Dismissed

Pandu T Mendon v. Udaya Bhaskar

Karnataka HC6 Oct 2023CRL.A/1312/2010

Case brief

AI extract

What is this about?

This Criminal Appeal by a cheque dishonour complainant challenging the Sessions Court's acquittal. The High Court held the accused successfully rebutted the presumption under the Negotiable Instruments Act by proving account closure prior to the alleged loan date and lack of documentary evidence from the complainant. The appeal was dismissed.

What did the court decide?

Appeal dismissed and impugned judgment of Sessions Court confirming the acquittal is affirmed.

Pandu T Mendon Vs Udaya Bhaskar — Cheque Dishonour | Karnataka HC (2023)

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CRL.A.NO.1312/2010

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^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.1312 OF 2010

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BETWEEN:

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PANDU T.MENDON, S/O LATE THANIYA SALIAN, AGED ABOUT 60 YEARS, R/O KUDRUKERE VIA MALPE, UDUPI TALUK AND DISTRICT.

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…APPELLANT

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(BY SMT.THANIMA BEKAL, ADVOCATE FOR SRI HAREESH BHANDARY T., ADVOCATE)

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AND:

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1 . UDAYA BHASKAR, S/O LATE BABU POOJARY, AGED ABOUT 56 YEARS, R/O NATIONAL STEEL, ADI-UDUPI, AMBALPADY POST, UDUPI TALUK.

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2 . M/S NATIONAL STEEL ADI-UDUPI, AMBALPADY POST, UDUPI TALUK.

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…..RESPONDENTS

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(BY SRI ROHIT URS D., ADVOCATE FOR SRI T.NARAYAN POOJARY, ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CODE OF CRIMINAL PROCEDURE PRAYING TO ALLOW THE APPEAL AND SET-ASIDE THE JUDGMENT AND ORDER DATED 20.09.2010 MADE IN CRL.A.NO.135/2008 BY THE COURT OF

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CRL.A.NO.1312/2010

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FAST TRACK JUDGE, UDUPI DISTRICT AT UDUPI AND CONFIRM THE ORDER PASSED IN C.C.NO.4604/2004 BY THE COURT OF III ADDL.CIVIL (JR.DN.) AND JMFC, UDUPI DATED 17.05.2008 AND CONVICT THE ACCUSED AND DIRECT THE ACCUSED / RESPONDENT TO PAY THE COMPLAINANT DOUBLE THE AMOUNT COVERED UNDER THE ABOVE SAID CHEQUE, IN THE INTEREST OF JUSTICE.

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THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED ON 05.07.2023, 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 impugned judgment and order dated 20.09.2010 in Crl.A.No.135/2008, by which the Sessions Court allowed the appeal filed by the accused challenging his conviction and sentence passed by the trial Court in C.C.No.4604/2004 dated 17.05.2008, for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘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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It is the case of the complainant that accused No.1 is the managing partner of accused No.2. Accused

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CRL.A.NO.1312/2010

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No.1 borrowed hand loan of Rs.1,25,000/- from the complainant during the month of January 2003, promising to repay the same within three months. However, he failed to keep up with his promise and on repeated request and demand issued cheque No.073730 dated 10.02.2004 for a sum of Rs.1,25,000/-. When complainant presented it for realization, it was dishonoured on the ground that the 'Account closed'. Complainant got issued a legal notice dated 13.02.2004. Though duly served, accused has not paid the amount due under the cheque. Without any alternative, the complainant has filed the complaint.

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After due service of notice, accused has appeared before the trial Court and contested the matter. He has taken up a specific defence that he has not availed any hand loan from the complainant and the cheque in question was not issued towards repayment of any legally recoverable debt or liability. On the other hand, he has taken up a specific plea that he had borrowed loan of Rs.1,00,000/- from M/s Balarama

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CRL.A.NO.1312/2010

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Finance and Investments, Malpe of which the

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complainant was the managing partner. At that time Blank cheques bearing Nos.73729 to 73732 from accused and cheque No.42817 belonging to his brother Gangadhar were taken by way of security. Though he has repaid the loan, cheques were not returned. To make unlawful gain, misusing one such cheque the complainant has filed this complaint And prayed to dismiss the complaint.

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In support of his case, complainant examined himself as PW-1 and got marked Exs.P 1 to 4.

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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 examined himself as DW-1. He has relied upon Exs.D1 to 9.

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The trial Court accepted the contention of the complainant and convicted the accused and sentenced

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CRL.A.NO.1312/2010

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him to pay fine of Rs.1,30,000/- in default to undergo simple imprisonment for six months.

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Aggrieved by the same, accused approached the Sessions Court in Crl.A.No.135/2008. Vide the impugned judgment and order, the Sessions Court allowed the appeal and set aside the conviction and sentence.

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Aggrieved by the same complainant is before this Court contending that the impugned judgment and order passed by the Sessions Court is highly illegal, arbitrary and unreasonable. The Sessions Court has failed to appreciate the evidence placed on record in proper perspective. By placing reliance on the decision in

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Krishna Janardhan Bhat , which is subsequently over ruled by the Hon'ble Supreme Court, it has wrongly held that complainant has failed to prove that there is legally enforceable debt and failed to raise the presumption under Sections 118 and 139 of N.I.Act and prays to allow the appeal, set aside the impugned judgment and order and to restore the judgment and order of trial Court.

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CRL.A.NO.1312/2010

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On the other hand, the learned counsel representing the accused submitted that admittedly, complainant was the managing partner of M/s Balarama Finance and Investments. Accused had borrowed loan from the firm and at that time he had issued few blank cheques and misusing one such cheque, the complainant has filed false complaint. The very fact that the cheque leaf in question is printed before the year 2000, supports the defence of the accused and appreciating the defence of the accused, the Sessions Court has rightly set aside the impugned impugned judgment and order of the trial Court and prays to dismiss this appeal also.

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Heard elaborate arguments of both sides and perused the record.

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Accused admitted the fact that the cheque in question belongs to him, drawn on his account maintained with his banker and it bears his signature. In the light of the same, presumption under Sections 118 and 139 of N.I.Act is attracted to the effect that the

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CRL.A.NO.1312/2010

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cheque was issued towards repayment of any legally recoverable debt or liability. Therefore, the burden is on the accused to prove that it was not issued towards repayment of any legally recoverable debt or liability. On the other hand it is for him to prove the circumstances under which the cheque has reached the hands of complainant.

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The fact that complainant and others were running a Finance by name M/s Balarama Finance and Investments and he was the managing partner is not in dispute. During the course of his cross-examination, the complainant has admitted that both accused and his brother had borrowed loan from the said finance during 1999 and they have repaid the same during 2002–03 and they had executed the relevant documents. Though he has admitted that periodically, they were submitting returns to the concerned authority regarding the financial transactions carried out by the said institution, the complainant has not produced any documents to show

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CRL.A.NO.1312/2010

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what all are the records maintained in respect of the said

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loan borrowed by complainant and his brother.

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In this regard, he has taken up a defence that

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after closure of the finance run by them and he sold all the records along with old newspapers and as such they are no longer available with them which is not convincing. This fact assumes importance in the light of defence taken by the accused that at the time of taking the said loan, he and his brother had issued blank cheques. The complainant has admitted that alleging that he has misused blank cheques given by him, accused had approached the concerned police and he was summoned to the police station and counseled, the complainant has also denied that misusing the blank cheque given by his brother, a complaint was filed through one Damodar Kotian and appeal filed in respect of the said complaint is also pending before the High Court.

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The accused is banking upon the fact that the

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cheque in question is printed before the year 2000 and it

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CRL.A.NO.1312/2010

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supports the fact that it was issued before the year 2000 and in his capacity as the managing partner he was in possession of the same and misusing it, complainant has filed this complaint to make unlawful gain.

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In addition to challenging the case of the complainant that he has borrowed Rs.1,25,000/- the accused has also challenged his capacity to lend the said amount and cross-examined complainant on this aspect. Complainant has deposed that he had sold a boat during 1996–97 and out of the said amount, he has paid Rs.1,25,000/- to the accused. However, the complainant has not produced any documents to show that he had sold a boat and was in receipt of money. Moreover, from 1996–97 till 2004, the complainant had kept the said money in his house is hard to believe. Moreover, the cheques of the said series were utilized by the accused during the relevant point of time and it creates doubt as to whether he has kept the subject cheque separately to issue to the complainant. This fact also supports the defence of the accused that the said cheques were issued

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CRL.A.NO.1312/2010

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before 2000 when he borrowed loan from M/s Balarama

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Finance and Investments.

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Through the evidence placed on record more particularly as per Ex.D8, the accused has proved that the account in question was closed on 03.11.2000 itself, and as such it would be doubtful whether accused has issued the cheque subsequent to the closure of the said account. Since the closure of the account was long prior to the date on which he has allegedly borrowed loan from the complainant, it cannot be said that he got the account closed and subsequent to the issuing of cheque in question to the complainant.

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On the other hand, it supports the defence of accused that the cheque was issued long before 2000 while borrowing loan from M/s Balarama Finance and Investments, accused has resisted the complainant contending that he is in possession of blank cheques given by him. In fact, in the reply statement also, the accused has taken up such a contention at the earliest available opportunity. In the complaint, the complainant

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has very conveniently not disclosed the fact of accused

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having sent reply disputing his claim.

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In the light of the evidence placed on record by the accused, this Court is of the considered opinion that the accused has rebutted the presumption, shifting the burden on the complainant to prove his case beyond reasonable doubt and also his capacity to lend Rs.1,25,000/-. However, the complainant has failed to discharge the burden shifted on him. On re-appreciation of the oral and documentary evidence placed on record, the Sessions Court has rightly come to the conclusion that the complainant has failed to discharge the burden placed on him and allowed the appeal filed by the accused by setting aside the conviction imposed by the trial Court. In the light of these facts and circumstances, this court finds no reasonable grounds to interfere with the impugned judgment and order. In the result, the appeal fails and accordingly the following:

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ORDER

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(i) The appeal filed by the complainant is hereby dismissed.

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CRL.A.NO.1312/2010

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(ii) The impugned judgment and order dated 20.09.2010 on the file of Fast Track Judge, Udupi District 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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RR/CLK

Pandu T Mendon v. Udaya Bhaskar

Case brief

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Pandu T Mendon v. Udaya Bhaskar

Case brief

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