Dismissed

Vulcan Leasing and Investments Ltd. v. U.v.Mallya

Karnataka HC20 Sept 2024CRL.A/970/2013

Case brief

AI extract

What is this about?

A single judge of the Karnataka High Court dismissed two appeals against acquittal and an application for additional documents. The court held the trial court correctly discharged the burden on the complainant after the accused successfully rebutted the presumption of debt under Section 139 NI Act via documentary evidence, as the complainant produced no loan documents despite opportunity.

What did the court decide?

Criminal Appeal Nos. 970/2013 and 971/2013 are dismissed. Inquiries Application No. 1/2014 is dismissed.

Vulcan Leasing and Investments Ltd. Vs U.v.Mallya — Cheque Dishonour | Karnataka HC (2024)

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NC: 2024:KHC:38973 CRL.A No. 970 of 2013 C/W CRL.A No. 971 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE M G UMA CRIMINAL APPEAL NO. 970 OF 2013

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C/W

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CRIMINAL APPEAL NO. 971 OF 2013

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IN CRL.A No. 970/2013

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BETWEEN:

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VULCAN LEASING AND INVESTMENTS LTD., NO.29/30, 2^ND FLOOR, SNS PLAZA, KUMARAPARK ROAD, BANGALORE 560 020. BY ITS MANAGING DIRECTOR

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…APPELLANT

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Digitally signed by SWAPNA V Location: high court of karnataka

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(BY SRI. SANDESH P NADIGER, ADVOCATE FOR SRI. G. BALAKRISHNA SHASTRY, ADVOCATE)

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AND:

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U.V. MALLYA, FLAT NO.605, A BLOCK, RAHEJA PARK, MAGADI MAIN ROAD, BANGALORE-560 018.

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…RESPONDENT

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(BY SRI. TONY SEBASTIAN, SENIOR ADVOCATE FOR SRI. MELANIE SEBASTIAN, ADVOCATE)

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THIS CRL.A. FILED IS U/S.378(4) OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 31.07.2013 PASSED BY THE XV

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2 - NC: 2024:KHC:38973 CRL.A No. 970 of 2013 C/W CRL.A No. 971 of 2013

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A.C.M.M., BANGALORE IN C.C.NO.10608/2006 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I.ACT.

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IN CRL.A NO. 971/2013

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BETWEEN:

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VULCAN LEASING AND INVESTMENTS LTD., NO.29/30, 2^ND FLOOR, SNS PLAZA, KUMARAPARK ROAD, BANGALORE 560 020, BY ITS MANAGING DIRECTOR

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...APPELLANT

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(BY SRI. SANDESH P NADIGER, ADVOCATE FOR SRI. G. BALAKRISHNA SHASTRY, ADVOCATE) AND:

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U.V. MALLYA,

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FLAT NO.605, A BLOCK RAHEJA PARK, MAGADI MAIN ROAD, BANGALORE 560 018

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...RESPONDENT

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(BY SRI. TONY SEBASTIAN, SENIOR ADVOCATE FOR SRI. MELANIE SEBASTIAN, ADVOCATE)

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THIS CRL.A. IS FILED U/S.378(4) OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 31.07.2013 PASSED BY THE XV A.C.M.M., BANGALORE IN C.C.NO.10613/2006 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I.ACT.

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THESE APPEALS, COMING ON FOR HEARING, THIS DAY,

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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 complainant in C.C.No.10608/2006 is the appellant in Criminal Appeal No.970/2013 and the very same complainant in C.C.No.10613/2006 is the appellant in Criminal Appeal No.971/2013, impugning the common judgment dated 31.07.2013, passed by the learned XV Additional Chief Metropolitan Magistrate , Bangalore city acquitting the respondent / accused for the offence punishable under Section-138 of the Negotiable Instruments Act (for short 'N.I. Act).

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For the sake of convenience, the parties shall

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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 complainant

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has filed PCR No.29182/2005, against the accused alleging

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that the accused had availed loan of Rs.1,24,000/- from the complainant to meet his personal expenses. He executed necessary loan documents in favour of the complainant and had agreed to pay interest at the rate of 24% per annum. It is the contention of the complainant that inspite of repeated demands, the accused had not repaid the loan amount and he was a defaulter. A sum of Rs.1,74,000/- with interest calculated upto 17.08.2005 was due from the accused. Towards repayment of the said amount, the accused had issued the a cheque bearing No.134124, dated 17.08.2005 for a sum of Rs.1,24,000/-

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towards payment of the principal amount. When the cheque was presented for encashment the same was dishonored, as there was insufficient fund in the account of the accused. Legal notices were issued to the accused, calling upon him to pay the cheque amount. It was served on the accused. Accused instead of repaying the cheque amount, issued untenable reply and thereby he committed offence punishable under Section - 138 of N.I. Act.

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Similarly, the complainant had filed another complaint in PCR No.29180/2005, against the respondent/ accused contending that towards repayment of the interest, that was due for him, he had issued the cheque bearing No.134105 dated 26.03.2005 for Rs.50,000/-. When the said cheque was presented for encashment, the same was dishonored, as there was insufficient fund. The complainant got issued a legal notice calling upon the accused to pay the cheque amount. Instead of paying the cheque amount, the accused had issued untenable reply and thereby he committed offence punishable under Section - 138 of N.I. Act. Therefore, the complainant in both the cases 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 C.C.No.10608/2006 and C.C.No.10613/2006 against the accused. The accused appeared before the trial court, pleaded not guilty and

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claimed to be tried. The complainant examined PW-1 got marked Exhibits-P1 to P10 in support of his contention. The accused has denied all the incriminating material available on record in the statement recorded under Section-313 of Cr.P.C. He examined DW-1 and DW-2 and got marked Exhibits-D1 to D9 in C.C. No.10608/2006. The complainant examined PW-1 and got marked Exhibits-P1 to P13 and the accused examined DW-1 and DW2 and got marked Exhibits-D1 to D3 in CC No.10613/2006. The trial court after taking into consideration all these materials on records, came to the conclusion that the complainant has not proved the guilt of the accused beyond reasonable doubt and therefore the accused was acquitted in both the cases, by passing common judgment. Being aggrieved by the same, the complainant has preferred these two appeals.

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6. Heard Sri.Sandesh P Nadiger, learned counsel

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appearing for Sri. G. Balakrishna Shastry, learned counsel

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for the appellants and Sri.Tony Sebastian, learned Senior Counsel appearing for Sri.Melanie Sebastian, learned counsel for the repsondents. Perused the materials including the Trial Court records.

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Learned counsel for the appellant contended that the accused had borrowed a sum of Rs.1,24,000/from the complainant Company agreeing to repay the same with interest. Since he was a defaulter, the complainant insisted for repayment of the loan amount with interest which worked out to Rs.1,74,000/-. Towards repayment of the principal amount, he issued the cheque bearing No.134124, for a sum of Rs.1,24,000/- dated 17.08.2005, and towards payment of interest of Rs.50,000/- he had issued a cheque bearing No.134105, dated 26.03.2005 . When the cheques were presented for encashment both the cheques were dishonored and the legal notice as per Exhibit-P5 came to be issued. On receipt of the legal notice, the accused had not repaid the loan amount, but issued an untenable reply and thereby

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he committed offence punishable under Section-138 of N.I. Act.

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Learned Counsel appearing for the complainant submitted that the accused had denied availing of the loan amount in his reply marked as Exhibit-P9, but admits issuance of the cheque as per Exhibit-P3 in both the cases. When the accused admits issuance of cheque with his signatures, the presumption of under Section-139 of N.I., would arise and the burden shifts on the accused to rebut the presumption. Even though accused cross-examined PW-1, also examined DW-1 and DW-2, and got marked few documents in support of his defence, the defence taken by the accused is not probable and therefore the presumption under Section-139 of N.I. Act is not rebutted. Under such circumstances, the accused was liable for conviction. Inspite of that the trial court proceeded to acquit the accused without any basis. The impugned

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judgment of acquittal passed by the trial court is illegal, perverse and the same is liable to be set-aside.

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Learned counsel further submitted that the appellant has filed I.A. No.1/2014, under Section-391 read with Section-378 of Cr.P.C., seeking permission to produce additional documents on the ground that at the time of availing loan, an on demand promissory note, take delivery note etc., were executed by the accused and the same were produced as additional documents. Those documents were handed over to the Advocate representing the complainant, but by mistake the same was not presented before the trial court and hence the same was required to be produced as additional documents. Accordingly, learned counsel for the appellant prays for allowing the application permitting production of additional documents and set aside the impugned judgment acquitting the accused.

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Per contra, learned Senior Advocate appearing for the respondent opposing the appeal submitted that the accused had specifically denied availing of the loan, as contended by the complainant. He submitted that the cheque No.134105, dated 26.03.2005 for Rs.50,000/- was presented for encashment and the same came to be dishonored. As per Exhibit-P5, the complainant had issued a notice intimating about the dishonor of the cheque and calling upon the accused to pay the cheque amount and close the liability. It is thereafter the cheque was presented again without any instructions. When the cheque was dishonored initially and a notice was already issued, the complainant could not have presented the cheque once again to have the cause of action revived by the complainant. On that ground C.C.No.10613/2006 was liable for dismissal.

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Learned Senior Advocate appearing for the accused further submitted that when the complainant

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issued the legal notice as per Exhibit-P5, the accused had issued the reply as per Exhibit-P9 in both the cases and a specific defence was taken denying availment of the loan and contending that the accused had entered into an agreement for sale on 28.05.2002 with M/s. RMV Clusters for purchasing the apartment bearing No. 601 and 602, constructed in the land bearing No.10/11A of Lotte Gollahalli, Bengaluru North Taluk, for a total consideration of Rs.17 lakhs. As per the said agreement, produced as Exhibit-D2, the consideration amount includes KEB and BWSSB deposits. However, later the RMV Cluster enhanced the consideration amount to Rs.22 lakhs and executed the sale deed for a total consideration of Rs.22 lakhs, as per Exhibit D3. Therefore, it is clear that the consideration amount paid by the accused to the vendor is inclusive of KEB and BWSSB deposits. However, as per Exhibit-P13 in C.C. No.10613/2006 produced by the complainant himself, the accused had written a letter dated 05.04.2004 asserting that a sum of Rs.1,94,109.75 was due to be paid to RMV Clusters and it had agreed to

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deduct Rs.52,677.36 towards the work that are carried out by the accused and Rs.17,000/- towards the bathroom fittings provided by the accused. After deducting both these amounts a balance amount of Rs.1,24,000/- was paid by Vulcon Leasing And Investments Limited, on behalf of the accused and thus KEB and BWSSB deposits were already paid by the accused.

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Further learned Senior Advocate, referring to this Exhibit-P13 submitted that the accused had made it very clear that while replying to the legal notice as per Exhibit-P9, the accused was under the impression that he was liable to pay KEB and BWSSB deposits and therefore had issued blank cheques in favour of the complainant as the same to be paid by the complainant to RMV Clusters. But later realized that the consideration amount paid under the agreement to sell Exhibit-D2 and the Sale Deed, Exhibit-D3 includes KEB and BWSSB deposits and nothing remained to be paid by the accused. Inspite of that the

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complainant had not returned the blank cheques issued by

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the accused and the same were misused.

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Learned Senior Counsel further contended that one of the Managing Directors of the complainant company Mr.J.U.Prabhu signed Exhibits-D2 to D3 and she was examined as DW-1 in both the cases. By producing all these materials on record the accused was successful in probabalising his defence and therefore he rebutted the legal presumption. Under such circumstances, the burden shifts on the complainant to prove lending of the amount and also the existence of the legally enforceable debt.

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Learned Senior Advocate contended that the accused had denied borrowal of the amount while issuing the reply notice - Exhibit-P9 and had cross examined PW1, in that line. It is specifically asked to PW-1as to whether he is having any document to prove lending of the amount. PW-1 categorically stated that he is having

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documents and he has no difficulty in producing the same before the Court. Inspite of that, no documents were produced before the trial court. The trial court after taking into consideration all these material on record proceeded to acquit the accused by passing a well-reasoned judgment and there are absolutely no reasons to interfere with the same. Hence, he prays for dismissing the appeal.

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Learned Senior Advocate submitted that when the complainant was having an opportunity to produce the relevant documents while filing the complaint or atleast when the case was pending before the trial court, he has not chosen to do so. I.A.1/2014 came to be filed after a long lapse of nine years? and there is absolutely no explanation for not producing those documents before trial court. When the accused is already acquitted by the trial court, now the complainant cannot turn around and contend that he is producing the additional documents for consideration of the court. Those documents were

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produced at a belated stage and the same cannot be

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permitted to be produced. Accordingly, he prays for dismissal of I.A. No.1/2014 and also the appeals in the interest of justice.

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In view of the rival contentions urged by learned counsel for both the parties, the points that would arise for my consideration are:

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i) "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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ii) "Whether the appellant has made out any grounds to allow I.A. No.1/2014?

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My answer to the above points is in the 'Negative' and pass the following:

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REASONS

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It is the contention of the learned counsel for the complainant that the accused had borrowed an amount of Rs.1,24,000/- on 20.04.2004 by executing necessary loan documents towards repayment of the principal amount as well as the interest. The accused had issued two cheques bearing No.134132, dated 17.08.2005 for Rs.1,24,000/- and a cheque bearing No.134105, dated 26.03.2005, for Rs.50,000/- towards the principal and the interest. It is stated that when the cheques were presented for encashment, both were dishonored as there was insufficient funds. Inspite of receipt of notice, the accused had not repaid the cheque amount but had issued the reply taking untenable defence and thereby committed the offence.

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To prove his contention the complainant initially examined Mr.S.K.Bhat as PW-1. However, the witness has not tendered himself for further cross-examination and

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therefore the said evidence led by PW-1 S.K.Bhat was expunged and another witness by name Sri.G.Sudesh Kumar appears to have been examined as PW-1, who has reiterated his contention as taken in the complaint.

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During the cross-examination of this witness he pleaded his ignorance that the accused had asked the complainant company to pay Rs.1,24,000/- to RMV Clusters towards KEB and BWSSB Charges. It is pertinent to note that during the cross-examination learned counsel for the accused specifically asked the witness as to whether the complainant is having any document to evidence granting of the loan . The witness answered in the affirmative and asserted that he can produce the relevant documents. Even thereafter, the complainant has not chosen to produce any documents to prove the fact of lending the amount.

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NC: 2024:KHC:38973 CRL.A No. 970 of 2013 C/W CRL.A No. 971 of 2013

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18 -

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It is pertinent to note that much reliance on Exhibit-D9 got marked by the accused in C.C. No.10608/2006 was placed. It is the letter issued by the complainant addressed to RMV Clusters regarding the dues of the accused. There is reference to the letter dated 07.04.2004 written by RMV Clusters and in reply to the same, the complainant had written that there was an outstanding amount of Rs.1,94,109.95 by the accused and after deducting in all Rs.69,677.36, the balance amount was Rs.1,24,000/- and the said amount was appropriated as stated in the letter. Therefore, the complainant has stated that by such appropriation, the accused has settled the balance dues to RMV Clusters in full.

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Relying on these documents the accused has examined himself before the trial court reiterating his defence as taken. The witness was cross examined at length by the learned counsel for the complainant, but nothing has been elicited from him to disbelieve his

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version. By taking a specific defence at the earliest possible time i.e., while issuing the reply as per Exhibit-P9, cross-examined PW-1 in similar lines and also deposed before the trial court about his defence which is supported by the documents including the documents produced by the 'complainant'. In the agreement to sell relied on by the

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accused produced as per Exhibit-D2 in C.C. No.10613/2006 there is a specific recital in the document that the sale consideration agreed at Rs.17 lakh includes KEB and BWSSB deposit. Under such circumstances, the letter got marked by the complainant as per Exhibit-P10 and P11 in CC No.10613/2006 asssumes importance and the said document supports the defence taken by the accused. Thus, the accused is successful in probablising his defence. Hence, I'am of the view that the accused has rebutted the presumption by raising the probable defence.

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It is the settled preposition of law that once the accused is successful in rebutting the legal presumption,

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by probablising his defence, the burden shifts again on the complainant and thus the complainant is required to prove the lending of the amount and also existence of the legally enforceable debt, without the support of the legal presumption under Section - 139 of N.I. Act. Even though the accused has probablised his defence, the complainant could not substantiate his contention regarding lending of the amount and existence of the legally enforceable debt by placing cogent materials. Under such circumstances, it needs to be concluded that the complainant is not successful in proving the guilt of the accused for the offence punishable under Section-138 of N.I. Act beyond reasonable doubt. Hence, the accused is entitled for acquittal.

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Another important point that is taken into consideration is that the cheque, Exhibit-P3 marked C.C. No.10613/2006, dated 26.03.2005, for Rs.50,000/-, the accused has produced Exhibit-D1 the notice dated 14.07.2005 issued by the complainant to state that the

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said cheque was presented for encashment and it was dishonored on 30.05.2005. Therefore the accused was

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called upon to pay the cheque amount and close his liability. But the contention taken by the complaint in C.C. No.10613/2006 disclose that there is no reference to dishonor of the said cheque at the first instance, but it is contended that the cheque was presented for encashment only on 17.08.2005 and it came to be dishonored on 18.08.2005. It is thereafter a legal notice as per Exhibit-P5 came to be issued. Even in the legal notice Exhibit-P5, there is no reference about the dishonor of the very same cheque on 30.05.2005 as referred to in Exhibit-D1 in C.C. No.10613/2006. Once the cheque was dishonored on 30.05.2005 and notice as per Exhibit-D1 in CC No.10613/2006 was issued, cause of action for initiating action under Section-138 of NI Act had arisen. Thereafter the complainant could not have presented the cheque over again, unless there was specific instructions by the accused. It is not the contention of the complainant that the accused had specifically requested or instructed him to

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represent the cheque once again and therefore the cheque was presented for encashment. Even on that count the complaint in C.C.No.10613/2006 was liable to be dismissed.

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Learned counsel for the appellant contended

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that an application in I.A. No.1/2014 is filed in both the cases seeking permission to adduce additional documents i.e., the loan application, on demand promissory note and,

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take delivery letter which are dated 20.04.2004. The private complaint came to be filed before the trial court in the year 2005 and the impugned judgment came to be passed on 31.07.2013. Therefore, the matter was pending before the trial court for eight long years. The accused had denied borrowing of the amount at the earliest point of time when he issued the reply notice as per Exhibit-P9. During cross-examination of PW-1, the accused again denied availing of the loan and specifically cross-examined the witness as to whether the complainant is having any

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document to evidence lending of the amount. PW-1 categorically stated that he will produce the documents evidencing lending of amount. Inspite of that nothing has been produced before the court in support of the contention taken by the complainant. But now, only during the year 2014 an application in I.A. 1/2014 came to be filed seeking permission to produce additional documents. I do not find any justification for the complainant for not producing the relevant documents before the trial court at the relevant point of time. Even if it is the contention of the complainant that the counsel who was representing the complainant was negligent in not producing the documents which were handed over to him, the complainant is at liberty to proceed against him for deficiency of service and also for negligence. But unless it

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is proved that the documents were in fact with the advocate representing the complainant at the relevant point of time, the same cannot be a ground to seek permission to produce documents before this Court at a belated stage. Therefore, I'am of the opinion that

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I.A.No.1/2014 filed by the complainant seeking permission

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to produce additional documents is liable to be dismissed.

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I have gone through the impugned judgment passed by the trial court, it has taken into consideration the oral and documentary evidence placed on record and has arrived at a right conclusion and I do not find any reason to interfere with the same. Accordingly, I answer both the points in the negative and hence, pass the following :

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ORDER

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Criminal Appeal Nos.970/2013 and 971/2013 are dismissed.

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I.A. No.1/2014 is dismissed.

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Sd/(M G UMA) JUDGE

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List No.: 2 Sl No.: 23

Vulcan Leasing and Investments Ltd. v. U.v.Mallya

Case brief

What is this about?

What did the court decide?

Vulcan Leasing and Investments Ltd. v. U.v.Mallya

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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