Allowed

Sri. Syed Wazeer Pasha v. Sri. Arifulla Khan

Karnataka HC13 Jan 2022CRL.A/613/2011

Case brief

AI extract

What is this about?

High Court allowed criminal appeal against trial court acquittal in cheque bounce case. Court held previous remand order bound parties; accused failed to lead rebuttal evidence, rendering interim order of acquittal illegal.

What did the court decide?

Respondent convicted under Section 138 NI Act; sentenced to fine equivalent to cheque amounts andimpled imprisonment of three months for default.

Sri. Syed Wazeer Pasha Vs Sri. Arifulla Khan — Cheque Dishonour | Karnataka HC (2022)

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CRL.A.No.613/2011

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF JANUARY 2022

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BEFORE

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THE HON’BLE MRS. JUSTICE K.S.MUDAGAL

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CRIMINAL APPEAL NO.613/2011

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BETWEEN :

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SRI.SYED WAZEER PASHA S/O SYED NAZEER AGED ABOUT 49 YEARS FAIR PRICE SHOP, HOSAPALYA MULBAGAL KOLAR DISTRICT …APPELLANT

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(BY SRI.J.G.CHANDRA MOHAN, ADV.)

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AND :

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SRI.ARIFULLA KHAN S/O ATHAULLA KHAN AGED ABOUT 40 YEARS MUNEGOWDA BUILDING FATHIMA MASJID ROAD NAGASANDRA MAIN ROAD SARAI PALYA, VIDYA NAGAR BANGALORE ... RESPONDENT (BY SRI.A.S.KULKARNI, ADV.)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 23.04.2011 PASSED BY THE PRINCIPAL CIVIL JUDGE (JR.DN.) AND JMFC, MULBAGAL IN C.C.NO.229/2006 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT.

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CRL.A.No.613/2011

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

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JUDGMENT

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Heard.

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respondent/accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (‘the NI Act’ for short), the complainant in C.C.No.229/2006 on the file of the Principal Judge (Jr.Dn) and JMFC, Mulbagal has preferred the above appeal.

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For the purpose of convenience, the parties will be henceforth referred according to their ranks before the trial Court.

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The appellant filed complaint in PCR No.25/2006 against the respondent under Section 200

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CRL.A.No.613/2011

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Cr.P.C. seeking his prosecution for the offence punishable under Section 138 and 142 of NI Act read with Section 420 of IPC. His case in brief was as follows:

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i) Himself and the accused were related to each other. On the request of the accused in the month of November 2005, he lent loan of Rs.1,75,000/- to the accused for the purpose of purchasing a site in Bengaluru. The accused agreed

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to repay the said amount within three months. To discharge that liability, he issued Exs.P1 and P2 the postdated cheques dated 03.02.2006 for Rs.50,000/and Rs.1,25,000/- respectively drawn on ICICI Bank, RT Nagar Branch, Bengaluru.

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ii) Despite repeated request, accused failed to

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repay the loan amount. Therefore, complainant presented the cheques to Canara Bank for realization.

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The said cheques were dishonoured with the Banker’s endorsement as per Ex.P3 to P5 on the ground ‘funds insufficient’. He got issued notice dated 07.06.2006 demanding the cheque amount. The notice was served on the accused. Even after the notice, the accused did not pay the cheque amount, thereby he has committed the offence of cheating and liable to be dealt with under Sections 138 and 142 of NI Act and 420 of IPC. In the complaint, he sought compensation including the legal expenses.

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The trial Court took cognizance of the offence, registered the case in C.C.No.229/2006 and summoned the accused. On his appearance the accused disputed the substance of accusations and claimed trial.

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To prove his case the complainant got himself examined as PW.1 and got marked Exs.P1 to

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P7. During the course of evidence, he stated that the accused has issued an untenable reply as per Ex.P6 dated 19.06.2006. After his examination under Section 313 of Cr.P.C. the accused did not choose to lead his defence evidence. His defence in the cross examination of PW.1 was that of denial of the liability or issuance of cheques towards the discharge of liability. He claimed that the complainant has manipulated the cheques Exs.P1 and P2.

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The trial Court on hearing the parties by the judgment dated 30.04.2010 acquitted the accused on the ground that the complainant has failed to prove the execution of the cheques Exs.P1 and P2 and the liability, therefore he is not entitled to the benefit of the presumption under Section 139 of NI Act.

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The complainant challenged the said judgment and order before this Court in

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CRL.A.No.613/2011

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Crl.A.No.568/2010. This Court on hearing the parties by the judgment dated 17.09.2010 allowed the appeal, set aside the order of acquittal dated 30.04.2010.

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During the course of the judgment in Crl.A. No. 568/2010 this Court in para Nos.4 to 6 of the judgment held that the defence of the accused was that the complainant committed theft of the cheques during his visits to the house of the accused and used them to file the complaint. It was further held that the said defence was not substantiated by adducing any evidence. Therefore, it was held that the complainant is entitled to the benefit of presumption under Section 139 of the NI Act to the effect that the cheque is issued to the accused towards legally enforceable debt.

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This Court further held that onus is on the accused to disprove the said presumption and no plausible explanation was given by adducing any evidence. On that ground the order of the trial Court was set aside and the matter was remanded for fresh consideration on that point by giving opportunity to both parties if need be.

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Reading of the said judgment makes it clear that this Court recorded the finding that the issuance of the cheques was proved, therefore, the complainant is entitled to the presumption that cheques were received by him towards discharge of liability as contemplated under Section 138 of the NI Act. That order binds both the parties to the case. Under such circumstance, only course that was open to the accused was to lead the rebuttal evidence. However, after the matter was remanded to the trial

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Court, the accused did not choose to lead any rebuttal evidence.

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The trial Court on hearing the parties by the impugned order dated 23.04.2011 again acquitted the accused. The reasoning of the trial Court for such acquittal is found only in para 14 (two paragraphs are numbered as 14). The trial Court holds that despite the accused suggesting to PW.1 that cheques Ex.P1 and P2 are in different inks and accused has not written contents of the same, the complainant did not examine the Bank Manager to prove the same. The trial Court further holds that the contents of the cheques in Ex.P1 and P2 are written by two different inks, therefore, the complainant has failed to prove that the contents of cheque have been filled by the accused, thereby he failed to make out the ingredients of Section 138 of the NI Act.

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In saying so, the trial Court transgressed the order of this Court that it shall record the further evidence, if any, only with regard to rebuttal of presumption under Section 139 of the NI Act and give a finding thereon. By such finding the trial Court has virtually reversed the finding of this Court which is impermissible. Therefore the said findings are illegal and unsustainable.

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Learned counsel for the respondent relying on the judgment of the Hon’ble Supreme Court in K.Bhaskaran vs. Sankaran Vaidhyan Balan¹ submits that when the accused is convicted for the offence punishable under Section 138 of the NI Act, the complainant has to establish the requirements of clauses (a) to (c) of the proviso to Section 138 of the NI Act. He further submits that in the case on hand

1 AIR 1999 SC 3762

CRL.A.No.613/2011

the issuance of statutory notice as contemplated under clause (b) was not proved.

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It is no doubt true that the notice was not marked in the evidence. But, PW.1/complainant deposed that on the dishonour of the cheques, he got issued notice to the accused and accused himself replied the said notice as per Ex.P6. Whole cross examination of PW.1 was disputing the execution of cheques which he denied. In the cross examination of PW.1 the reply Ex.P6 or issuance of the same by the accused through his counsel was not at all disputed. Thereby Ex.P6 stood proved.

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The accused did not enter the witness box to deny the case of the complainant much less reply notice Ex.P6. Ex.P6 is dated 19.06.2006. In that it is clearly stated that the notice of the complainant dated 07.06.2006 was received by the accused. In Ex.P6, it

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is only contended that as himself and complainant are related to each other the complainant used to visit his house and during such visit he has stolen the signed cheques and filled up the amount, date and name of the complainant in the cheques and presented them to the Bank.

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In Ex.P6 accused claimed that after dishonour of the cheques complainant has got issued a false and frivolous notice. Thereby there is clear admission of receipt of notice. Therefore, the judgment in Bhaskaran’s case is not applicable. So also the contention that there is non compliance of proviso 3 of Section 138 of the NI Act deserves no merit.

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As already pointed out the remand of the matter was for the limited purpose of recording the rebuttal evidence if adduced and to proceed with the

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matter. That was not done by the accused. Under the circumstances, the trial Court exceeded its jurisdiction in holding that the issuance of the cheques was not proved and the complainant should have examined the Bank Manager.

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In the absence of such rebuttal evidence, only course open to the trial Court was to proceed to convict the accused and sentence him . Therefore, the impugned order of acquittal is unsustainable.

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The appeal is allowed.

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The respondent/accused is hereby convicted for the offence punishable under Section 138 of the NI Act and sentenced to pay fine of double the cheques’ amount. In default to pay the fine amount, he shall undergo simple imprisonment for three months.

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Out of the fine amount, a sum of Rs.3,25,000/shall be paid to the complainant as compensation.

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The remaining Rs.25,000/-shall be remitted to the State. The trial Court shall issue the conviction warrant accordingly.

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The fine amount shall be deposited within two weeks from the date of receipt of copy of this judgment failing which the trial Court shall proceed to execute the conviction warrant.

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Registry shall transmit the records to the Trial Court forthwith.

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Sd/JUDGE

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Akc

Sri. Syed Wazeer Pasha v. Sri. Arifulla Khan

Case brief

What is this about?

What did the court decide?

Sri. Syed Wazeer Pasha v. Sri. Arifulla Khan

Case brief

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