Smt.Meenaxi Narashima Mavarkar Vs Ganapati Thaleppa Sanadi

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C. SEEKING TO ALLOW THE APPEAL AND SET-ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 15.12.2018 PASSED BY THE COURT OF ADDITIONAL CIVIL JUDGE & J.M.F.C., RAIBAG IN CRIMINAL CASE NO.596/2011 AND ALLOW THE CRIMINAL CASE NO.596/2011 ON THE FILE OF ADDITIONAL CIVIL JUDGE & J.M.F.C., RAIBAG FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENT ACT AND ETC.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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The present appeal is filed under Section 378(4) of the Code of Criminal Procedure¹ by the complainant calling in question the judgement dated 15.12.2018 passed in C.C.No.596/2011 by the Addl. Civil Judge and JMFC., Raibag² whereunder, in the complaint filed by the complainant alleging commission offence under Section 138 of the Negotiable Instrument Act,1881³ by the respondent-accused, the trial Court has acquitted the accused.

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The relevant facts in nutshell leading to the present appeal are that alleging that the respondent/accused had borrowed a sum of Rs.3,50,000/- from the complainant for his family necessities and when repayment of said amount was sought, the accused issued cheque bearing No.30553299165 dated 30.07.2009 drawn on State Bank of India, Harugeri Branch, which was dishonoured with the endorsement “Insufficient funds”, the complainant filed a complaint under

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1 Hereinafter referred as ‘Cr.P.C.’

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2 Hereinafter referred as ‘trial court’

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3 Hereinafter referred as ‘the Act’

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Section 200 of Cr.P.C. That the notice dated 14.08.2009 issued by the complainant to the accused prior to filing of the complaint having been served on the accused and the accused having not responded the same, the accused has committed the offence punishable under Section 138 of the Act. The accused entered appearance before the trial Court and contested the proceedings.

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The complainant examined herself as PW1 and marked exhibits P1 to P4. The accused examined himself as DW.1 and marked exhibits D1 to D4. The trial Court acquitted the accused for the offence punishable under Section 138 of the Act. Being aggrieved by the same, the present appeal is filed.

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Learned counsel for the appellant vehemently contends that the accused in his cross examination has admitted having signed the cheque. Hence, it is contended that having regard to the presumption contained under Section 139 of the Act, the accused ought not to have been acquitted by the trial Court. It is further contended that the complainant having examined herself as PW1 and the cheque (Ex.P1) having been marked in evidence, having regard to the fact that the legal

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notice dated 14.08.2009 (Ex.P.3) having been served on the respondent-accused, as it is forthcoming from the postal acknowledgment card(Ex.P4), in view of the admission of the respondent-accused that he has signed the cheque and keeping in mind the presumption available to the complainant under Section 139 of the Act, the complaint filed by the complainant is required to be allowed and accused is required to be convicted for the offence punishable under Section 138 of the Act.

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The submissions of the learned counsel for the appellant have been considered and the material on record of trial Court has been perused the question that arise for consideration of this Court is :

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i) Whether judgment dated 15.12.2018 passed by the trial Court acquitting the accused is liable to be interfered with?

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In the legal notice (Ex.P3), it is averred that the accused has received sum of Rs.3,50,000/from the complainant for family necessities and hence, the cheque dated 30.07.2009 has been issued which was dishonoured. In the complaint, the complainant has averred that the accused

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having approached the complainant and borrowed a sum of Rs.3,50,000/- for family necessities and when the accused requested the complainant to repay the said amount, the accused issued the cheque dated 30.07.2009.

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It is pertinent to note that the complainant has not averred as to when the accused has borrowed the loan of Rs.3,50,000/- and in what manner and when the said amount has been paid by the complainant to the accused. In the cross examination, the complainant (PW1) admitted that she is doing coolie work. To the suggestion that she does not have a financial capacity to pay Rs.3,50,000/-, PW-1 has stated that she had received death benefits of her husband, who was in employment.

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The accused (DW-1) in his cross examination admits that the signature in the cheque (Ex.P1) is his signature. However, he denies that the words “GT SANADI”, written below the signature is written by him. It is further forthcoming from the record that DW.1 in his examination-inchief has deposed that he knows the complainant and that the

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sister of the complainant viz., one Parvathi has filed a complaint against the accused.

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The trial Court while appreciating the case of the parties has recorded the following findings:-

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“13. As I already discussed in order to bring home of the guilt of the accused the complainant was examined as P.W-1 in the form of affidavit and reiterated all most all the plaint averments filed in the affidavit in lieu of chief examination. She further stated in the affidavit that she knows the accused as she was member of the Kakkayya society. She further stated in her cross-examination that she was doing coolie work. In the complaint, the complainant did not stated that when the accused approached the complainant and when did she gave the loan amount of Rs.3,50,000/- and also in whose presence/witnesses she had given the said amount. Further, during the Course of her cross-examination she did not depose about the date of issuance of the cheque. So, it could be inferred from the contents of complaint that PW-1 did not know the transaction in question between her and accused. Further, during the course of cross-examination of P.W.1 she has deposed that the accused borrowed money in order to doubling the same. So, on careful evaluation and examination of oral evidence of PW-1, there are so many contradictions in her oral evidence and

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contents of affidavit as well as averments of her complaint. Similarly, the oral evidence of PW-1 creates serious doubt in the mind of this court that this is not legally enforceable debt.

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16. It could be culled out from the crossexamination of PW-1 that the defence of the accused is that, Ex.P-1 was not issued in favour of the complainant. The defense of the accused is totally denial of borrowal of loan, issuance of cheque, maintenance of his account with State Bank of India Harugeri branch. So the heavy burden is on the complainant to prove the initial burden pertaining to payment of loan, existence of legally enforceable debt, issuance of the chque by the accused. maintenance of the account by the accused and dishonor of the cheque for the reason which will attract section 138 of Negotiable Instruments act. As I already discussed, it is the specific defence of the accused is that Exhibit P-1 is not issued by him. So when such being the case heavy burden on the complainant to discharge the initial burden that Exhibit P-1 is belong to the account maintained by the accused and it was issued for legally enforceable debt. Though, the accused had taken the specific defences, the complainant has not at all made any attempt or efforts to prove that Exhibit P-1 is issued by the accused towards legally enforceable debt by adducing cogent and relevant evidence. Similarly, complainant also not produced any documents to

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show that her source of income. So under the facts and circumstances of the present case, I am of the opinion that though there is an opportunity for the complainant or PW-1 to prove the issuance of Exhibit P-1 by the accused and maintenance of account by the accused is not at all proved by the accused. So in the absence of believable and acceptable evidence, the inevitable inference is that complainant or PW-1 has failed to prove that the Cheque i.e. Ex.P-1 has been issued by the accused in favour of complainant for legally enforceable debt.”

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It is pertinent to note that Section 139 of the Act,

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stipulates that there is a presumption in favour of the holder of the cheque that the same is issued for discharge of a debt or other liability. However, it is further stipulated that the said presumption would operate “unless the contrary is proved”.

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In the present case the respondent-accused although, having received the legal notice (Ex.P.3) has not replied to the same. However, it is forthcoming from the cross examination of PW1 that the accused has disputed the entire transaction as averred by the complainant. In the said context, it is pertinent to note that as noticed by the trial Court that the complainant herself has neither averred in the notice or in the

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complaint as to when the accused had borrowed the amount from the complainant as also the details and particulars of the amount borrowed by the accused. The legal notice and complaint is completely silent as to the nature and existence of the debt.

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Although, it is the vehement contention of the learned counsel for the appellant that accused having admitted his signature in the cheque (Ex.P1), the presumption under Section 139 of the Act would operate, it is pertinent to note that the complainant herself has not averred with regard to the details/particulars of the amount allegedly borrowed by the accused from the complainant. Further, although, DW1 has admitted his signature in the cheque (Ex.P1), he has denied writing his name below the signature in the said cheque. It is further pertinent to note that complainant has stated that she is illiterate. It is also pertinent to notice that the sister of the complainant had also filed a complaint against the accused. Hence, it is clear that there are various other transactions to the knowledge of the parties which aspect has not been clearly averred by the complainant in the complaint.

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Although, it is the vehement contention of the learned counsel for the appellant that PW.1 having stated in her cross examination that she had the requisite funds, since she received the death benefits of her husband, no material/particulars is forthcoming regarding said aspect of the matter. In fact, the PW.1 has admitted in the cross examination that she was working as a coolie. It is further forthcoming from the records that the cheque was allegedly issued in the presence of the children of the complainant. However, no other persons were present at the time of giving loan.

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The trial Court while appreciating the factual matrix of the matter has rightly noticed that the presumption under Section 139 of the Act has not been raised in the present case, since the complainant has not pleaded regarding the existence of a legally recoverable debt and hence, the initial presumption being raised in favour of the complainant does not arise.

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Upon a re-appreciation of the material on record, the appellant has failed in demonstrating that the finding recorded by the trial court is in any manner erroneous and liable to be interfered with.

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