Allowed

P Hanumanthapa v. Rajagopalachar

Karnataka HC14 Dec 2023CRL.A/258/2018

Case brief

AI extract

What is this about?

The High Court allowed a criminal appeal filed by a complainant against an acquittal. The court set aside the judgment of the Sessions Judge, restored the trial court's conviction for cheque dishonour under Section 138 of the NI Act, and remanded the case for recovery of fines.

What did the court decide?

Set aside judgment of acquittal; restore conviction and order of sentence; remand records for recovery of fine.

P Hanumanthapa Vs Rajagopalachar — Cheque Dishonour | Karnataka HC (2023)

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1 - NC: 2023:KHC:45608 CRL.A No. 258 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR CRIMINAL APPEAL NO. 258 OF 2018

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BETWEEN:

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P. HANUMANTHAPA, S/O H POOJARAPPA, AGED ABOUT 70 YEARS, R/AT C/O RAJU POOJARY, N M P T COLONY, QUARTER NO.7, 6^TH CROSS, PANAMBUR, MANGALORE, D K DISTRICT PIN – 575 003, PETITIONER DO NOT CLAIM

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…APPELLANT

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(BY SRI. G. BALAKRISHNA SHASTRY, ADVOCATE)

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AND:

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Digitally signed by SOWMYA D Location: High Court of Karnataka

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RAJAGOPALACHAR, TEACHER, AGED ABOUT 59 YEARS, AT GOVT, HIGH SCHOOL, DADDOOR, BANGARAPET, KOLAR DISTRICT – 563 114. …RESPONDENT (BY SRI. P.R. PRABHU, ADVOCATE) THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 13.10.2017 PASSED BY THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU IN CRL.A.NO.314/2012 REVERSING THE JUDGMENT DATED 20.10.2012 IN C.C.NO.1558/2008 ON THE FILE OF J.M.F.C.-V COURT, MANGALURU, D.K. BE RESTORED -

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ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT.

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THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by the complainant / appellant under Section 378(4) of Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C' for short) challenging the judgment of acquittal passed by I Additional Sessions Judge, Mangalore in Crl.A.No.314/2012 dated 13.10.2017, whereby the Learned Sessions Judge has set aside the judgment of conviction and order of sentence passed by V JMFC, Mangalore in C.C.No.1558/2008 for the offences punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'the N.I.Act' for short).

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For the sake of convenience, the parties herein are referred with original ranks occupied by them before the trial Court.

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The brief factual matrix leading to the case are

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as under:

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The specific assertion of the complainant is that the accused is known to him and he has borrowed a loan of Rs.2 Lakhs through two cheques dated 21.01.2008 and 23.01.2008 respectively to meet his urgent financial requirements agreeing to repay the loan amount in a short span. It is further asserted that thereafter, the accused has issued two cheques dated 31.08.2008 and 01.02.2008 for a sum of Rs.1 Lakh each towards repayment of the loan with an assurance to the complainant that the cheques will be honored. When the said cheques were presented for encashment, they returned unpaid with an endorsement as ‘insufficient of funds’. Thereafter, the complainant has got issued a legal notice to the accused and inspite of service of legal notice, the accused has not paid the cheque amount. Hence, the complainant has filed a private complaint before the learned Magistrate under

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NC: 2023:KHC:45608 CRL.A No. 258 of 2018

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Section 200 of Cr.P.C. alleging that the accused has committed an offence under Section 138 of N.I.Act.

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The learned Magistrate after recording the sworn statement of complainant has taken cognizance of the offence and has issued process against the accused. The accused appeared through his counsel and was enlarged on bail. The plea under Section 138 of N.I.Act was recorded and accused denied the same.

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The complainant was examined as PW1 and placed reliance on 9 documents marked at Ex.P1 to Ex.P9. After conclusion of the evidence of the complainant, the statement of accused under Section 313 of Cr.P.C is recorded to enable the accused to explain the incriminating evidence appearing against him in the case of the complainant. The case of the accused is of total denial. However, the accused got examined himself as DW1 and placed reliance on 3 documents marked at Ex.D1 to Ex.D3.

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The learned Magistrate after appreciating the

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oral and documentary evidence has convicted the accused for the offences punishable under Section 138 of N.I.Act by imposing fine of Rs.3 Lakhs with default sentence.

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Against this judgment of conviction, accused / respondent herein approached the I Additional Sessions Judge, Mangalore in Crl.A.No.314/2012. The Learned Sessions Judge after re-appreciating the oral and documentary evidence has allowed the appeal and set aside the impugned judgment of conviction and order of sentence passed by the trial court. Against this divergent opinion taken by the Learned Sessions Judge, the complainant is before this court by way of this appeal.

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Heard the learned counsel for the appellant. Inspite of sufficient opportunities, learned counsel for the respondent did not appear before the court so as to advance his arguments. Since, it is a private commercial transactions between the private parties, it is not

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necessary to appoint the amicus curiae. Perused the records.

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Having heard the arguments and perusing the

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records, now the following point would arise for my consideration:

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( i) Whether the judgment of acquittal passed by the learned I Additional Sessions Judge in Crl.A.No.314/2012 dated 13.10.2017 reversing the judgment of conviction passed by V JMFC in C.C.No.1558/2008 is perverse, arbitrary or erroneous so as to call for any interference by this court?

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It is the specific contention of the complainant that the accused has availed a loan of Rs.2 Lakhs in two

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installment of Rs.1 Lakh each on 21.01.2008 and 23.01.2008. Further, it is also the specific assertion of the complainant that the loan was availed by the accused through a cheque issued by the complainant. It is the assertion of the complainant that towards discharge of this legally enforceable liability, accused has issued the

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cheques as per Ex.P1 and Ex.P2 dated 01.02.2008 and 31.01.2008 respectively for Rs.1 Lakh each. There is no dispute of the fact that the cheques belong to the account of the accused and they bear the signature of the accused. Hence, the presumption under Section 139 of N.I.Act is in favour of the complainant. Further, from Ex.P7 it is evident that the amount is transferred through bank account of complainant and the same is evidenced by entries marked at Ex.P7(a) and Ex.P7(b).

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It is the specific contention of the accused that in the year 2007, he has availed a loan of Rs.25,000/from complainant and at that time, four blank cheques were obtained as a security and out of the same, one cheque was presented for Rs.25,000/- in Bangalore, one for Rs.1 Lakh in Mangalore and these two cheques are for remaining Rs.2 Lakhs. He asserts that in respect of cheque pertaining to Bangalore, he has paid the amount of Rs.55,000/- and submitted the receipt also. It is the

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contention of the accused that these cheques were handed

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over by him when he had availed a loan of Rs.25,000/-.

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The accused has not produced any material document to show as to what was his defence in the case in C.C.No.1390/2008 filed in Bangalore. In this regard, he has produced Ex.D2, copy of the complaint but Ex.P8 itself is produced by the complainant, which is the certified copy of the order sheet in C.C.No.1319/2008, which discloses that accused was convicted for the offence punishable under Section 138 of N.I. Act and imposed fine of Rs.53,000/-. The records also disclose that he has paid the fine. Hence, the defence which the accused has taken that blank cheques were issued was negativated in C.C.No.1319/2008 itself. Even he has not produced the copy of the judgment or the evidence recorded thereunder to disclose what defence he has taken in the said case. He has only produced a copy of the complaint, which discloses his intention. What prevented him from producing other relevant documents regarding conviction is not at all

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forthcoming. Hence, it is evident that he has withheld the material documents in this regard and Ex.D1 to Ex.D3 are pertaining to these transactions. They will not prove that the four cheques were issued blank while availing the loan of Rs.25,000/-.

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Further, the complainant has also placed reliance on Ex.P9. Ex.P9 is the receipt of undertaking wherein the accused acknowledged for having received Rs.2 Lakhs through two cheques from the complainant and in respect of these two cheques, he issued Ex.P1 and Ex.P2. The signature of the accused at Ex.P9 is marked at Ex.P9(a). This signature is also not disputed by the accused. The Learned Sessions Judge has considered this document and gone to the extent of holding that the accused being a qualified person his contention that he has signed a blank cheque cannot be accepted, but again went on holding that the contents of Ex.P9 were not proved as Ex.P9 is only a supporting document to Ex.P1 and Ex.P2 coupled with Ex.P8 wherein the accused was

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convicted in other criminal case. The observations of the Learned Sessions Judge that when the complainant filed a criminal case, question of accused issuing a fresh cheque or availing loan does not arise is not supported by any material evidence. On the basis of Ex.D1 to Ex.D3, the Learned Sessions Judge has proceeded to hold that the presumption stands rebutted but how that presumption came to be rebutted and what is the base for the same is not at all explained by reasons by the Learned Sessions Judge.

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On the contrary, the learned Magistrate has appreciated all this oral and documentary evidence and held that the accused has issued a cheques towards legally enforceable debt. Further, the transfer of amount under Ex.P1 and Ex.P2 under Ex.P7 was subsequent to the conviction and that clearly discloses that subsequently relations between the parties were improved which compelled the accused to pay the entire fine and later on, the complainant again paid the amount. There is no

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explanation on the part of the accused regarding entries in Ex.P7 marked at Ex.P7(a) and Ex.P7(b).

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However, a untenable defence was raised asserting that in Ex.P7, the amount was paid to Rajagopal, but the accused is recognized as Rajagopalachar. But admittedly the accused himself, has produced Ex.D1 to Ex.D3 wherein, he was prosecuted as Rajagopal and was convicted thereunder. Hence, it is prima facie evident that the accused is known by both the names as Rajagopal and Rajagopalachar and the said defence now raised is untenable. In the earlier complaint itself accused has admitted his status and now he cannot dispute this aspect.

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The learned Magistrate has rightly convicted the accused by giving proper reasons, but the Learned Sessions Judge on assumptions and presumptions erroneously reversed the said finding by acquitting the accused. The judgment of acquittal passed by the Learned Sessions Judge suffers from perversity and hence, it calls for interference as the accused has failed to rebut the

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presumption available in favour of the complainant under Section 139 of N.I.Act. As such, the appeal filed by the complainant needs to be allowed. Accordingly, the point under consideration is answered in the affirmative and hence, I proceed to pass the following:

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O R D E R

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(i) The appeal is allowed .

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(ii) The impugned judgment of acquittal passed by First Additional Sessions Judge, Mangalore in Crl.A.No.314/2012 dated 13.10.2017 is set aside. The judgment of conviction and order of sentence passed by V JMFC, Mangalore in C.C.NO.1558/2008 dated 20.10.2012 stands restored.

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(iii) Send back the records to the learned Magistrate with a direction to secure the presence of the accused for recovery of fine.

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Sd/JUDGE

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List No.: 1 Sl No.: 17

P Hanumanthapa v. Rajagopalachar

Case brief

What is this about?

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P Hanumanthapa v. Rajagopalachar

Case brief

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