENGALURU - 560 028.

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…PETITIONER

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(BY SRI:LOHITH M., ADVOCATE)

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AND:

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SMT.ULHASINI KAMBLE, W/O. LATE DR.KAMBLE, AGED ABOUT 54 YEARS, R/AT ADITYA BREEZE PARK, ROW HOUSE NO.1, PALEWADI PUNE 411 045

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…RESPONDENT

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(BY SMT:K.SAROJINI MUTHANNA, ADVOCATE)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF CR.P.C. PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT DATED 29.11.2014 PASSED BY THE HON’BLE PRESIDING OFFICER, FAST TRACK COURT-IV, C/C. LII-ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-53), BENGALURU, IN CRIMINAL APPEAL NO.100 OF 2013 BY CONVICTING THE PETITIONER HEREIN AS PER ANNEXURE-A, AND CONSEQUENTLY UPHOLD THE JUDGMENT DATED 19.12.2012 PASSED BY THE XV-ACMM AT BENGALURU CITY IN C.C. NO.20476 OF 2004 BY ACQUITTING THE PETITIONER HEREIN AS PER ANNEXURE-B.

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THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS, COMING ON FOR ‘PRONOUNCEMENT OF ORDERS’, THROUGH VIDEO CONFERENCING AT DHARWAD BENCH THIS DAY, THE COURT PASSED THE FOLLOWING:

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ORDER

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The revision petitioner/accused is before this Court being aggrieved by the impugned judgment of conviction and order of sentence dated 29.11.2014 passed in Criminal Appeal No.100 of 2013 on the file of City Fast Track Court-IV, holding C/C of LII Additional City Civil and Sessions Judge Court (CCH53), Bengaluru City (for short ‘the Appellate Court’), whereunder the judgment dated 19.12.2012 passed in C.C.No.20476 of 2004 by the XV ACMM, Bengaluru City (for short ‘the Trial Court’) acquitting the accused for the offence punishable under Section 138

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of the Negotiable Instrument Act (hereinafter referred to as ‘the NI Act’ for the sake of brevity) is set aside and he was convicted for the said offence and sentenced to pay a fine of Rs.2,25,000/- and in default to pay fine, to undergo simple imprisonment for a period of one year.

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Brief facts of the case are that, the respondent-complainant has filed private complaint in PCR No.13364 of 2003 against the accused alleging commission of offence punishable under Sections 138 and 142 of N.I. Act. It is contended by the complainant that she had lost her husband in a road traffic accident during 1986 and had filed a claim petition before the Motor Accident Claim Tribunal. The Tribunal has passed an award and subsequently during 2000, compensation amount was enhanced by this Court. Thus, the complainant was having the compensation amount with her. The complainant is having two children, who are studying abroad. It is stated that the accused came in contact with the complainant and he used to drive her car

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occasionally. Since the accused was aware about the compensation amount received by the complainant, he requested hand loan of Rs.2,00,000/- as he was intending to start a clinical laboratory. Finally, the complainant agreed to lend an amount of Rs.1,50,000/- and accordingly she paid Rs.35,000/in cash on 03.07.2002 and on the same day she paid a sum of Rs.16,000/through cheque. On 20.09.2002, she paid Rs.59,000/in cash, on 22.05.2003 she issued a cheque for Rs.38,000/- and again on 22.05.2003 she paid cash of Rs.2,000/-. Therefore, in all, Rs.1,50,000/- is lent to the accused as hand loan. While the accused was receiving the cheque for Rs.38,000/- on 22.05.2003, he issued an account payee cheque bearing No.039116 dated 21.05.2003 for Rs.1,50,000/- drawn on HDFC Bank Limited, Kathriguppe main road, Banashankari III Phase, Bengaluru-560085. The accused instructed the complainant to present the cheque for encashment with prior intimation to him. Accordingly, the complainant presented the cheque for encashment

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after informing the accused on 07.07.2003, but the said cheque was dishonoured as there was instruction to ‘stop payment’ by the drawer of the cheque. The complainant brought this fact to the knowledge of the accused and informed regarding dishonour of the cheque. The accused was not ready and willing to repay the cheque amount and therefore, the complainant lodged a criminal complaint against the accused on 07.07.2003 for having committed criminal breach of trust and cheating before the Gnanabharati Police Station, Bengaluru. The accused was called to the police station and enquiries were made by the police. The accused sought time till the end of July2003 to pay the cheque amount. When the complainant again contacted the accused on 31.07.2003 over phone, the accused refused to make payment. Therefore, the complainant got issued legal notice dated 02.08.2003 calling upon the accused to make payment. The complainant had not received the postal acknowledgment and therefore, a letter was addressed to the postal authorities seeking

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confirmation of service of notice on the accused. The postal authorities after due enquiry issued a letter dated 18.09.2003 confirming the delivery of the article on the accused on 05.08.2003 itself.

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It is further contended by the complainant that the accused who received the hand loan of Rs.1,50,000/- and issued cheque in question in discharge of the said liability, not allowed the Bank to honour the cheque and thereby committed an offence punishable under Section 138 of N.I. Act and accordingly, requested the Trial Court to take cognizance of the offence and to initiate legal action. The Trial Court took cognizance of the offence and registered C.C.No.20476 of 2004 against the accused. The accused appeared before the Trial Court and pleaded not guilty for the offence punishable under Section 138 of N.I. Act and he claimed to be tried.

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To prove the case of complainant before the Trial Court, she got examined herself as PW.1 and Bank official as PW.2, who produced copy of

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statement of account along with account opening form, specimen signatures of the accused along with certificate under Section 2A of the Bankers Books of Evidence Act and got marked Exs.P.1 to P.8 in support of her contention. The accused has denied all the incriminating materials available on record in his statement recorded under Section 313 of Cr.P.C. and examined himself as DW.1 and he got marked Exs.D.1 to D.3 in support of his contention.

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The Trial Court after taking into consideration all the materials on record, passed the judgment dated 19.12.2012 acquitting the accused after holding that the complainant is not successful in proving the guilt of the accused beyond reasonable doubt. Being aggrieved by the said judgment of acquittal passed by the Trial Court, the complainant has preferred Criminal Appeal No.100 of 2013 before the Appellate Court. The Appellate Court after taking into consideration the materials on record, passed the impugned judgment dated 29.11.2014 by setting aside the judgment of acquittal passed by the Trial

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Court and convicted the accused for the offence punishable under Section 138 of N.I. Act and sentenced him as stated above after forming an opinion that the complainant is successful in proving the guilt of the accused beyond reasonable doubt. The accused is now before this Court assailing the impugned judgment of conviction and order of sentence passed by the Appellate Court.

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Heard Sri.M.Lohith, learned counsel for the revision petitioner/accused and Smt.K.Sarojini Muthanna, learned counsel for the respondent/complainant. Perused the materials on record including the Trial Court records.

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The point that would arises for my consideration in this revision petition is:

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“Whether the impugned judgment of conviction and order of sentence passed by the Appellate Court calls for an interference by this Court?”

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My answer to the above point is in ‘Affirmative’ for the following:

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REASONS

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It is the specific contention of the

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complainant before the Trial Court that she had lent a sum of Rs.1,50,000/- to the accused, a portion of which is paid through cash and the balance through cheques on different dates as stated above. The accused has not repaid the loan amount. On the other hand, at the time of receiving the cheque for Rs.38,000/- on 22.05.2003, he had issued a cheque bearing No.039116 and the cheque is dated 21.05.2003 i.e. on the previous date for Rs.1,50,000/and when the said cheque was presented for encashment, the same was dishonoured as there was ‘stop payment’ instructions from the drawer.

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The complainant filed her affidavit in lieu of examination-in-chief reiterating her contention as taken in the complaint. She has further examined as PW.1. During cross-examination by the learned

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counsel for the accused, it is stated that when the accused has demanded for Rs.2,00,000/- she was not having cash with her. The accused had executed a bond for having received Rs.35,000/-. Witness stated that the accused had issued cheques dated 16.07.2004 and 16.06.2004 for Rs.17,500/- each. She had received the amount mentioned in those cheques. Witness also stated that thus she has received Rs.35,000/- lent in favour of the accused. She admitted her signature found on the document which is marked as Ex.D.1. Witness stated that it was executed in Tyagaraj Nagar Police Station. She also admitted her signature found on Ex.D.2. She pleaded her ignorance regarding the handwriting found on the cheque-Ex.P.2. Witness stated that she does not remember as to when she came in possession of the cheque-Ex.P.2. She denied the suggestion that Ex.P.2

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does not bear the signature of the accused nor it bears his handwriting. Witness denied the suggestion that she had only lent Rs.35,000/- in favour of the accused and she never lent any other amount. She

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also denied the suggestion that while lending Rs.35,000/- to the accused she had received two blank cheques from the accused.

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Ex.P.1 is the letter written by the Manager of State Bank of Mysuru addressed to the complainant, Ex.P.2 is the cheque bearing No.039116 dated 21.05.2003 for Rs.1,50,000/- drawn on HDFC Bank in favour of the complainant, Ex.P.3 is the memorandum issued by the HDFC Bank returning the cheque in question stating that it is returned unpaid for the reason that the payment is stopped, Ex.P.4 is the endorsement issued by the Bank for Rs.50/towards cheque return charge, Ex.P.5 is the endorsement by the Sub-inspector of Police Gnanabharati Police Station in favour of the complainant for having received the complaint on 07.07.2003, Ex.P.7 is the endorsement by the postal authorities stating that the article mentioned therein is delivered to the addressee on 05.08.2003. Ex.P.8 is the passbook of complainant relating to the State Bank of Mysuru along with the account extract,

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Ex.P.9 is the account opening form relating to the accused, Ex.P.10 is the copy of cheque bearing No.8673 for Rs.10,000/- dated 26.06.2002 drawn on Union Bank of India in favour of HDFC Bank Limited, which bears the signature of the accused and Ex.P.11 is the certificate of the Banker under Section 2A of Bankers Books of Evidence Act.

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The complainant got examined Branch Manager of HDFC Bank as PW.2. After denying the incriminating materials available on record in his statement recorded under Section 313 of Cr.P.C., the accused examined himself as DW.1. The accused

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stated that on 02.07.2002 he had availed loan of Rs.35,000/- from the complainant and in this regard he had executed a bond. The complainant had also taken the blank cheque from him. On 15.07.2004, he had issued two cheques for Rs.17,500/- each to the complainant. Those cheques were given by him in Tyagaraj Nagar Police Station. The complainant had returned the bond paper executed by him, but had not returned the cheque issued by him at the time of

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availing the loan. She stated that the cheque in question is misplaced. She has issued a letter in her letterhead in this regard. Witness stated that he never issued any cheque in favour of the accused as he had not borrowed any other amount from her. He came to know regarding registration of the case only on receiving of the non-bailable warrant. Witness stated that the signature found on the cheque in question is not his signature. He never borrowed the amount of Rs.1,50,000/- from the accused. Witness stated that since he had not borrowed any amount from the complainant, he had not replied to the legal notice.

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During cross-examination by the learned counsel for the complainant, witness stated that he was not aware of the death of the husband of complainant nor he knew about receiving of compensation amount by her. He denied the suggestion that he had requested for hand loan of Rs.2,00,000/- for the purpose of establishing a lab. He also denied the suggestion that he had availed the

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loan in installments as and when he required the money. He admitted that on 03.07.2002 he had received Rs.35,000/- through self cheque that was issued by the complainant but denied the suggestion that on 05.07.2002 the complainant had paid Rs.16,000/- through cheque. He also denied the suggestion that he received Rs.50,000/- through cheque on 20.09.2002. The witness also denied the suggestion that he received a portion of the amount through cash. The witness denied the suggestion that towards repayment of the loan amount of Rs.1,50,000/-, he issued Ex.P.2-cheque to the complainant. The witness stated that the complainant had executed an agreement when he had received loan of Rs.35,000/- by the complainant and the same is marked as Ex.D.3. The witness stated that he had returned the amount with interest at 4% p.m. and paid 24 installments of Rs.1,400/-. The witness further stated that since the complainant had complained to the police station and there was a compromise between two, he had issued two cheques

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for Rs.17,500/- each. He denied the suggestion that he had agreed to repay the balance amount within one month.

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Ex.D.1 is the agreement executed by the complainant stating that the accused had availed loan of Rs.35,000/- on 02.07.2002 and towards repayment of the same, two cheques bearing Nos.083006 and 083007 for Rs.17,500/- each dated 15.06.2004 were issued. The complainant categorically stated that the agreement between the parties with regard to loan of Rs.35,000/- is already cleared. The two documents mentioned above were received by the complainant and she has received the original agreement dated 02.07.2002.

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Ex.D.2 is the letter in the letterhead of the complainant dated 04.09.2002. The complainant stated that an amount of Rs.35,000/- was lent in favour of the accused on 02.07.2002 and the accused had executed an agreement. He had given cheque bearing No.039116 of HDFC Bank, Kathriguppa Branch BSK 3^rd stage, Bengaluru-85 as security. The

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said cheque was neither signed nor filled up with any particulars and it was a blank cheque. The complainant stated that as the matter is settled between the parties, the said cheque was supposed to be returned to the accused, but the said cheque was misplaced and even after due search, she could not get it. Therefore, the complainant undertook to return the cheque, if she finds it and she does not claim anything under the cheque. She also stated that any action could be taken by the accused against her, if she misuses the said cheque.

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Ex.D.3 is the acknowledgment issued by the accused, wherein it is stated that he had received Rs.35,000/- from the complainant for his business purpose and he has undertaken to repay the same with interest at 4% per month by paying Rs.1,400/during the first week of every month till the principal amount of Rs.35,000/- is paid. The receipt is dated 02.07.2002.

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The contention of the complainant is considered in light of the documents that are

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produced before this Court. According to the complainant, she had lent Rs.1,50,000/- to the accused by paying Rs.35,000/on 03.07.2002, Rs.59,000/- on 20.09.2002 and again Rs.2,000/- on 22.05.2003. She paid Rs.16,000/- through cheque on 03.07.2002 and another cheque for Rs.38,000/- on 22.05.2003. This fact was denied by the accused and he specifically contended that he had availed only a sum of Rs.35,000/- on 02.07.2002 and the same has been repaid through two cheques for Rs.17,500/each. It is his further contention that while lending loan of Rs.35,000/-, the complainant had received two blank cheques from the accused and now she is misusing one of those cheque to claim Rs.1,50,000/-. It is pertinent to note that Exs.D.1 and D.2 are the admitted documents. During cross-examination of PW.1 who is the complainant, both these documents were tendered and the complainant specifically admitted both these documents. Therefore, I have to consider the contention of the complainant in the

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light of Exs.D.1 and D.2 which are relied on by the accused.

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As per Ex.D.1 - agreement executed by the complainant which is dated 29.05.2004, she states that the accused had received loan of Rs.35,000/but had not repaid the same in discharge of the said loan amount. The accused issued cheque bearing Nos.083007 dated 15.06.2004 and 083006 dated 15.07.2004 for Rs.17,500/- each and thereby he had repaid the amount of Rs.35,000/-. Therefore, the complainant executed the present agreement stating that the earlier agreement is cancelled automatically. She acknowledges receipt of two cheques referred above and also stated that the agreement dated 02.07.2002 is original agreement and it is returned to the accused. The said original document is produced by the accused as per Ex.D.3. This document is dated 02.07.2002 styled as ‘Finance Lone’, wherein the accused acknowledged receipt of Rs.35,000/- from the complainant for his business purpose agreeing to pay interest at 4% p.m. and also

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agreeing to repay the amount at Rs.1,400/- p.m. till the principal amount of Rs.35,000/- is fully paid.

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Ex.D.2 is the letter dated 04.09.2002 in

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the letterhead of the complainant and this document is also an admitted document. It is interested to note that as per Ex.D.2, the complainant again states that she had lent an amount of Rs.35,000/- to the accused on 02.07.2002 and while paying the same, the accused had executed an agreement on the same day and he had also issued cheque bearing No.039116 drawn on HDFC Bank Limited, Kathriguppa Branch as security. The complainant also stated that the said cheque was neither signed nor filled up with any particulars and it was a blank cheque. The complainant further states that now as the matter is settled, the said cheque was required to be returned to the accused, but the cheque in question was misplaced and even after due search she could not find it. Therefore, the complainant undertook to return the cheque when she finds it and also stated that she will not claim anything under the cheque.

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Further, the complainant states that, in case, if she misuses the cheque belonging to the accused, he can take necessary action against her for claiming damages.

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When the complainant admits Exs.D.1 to D.3, it is clear that the accused had borrowed a sum of Rs.35,000/- on 02.07.2002 and repaid the same by way of two cheques as mentioned in Ex.D.1 which is dated 29.05.2004. As per Ex.D.2, the accused had issued a cheque bearing No.039116 dated 02.07.2002 which was a blank cheque. The complainant had not returned the said cheque even after the accused repaid the amount. The complainant in specific words stated that the said cheque was misplaced and she could not find it.

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In the light of these documents, if I peruse the complaint filed by the complainant before the Trial Court, there is absolutely no averment as to when the cheque bearing No.039116 drawn on HDFC Bank Limited was returned by the complainant and when she returned it to the accused. As per the

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complainant, the accused had issued the very same cheque bearing No.039116 towards repayment of loan amount of Rs.1,50,000/- on 21.05.2003. It is not made clear as to when the complainant returned the said cheque to the accused to enable the accused to issue the cheque once again on 21.05.2003 towards repayment of the loan amount of Rs.1,50,000/-. Unless the complainant specifically proves returning of the said cheque to the accused, the contention of the complainant that the accused had issued the said cheque on 21.05.2003 towards repayment of the loan amount cannot be accepted.

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Exs.D.1 to D.3 disclose that even during 2002 when there was loan transaction between the parties they have entered into agreement as per Ex.D.3. If at all the contention of the complainant that she had lent a sum of Rs.16,000/on 03.07.2002, Rs.59,000/- on 20.09.2002, Rs.38,000/on 22.05.2003 and Rs.2,000/- on 22.05.2003 is to be accepted, there must be some documents to that effect. Admittedly, both the parties have approached

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the police station to resolve their dispute, but the complainant has not come up with any explanation as to when she could trace the cheque-Ex.P.2 and when the same was returned to the accused. Unless the same is returned by the complainant to the accused, the question of accused issuing the said cheque in discharge of the legally recoverable debt in favour of the complainant would not arise. Nothing prevented the complainant to plead and prove these material facts. There is absolutely no reason to suppress all these facts, when she categorically admits Exs.D.1 to D.3. It is also pertinent to note that the complainant contended that she had lent Rs.16,000/- through cheque on 05.07.2002 and Rs.50,000/on 20.09.2002 through another cheque. No material is placed before the Court atleast to prove payment of these amounts through cheques. Under such circumstances, it cannot be said that the complainant has proved either lending of the amount or existence of the legally recoverable debt against the accused. When the complainant has not discharged her initial

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burden of proving existence of legally recoverable debt and issuance of cheque by the accused, the presumption under Section 139 of N.I. Act will not come into operation.

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It is pertinent to note at this juncture that, the accused had taken a specific defence that the cheque bearing No.039116 was blank when the same was issued by him and it is misused by the complainant. The cheque in question was blank when the same was issued by the accused is fortified by Ex.D.2, where the complainant herself states so. But, when the cheque was returned to the accused and when he signed the said cheque has neither stated nor proved by the complainant.

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Exs.D.1 and D.3 bear the signatures of the accused and both these documents are the admitted documents. If the signatures of the accused found on these admitted documents are compared with the disputed signature found on Ex.P.2-cheque, I find that there is difference in the signatures which support the defence taken by the accused.

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Even though the accused is not duty bound to probabalise his defence when the complainant herself has not discharged her initial burden of proving existence of legally recoverable debt and issuance of cheque by the accused in discharge of the said debt, production of Exs.D.1 to D.3, admission of those documents by PW1 during her cross examination and the evidence of accused deposed as DW.1 go a long way in disproving the contention of the complainant. Therefore, I am of the opinion that the complainant is not successful in proving her contention regarding lending of the amount or issuance of cheque by the accused in discharge of his liability. Thereby, the complainant is not successful in proving the guilt of the accused for the offence punishable under Section 138 of N.I. Act beyond reasonable doubt and therefore, the accused is liable to be acquitted.

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I have gone through the impugned

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judgment of acquittal passed by the Trial Court. It has taken into consideration the materials on record

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and has rightly formed an opinion that the complainant is not successful in proving the guilt of the accused. But however, the Appellate Court misdirected itself and proceeded to convict the accused without any basis. Therefore, the impugned judgment of conviction and order of sentence passed by the Appellate Court is liable to be set aside while the judgment of the Trial Court is to be confirmed. Hence, the point for consideration is answered in ‘Affirmative’ and accordingly I proceed to pass the following:

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ORDER

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Criminal revision petition is allowed.

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Impugned judgment of conviction and order of sentence dated 29.11.2014 passed in Criminal Appeal No.100 of 2013 on the file of the City Fast Track Court-IV, Holding C/C of LII Additional City Civil and Sessions Judge Court (CCH-53), Bengaluru City, is set aside.

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Judgment of acquittal dated 19.12.2012 passed in C.C.No.20476 of 2004 by the XV ACMM, Bengaluru City is confirmed.

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Revision petitioner/accused is acquitted for the offence punishable under Section 138 of N.I. Act.

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The bond executed by the accused and that of his surety stands cancelled.

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Fine amount, if any, deposited by the accused is ordered to be refunded, on due identification.

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Send back the Trial Court records along with

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copy of this judgment.

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Sd/JUDGE

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Mr.Ananda Rao Goraknath Scindia v. Smt.Ulhasini Kamble

Case brief

What is this about?

What did the court decide?

Mr.Ananda Rao Goraknath Scindia v. Smt.Ulhasini Kamble

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

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