Dismissed

Mr. Naveen a. v. Vs Mr. Srinivasa Murthy. S

Karnataka HC19 Mar 2024CRL.A/747/2018

Case brief

AI extract

What is this about?

Complainant appealed against acquittal in a cheque-dishonour case. The court found the accused had made substantial part payments towards principal and interest which the complainant failed to deduct, so the cheques did not represent the legally enforceable debt. Following Dashrath Bhai Trikambhai Patel, it upheld the acquittal and dismissed the appeal.

What did the court decide?

None granted; appeal dismissed and trial Court acquittal confirmed.

Mr. Naveen a. v. Vs Mr. Srinivasa Murthy. S — Cheque Dishonour | Karnataka HC (2024)

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CRL.A NO.747 OF 2018 1

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF MARCH, 2024 BEFORE

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THE HON'BLE MS.JUSTICE J.M.KHAZI

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CRIMINAL APPEAL NO.747 OF 2018

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BETWEEN:

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MR. NAVEEN A.V., S/O MR.A.S. VISHWANATH, AGED ABOUT 38 YEARS, R/AT NO.62/10, 1^ST FLOOR, SUCHITRA APARTMENT, COLES ROAD, FRAZER TOWN, BENGALURU - 560 005.

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……APPELLANT

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(BY SRI.M.D. RAGHUNATH, ADVOCATE)

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AND:

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MR. SRINIVASA MURTHY S., S/O MR. YERRAPPA, AGED ABOUT 42 YEARS, R/AT NO.602, 6^TH FLOOR, DEVATHA PLAZA, RESIDENCY ROAD, BENGALURU - 560 025.

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…….RESPONDENT

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(BY SRI.B.M.LOKESH, ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C PRAYING TO ALLOW THE PETITION, SET ASIDE THE ORDER OF THE LVII ACMM, MAYO HALL, BENGALURU IN C.C.NO.51428/2016 DATED 08.03.2018 AND CONVICT THE ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 16.02.2024, 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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This appeal is by the complainant challenging the acquittal of respondent/accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short 'N.I.Act') by the trial Court.

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

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Complainant filed the complaint against the accused alleging that in order to overcome his financial difficulties, accused approached complainant and borrowed a sum of Rs.4,50,000/-. Accused agreed to pay interest at the rate of 3% p.m. i.e, Rs.13,500/- p.m. He also issued three cheques dated 05.11.2015 for Rs.2,00,000/, Rs.1,50,000/- and Rs.1,00,000/-. He also issued one more cheque for Rs.2,50,000/- dated 05.11.2015 towards part payment of interest. Accused assured prompt payment of the amount on presentation of cheques to the bank. Complainant presented the cheque, through his banker. To his shock and surprise,

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CRL.A NO.747 OF 2018 3

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they were dishonoured with endorsement "Funds insufficient’’. Complainant got issued legal notice dated 17.12.2015. Though it is duly served, accused has neither paid the amount nor sent any reply and hence the complaint.

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After due service of summons accused

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appeared through counsel and resisted the complaint. He pleaded not guilty and claimed trial.

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To prove the allegations against accused,

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complainant has examined himself as PW-1 and got marked Ex.P1 to 16.

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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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Accused has examined himself as DW-1 and got marked Ex.D1 to 5.

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Vide the impugned judgment and order, the trial Court dismissed the complaint.

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Aggrieved by the same, complainant has filed

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this appeal, contending that the trial Court has erred in dismissing the complaint and acquitting the accused. The trial Court after giving findings that complainant has proved that the accused has borrowed hand loan, it ought to have convicted him. The trial Court has not appreciated the oral and documentary evidence placed on record in right perspective. Ex.D1, which is a clinching document shows that accused was due to pay the amount to the complainant. Ex.D1 though shows that certain payments are made, but not Rs.9,39,603/- as claimed by the accused. In Ex.D3, on 16.01.2016, it is stated that after payment of Rs.1,00,000/- still there is balance of Rs.3,50,000/-. When accused has not sent reply to the legal notice, it is to be presumed that he has accepted the averments made in the legal notice. The findings of trial Court are contrary to the decision of the Hon'ble Supreme Court. Viewed from any angle the impugned judgment and order are not sustainable and it calls for interference by this Court and hence the appeal.

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In support of his arguments, learned counsel for complainant has relied upon the order passed by this Court in Crl.A.No.1401/2012 dated 23.11.2023.

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On the other hand, learned counsel for accused has supported the impugned judgment and order and submitted that though accused borrowed hand loan of Rs.4,50,000/- from the complainant, four cheques in question were issued by way of security and as evident from the oral and documentary evidence placed on record and the admissions given by the complainant during his cross-examination, several payments have been made by the accused towards part payment of the amount due. Without giving deduction to the said payments, the complainant in order to make wrongful gain has made claim for the entire amount and interest and rightly the trial Court has dismissed the complaint and pray for dismissal of appeal also.

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Heard elaborate arguments of both sides and perused the record.

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The fact that accused borrowed a sum of Rs.4,50,000/- from the complainant and issued the subject cheques is not in dispute. Accused claim that the cheques were issued blank by way of security and even though several payments have been made, without giving deduction to them, the complainant has filled up the cheques for excess amount. After receipt of notice when he met the complainant and enquired about the balance, he was told that only Rs.1,00,000/- is due and accordingly, though he has paid the said amount, violating the promise made to him, complainant has filed the complaint.

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In the light of the fact that accused admit borrowing loan of Rs.4,50,000/- and issuing the subject cheques, though by way of security, they are drawn on the account of the accused maintained with his banker and it bears his signature, presumption under Section 139 of N.I Act comes into operation to the effect that the cheques are issued towards repayment of any legally recoverable debt or liability and the initial burden is on

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the accused to prove his defence, after which the burden shifts on the complainant to prove his case. The specific defence of the accused is that he has paid the entire amount and in fact, the payment made by him, including the interest is in excess of what the complainant is entitled. In fact after receipt of notice he has paid balance of Rs.1,00,000/-. Despite the complainant has chosen to file the complaint by violating the promise made to him.

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Though the complainant dispute that the entire loan amount along with interest is paid, during his cross-examination he has given several admissions, which are material and contradicts the case put forth by him. Even though in the complaint, the complainant has not pleaded and stated about agreement dated 08.11.2012 executed between the complainant and accused, during cross-examination of the accused, he has got it marked as Ex.P16. This agreement was entered into between the complainant and accused at the time of lending Rs.4,50,000/-. It refers to only three

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cheques at Ex.P1 to 3 for a total sum of Rs.4,50,000/which is the principle amount paid by way of hand loan. This document does not speak with regard to accused having issued fourth cheque for Rs.2,50,000/- which is marked as Ex.P4 stated to be towards payment of interest at the rate 3% p.m.

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However during his cross-examination the accused has admitted of having issued the cheque at Ex.P4. Of course, he has claimed that all the cheques were issued blank. However, Ex.P16 state that the cheques which are marked at Ex.P1 to 3 are for Rs.1,50,000/- Rs.1,00,000/- and Rs.2,00,000/-, but they are described as undated cheques. In fact, the complainant has stated that the name of payee was also

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blank and he has filled it. In the absence of reference to Ex.P4 in Ex.P16, the say of accused that it was given blank need to be accepted. Having regard to the fact that

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the cheques were undated and name of the payee was also left blank supports the defence of the accused that

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they were issued by way of security and meant to be returned after payment is made.

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Now coming to the defence of the accused

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that he has already paid entire amount. During the course of his cross-examination, complainant has admitted that as per Ex.D1 accused has paid interest and he has a affixed his signatures in page 10 to 13. He has claimed that Ex.D1 refers to only payment of interest and not the principle. However in the next sentence, the complainant has admitted that as per Ex.D2 principle as well as interest has been paid. He has conceded that on 16.01.2016, he has received Rs.1,00,000/- which is subsequent to the issue of legal notice. In Ex.D1, it is stated that Rs.1,00,000/- is paid towards principle and still Rs.3,50,000/- is due.

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In the light of admissions given by the complainant, during his cross-examination, the entry that still Rs.3,50,000/- is due towards the principle is incorrect. When suggested that the accused has paid more than Rs.7 lakhs, the complainant has expressed

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ignorance. However, he has not come up with definite amount received by him towards principle and interest. Despite the same, it is established by the accused that the entire principle in a sum of Rs.4,50,000/- and interest in a sum of Rs.2,50,000/- was not due as claimed in the legal notice and complaint.

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Of course, during the course of his evidence,

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the accused has deposed that so far he has paid Rs.9,39,603/- to the complainant towards principle and interest and nothing was due and sought for dismissal of the complaint. He has been cross-examined at length with regard to the exact payments made by him. The perusal of entire oral and documentary evidence placed on record, including the admissions given by both complainant and accused, it is evident that after securing hand loan of Rs.4,50,000/- the accused has issued Ex.P1 to 3 cheques which were undated and without specifying

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the name of the payee and as such, they were issued by way of security. Though the accused has made several payments towards principle as well as interest, without

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giving deductions to the said payments, the complainant has chosen to issue notice for the entire sum of Rs.4,50,000/-. He has utilised one more cheque given by the complainant and fill it up for Rs.2,50,000/- claiming interest and filed the complaint.

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At this stage it is relevant to refer to Section 56 of N.I. Act deals with endorsement for part of sum due. It provides that no writing on a negotiable instrument is valid for the purpose of negotiation if such writing purports to transfer only a part of the amount appearing to be due on the instrument; but where such amount has been partly paid a note to that effect may be endorsed on the instrument, which may then be negotiated for the balance.

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In Dashrath Bhai Trikambhai Patel Vs. Hitesh Mahendrabhai Patel and Anr. ( Dashrath Bhai¹ ), the Hon'ble Supreme Court has dealt with the effect of part payment made after the cheque is drawn, but before it is

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1 (2023) 1 SCC 578

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encashed and it is dishonoured for the entire sum. It held that:

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For attracting Section 138, as per proviso(b) a demand notice needs to be made by the drawee and an Omni bus demand notice (For the entire sum) without specifying as to what was the amount due under the dishonoured cheque would not subserve the requirement of law. Further, when a part payment of the debt is made after the cheque was drawn, but before the cheque is encashed, such payment, held, must be endorsed on the cheque under Section 56 of N.I Act, and the cheque cannot be presented for encashment without recording part payment. Therefore, if the unendorsed cheque is dishonoured on presentation, the offence under Section 138 of N.I act would not attract, since the cheque does not represent illegally recoverable debt at the time of encashment.

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At para No.34 of the judgment, the Hon'ble

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Supreme Court summarized the findings as under:

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"34.1 For the commission of an offence under Section 138, the cheque that is dishonoured must represent a legally enforceable debt on the date of maturity or presentation.

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34.2 If the drawer of the cheque pays a part or whole of the sum between the period when the cheque is drawn and when it is encashed upon maturity, then the legally enforceable debt on the date of maturity would not be the sum represented on the cheque.

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34.3 When a part or whole of the sum represented on the cheque is paid by the drawer of the cheque, it must be endorsed on the cheque as prescribed in Section 56 of the Act. The cheque endorsed with the payment made may be used to negotiate the balance, if any. If the cheque that is endorsed is dishonoured when it is sought to be encashed upon maturity, then the offence under Section 138 will stand attracted.

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34.4 The first respondent has made part-payments after the debt was incurred and before the cheque was encashed upon maturity. The sum of rupees twenty lakhs represented on the cheque was not the "legally enforceable debt" on the date of maturity. Thus, the first respondent cannot be deemed to have committed an offence under Section 138 of the Act when the cheque was dishonoured for insufficient funds.

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34.5 The notice demanding the payment of the "said amount of money" has been interpreted by judgments of this Court to mean the cheque amount. The conditions stipulated in the provisos to Section 138 need to be fulfilled in addition to the ingredients in the substantive part of Section 138. Since in this case, the first respondent has not committed an offence under Section 138, the validity of the form of the notice need not be decided."

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Thus, as per Section 56 of N.I. Act

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indorsement for part of the amount appearing to be due on the instrument is prohibited. However, as per the second part of the Section, there is no impediment for the complainant to make a note on the cheques regarding the part payment and present it for balance.

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When the accused has made part payments, the complainant was not supposed to claim the entire amount due under the cheque. He was required to give deductions to the payments made and present the cheque only for balance amount. For obvious reasons, the complainant has not given deductions to the principle as well as the interest received.

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So far as judgment of Co-ordinate Bench of this Court in Crl.A.No.1401/2022 dated 23.11.2023 is concerned, on facts it was held that the cheque was issued towards repayment of legally recoverable debt or other liability and therefore, on its dishonour the offence punishable under Section 138 of N.I. Act is attracted. However, in the present case the issue involved is totally different, wherein though accused admit receipt of hand loan has claimed that the entire amount is paid. However, the evidence placed on record prove that part payment towards principle and interest was paid and since complainant has not given deductions for the payment so made, it is held that the cheque does not

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represent the actual amount due and therefore, the offence under Section 138 of N.I. Act is not attracted for the entire amount reflected in the cheques and as such the accused is not liable to be punished. Therefore, the above decision is not applicable to the case on hand.

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Taking into consideration the overall evidence placed on record both complainant and accused, the trial Court has rightly held that allegations against accused are not proved and acquitted him. This Court finds no justifiable grounds to interfere with the conclusions arrived at by the trial Court. In the result, the appeal also fails and accordingly, the following:

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ORDER

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(i) Appeal filed by the complainant under Section 378 (4) Cr.P.C is dismissed.

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(ii) The impugned judgment and order dated 08.03.2018 in C.C.No.51428/2016 on

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the file of LVII ACCM, Bengaluru is confirmed.

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(iii) The Registry is directed to send back the