Dismissed

Govindappa v. Nawaz Husain

Karnataka HC27 Oct 2023CRL.A/1163/2012

Case brief

AI extract

What is this about?

In a criminal appeal against an acquittal for cheque dishonour, the High Court reappreciated the evidence and found that the complainant failed to prove the loan transaction, the accused's necessity to borrow, and his own financial capacity. Consequently, the court held that the accused validly rebutted the presumption under the N.I. Act and dismissed the appeal.

What did the court decide?

The criminal appeal filed by the complainant is dismissed and the impugned judgment of acquittal is confirmed.

Govindappa Vs Nawaz Husain — Cheque Dishonour | Karnataka HC (2023)

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CRL.A NO.1163/2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 27^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MS.JUSTICE J.M.KHAZI

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CRIMINAL APPEAL NO.1163 OF 2012

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BETWEEN:

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GOVINDAPPA S/O GOVINDAPPA AGED 52 YEARS R/A APPENAHALLI VILLAGE MEDIGESHI HOBLI MADHUGIRI TALUK TUMKUR DISTRICT.

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…APPELLANT

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(BY SRI. S N BHAT & M S DEVARAJU, ADVOCATES)

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AND:

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NAWAZ HUSAIN S/O MEER THAKARALI AGED MAJOR R/A HOLAVANA HALLI VILLAGE KORATAGERE TALUK TUMKUR DISTRICT - 572 129

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…..RESPONDENT (BY SMT. JAHANAVI P M, ADVOCATE FOR SRI. CHANDRAKANTH R GOULAY, ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CODE OF CRIMINAL PROCEDURE PRAYING TO CALL FOR RECORDS IN CRIMINAL APPEAL NO.39/2011 ON THE FILE OF FAST TRACK-V AT MADHUGIRI AND C.C.NO.316/2006 ON THE FILE OF ADDITIONAL CIVIL JUDGE AND JMFC AND SET ASIDE THE JUDGMENT PASSED BY THE FAST TRACK-V AT MADHUGIRI IN CRIMINAL APPEAL NO.39/2011 DATED: 26-06-2012 AND CONFIRMED THE JUDGMENT PASSED BY THE ADDITIONAL CIVIL JUDGE AND JMFC AT MADHUGIRI IN

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CRL.A NO.1163/2012

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C.C.NO.316/2006 DATED 08.03.2011 IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED ON 19.07.2023, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal filed under Section 378(4) of Cr.P.C is by the complainant, challenging the judgment and order dated 26.06.2012, on the file of Fast Track-V, Madhugiri, by which the judgment and order of the trial Court in CC.No.316/2006 on the file of Addl.Civil Judge and JMFC Madhugiri, came to be set aside and accused/respondent was acquitted for the offence punishable under Section 138 of the N.I.Act.

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For the sake of convenience, the parties are referred to by their rank before the trial Court.

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Complainant filed a complaint under Section 200 Cr.P.C against the accused for the offence punishable under Section 138 of N.I. Act, contending that accused borrowed a sum of Rs.60,000/- from the complainant by way of loan to discharge his family debts

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CRL.A NO.1163/2012

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incurred by him. Towards repayment of the same, accused issued a cheque dated 06.09.2005 with a request to present it later. On 06.09.2005 accused requested the complainant not to present the cheque and give him four months time. Even after four months he did not pay the amount due and requested the complainant to present it at the end of January 2006. Accordingly, complainant presented the cheque on 30.01.2006. On 06.02.2005, the cheque was returned dishonoured on the ground “Funds insufficient”. Therefore, the complainant got issued a legal notice dated 14.02.2006 through RPAD and also the certificate of posting. Despite service of notice, the accused has neither paid the amount due nor sent any reply. Hence, without any alternative a complaint is filed.

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After due service of notice, accused appeared through counsel and contested the matter.

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Accused pleaded not guilty and claimed trial.

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CRL.A NO.1163/2012

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To prove the allegation against the accused, complainant examined himself as PW-1 and got marked Ex.P1 to 9.

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During the course of his statement under Section 313 Cr.P.C, the accused has denied the incriminating evidence.

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He has stepped into the witness box and

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examined himself as DW-1. He has relied upon Ex.D1 to 3.

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After appreciating the oral and documentary evidence placed on record, the trial Court convicted the accused and sentenced him to undergo simple imprisonment for a period of three months and also pay a fine of Rs.5,000/- in default to undergo simple imprisonment for one month. The trial Court also directed the accused to pay compensation in a sum of Rs.80,000/- to the complainant.

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Challenging his conviction and sentence, the complainant approached the Fast Track Court, Madhugiri,

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5 CRL.A NO.1163/2012

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in Crl.A.No.39/2011. Vide the impugned judgment and order, the learned Fast Track Judge allowed the appeal and acquitted the accused.

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Being aggrieved by the same, the complainant is before this Court contending that having regard to the fact that accused admitted the cheque and his signature therein and as such presumption is operating in favour of the complainant. Therefore, the burden is on the accused to rebut the presumption. However, the accused has failed to rebut the presumption. He has failed to prove that the cheque in question was given to the brother of accused to discharge the loan taken from him. The learned Fast track Judge has relied upon overruled judgments and prays to allow the appeal, set aside the impugned judgment and order and restore the judgment and order of the trial Court.

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On the other hand learned counsel

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representing the accused has supported the impugned judgment and order and sought for dismissal of the appeal.

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CRL.A NO.1163/2012

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In support of his arguments, learned counsel representing the accused has relied upon the following judgment:

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(i) APS Forex Services Pvt.Ltd Vs. Shakti International Fashion Linkers & Ors. ( APS Forex )¹

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Heard arguments of both sides and perused the record.

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Thus, it is the definite case of the complainant that the accused borrowed a sum of Rs.60,000/- and towards repayment of the same, he issued the cheque in question and when presented for realization, it was dishonoured on the ground “Funds insufficient”. Despite service of legal notice the accused has failed to repay the amount due and he has also not sent any reply. Though the accused admitted that the cheque in question belongs to him, drawn on his account maintained with his banker, he has taken up a specific contention that he had borrowed a sum of Rs.10,000/- from the brother of complainant and had issued a blank cheque and misusing

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1 Crl.A.No.271/2020 : (2020) 12 SCC 724

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CRL.A NO.1163/2012

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the same, the complainant has filed this complaint. It is relevant to note that the accused has not sent any reply to the legal notice disclosing his defence at the earliest. During the cross-examination of PW-1 and during the course of his evidence he has taken up such a contention.

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As held by the Hon'ble Supreme Court in APS Forex, having regard to the fact that accused admit that the cheque belongs to him and it bears his signature, the presumption under Sections 118 and 139 of the N.I. Act is operating in favour of the complainant placing the burden on the accused to prove the circumstances under which the cheque in question has reached the hands of complainant. In the above decision, the Hon'ble Supreme Court further held that when the accused questions the financial capacity of the complainant, the burden is on the complainant to prove that he had resources to lend the amount due under the cheque. In the present case, in order to discharge this burden, the accused has not

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CRL.A NO.1163/2012

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only relied upon his evidence, but also the crossexamination of complainant.

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At the outset, it is relevant to note that in the

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complaint as well as in the legal notice the complainant has not stated how he knew the accused and in what connection and for what purpose and on what date accused borrowed the loan in question. During the course of his examination-in-chief also except stating that he knew the accused, the complainant has not come up with any other details. However, during his crossexamination, the complainant has claimed that accused is his neighbour at Vinoba Nagar, Tumakuru and they are residing adjacent to each other. However, he is unable to state the name of the father of accused and what exactly

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is the work carried out by him. He has also not led any evidence to show that for a period of 10 years, the complainant and accused were neighbours living adjacent to each other.

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During his cross-examination, the complainant

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has deposed that he advanced the loan on 06.09.2005,

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CRL.A NO.1163/2012

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whereas in the complaint he has claimed that on the date he advanced the loan, accused issued a post dated 06.09.2005 cheque and it was completely filled up cheque. However, the perusal of cheque at Ex.P1 revealed that the ink used for writing the date and other details as well as the signature of the accused are in different ink. Though, during the course of his examination-in-chief, the accused has deposed that the cheque in question does not bear his signature and on the other hand, complainant has forged his signature, during his cross-examination he has admitted that the cheque in question belongs to him and it bears his signature and he has received the legal notice but has not sent any reply. In this regard he has specifically deposed that he had issued the said cheque to the brother of complainant while he borrowed Rs.10,000/from him and misusing the same, complainant has filed a false complaint.

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Taking into consideration, the inconsistency of

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the case put forth by the complainant and not leading

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CRL.A NO.1163/2012

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any convincing evidence with regard to he being acquainted with the accused since 10 years and the purpose for which he has allegedly lent Rs.60,000/- and not coming up with the specific time when he allegedly advanced the said money to the accused and also the fact that the cheque in question is not in the single handwriting and ink, the Fast Track Court has rightly held that the accused has rebutted the presumption under Sections 118 and 139 of N.I. Act placing the burden on the complainant to prove his case.

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The accused has not only disputed the alleged transaction between him and complainant, but also challenged the financial capacity of complainant to lend him Rs.60,000/-. In this regard he has cross-examined the complainant. The net result of the cross-examination of complainant is that complainant is working as a security guard getting salary of Rs.5000–6000 per month. Though he has claimed to be owning landed properties as per Ex.D1 and 2, which are RTC for the years 2008 and 2009, the complainant has not led any

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CRL.A NO.1163/2012

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evidence to show what exactly is the income derived from these properties.

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In fact, the accused got marked statement of his account at Ex.D1 which revealed that during 2008, accused was not having any sufficient balance in his account. The complainant has also not adduced any convincing evidence to prove that at the relevant point of time the accused had the legal necessity of borrowing loan of Rs.60,000/-. The examination of entire evidence placed on record by both parties establish the fact that the complainant has failed to prove that accused had necessity of borrowing and he has lent Rs.60,000/- to him and the cheque in question was issued by the accused to him towards repayment of the said debt. In the absence of complainant having led any convincing evidence, the Fast Track Court has rightly held that the complainant has failed to prove his financial capacity and acquitted him.

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After re-appreciation of oral and documentary evidence placed on record, this Court finds no justifiable

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CRL.A NO.1163/2012

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grounds to interfere with the findings of the Fast Track Court. In this result, the appeal fails and accordingly the following:

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ORDER

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(i) Appeal filed by the complainant is dismissed.

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(ii) The impugned judgment and order dated 26.06.2012, passed by the Fast Track Court-V, Madhugiri, setting aside the conviction and sentence dated 08.03.2011 by the

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Addl. Civil Judge and JMFC Madhugiri, in C.C.No.316/2006, is confirmed.

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(iii) The Registry is directed to send back the trial Court records along with copy of this Judgment forthwith.

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Sd/JUDGE

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Govindappa v. Nawaz Husain

Case brief

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Govindappa v. Nawaz Husain

Case brief

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