Dismissed

H C Murali v. Syed Naveed

Karnataka HC12 Mar 2024CRL.A/622/2014

Case brief

AI extract

What is this about?

Complainant appealed against acquittal under Section 138 NI Act, alleging a Rs.1,60,000 cheque for sand sold on credit was dishonoured. The High Court found the accused proved signatures were taken on a blank cheque and stamp paper as security and most of the debt was repaid, upholding the acquittal and dismissing the appeal.

What did the court decide?

Appeal dismissed; judgment and order dated 27.02.2013 in C.C.No.78/2011 acquitting the accused confirmed; Registry directed to return trial court records.

H C Murali Vs Syed Naveed — Cheque Dishonour | Karnataka HC (2024)

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CRL.A No. 622 of 2014 NC: 2024:KHC:10040

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MS JUSTICE J.M.KHAZI CRIMINAL APPEAL NO.622 OF 2014

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BETWEEN:

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H C MURALI AGED ABOUT 35 YEARS, S/O CHANNAKESHAVE GOWDA, R/O NO.96, PARASAIANAHUNDI VILLAGE, KASABA HOBLI, MYSORE TALUK AND DISTRICT - 570 027.

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…APPELLANT

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(BY SRI. P NATARAJU, ADVOCATE)

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AND:

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Digitally signed by REKHA R Location: High Court of Karnataka

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SYED NAVEED AGED ABOUT 41 YEARS, S/O MAHAMMED, R/O KANAGALU VILLAGE, PERIYAPATNA TALUK, MYSORE DISTRICT - 571 107.

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…RESPONDENT (BY SRI. ABUBACKER SHAFI, ADVOCATE)

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THIS CRL.A IS FILED UNDER SECTION 378(4) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER PASSED BY THE LEARNED I ADDITIONAL I CIVIL JUDGE & JMFC AT MYSORE, IN C.C.NO.78/2011 DATED 27.02.2013 AND MAYBE PLEASED TO CONVICT THE RESPONDENT FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT, BY ALLOWING THIS APPEAL IN THE INTEREST OF JUSTICE AND EQUITY.

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

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CRL.A No. 622 of 2014 NC: 2024:KHC:10040

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JUDGMENT

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Being aggrieved by the acquittal of

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respondent/accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short 'N.I. Act'), the complainant has challenged the order of trial Court in this appeal filed under Section 378 (4) of Cr.P.C.

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For the sake of convenience, parties are referred to by their rank before the trial Court.

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It is the case of complainant that he is carrying on business in the sale of sand, collecting and storing the same from and near Kattepura Village, Arkalgud Taluk. Accused being the owner of lorry used to purchase sand from him and developed acquaintance. In the said background, accused used to take sand from complainant on credit basis. He has purchased several loads of sand in a sum of Rs.1,60,000/- which became due in the month of March 2010. When he requested for payment, expressing his financial problem, accused issued cheque dated

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06.08.2010 for a sum of Rs.1,60,000/- with an assurance of prompt realization on presentation. However, when the cheque was presented through his banker, it was dishounoured for want of sufficient funds. Though he issued legal notice to the accused and it is duly served, he has not chosen to repay the amount due and hence the complaint.

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After due service of summons, accused appeared before the trial Court and contested the case by pleading not guilty.

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In order to prove the allegations against accused, complainant has examined himself as PW-1 and relied upon Ex.P1 to 6.

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

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CRL.A No. 622 of 2014 NC: 2024:KHC:10040

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In fact, accused has stepped into the witness

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box and examined himself as DW-1 and one witness as DW-2. He has relied upon Ex.D1.

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Vide the impugned judgment and order, the

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trial Court dismissed the complaint.

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Aggrieved by the same, complainant has filed this appeal, contending that the impugned judgment and order passed by the trial Court is contrary to law, facts and evidence on record. It suffers from infirmities and illegalities. Though complainant has proved the allegations against accused beyond reasonable doubt, the trial Court has acquitted him without any justifiable reasons. Having regard to the fact that accused admit the fact that the cheque belongs to him and it bears his signature, presumption under Section 139 of N.I. Act is attracted. However, the accused has failed to rebut the same. He

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has not even sent reply to the legal notice setting forth his defence. Viewed from any angle, the impugned judgment and order are not sustainable and pray to allow the

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appeal, convict the accused and sentence him in accordance with law.

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On the other hand, learned counsel for accused has supported the impugned judgment and order by stating that accused purchased sand from the complainant on credit basis and at that time, complainant took his signature on blank paper and also collected the subject cheque in blank by way of security. Though accused has repaid the entire amount except Rs.18,000/-, complainant has chosen to file the complaint by filling the cheque as well as stamp paper according to his convenience and rightly the trial Court has held that the presumption is rebutted and acquitted the accused and sought for dismissal of the appeal also.

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Heard elaborate arguments of both sides and perused the record.

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It is not in dispute that complainant is engaged in sale of sand by purchasing the same in auction. Though

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accused admit that he purchased sand from the complainant, he has claimed that only on one occasion he purchased sand on credit basis and at that time accused took his signature on a blank stamp paper and cheque and though he has paid the entire amount, except Rs.18,000/, the complainant has rushed to the Court.

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Having regard to the fact that the cheque in question belongs to accused, drawn on his account maintained with his banker and it bears his signature, presumption under Section 139 of the N.I Act is operating in favour of the complainant, placing the initial burden on the accused to prove that the cheque was not issued towards repayment of any debt or liability and on the other hand to establish the circumstances in which the cheque has reached the hands of the complainant.

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During the course of his evidence, complainant has reiterated the complaint averments. Ex.P6 is stated to be an undertaking given by the accused regarding the transaction between complainant and accused for purchase

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of sand on credit basis. However, at the first instance accused has not disclose the fact of Ex.P6. However, he has claimed that this document is pertaining to some earlier transaction and it is not relating to the present case. The accused has denied that except one transaction, he has not purchased sand from complainant on credit basis and his signature to Ex.P6 and cheque were taken when they were blank. The fact that accused is an illiterate and knows only to affix his signature is not in dispute. In fact complainant has admitted that Ex.P6 is in his handwriting. Though he has denied that Ex.P1 cheque is also filled up by him, he has not come up with any explanation in whose handwriting it is filled. He has also not deposed that when Ex.P6 was given to him, it was filled up. During his cross-examination, complainant has stated that he has done Masters in Arts (M.A).

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In the complaint, complainant has pleaded that the sand lot was sold to the accused for Rs.1,60,000/- and in fact the subject cheque is also for Rs.1,60,000/-. On the

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other hand, it is the definite case of the accused that the sand lot was sold to him for Rs.1,63,000/-. In fact during his cross-examination, complainant has admitted that the said transaction was for Rs.1,63,000/-. In Ex.P6 which is dated 10.12.2009, it is stated that the sand lot is sold for Rs.2,00,000/-. According to the complainant the transaction with regard to which Ex.P1 was issued took place during March 2010. Though the complainant has claimed that he has maintained account with regard to sale and purchase of sand, he has not produced the same.

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If Ex.P6 does not pertain to the present

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transaction and as per this document, during December 2009 the complainant has sold sand worth Rs.2,00,000/- to the accused. He has not come up with any details whether by March 2010, this amount was already paid so that again he could go ahead with selling sand to the accused on credit basis. If the sand sold through Ex.P6 was still due, it is doubtful whether the complainant would further allow the accused to make further purchase on credit basis. Moreover,

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in the complaint, the complainant has not pleaded that accused was in the habit of purchasing the sand on credit basis. The fact that in the complaint, complainant claim that the transaction was for Rs.1,60,000/- and during crossexamination, he admits that it was for Rs.1,63,000/- and in Ex.P6 it is stated to be worth Rs.2,00,000/- supports the defence of the accused that his signature was taken to stamp paper and cheque when they were blank and subsequently they were filled up.

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Both accused and DW-2 Rajegowda have deposed that only once accused purchased sand from the complainant on credit basis for a sum of Rs.1,63,000/- and at that time his signatures were taken to a blank cheque and stamp paper and subsequently, they have been filled up. They have also deposed that the amount due was paid in instalments except Rs.18,000/-, at which stage complainant has presented the cheque and filed the complaint. In fact accused has produced a small note book at Ex.D1 and complainant has admitted that the book contains certain

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entries in his handwriting. His signatures therein are marked as Ex.D1 (a) to (e). One of the entries is dated 05.01.2010.

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If these entries are with regard to some other transaction, there was no impediment for accused to plead that earlier to the present transaction, there were several transactions between him and accused on credit basis. Through the evidence of DW-1 and 2 and also through the cross-examination of complainant, the accused has proved that in respect of the credit transaction in question, his signature were taken to a blank cheque and stamp paper and though he has made substantial payment, utilizing them complainant has filed this complaint. On the other hand complainant has failed to prove that in respect of credit transaction in question, Ex.P1 and 2 were issued by the accused.

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Taking into consideration the oral and documentary evidence placed on record, the trial Court has come to a correct conclusion that the charge leveled against accused is not proved and acquitted him. After re-

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appreciation of the same, this Court finds no justifiable grounds to interfere with the said conclusions arrived at by the trial Court. In the result, the appeal 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 dismissed.

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ii) The impugned judgment and order dated 27.02.2013 in C.C.No.78/2011 on the file of I Addl.I Civil Judge and JMFC, Mysuru, 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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List No.: 1 Sl No.: 71

H C Murali v. Syed Naveed

Case brief

What is this about?

What did the court decide?

H C Murali v. Syed Naveed

Case brief

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What did the court decide?

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