Dismissed

Mohammad Rafeek S/O. Babajan Harapanahalli v. Fidaahmed S/O. Gulanahmed Naik

Karnataka HC2 Feb 2023CRL.A/2566/2013

Case brief

AI extract

What is this about?

Criminal appeal under Section 378 Cr.P.C. filed by complainant to set aside acquittal in cheque bounce case. High Court held trial court appreciated evidence correctly as complainant failed to prove financial status required to attract Section 139 NI Act presumption. Appeal dismissed.

What did the court decide?

Criminal Appeal No.2566 of 2013 is dismissed; judgment of acquittal is upheld.

Mohammad Rafeek S/O. Babajan Harapanahalli Vs Fidaahmed… — Cheque Dishonour | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 2^ND DAY OF FEBRUARY, 2023

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BEFORE

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THE HON’BLE MR. JUSTICE RAJENDRA BADAMIKAR

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CRIMINAL APPEAL NO.2566 OF 2013

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BETWEEN

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MOHAMMAD RAFEEK S/O. BABAJAN HARAPANAHALLI AGE: 36 YEARS, OCC: BUSINESS, R/O. HANGAL, DIST: HAVERI, PRESENTLY AT JANNATH NAGAR, 4TH CROSS, DHARWAD, DIST: DHARWAD

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.....APPELLANT

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(BY SRI SATISH S RAICHUR, ADV.)

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AND

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FIDAAHMED S/O. GULANAHMED NAIK AGE: 45 YEARS, OCC: DOCTOR, R/O. KILLA ONI, HANGAL, DIST: HAVERI

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…..RESPONDENT

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(BY MISS ALPHIA SHIRALLI, ADV. FOR SRI K M SHIRALLI, ADV.)

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THIS CRIMINAL APPEAL IS FILED U/SEC. 378(4) OF CR.P.C. SEEKING TO SET ASIDE THE ORDER DATED 19.01.2013 PASSED BY THE III ADDL. CIVIL JUDGE & JMFC, DHARWAD IN C.C.NO.769/2009 AND CONVICT THE RESPONDENT OF THE OFFENCE CHARGED AGAINST HIM AND SENTENCE HIM.

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THIS APPEAL IS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 27.01.2023 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by the appellant/complainant under Section 378(4) of Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’, for short) challenging the judgment of acquittal passed by III Addl. Civil Judge and JMFC, Dharwad in C.C.No.769/2009 dated 19.01.2013 for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as ‘N.I. Act’, for short).

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For the sake of convenience, the parties are referred to with the original rankings occupied by them before the Trial Court.

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The brief factual matrix leading to the case

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are that the complainant is the resident of Dharwad

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and doing business for his livelihood. It is contended that the accused is the Doctor by profession and resident of Hangal. That he was acquainted with the complainant for many years and he had knowledge that the complainant had sold his property and sale proceeds amount is in his custody. Hence, he approached the complainant six months earlier to lodging the complaint with a demand of hand loan of Rs.1,00,000/- in order to meet out his family needs with a promise to repay the same within 15-20 days. As per his request, the complainant advanced the hand loan of Rs.1,00,000/- and in turn, the accused issued a cheque dated 28.02.2009 towards repayment of the amount. When the said cheque was presented, it was returned with an endorsement ‘payment stopped by the drawer’. After issuance of notice, payment was not made. Hence, he lodged a private complaint under Section 200 of Cr.P.C. alleging that

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the accused has committed an offence punishable under Section 138 of N.I. Act. After lodging the complaint, the sworn statement of the complainant was recorded by the learned Magistrate. As he found that the prima facie case is made out against the accused, the learned Magistrate took cognizance of the offence and issued process against the accused/respondent herein. The accused appeared and was enlarged on bail and he has denied the accusation.

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To prove his case, the complainant got himself examined as PW-1 and placed reliance on 6 documents marked at Exs.P-1 to P-6. After conclusion of the evidence of the complainant, the statement of the accused under section 313 of Cr.P.C. was recorded to enable him to explain the incriminating evidence appearing against him in the case of the prosecution. The case of the accused is of total denial. Further, the

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accused got examined himself as DW-1 and one witness was examined as DW-2 on his behalf. Further, he also placed reliance on 3 documents marked at Exs.D-1 to D-3.

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After conclusion of the defence evidence,

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the arguments were heard by the learned Magistrate

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and after considering the oral and documentary evidence, he found that the complainant has failed to bring home the guilt of the accused for the offence punishable under Section 138 of N.I. Act and as such, he has acquitted him. Being aggrieved by this judgment of acquittal, the complainant is before this Court.

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Heard the arguments advanced by the learned counsel for appellant/complainant and learned counsel for respondent/accused. Perused the records.

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Learned counsel for appellant would

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contend that the signature of the accused on the cheque is admitted. He would also contend that the documents produced itself clearly disclose that there was sale transaction between accused and complainant and hence, presumption ought to have been drawn in favour of the complainant under Section 139 of N.I. Act. He would also contend that signature on the cheque was admitted by the accused and though notice was served, he did not reply and hence, he would contend that the Trial Court has erred in acquitting the accused and sought for convicting him by allowing this appeal.

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Per contra , learned counsel appearing for respondent would contend that the sale transaction has been admitted and there are discrepancies in the evidence. It is contended that as deposed by DW-1, cheque was issued as a security for the sale

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transaction and there was demand for excess amount. When the property was purchased by the accused by paying sale consideration, question of he demanding amount from the complainant does not arise at all as the complainant has admitted that the accused is financially sound. He would also contend that the sale deed copies were also not produced and in view of Exs.D-1 to D-3, presumption has been rebutted. The complainant has not proved his financial status to substantiate his contention. Hence, he would contend that the Trial Court has appreciated the oral as well as documentary evidence in proper perspective and has rightly acquitted the accused/respondent herein. Hence, he would contend that no illegality or arbitrariness is forthcoming in the judgment of acquittal passed by the Trail Court so as to call for any interference and sought for dismissal of the appeal.

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Having heard the arguments and after

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perusing the oral and documentary evidence, now the following point would arise for my consideration:

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“Whether the judgment of acquittal passed by the Trail Court is arbitrary, erroneous and suffers from any infirmity so as to call for any interference by this Court?”

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There is no serious dispute of the fact that the complainant and accused were acquainted with each other. The records further disclose that accused is a Doctor by profession and financially sound person. It is admitted by the complainant that though the complainant claim in his complaint that he is doing business, he did not disclose as to what type of business he is doing. In his cross-examination, it is elicited that he is residing in Jannat Nagar, Dharwad and doing flower vending business and earning Rs.150/- to Rs.200/- per day. Hence, it is evident that

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his financial condition is not so sound but financial condition of accused was admitted to be sound.

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The complainant in his complaint did not specify as to when he has advanced Rs.1,00,000/- but he claims that six months prior to lodging the complaint that amount was paid. The complaint was admittedly lodged on 01.09.2009 but in his crossexamination, he asserted that on 28.02.2009, the amount was paid in his house. All along it is asserted by the complainant that accused had the knowledge that the complainant is having sale proceeds with him pertaining to sale of his land and therefore, he approached him. But the complainant has nowhere pleaded in his complaint as to what are those sale proceeds and as to whom he sold the land. However, during the cross-examination by the accused, it is elicited that the complainant, in fact, sold the land to accused himself by receiving the consideration and the

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sale transaction was pertaining to Exs.D-1 to D-3. What is the reason for the complainant to conceal the said fact is not forthcoming. On the contrary, ExD-1 discloses that initially the accused has entered into an agreement with the mother of the accused but later on sale deed was executed in favour of the accused.

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The complainant who was examined as PW1 in his cross-examination admitted the Exs.D-1 to D-

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He claims that he never kept more than Rs.50,000/- in his house but he asserts that he had kept Rs.1,20,000/- on the date of advancing hand loan. Interestingly, all along it is asserted that amount was out of sale proceeds but the complainant has not produced any documents to show what was the sale proceeds of the land which was sold to the accused and when it was sold. On the contrary, Ex.D-1 reveals that 11 acres and 5 guntas was agreed to be sold for a sum of Rs.3,66,146/- and on 19.10.2000 a

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sum of Rs.30,000/- was paid and on 20.02.2002, a sum of Rs.1,36,146/- was paid and on 05.10.2004, Rs.1,70,000/- was paid and balance amount of Rs.30,000/- was to be paid at the time of registration of sale deed. It is suggested to PW-1 that he has sold the land subsequently in favour of accused for a sum of Rs.6,12,000/-. Though he admits the sale, he pleads ignorance regarding the sale consideration. It is hard to accept the contention of the complainant that he does not know the sale consideration of the land sold by him.

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It is the specific contention of the accused

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that after execution of Exs.D-1 to D-3, complainant had insisted for excess consideration and in this context, 3 cheques were issued by him and after execution of sale deed, the said cheques were not returned. The admission given by PW-1 discloses that Ex.P-1 is one of the said cheques. It is to be explained

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by the complainant that when he agreed for Rs.3,66,146/- to sell his land, what was the need for him to claim Rs.6,12,000/-. Even he has not produced the certified copy of the sale deed. Further, the defence of the accused is corroborated with the evidence of DW-2 who claims that the complainant had demanded for excess amount and as a security, the cheques were issued and they were misused.

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All along the complainant has asserted that he was possessing Rs.1,20,000/- as on the date and it is the specific assertion that the same was out of the sale proceeds of the land but the records disclose that under Ex.D-1 to D-3, long back only he has received Rs.3,66,146/-. Hence, the balance would only be minimum less than Rs.3,00,000/-. Further, he did not disclose when the sale has taken place. There is no evidence as to when he received sale consideration and why he kept it in the house as on the date of sale

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is also not disclosed by the complainant. Initial burden is on the complainant. He did not mention specific date in his complaint and in his evidence he tried to make out a case that he advanced the loan amount on 28.02.2009 but the cheque itself is dated 28.02.2009. Further, in the cross-examination, complainant claims that he was possessing Rs.1,20,000/- on that day and there is no explanation as to why he had kept that huge amount. It is hard to accept his contention that he could keep the consideration amount in his house rather than depositing in the bank at the cost of interest. All these facts and circumstances establish that the complainant has not approached the Court with clean hands and his admissions completely falsify his case.

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In this context, learned counsel for respondent has placed reliance on a decision in the case of Basalingappa Vs. Mudibasappa reported in

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(2019) 6 SCR 555 wherein it is specifically held that to draw the presumption under Section 118 and 139 of NI Act, financial status if challenged is required to be proved. In the instant case, complainant except asserting the fact that he had sale consideration amount, he did not place anything on record and he was not even aware of the quantum of sale consideration amount also. Hence, the burden shifts to the complainant to substantiate his contention but the complainant has not discharged the burden.

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Learned counsel for appellant has placed reliance on a decision of this Court in Crl.A.No.176/2011 dated 19.02.2021 but the facts and circumstances of the said case are entirely different. In the said case, the presumption was not rebutted and hence, the Court has held that the cheque was issued towards legally enforceable debt and the conviction was restored. But in the instant

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case, the complainant has not produced any material to substantiate his financial status and hence, the principles enunciated in the above cited decision of this Court relied on by the learned counsel for appellant cannot be made applicable to the case on hand.

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Further, the evidence of accused is again corroborated by DW-2. Though DW-2 is crossexamined at length, nothing was elicited. Further, he was a witness to the sale transaction. The Trial Court has appreciated these facts and circumstances in detail and has arrived at a just decision. The judgment of the Trial Court does not suffer from any arbitrariness or illegality or infirmity so as to call for any interference by this Court. The complainant has failed to prove that the he has advanced the loan of Rs.1,00,000/- to the accused and in discharge of the said debt, the cheque came to be issued by him.

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Looking to these facts and circumstances, the point under consideration is answered in the negative and as such, the appeal fails and accordingly, I proceed to pass the following:

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ORDER

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The appeal stands dismissed.

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Sd/JUDGE

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Naa

Mohammad Rafeek S/O. Babajan Harapanahalli v. Fidaahmed S/O. Gulanahmed Naik

Case brief

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Mohammad Rafeek S/O. Babajan Harapanahalli v. Fidaahmed S/O. Gulanahmed Naik

Case brief

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