Dismissed

Sri N Rajappa v. Sri Manu Ittina

Karnataka HC6 Oct 2023CRL.A/529/2017

Case brief

AI extract

What is this about?

The High Court dismissed the complainant's criminal appeal against the acquittal of the accused. The Court held that the accused rebutted the presumption under the Negotiable Instruments Act due to lack of pleadings regarding the transaction nature, and the complainant failed to prove the debt or their financial capacity to lend the amount.

What did the court decide?

The criminal appeal filed by the complainant under Section 378(4) of the Cr.P.C. is dismissed, and the acquittal of the accused is confirmed.

Sri N Rajappa Vs Sri Manu Ittina — Cheque Dishonour | Karnataka HC (2023)

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CRL.A NO.529 OF 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU 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.529 OF 2017

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BETWEEN:

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SRI N RAJAPPA S/O LATE NARSIMHA REDDY AGED ABOUT 65 YEARS RESIDING AT CELEBRITY PARADISE LAYOUT DODDATHOGURU ELECTRONIC CITY BENGALURU - 560 100

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…APPELLANT

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(BY SRI. P.NARAYANAPPA, ADVOCATE)

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AND:

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SRI MANU ITTINA S/O MAHABALESHWARAPPA AGED ABOUT 41 YEARS RESIDING AT ITTINA KAIKONDANAHALLI POST CARMELRAM BENGALURU - 560 035

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(BY SRI. V.B.SHIVAKUMAR, ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CODE OF CRIMINAL PROCEDURE PRAYING TO a) SET ASIDE THE IMPUGNED JUDGMENT AND IMPUGNED ORDER WAS PLEASED TO PASSED BY THE LXIII ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH-64) IN CRIMINAL APPEAL NO.113/2016 DATED 25.01.2017 VIDE ANNEXURE-C; b) UP-HELD THE IMPUGNED JUDGMENT AND ORDER WAS PLEASED PASSSED BY THE XX ACMM AT

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CRL.A NO.529 OF 2017

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BENGALURU IN C.C.NO.3382/2014 DATED 12.01.2016 VIDE ANNEXURE-B; c) KINDLY MAY AWARD THE COST OF THIS APPEAL; d) KINDLY MAY PASS THE RELIEF, AS DEEMS FIT THE FACTS AND CIRCUMSTANCES OF THIS APPEAL.

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THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED ON 03.07.2023, 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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Appellant who is complainant, has filed this appeal under Section 378 (4) of the Cr.P.C, challenging the judgment and order of the Sessions Court in Crl.A.No.113/2016, whereby the Sessions Court reversed the conviction imposed by the trial Court for the offence punishable under Section 138 of N.I. Act and acquitted the accused.

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2. For the sake of convenience, the parties are

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referred to by their rank before the trial Court.

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It is the case of complainant that accused is a developer-cum-builder having business in the name and style of Ittina properties Private Limited. Accused has dealt with complainant with regard to land and received Rs.27 lakhs. However, he did not return the said amount

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CRL.A NO.529 OF 2017

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on the ground that he has suffered loss. When demanded repayment of the said amount, accused issued a cheque bearing No.701059 dated 31.03.2013, drawn on ICICI Bank for Rs.27 lakhs. On 14.06.2013, when complainant presented the said cheque for realization, it was returned dishonoured on the ground that the drawer’s signature differs. In this regard on the advice of accused, complainant re-presented the said cheque for encashment on 24.06.2013. Once again, it was dishonoured on the ground that signature of the drawer differs.

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3.1 Hence, once again, complainant approached

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the accused. This time accused replaced the cheque number 701059 dated 31.03.2013 by another cheque number 032461 dated 14.08.2013 drawn on IDBI Bank for a sum of Rs.27 lakhs. However, when it was presented for realization, it was also dishonoured on the ground that account is closed. Complainant got issued legal notice dated 22.10.2013. It is duly served on the

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accused. However, he has neither paid the amount due nor sent any reply. Hence the complaint is filed.

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4. After due service of summons, accused has

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appeared before the trial Court and contested the case. He has taken up a specific defence that complainant has purchased three lands from the mother of accused and in that connection he came to be acquainted with the accused. Having regard to the fact that accused is a developer-cum-builder, promising to get lands through the farmers for his work, complainant got a cheque for Rs.27 lakhs from him with a promise that he would show it to the farmers and get their title documents. However, misusing the same, he has filed this complaint. Accused has denied of having borrowed a sum of Rs.27 lakhs from the complainant and that towards repayment of the same he has issued the cheque in question. He has also disputed that complainant is having capacity to lend Rs.27 lakhs to the accused.

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CRL.A NO.529 OF 2017

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In order to prove the allegations against the accused, complainant has examined himself as PW-1 and relied upon Ex.P1 to 14.

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

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Accused has stepped into the witness box and examined himself as DW-1. He has relied upon Ex.D1 to 6.

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Vide Judgment and order dated 12.01.2016,

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the trial Court convicted the accused and sentenced him to pay fine of Rs.28,10,000/-, in default to undergo imprisonment for three months.

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Aggrieved by the same, accused approached the Sessions Court in Crl.A.No.113/2016. Vide the impugned judgment and order, the Sessions Court allowed the appeal and set aside the conviction and sentence of accused.

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CRL.A NO.529 OF 2017

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Being aggrieved by the same, the complainant is before this Court, contending that the Sessions Court committed a grave error while allowing the appeal filed by the accused and as such it is liable to be set aside. The complainant has made a transaction with the accused in his individual capacity as evident from Ex.P13. Such being the case, the Sessions Court has erred in giving a finding that the transaction was with the company and as such it was a necessary party and the impugned judgment and order is liable to be set aside and prays to allow the appeal.

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Heard elaborate arguments of both sides and perused the record.

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Though the complainant has pleaded that accused is a developer- cum-builder running his business in the name and style of Ittina Properties Private Limited and there was some land deal and in that connection, accused had received Rs.27 lakhs from him, the complainant has not clearly stated what was the dealing between them. There is also no pleadings that the said

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dealing between him and accused was for and on behalf of Ittina Properties Private Limited. Keeping this fact in mind, it is necessary to examine whether the charges leveled against the accused are proved.

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At the outset, it is relevant to note that accused admitted that the cheque in question belongs to him, drawn on his account, maintained with his banker and that it bears his signature. In view of the same, presumption under Sections 118 and 139 of N.I.Act comes into operation and it is required to presume that the cheque in question was issued towards repayment of any legally recoverable debt or liability. Therefore, the burden is on the accused to prove that the cheque is not issued towards repayment of any legally recoverable debt or liability and to prove the circumstances in which the cheque has reached the hands of complainant. Only when the accused succeeds in rebutting the presumption by preponderance of probabilities, the burden would shift on the complainant to prove his case beyond reasonable doubt.

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CRL.A NO.529 OF 2017

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In order to rebut the presumption operating under Sections 118 and 139 of N.I.Act, the accused has taken up a specific defence that there was some land transactions between his mother Nagalambika and complainant and in that connection he came to be acquainted with the complainant. As admitted by the complainant, Ex.D1 to 3 are the sale agreement and 2 sale deeds, entered into between the complainant and Smt. Nagalambika. Through these documents, Naglambika has sold immovable property to the complainant. As already noted, the complainant does not state in clear terms as to what was the dealing between him and the accused for which he has received Rs.27 lakhs from him. On the other hand, accused has taken up

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a specific defence that complainant took a cheque for

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Rs.27 lakhs from him under the pretext of showing them to the land owners for getting their title deeds for sale of their lands.

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In fact, during his cross-examination,

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complainant has admitted that he has received cheques

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as noted in Ex.D5 and 6. Ex.D5 is a payment voucher and it refers to issue of cheque No.701059 dated 31.03.2013 and it is drawn on ICICI Bank Account No.6907 and it is issued replacing cheque numbers 146241 and 146243. Exhibit D6 is the payment voucher in respect of a cheque No.032461 dated 14.08.2013 issued replacing cheque No.701059. Thus, at the first instance, cheques bearing Nos.146241 and 146243 were issued. In their place cheque No.701059 was issued. Ultimately in place of cheque No.701059, Ex.P1 i.e cheque No.032461 was issued.

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However, the accused has instructed for stop

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payment of Ex.P1. It is his specific case that the said cheque was issued not for realization but only to show to the prospective Vendors regarding the capacity of accused to purchase land. It appears after receiving Ex.P1 i.e cheque No.032461, the complainant has not returned cheque number 701059 and presented it twice, and on both occasions, it was returned dishonoured on the ground that signature of the drawer differs. When

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once it was dishonoured on the ground that signature differs, it does not stand to reason as to why it would be honoured on the second presentation.

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In fact, during the course of his evidence, accused has deposed that cheque No.701059 was issued without signing it and the complainant has forged his signature and presented it, which ultimately dishonoured on the ground that signature does not tally with the signature of drawer. Anyhow, in the absence of pleadings, as to what exactly was the dealings between the complainant and accused, the accused has rebutted the presumption that the cheque in question was issued towards repayment of any legally recoverable debt or liability. Consequently, the burden shifts on the complainant to prove the transaction that took place between him and the accused and that the cheque was issued towards repayment of any legally recoverable debt or liability.

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In the absence of pleadings, as to what exactly was the transaction between them, even through

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his evidence and also through the cross-examination of DW-1, the complainant has failed to prove for what purpose Ex.P1 cheque was issued. This probabalises the defence of the accused that the subject cheque was issued not with the intention of paying the amount specified therein, but to impress the prospective sellers.

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Moreover, the accused has challenged the financial capacity of the complainant to lend him Rs.27 lakhs and consequently, complainant has been crossexamined on this aspect. Though the complainant has claimed that he has received 45 flats to his share and had given them to his sons and in turn his sons sold some of the flats and were in receipt of money and out of them he has paid Rs.27 lakhs to the accused, admittedly, he has not produced any documents to evidence this fact and he has not filed income tax returns, as such he has no proof of having paid Rs.27 lakhs to the accused. At least he could have produced copies of the sale deeds to show that some of the flats were sold and the complainant or at least his sons were in receipt of money

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and same was paid to the accused. In the absence of the same, the complainant has also failed to prove his financial capacity to lend Rs.27 lakhs to the accused.

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As noted earlier, there are no pleadings that the alleged loan was given to the accused for and on behalf of the company run by him. In fact, during his cross-examination the complainant has specifically deposed that the alleged loan was given to the accused in his individual capacity. Consequently, the Sessions Court has erred in giving findings that in the absence of Company being made a party, the complaint was not maintainable. Though ultimately the Sessions Court has come to a correct conclusion that the charges leveled against accused are not proved, it has erred in giving a finding that in the absence of company being a party, the complaint is not maintainable. Thus, from the above discussion this Court is of the considered opinion that the accused has rebutted the presumption under Sections 118 and 139 of N.I. Act, but the complainant has failed to discharge the burden shifted on him. In the result, the

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complaint is liable to be dismissed, which the Sessions Court has rightly done. In the result, the appeal filed by the complainant fails and accordingly the following:

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ORDER

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(i) Appeal filed by the complainant under Section 378(4) is hereby dismissed.

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(ii) The impugned judgment and order dated 25.01.2017 on the file of LXIII Addl.City Civil and Sessions Judge, Bengaluru City, is confirmed.

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

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Sd/JUDGE

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RR/CLK

Sri N Rajappa v. Sri Manu Ittina

Case brief

What is this about?

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Sri N Rajappa v. Sri Manu Ittina

Case brief

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