Sri. Badarinath N v Vs M/S Siddarth Enterprises

M/S SIDDARTH ENTERPRISES A PROPRIETORSHIP CONCERN HAVING OFFICE AT NO.269 R.M.V. EXTENSION, 80 FEET ROAD 2^ND STAGE, BENGALURU -560094 REPRESENTED BY ITS AUTHORIZED SIGNATORY, SRI.SRINATH HEGDE

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SRI.SRINATHA HEGDE S/O RAMA HEGDE AGED ABOUT 57 YEARS R/AT NO.1, ANNAYYAPPA LAYOUT 1^ST CROSS, RMV EXTENSIONS 2^ND STAGE, BENGALURU -560 094

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…RESPONDENTS

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(BY SRI.PRASHANTH U T, ADVOCATE FOR R1 & R2)

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THIS CRL.A IS FILED U/SEC.378(4) CR.P.C BY THE ADVOCATE FOR THE APPELLANT PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT AND ORDER DATED 21.06.2016 PASSED BY THE XIII A.C.M.M., BENGALURU IN

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NC: 2024:KHC:48810 CRL.A No. 1204 of 2016

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C.C.NO.32436/2014 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/SEC.138 OF N.I. ACT AND ETC.

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THIS CRL.A, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE M G UMA

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ORAL JUDGMENT

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The appellant being the complainant in C.C.No.32436/2014

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on the file of the learned XIII Additional Chief Metropolitan Magistrate, Bengaluru is impugning the judgment dated 21.06.2016, acquitting the respondent-accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short 'the N.I.Act'),

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For the sake of convenience, the parties shall be referred to as per their rank and status before the trial Court.

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Brief facts of the case are that, the appellantcomplainant had filed the private complaint in PCR.No.17428/2014 against the respondent - accused alleging commission of offence punishable under Section 138 of NI Act.

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It is contended by the complainant that he is the proprietor of business concern by name "Mercury Enterprises", who is carrying out manufacturing and trading of furniture. The accused is his close associate and he approached the

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complainant during April-2012 stating that his proprietorship concern by name M/s. Siddartha Enterprises is facing financial difficulties and therefore, he requested for hand loan. Accordingly, the complainant had lent an amount of Rs.10,00,000/- on 16.04.2012 in cash. The accused had issued an on demand promissory note in favour of the complainant, which was attested by one Sri.K.R.Guru Prakash as a witness. Thus, the accused had promised to repay the hand loan of Rs.10,00,000/- with interest at 3% p.a.

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The complainant contended that towards discharge of legally enforceable debt, the accused issued two cheques as per Exs.P1 and 2 for Rs.5,00,000/- each dated 11.09.2014. When the cheques were presented for encashment, both the cheques were dishonored as there was insufficient funds. The legal notice was issued to the accused calling upon him to pay the cheque amounts. On receipt of the same, the accused had issued the reply as per Ex.P9, but, had not repaid the cheque amount, and thereby, he has committed the offence punishable under Section 138 of NI Act. Accordingly, the complainant requested the Trial Court to take cognizance of the offence and to initiate legal action.

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The Trial Court took cognizance of the offence and registered the case in C.C.No.32436/2014 against the accused for the offence punishable under Section 138 of NI Act. The accused had appeared before the Trial Court, pleaded not guilty, and claimed to be tried. The complainant examined himself as PW.1 and got marked Exs.P1 to 10 in support of his contention. The accused has denied all the incriminating materials available on record, examined himself as DW.1 and got marked Exs.D1 and 2 in support of his defence. The Trial Court, after taking into consideration all these materials on record, came to the conclusion that the complainant is not successful in proving the guilt of the accused beyond reasonable doubt. Therefore, the accused was acquitted. Being aggrieved by the same, the complainant is before this Court.

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Heard Sri.K.N.Nitish, learned counsel for the appellant and Sri.Prashanth U.T, learned counsel for the respondents-accused. Perused the materials including the Trial Court records.

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Learned counsel for the appellant-complainant contended that, it is the specific contention of the complainant

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that he had lent an amount of Rs.10,00,000/- on 15.04.2012. The accused had issued the on demand promissory note in the presence of the witness. Towards discharge of his hand loan, the accused had issued cheques as per Exs.P1 and 2 dated 11.09.2014 for Rs.5,00,000/- each. Both the cheques were dishonoured when presented for encashment with an endorsement - "Funds Insufficient" in the account of the accused. The legal notice was issued calling upon the accused to pay the cheque amount. Instead of paying the cheque amount, the accused had issued an untenable reply as per Ex.P9. Even though the reply was issued, no specific stand was taken with regard to cheques as per Exs.P1 and 2.

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Learned counsel further submitted that during cross-examination of PW.1, the accused admitted issuance of the cheques - Exs.P1 and 2 with his signature. The only defence that appears to have been raised during crossexamination of PW.1 is that the complainant had misused the cheques - Exs.P1 and P.2. But, there is no specific stand as to why the accused had issued those cheques to the complainant.

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Learned counsel further submitted that the accused

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has examined himself as DW.1. During his evidence, he specifically admitted issuance of cheques as per Exs.P1 and 2. A new defence was taken that when the complainant supplied furniture's, he had issued blank cheques as per Exs.P1 and 2 with his signatures. DW.1 specifically states that he is the Authorized Signatory for the proprietary concern M/s. Siddartha Enterprises. The witness also states that Ex.P1 is not concerned to the dealings with the complainant. During crossexamination, he specifically states that he never demanded back the cheques from the complainant and no notice was issued calling upon the complainant to return the cheques. He also admits that the defence taken in his evidence was not stated in the reply notice.

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Learned Counsel contended that all the above facts

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and circumstances disclose that the accused categorically admitted issuance of the cheques as per Exs.P1 and 2 with his signatures as the Authorized Signatory to the proprietary concern M/s. Siddartha Enterprises. Under such circumstances, the presumption under Section 139 of NI Act would arise. The burden shifts on the accused to rebut the presumption. From

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the evidence that is led by the accused, he is not successful in probabilizing his defence. Even though the accused had taken the defence that he had issued the blank cheques in favour of the complainant, that will not absolve him from his liability. When even according to the accused, he is the Authorized Signatory to M/s. Siddartha Enterprises, which is the Proprietorship Concern, the liability was on the drawer of the cheque. The Trial Court has committed an error in holding that the complainant has not proved the existence of legally enforceable debt as it is a matter of presumption under Section 139 of NI Act. Even though the Trial Court has held that the accused has not proved his defence regarding misuse of cheques by the complainant, it has committed an error in holding that the proprietor of the proprietorship concern is not made as a party and only the Authorized Signatory is arrayed as an accused and has proceeded to dismiss the complaint acquitting the accused. The findings recorded by the Trial Court are perverse, illegal and the same is liable to be setaside. Accordingly, he prays for allowing the appeal in the interest of justice.

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Per contra , learned counsel for the respondent - accused opposing the appeal submitted that the respondent is not the proprietor of the concern. He was only authorized signatory. In such capacity, he has signed the cheques Exs.P1 and 2. PW.1 admitted that the proprietor of the concerned is one Smt. Shashikala Hegde and not the accused. Ex.P2 is the letter issued by the Manager of the Bank, which clearly discloses that it was Smt. Shashikala Hegde who is the proprietor of M/s. Siddartha Enterprises, but not the respondent herein. Under such circumstances, the Trial Court was right in acquitting the accused.

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Learned counsel contended that according to the complainant, he had lent an amount of Rs.10,00,000/- during April-2012. But he is not sure about the date on which he had lent the amount. No documents were produced to probablise lending of the amount. As per the complaint, the accused had issued an on demand promissory note attested by a witness called Sri.K.R.Guru Prakash. Neither the on demand promissory note was produced before the Court nor the said witness Sri.K.R.Guru Prakash is examined.

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Learned counsel contended that immediately after

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receipt of the legal notice, the accused had issued the reply as per Ex.P9. He has taken a specific defence denying of availing the loan and existence of legally enforceable debt. Under such circumstances, heavy burden lies on the complainant to prove

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the actual lending of the amount and existence of legally recoverable debt. Even though PW.1 during cross examination stated that he has no difficulty in producing on demand promissory note referred to by him in the complaint, the same is never produced before the Court. Under such circumstance, it is to be held that lending of the amount is not proved by the complainant. The Trial Court after taking into consideration the materials on record, rightly acquitted the accused and there are no reasons to interfere with the same. Accordingly, prays for dismissal of the appeal.

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Learned counsel has placed a bunch of decisions in support of his contention, which are as follows:

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Raghu Lakshminarayana Vs. Fine Tubes reported in 2007(5) SCC 103

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Mr.N.Shrihari Vs. Mr.Babu Shetty (judgment dated 26.02.2014 passed in criminal Appeal No.438/2009)

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John K. Abraham Vs. Simon C. Abraham & Another reported in 2014 (2) SCC 236

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Indus Airways Pvt Ltd., and Others Vs. Magnum Aviation Pvt. Ltd., and another reported in 2014 (12) SCC 539

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Basalingappa Vs. Mudibasappa reported in 2019 (5) SCC 418

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Rajaram (since deceased) through Lrs Vs. Maruthachalam (since deceased) Through LR’s reported in 2023 LiveLaw (SC) 46

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S. Murugan Vs. M.K.Karunagaran order dated 31.10.2023 passed SLP (Crl.) 7618/2013

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Order dated 20.11.2023 passed by Hon’ble High Court of Criminal Petition Nos.564, 566, 569 & 572 of 2020

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Sanat Kumar Vs. Sanjay Sharma (order dated 20.09.2024 passed Crl.M.C.5509/2022 and Crl.M.A.21900/2022

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and prays for dismissal of the appeal, in the interest of justice.

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In view of the rival contentions urged by learned

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counsel for both the parties, the point that would arise for my consideration is:

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"Whether the impugned judgment of acquittal passed by the Trial Court suffers from perversity or illegality and calls for interference by this Court?"

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My answer to the above point is in the 'Affirmative' for

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the following:

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REASONS

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It is the contention of the complainant that he is owning a business concern by name ‘Mercury Enterprises’ manufacturing and trading of furniture's. The accused being a close friend, availed loan of Rs.10 lakhs on 16.04.2012 by executing an on demand Promissory Note attested by one Sri.K.R.Guru Prakash, agreeing to repay the same with interest @ 3% per annum. Towards the said loan, the accused issued the cheques Ex.P1 and P2 for Rs. 5 lakhs each. When the said cheques were presented for encashment, the same were dishonoured as there were insufficient funds in the account of the accused. A legal notice was issued by the complainant to the accused calling upon him to pay the

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cheques amount. Ex.P9 is the reply issued by the accused at the initial stage.

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In Ex.P9, the accused has admitted that the complainant is the proprietor of the business concern - Mercury enterprises carrying on business of manufacturing and trading furniture. But availing of the loan by the accused either on 16.04.2012, or any other date is denied. It is contended that the complainant has no money lending license and therefore, he could not have lent amount to the accused. He pleaded his ignorance that the cheques referred to by the complainant in the legal notice were returned as ‘funds insufficient’.

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It is pertinent to note that even though the accused has issued reply as per Ex.P9 which runs into four pages, the accused has not taken any specific stand regarding Exs.P1 and P2. He neither admitted issuance of cheques nor denied it in specific terms.

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The complainant in order to prove his contention examined himself as PW.1 During cross examination, it is specifically suggested that since the complainant is very close

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to the accused, he misused the cheques. The said suggestion is denied by PW.1. It is again pertinent to note that during cross examination of PW.1, the accused has not disclosed his stand regarding the cheques Exs.P1 and P2. There is neither admission of issuance of cheques as per Exs.P1 and P2 nor there is specific denial of the same.

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The accused examined himself as DW.1 denying availing of loan from the complainant. He has stated that he has not issued cheques Exs.P1 and P2 towards discharge of any debt or liability, but takes a specific defence for the first time that those cheques were issued in favour of the complainant when he supplied furniture to Siddhartha Enterprises.

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It is the specific defence taken by the accused as DW-1 that the complainant had taken cheques - Exs.P1 and 2 with his signatures. He stated that he being the authorized signatory of M/s. Siddartha Enterprises has issued cheques by signing the same on behalf of M/s. Siddartha Enterprises in favour of the complainant. Witness further states that dishonour of the cheques was informed by the proprietor of

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the concern and immediately, he had approached the complainant and demanded back the cheques. The accused contended that he is not the proprietor of M/s. Siddartha Enterprises, but the cheques Exs.P1 and 2 belongs to M/s. Siddartha Enterprises. This contention taken by the accused while deposing as DW-1 for the first time discloses his defence, that he admits issuance of cheques Exs.P1 and 2, signing as Authorized Signatory in favour the complainant, but contends that the cheques were issued when the complainant supplied the furniture for and on behalf of M/s. Siddartha Enterprises. Once the accused admits issuance of cheque with his signature, the initial burden on the complainant gets discharged and the burden shifts on the accused to rebut the presumption under Sections 118 and 139 of NI Act.

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During cross examination of DW-1, witness admits that he is the Authorized Signatory to M/s. Siddartha Enterprises, which is having dealings with the complainant since several years. However, he denied the suggestion that he had borrowed amount of Rs.10,00,000/- from the complainant. Witness specifically admitted issuance of Exs.P1 and 2 with his signatures found on the cheques as authorized

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signatory to M/s. Siddartha Enterprises. He further admits that the cheques were not dishonoured as the signature does not tally, but the cheques were dishonoured as there was insufficient funds.

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The accused has produced Ex.D1 - tax invoice for Rs.62,275/-. During cross examination, he categorically admits that Ex.D1 has no bearing on the criminal case filed by the complainant. Witness states that when he learnt from the proprietor that the cheques Exs.P1 and 2 were dishonoured, he requested the complainant to return the cheques, but he had not taken any action against the complainant for not returning the cheques. Witness also states that he has not instructed his banker to stop payment. He admits that in Ex.P9 - reply notice, he has not taken any such defence regarding issuance of cheques in favour of the complainant as only the Authorized Signatory of the concerns, or regarding demanding back the cheques from the complainant.

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Ex.D2 is the letter issued by the Deputy Manager of State Bank of Mysore to certify that M/s. Siddartha Enterprises is the proprietary concern and one Smt. Shashikala Hegde is

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the proprietor, having the bank account bearing No.54047021016 with it. Relying on this document, learned counsel for the respondent contends that it was Smt. Shashikala Hegde, who is the proprietor of the M/s. Siddartha Enterprises and the accused was not the proprietor. He was only the Authorized Signatory. Even according to the complainant, he is the Authorized Signatory for M/s. Siddartha Enterprises. He cannot escape the liability after issuing the cheques in his capacity as such. The cheques were not dishonoured as the drawer was not authorized to draw the cheques, but it was dishonoured as funds insufficient, which goes to show that the accused was having authority to issue the cheques, representing M/s. Siddartha Enterprises as proprietor concern. Under such circumstances, the contention taken by the learned counsel for the respondent that the proprietor of the proprietary concern is not made a party, or that since he is only Authorized Signatory, he is not liable for prosecution under Section 138 of NI Act cannot be accepted. Once the accused admits that he was the Authorized Signatory to M/s. Siddartha Enterprises, irrespective of the fact as to

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who was the proprietor of the concern, the accused is liable for the cheque amount.

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The accused categorically takes a defence that Exs.P1 and 2 were issued by him in his capacity as Authorized Signatory for M/s. Siddartha Enterprises when the complainant supplied the furniture to the proprietary concern. Under such circumstances, even according to the accused, the cheques were issued towards discharge of legally enforceable debt and hence, the accused cannot disown his liability.

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When the complainant has discharged his initial burden and the accused has admitted issuance of cheques with his signature, the burden is on the accused to raise the defence and probabalize the same. Even if the defence taken by the accused that he had issued the cheque as Authorized Signatory to M/s. Siddartha Enterprises is to be accepted, he cannot disown his liability. Under such circumstances, the accused is liable for conviction.

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I have gone through the impugned judgment passed by the Trial Court acquitting the accused. In paragraph No.17 of the judgment, the Trial Court categorically held that

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that the accused has failed to prove the circumstances under which the disputed Exs.P1 and 2 went in to the possession of the complainant by proving his defence that the accused was very close to the complainant and that is how the complainant had misused the cheque, or that two signed blank cheques issued as security at the time of supplying the furniture were misused by the complainant. Even after going through the entire records, I do not find the defence taken by the accused that he had issued two blank cheques. But on the other hand, specific defence of DW-1 that he had issued two cheques with his signature by mentioning the amount. Even if it is the contention of the accused that he had issued blank cheques with his signature, the drawee of the cheque is entitled to fillup the cheque and present it for encashment.

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In this regard, I may refer to the decision of the Hon'ble Apex Court in Bir Singh v/s Mukesh Kumar¹ where the Hon'ble Apex Court held in paragraph Nos.34 and 36 as under:

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" 34. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the

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1 (2019) 4 SCC 197

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amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence.

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35.xxxx

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36. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt."

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The Trial Court after holding that the accused has not probabalized his defence proceeded to hold that the complainant must have proved the fact of existence of legally enforceable debt or liability. This approach of the Trial Court is against the settled proposition of law. In this regard, it is also relevant to refer to the decision of the Hon'ble Apex Court in M/s Kalamani Tex and another Vs P Balasubramanian² , wherein it is held in paragraph Nos. 13, 15 and 17 as under:

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"13. Adverting to the case in hand, we find on a plain reading of its judgment that the trial court completely overlooked the provisions and failed to appreciate the statutory presumption drawn under Section 118 and Section 139 of NIA. The statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are

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2 (2021) 5 SCC 283

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established, then these “reverse onus” clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. This point of law has been crystallised by this Court in Rohitbhai Jivanlal Patel v. State of Gujarat para 18)

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“18. In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act, the trial court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the trial court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case could not have been raised for want of evidence regarding the source of funds for advancing loan to the appellant-accused.”

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"15. No doubt, and as correctly argued by Senior Counsel for the appellants, the presumptions raised under Sections 118 and Section 139 are rebuttable in nature. As held in M.S. Narayana Menon v. State of Kerala, which was relied upon in Basalingappa, a probable defence needs to be raised, which must meet the standard of “preponderance of probability”, and not mere possibility. These principles

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were also affirmed in Kumar Exports, wherein it was further held that a bare denial of passing of consideration would not aid the case of accused.

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17. Even if we take the arguments raised by the appellants at face value that only a blank cheque and signed blank stamp papers were given to the respondent, yet the statutory presumption cannot be obliterated.

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(emphasis supplied)

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The Trial Court also held that Exs.P1 and 2 pertains to the bank account of M/s. Siddartha Enterprises and the accused is only the Authorized Signatory on behalf of the account holder and therefore, he is not liable under Section 138 of NI Act. This approach of the Trial Court is also perverse and illegal as once the accused admits that he has issued cheques Exs.P1 and 2 for and on behalf of M/s. Siddartha Enterprises as its Authorized Signatory when the complainant had supplied the furniture, the accused cannot avoid his liability under Section 138 of NI Act. On the other hand, he is liable for the same.

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The learned counsel for the respondent has placed on record several decisions as referred to above. But none of the decisions are applicable to the facts of the case. Hence, I

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am of the opinion that the Trial Court committed grave error in acquitting the accused by assigning such reasons, which are perverse and illegal. The finding of the Trial Court is against the settled proposition of law and hence, I am of the opinion that it calls for interference by this Court. Accordingly, I answer the above point in affirmative.

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REGARDING SENTENCE

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Learned counsel for the appellant and respondent submitted that they have nothing to say regarding sentence.

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Exs.P1 and 2 are dated 11.09.2014 for Rs.5,00,000/each. 10 years have lapsed after issuing the cheques by the accused in favour of the complainant. In that regard, the complainant is required to be compensated reasonably. Admittedly, no civil suit is instituted by the complainant to recover this amount. However, the fact remains that the Trial Court accepted the defence taken by the accused and acquitted him for the offence punishable under Section 138 of NI Act. Under such circumstances, I am of the opinion that the accused is not liable for maximum sentence or for imposing of substantive sentence to undergo imprisonment. The accused is

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liable for sentence which is proportionate to the offence in question.

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Accordingly, I proceed to pass the following:

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ORDER

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(i) The Criminal Appeal is allowed.

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(ii) The judgment dated 21.06.2016 passed in C.C.No.32436/2014 on the file of the learned XIII Additional Chief Metropolitan Magistrate, Bengaluru for the offence punishable under Section 138 of NI Act is hereby set aside.

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(iii) Consequently, the accused is convicted for the offence punishable under Section 138 of NI Act. He is sentenced to pay fine of Rs.15,00,000/- (Rupees Fifteen Lakhs only) within 8 weeks from today and in default to pay fine, to undergo simple imprisonment for a period of 1 year.

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Out of the fine amount, an amount of Rs. 14,00,000/(Rupees Fourteen Lakhs only), is ordered to be paid as compensation to the complainant.

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