Allowed

Sri Shivshankar Bhat v. Harish L Rao

Karnataka HC21 Nov 2024CRL.A/993/2020

Case brief

AI extract

What is this about?

Complainant appealed against acquittal in a Section 138 NI Act case where the accused admitted receipt of over Rs.10 lakh but claimed the disputed Rs.10 lakh cheque was an undated cheque given in 2011 for reference during failed antique-business investments. Finding the defence unsubstantiated and the presumptions unrebutted, the High Court held the acquittal perverse and convicted the accused.

What did the court decide?

Acquittal set aside; respondent convicted under S.138 NI Act and sentenced to pay fine of Rs.15,00,000 within 8 weeks (default SI one year), with Rs.14,90,000 as compensation to complainant.

Sri Shivshankar Bhat Vs Harish L Rao — Cheque Dishonour | Karnataka HC (2024)

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NC: 2024:KHC:47407 CRL.A No. 993 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21^ST DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE M G UMA

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CRIMINAL APPEAL NO. 993 OF 2020 (A)

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BETWEEN:

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SRI. SHIVSHANKAR BHAT S/O LATE SHESHADRI BHAT, AGED ABOUT 64 YEARS, R/AT NO.11 VASAVI NILAYA, 17^TH A CROSS 13^TH A MAIN, MALLESHWARAM, BENGALURU - 560 003.

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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. GIRIDHAR .H., FOR SRI. PRUTHVEEN P.K., ADVOCATES)

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AND:

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HARISH L RAO S/O U LAKSHMINARAYANA RAO, AGED ABOUT 48 YEARS, R/AT NO.G-1, MADAKU DURGA RESIDENCY MLA LAYOUT, KALENA AGRAHARA BANNERGHATTA ROAD, BENGALURU - 560 076.

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…RESPONDENT

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(BY SRI. M. SHARASS CHANDRA, ADVOCATE)

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THIS CRL.A IS FILED U/S.378(4) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 05.10.2019 PASSED BY THE XIII ADDL. C.M.M., BENGALURU IN C.C.NO.25690/2016 AND AWARD COMPENSATION DOUBLE THE AMOUNT OF CHEQUE DATED 05.10.2019 AND CONVICT THE RESPONDENT FOR THE OFFENCE P/U/S 138 OF N.I. ACT AS PRAYED IN THE COMPLAINT, BY ALLOWING THIS APPEAL.

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NC: 2024:KHC:47407 CRL.A No. 993 of 2020

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THIS CRL.A, COMING ON FOR FINAL 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 complainant/appellant is impugning the judgment dated 05.10.2019 passed in CC No.25690/2016 on the file of the learned XIII Additional Chief Metropolitan Magistrate, Bengaluru, acquitting the accused/respondent for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short 'NI Act') forming an opinion that the complainant has not proved the guilt of the accused beyond reasonable doubt.

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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 complainant has filed the private complaint in PCR No.10433/2016 against the accused alleging commission of the offence punishable under Section 138 of NI Act. It is contended by the complainant that

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the accused is his close relative and was working in Doctor Reddy's Lab, Bengaluru. He has left job and started the

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business under the name and style of 'Fortune Investment Consultants' along with his Wife Smt. Poornima H Rao. He approached the complainant during August 2011, requesting him to invest in the firm and offered to give huge profits. Believing the words of the accused, the complainant issued cheque bearing No.608094 dated 06.09.2011 drawn on Syndicate Bank, Gandhi Nagar Branch, Bengaluru in favour of wife of the accused for a sum of Rs.4,50,000/-. He issued another cheque bearing No.608095 dated 07.09.2011 in favour of the accused for Rs.5,00,000/-. He has also issued the cheque bearing No.608102 dated 16.02.2012 in favour of the accused for Rs.2,15,000/-. Apart from payment of the amount through cheques, the complainant paid Rs.24,10,000/- by way of cash to the accused and his wife from 06.09.2011 up-to August 2012. Thus, in all a sum of Rs.55,00,000/- was paid by the complainant to the accused.

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It is contended that inspite of the promise made by the accused that the profit will be shared with the complainant, he again approached the complainant during December 2012 and requested to invest additional sum of Rs.25,00,000/-. The accused started blackmailing the complainant as he has already

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given Rs.55,00,000/- to the accused and his wife together. The complainant mortgaged his property with Vasavi Credit Cooperative Society, Malleshwaram, Bengaluru and transferred an amount of Rs.9,75,000/- to the account of the accused on 01.02.2013 through RTGS and another sum of Rs.9,50,000/through RTGS. Thus additional amount of Rs.19,25,000/- was given to the accused by mortgaging his property. The complainant became defaulter as he could not repay the loan amount and the accused has paid Rs.5,07,170/- to the said Vasavi Credit Cooperative Society, Malleshwaram, Bengaluru. Inspite of the repeated demands made by the complainant to repay the amount, the accused refused to do so. Therefore, police complaint came to be filed by the complainant against the accused on 31.01.2015. The police have filed B report without initiating any action. Subsequently, at the request of the complainant, accused issued the cheque bearing No.000018 dated 10.08.2016 for Rs.10,00,000/- towards the amount that was due from him. When the cheque was presented for encashment, it was returned dishonored as account closed. Legal notice was issued to the accused calling upon him to pay

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the cheque amount. But the accused failed to repay the cheque amount and thereby committed the offence.

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Accordingly, the complainant requested the Trial Court to take cognizance of the offence and to initiate the legal action. Trial Court took cognizance of the offence and registered CC.No.25690/2016 for the offence punishable under Section 138 of NI Act. The complainant in order to prove his contention examined himself as PW1 and got marked Exs.P.1 to 10. The accused denied all the incriminating materials in his statement under Section 313 of Cr.P.C. He got examined DWs.1 to 3 and got marked Exs.D1 to 14 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. Accordingly, the complaint was dismissed and the accused were acquitted by passing the impugned judgment dated 05.10.2019. Therefore, the complainant is before this Court impugning the judgment passed by the Trial Court.

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Heard Sri. Giridhar H., learned counsel for Sri. Pruthveen P.K., learned counsel for the appellant and Sri. M.Sharass Chandra, learned counsel for the respondent. Perused the materials including the Trial Court on records.

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Learned counsel for the complainant contended that issuance of cheque as per Ex.P1 for Rs.10,00,000/- by the accused is not in dispute. The cheque in question was dishonored as the account was closed. Inspite of issuance of legal notice as per Ex.P3, the accused had not repaid the cheque amount and thereby he has committed the offence.

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Learned counsel submitted that Rs.4,50,000/- was paid to the accused through cheque on 06.09.2011. Rs.5,00,000/- through cheque on 07.09.2011. Rs.2,15,000/on 16.02.2012, Rs.4,00,000/on 02.07.2012 and Rs.4,00,000/- by issuing the cheque in favour of the wife of the accused on 02.07.2012. Receipt of these amounts by the accused is never disputed. It is the contention of the complainant that another sum of Rs.15,35,000/- was paid through cash from September to December 2012. Of course there are no materials to substantiate the said payment except

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the say of the complainant. Learned counsel submitted that on 01.02.2013, the complainant had transferred Rs.9,75,000/and 9.50,000/-respectively to the account of the accused through RTGS. All these payments are evidenced by records and it was never disputed by the accused. Admittedly, the complainant had filed a complaint against the accused before the police. But the police have not taken any action and they have filed B report. Even thereafter, the accused had not repaid the amount that was due to the complainant. When the complainant made repeated requests, the accused had issued the cheque Ex.P.1 for Rs.10,00,000/- towards part payment of the amount i.e., due. Admittedly, the said cheque was dishonored as the account closed. The accused had closed the account deliberately in order to dupe the complainant. Exs.P.9 and 10 are the bank pass books pertaining to the complainant which evidence the payment made to the accused and his wife as referred to above. These documents and entries in the pass book were categorically admitted by the accused during cross examination.

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Learned counsel submitted that the accused categorically admitted issuance of the cheque as per Ex.P.1.

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Only defence taken by the accused is that the date of the cheque was not written when it was issued. But when the accused admits issuance of the cheque, Ex.P.1 with his signature and it is proved that the same was dishonored and even after receipt of the legal notice, the accused had not repaid the cheque amount, the offence under Section 138 of NI Act is complete.

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Learned counsel submits that the Trial Court ignoring the evidence of PW1, the documents marked as Exs.P1 to 10, inconsistent defence taken by the accused by issuing the reply notice as per Ex.D1 and leading the evidence as DWs.1 to 3, proceeded to acquit the accused without any valid reasons. The findings recorded by the Trial Court are perverse and illegal and therefore, the impugned judgment calls for interference by this Court. Accordingly, prays for allowing the appeal.

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Per contra, learned counsel for the respondent opposing the appeal submitted that Ex.D2 is the copy of the cheque Ex.P1, which was produced by the complainant during 2015 before the police, when Ex.D3 complaint was lodged. Therefore, the contention of the complainant that the cheque

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was issued on 10.08.2016 cannot be believed. When issuance of the cheque-Ex.P.1 on 10.08.2016 is not proved by the complainant, the complaint is bound to be dismissed. Even though the accused admitted receipt of the amount as referred to in the complaint, which is evidenced by transfer through cheque or RTGS, when the complainant failed to prove issuance of cheque Ex.P1 on 10.08.2016, he is not entitled to succeed in the matter.

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Learned counsel submitted that even according to the complainant, he had invested in the business but there was no profit earned in the business and therefore, question of repayment does not arise. DWs.1 to 3 have supported the case of the accused. Under such circumstances, the accused is successful in rebutting the legal presumption under Section 139 of NI Act. The Trial Court had rightly acquitted him. There are no reasons to interfere with the impugned judgment of acquittal passed by the Trial Court. Hence, prays for dismissal of the appeal.

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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, which calls for interference by this Court?"

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

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REASONS

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It is the specific contention of the complainant that he had issued various cheques in favour of the accused and his wife as stated in the complaint on 06.09.2011 Rs.4,50,000/on 07.09.2011, Rs.5,00,000/- on 16.02.2012, Rs.2,15,000/- on 02.07.2012. Rs.4,00,000/- in favour of the accused and again Rs.4,00,000/- in favour of wife of the accused. Apart from that the complainant had transferred Rs.9,75,000/and Rs.9,50,000/- to the accused through RTGS on 01.02.2013. These payments by the complainant in favour of the accused and his wife is never disputed, rather it is admitted. Ex.P10 is

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the pass book containing the entries for transfers and the accused admits Exs.P.9 and 10 during cross examination.

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Ex.P.1 is the cheque dated 10.08.2016 for Rs.10,00,000/-. The accused admits the cheque belongs to his bank account and it bears his signature. Once the accused admits issuance of cheque with his signature, the presumption under Sections 118 and 139 of NI Act would arise. The initial burden on the complainant gets discharged and the burden shifts on the accused to rebut the presumption.

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In order to rebut the legal presumption, the accused got marked the reply notice as per Ex.D1. As per the reply notice Ex.D1, the accused has taken the specific defence that the complainant and the accused along with others under took a business in antique materials and the complainant had invested the amount during 2011. They have sustained huge loss and therefore, there is no question of repaying any amount to the complainant. The accused admits that he had paid Rs.5,07,170/- as installment towards the loan obtained by the complainant as he was the surety for the loan. It is pertinent to note that the accused admits issuance of cheque bearing

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No.000018 for Rs.10,00,000/by the complainant and contends that it was issued in the year 2011 and it was an undated cheque. The cheque remained with the complainant but not returned to the accused inspite of repeated demands. The same was misused by the complainant to present it for encashment. Therefore it is contended that the accused is not liable to pay any amount.

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The complainant examined himself as PW1 and during the cross examination, witness states that he is having the documents for having paid the amount to the accused. He is having the pass book with him. He denied the suggestion that he was carrying on the business under the name and style as Rayal Antiques along with the accused Bharath Singh, Nagaraj Deshpande and Basavaraj. He also denied the suggestion that as investment in Antique materials, he had transferred the amount to the account of the accused. The witness admits that Ex.P1 cheque was in his custody when filed the complaint before the police during 2015. However, he denied the suggestion that thereafter, the relationship between the complainant and the accused is strained and they were not in talking terms. The witness admitted that the accused had

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transferred amount of Rs.25,000/- through online but denied the suggestion that he had promised the accused that he will pay Rs.5,07,170/- and Rs.25,000/- in due course. Witness also denied the suggestion that during 2011, the cheque Ex.P1 was obtained by the complainant only for reference. But he has stated that the cheque in question was issued by the accused during 2015.

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The accused has stepped into the witness box and examined himself as DW1. He states that he never done the business under the name and style of Fortune Investments consultancy nor they have received any investment from the complainant to invest in the said business. He states that Bharat Singh came and contacted him and the complainant and induced him to invest in the antique materials, suggesting to give high returns. Witness states that believing the words of Bharat, the complainant had invested an amount of Rs.21,50,000/- along with the accused. That amount was credited to the account of Bharath. During 2011, the complainant demanded and received a cheque for Rs.10,00,000/- with his signature without mentioning the date as complainant had transferred Rs.10,15,000/- to Bharath

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Singh through the accused. The witness also states that in the meantime, one Smt. Susheela had approached him, who was running Vijaya Sai Enterprices in Hyderabad and he along with the complainant invested an amount of Rs.47,50,000/-. It is stated that the complainant had invested Rs.29,75,000/through the accused in Vijaya Sai Enterprises as capital. The witness made it clear that the accused had invested Rs.16,75,000/- and the remaining amount was by the complainant.

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The witness states that in order to pay the loan amount, obtained from Vasavi Credit Cooperative Bank, he had paid Rs.5,07,170/-. In the meantime, the complainant had filed a police complaint during March 2015 and had also shown the cheque Ex.P1 to the police. The true copy of the cheque was marked as Ex.P2 subject to objection. B report was filed by the police in the said case. Therefore, DW1 stated that even though the complainant knew that the bank account was already closed, complainant presented the cheque Ex.P1 deliberately and therefore, he is not liable for conviction.

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During cross examination, witness categorically

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admits that Fortune consultancy is the business run by him. He is having 5 to 6 bank accounts in his name and several bank accounts in the name of his wife. The witness states that he is having records to show that he had invested the amount that was received from the complainant in the business along with Bharath Singh. However, he states that he has not produced document to show that he had transferred Rs.21,50,000/- to the account of Bharath Singh. However, he maintains that he had transferred the said amount to the account of Bharath Singh. The witness states that he has not received back the amount from Bharath Singh. The witness further states that an amount of Rs.14,50,000/- was credited to the account of Vijaya Sai Enterprises and the original receipt is still with him. But the said receipt is not produced nor the bank details to show that an amount of Rs.21,50,000/- being transferred to the account of Bharath Singh was produced to prove his contentions. The witness states that he has not initiated any action against Vijaya Sai Enterprises for having not repaid the amount which he had invested. The witness admits that an amount of Rs.4,50,000/- was credited to the account of his wife by the

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complainant on 06.09.2011. He admits receipt of Rs.5,00,000/through cheque on 07.09.2011. Rs.2,15,000/- on 16.02.2012, Rs.4,00,000/- on 02.07.2012 and Rs.4,00,000/- by issuing the cheque in favour of his wife on 02.07.2012 through cheque. He admits that Ex.P9 bank pass book pertaining to the complainant and the entries made therein include two entries dated 01.02.2013 for having transferred the amount through RTGS. However, he denied the suggestion that Ex.P.1 cheque was issued towards repayment of the amount that is due to be paid to the complainant.

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The accused got examined DW2-Bharath Singh, who states that, he started business with the complainant and accused during 2011-12 dealing in antique material. The complainant had invested about Rs.10,00,000/- through accused. It was agreed if there is any profit in the business, the same shall be shared by all. But if there is any loss they have to accept it. The witness states that there was no profit in the said business and therefore, he went out of the business during 2014. The witness stated that accused had issued a cheque without any date for Rs.10,00,000/- to the complainant,

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authorizing him to draw the amount in case of any profit in the business.

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During cross examination, the witness stated that he knew accused for about 15 years. But he evaded answering as to who introduced the complainant to him. He admits that necessary license is to be obtained to deal with antique materials. He evaded answering as in who's name the license was agreed to be obtained to start the business. He pleaded his ignorance that the complainant had paid Rs.55,00,000/- to the accused. The witness stated that no business account was opened for the business undertaken in antique materials. The witness stated that the accused or the complainant have never transferred any amount to his bank account. The witness states that the complainant had issued the cheque in favour of the accused and the same was encashed by him. He also stated that it was the accused who was looking after the business transactions in antique materials.

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The accused examined DW3-Shrinivas Deshpande who states in his chief examination that Susheela had approached the accused to invest Rs.47,00,000/- in her

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business and all of them have agreed to invest in the business but there was no agreement in that regard. They only agreed to share the profit and the loss equally. Susheela was running business under the name and style as Sri. Vijaya Sai Enterprises. But there was no profit in the said business. Therefore, they have not shared it. During cross examination witness stated that he was working in Cipla Company under the accused for about 12 years. He states that Susheela was doing business in Antique materials packing and induced them to invest saying that there is a chance of earning good profit. He never verified about such chances. No agreement was entered into. No bank account was opened.

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The evidence of DWs.2 and 3 is not worth believing. It is the contention of the accused that he had received the amount from the complainant through his bank account and also the bank account of his wife, had invested the same either in Antique material trading under the name and style of Fortune Consultants or in the business run by one Susheela under the name and style of Vijaya Sai Enterprises, the complainant invested the amount in those businesses, both the business have not earned any profit and therefore, there is no

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question of returning the amount to the complainant. Accused admits receipt of various amounts through the bank accounts from the complainant, and contends that he had invested in the business. No scrap of paper is produced to probabalise the same. Admittedly, there was no license, no bank accounts, no agreement and no account books maintained. Under such circumstances, the contention taken by the accused that such business was run by investing lakhs of rupees cannot be accepted. The evidence of Dws.1 to 3 do not inspire confidence in the mind of the Court regarding their version.

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Even though PW1 states that he is having the receipt for having invested the amount, that was transferred by the complainant, in the business with DW2, but the same is not produced before the Court, when the accused admits receipt of various amounts from the complainant, either through his bank account or through the bank account of his wife, either through cheques or online transfer through RTGS, heavy burden lies on the accused to prove his defence that the amount was received towards investment in various businesses and he in deed invested in the same and has suffered loss. The defence taken

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by the accused remained only as defence without any proof. The accused has not probablised his defence in any manner.

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Ex.D2 is the copy of the cheque Ex.P1 without date. Therefore, it is the contention of the accused that cheque in question was issued during 2011 only for reference of bank account and other bank details and it was never intended to be presented for encashment. The said defence cannot be accepted as no prudent man will issue a cheque entering the name of the complainant, amount both in figure and letters and with his signature if it is to be given only for reference of the bank account. There is absolutely no explanation by the accused as to why he issued Ex.P1 with the name of the complainant with the amount and his signature. Even if defence taken by the accused that the cheque was issued prior to 2015, the liability of the accused will not be exonerated when the accused admits receipt of various amounts as stated by the complainant. He admits issuance of cheque Ex.P1 with his signature, he also admits that he had never repaid any of these amounts, under such circumstances heavy burden lies on the accused to rebut the presumption under Sections 118 and 139 of NI Act.

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Even though the accused has cross examined PW1 examined DWs.1 to 3 and got marked several documents, none of these materials would probabalise his defence that the cheque in question was issued during 2011 only as reference to the bank details. The defence taken by the accused that there was two businesses run by him along with DWs.2 and 3 and one Susheela and also that the complainant had invested the amount and had suffered loss also cannot be accepted in the absence of any materials to substantiate the same. When the accused fails to rebut the legal presumption under Section 139 of NI Act, he is liable for conviction.

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I have gone through the impugned judgment of acquittal passed by the trial Court. The trial Court has committed an error in drawing adverse inference against the complainant for not referring to the reply notice marked as Ex.D1 while filing the complaint. It is pertinent to note that the complainant never denied issuance of reply notice and the notice Ex.D1 was marked during cross examination of PW1 as he admitted the document. But the Trial Court thrown the complaint away solely on the ground that the complainant had

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not referred to the reply notice in his complaint and that the complainant has not issued any rejoinder for the said notice, which was not a requirement of law. The Trial Court held that complainant had not approached it with true facts and the complainant had failed to corroborate his contention and to disprove the contention of the accused. The approach of the Trial Court is very strange and unknown to law. Simply because the accused has given reply as per Ex.D1 and examined DWs.1 to 3, the burden will not be shifted on the complainant to disprove the contention of the accused unless he is successful in rebutting the legal presumption. Therefore, I am of the opinion that the approach of the trial court in proceeding to acquit the accused is perverse and illegal. Therefore, the impugned judgment calls for interference. Accordingly, I answer the above point in affirmative .

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REGARDING SENTENCE

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Leaned counsel for the appellant and the respondent submits that they do not have anything to say regarding sentence.

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The cheque is dated 10.08.2016. The accused admitted receipt of various amounts, which is more than Rs.10,00,000/-,

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which was paid by the complainant either through cheque or through RTGS. Inspite of admitting receipt of the amount, the accused had taken inconsistent defence to contest the matter and was successful in evading punishment for at least 7 to 8 years, compelling the complainant to prefer the appeal before this Court. Even though the accused is not liable for maximum sentence, he is liable for reasonable sentence, proportionate to the offence committed. Considering the fact that the Trial Court has accepted the defence taken by the accused, and acquitted him, I am of the opinion that the accused is not liable for substantive sentence, however, he is liable for fine. 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 05.10.2019 passed in CC No.25690/2016, on the file of the learned XIII Additional Chief Metropolitan Magistrate, Bengaluru, is hereby set aside.

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(iii) Consequently, the accused/respondent is convicted for the offence punishable under Section 138 of NI Act and he is sentenced to pay fine of Rs.15,00,000/-

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within 8 weeks from today in default he shall undergo simple imprisonment for a period of one year.

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Out of fine amount, sum of Rs.14,90,000/- is to be paid to the complainant as compensation.

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Send back the TCR along with copy of this judgment.

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Sd/(M G UMA) JUDGE

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List No.: 2 Sl No.: 59

Sri Shivshankar Bhat v. Harish L Rao

Case brief

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Sri Shivshankar Bhat v. Harish L Rao

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