N M Puttaswamy Vs Sri H Shivanna

N.M. PUTTASWAMY S/O LATE MANCHEGOWDA, AGED ABOUT 62 YEARS, RESIDING AT NO.135, SRI VINAYAKA, 1^ST MAIN ROAD, K.G.S. LAYOUT, VIJAYANAGAR, BENGALURU-571 450.

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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NOW RESIDING AT: N.M.PUTTASWAMY, S/O LATE MANCHEGOWDA, AGED ABOUT 62 YEARS, RESIDING AT NO.28 1^ST MAIN ROAD, 2^ND CROSS, DEFENCE COLONY, SAHAKARA NAGARA BENGALURU-560 092.

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…APPELLANT

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(BY SRI. RAJU C.N., ADVOCATE)

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AND:

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SRI. H. SHIVANNA S/O HUCHAIAH, WORKING AS A SUPERVISOR AT VOKKALIGARA SANGAHA WORK SHOP, K.R.ROAD, V.V.PURAM, BENGALURU-571 450.

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ALSO AT: C/O BALE KRISHNAPPA, MARNAMI DODDI NEW EXTENSION, BESAGARAHALLI MADDUR TALUK, MANDYA DISTRICT-571 450.

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…RESPONDENT

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(BY SRI. SYED IRSHAD AHMED, ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (4) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF ACQUITTAL PASSED BY THE XVIII-ACMM, BENGALURU IN C.C.NO.15700/2011 DATED 17.10.2014 AND ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 NEGOTIABLE INTRUMENTS ACT.

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

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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Heard the learned counsel for the appellant and the learned counsel for the respondent.

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This appeal is filed against the acquittal order passed in C.C.No.15700/2011 dated 17.10.2014. The case of complainant/appellant before the Trial Court that accused is known person of the complainant for the past several years, the accused had developed well

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acquaintance with the appellant. The accused approached and requested the complainant for loan amount of Rs.5,00,000/- for his immediate family necessities. The accused assured the complainant that he will pay back the said hand loan within three months. The complainant considering the request of the accused, he has paid a sum of Rs.5,00,000/- on 10.05.2010 by way of cash as hand loan. The accused for the security and repayment of loan amount, he has issued a post dated Cheque bearing No.595017 dated 09.08.2010 for an amount of Rs.5,00,000/- drawn on Syndicate Bank with a promise that on presentation, the same would be honored without any delay. The complainant submits that the accused has requested the complainant that not to present the said Cheque on due date and requested him to present the same in the 2^nd week of June-2010 and accordingly when the Cheque was presented, the same was dishonored with an endorsement ‘Funds Insufficient’.

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It is also the case of the complainant that Cheque is legally enforceable debt and complainant brought to notice of said fact to the accused and issued a legal notice dated 03.01.2011 through RPAD and UCP calling the accused to pay the Cheque amount. The accused received the notice on 04.01.2011, after receiving the notice, the accused neither replied, nor paid the Cheque amount even after lapse of 15 days statutory period and he did not come forward to make the payment and hence, lodged the complaint and the Trial Court taken cognizance and also issued the process against the accused. The accused appeared and claims trial and did not plead guilty. The complainant in support of his case, he examined himself as P.W.1 and also got marked the document Ex.P.1 to Ex.P.9 that is Cheque dated 09.08.2010 for an amount of Rs.5,00,000/- and also the bank endorsement as Ex.P.2 and demand notice as Ex.P.3 and postal receipt and acknowledgment and also complaint is marked as Ex.P9. The accused also examined himself as D.W.1 and also examined one witness as D.W.2 and got

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marked the document as Ex.D.1 to Ex.D7 that is letter, postal receipt, postal acknowledgment, passbook of Syndicate Bank, postal order, letter from Vokkaligara Sanga.

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The Trial Court having considered both oral and documentary evidence placed on record, dismissed the complaint accepting the theory of defense of the accused who took the contention that he had borrowed only an amount of Rs.35,000/- and at the time of borrowing the money, he has issued the seven Cheques as security and two promissory notes. The Trial Court comes to the conclusion that he has not having any source of income to make the payment of Rs.5,00,000/-. Being aggrieved by the judgment of the acquittal, the present appeal is filed before this Court.

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The main contention of the counsel appearing for the appellant that the respondent admitted the signature and issuance of Cheque and thereafter he failed to make the payment in terms of the Cheque. The counsel

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also would contend that when the Cheque was presented,

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the same was dishonored and the same was communicated with the accused and inspite of it, he did not make the payment. The counsel also would vehemently contend that when the Cheque was admitted, the Trial Court ought to have drawn the presumption under Section 139 of N.I Act and they questioned whether the appellant had adequate funds to lend money and under such circumstances, he had admitted for not having maintained any records of his acquisition of funds ought to have produced other material to demonstrate that he have

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the income and the same was not a pre condition in lodging the complaint for an offence punishable under Section 138 of N.I Act.

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The counsel also would vehemently contend that when the respondent set up a defense that appellant is known to him and he borrowed the loan amount of Rs.35,000/- from the appellant and he gave 7 blanks Cheques and two promissory notes for discharge the loan

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amount to the appellant what made him to give 7 Cheques as well as two promissory notes, no explanation was offered by the respondent if really the small amount of Rs.35,000/- was availed from him and also not stated on what date he issued the Cheques to the appellant and any of his Cheques has been encashed, except the oral evidence, he has not produced any acknowledgment or any evidence to prove the fact and he paid the loan amount to the appellant and though he contend that he made the payment nothing is placed on record. The counsel also would vehemently contend that it is the contention that he had availed the loan in the month of March-2003 and in the Ex.D4 and Ex.D5 there is no reference regarding encashment of Cheques bearing 4 numbers. The evidence of Cheque No.595016 was encashed and he was keeping subsequent Cheque Ex.P.1 bearing No.595017 till 10.05.2010, almost for a period of 7 years is highly improbable. The Trial Court committed an error in accepting the defense of respondent and also

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contended that the very reasoning given by the Trial Court

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is erroneous and it requires interference of this Court.

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The counsel also brought to notice of this Court

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the evidence available before the Court and contend that the evidence of P.W.1, nothing is elicited to disbelieve the case of the complainant. He categorically denied that suggestion that he has not made the payment of Rs.5,00,000/-. The counsel brought to notice of this Court in the cross-examination of D.W.1, he categorically admits that for having received the amount of Rs.35,000/- and issuance of 7 Cheques and promissory notes is not having any document and also when the suggestion was made for having made the payment of Rs.1,750/- as interest and he is not having any document. However, he voluntarily says that he is having the document. He also admits that when he repaid the amount, he did not obtained any receipts from the complainant and also for having non return of Cheques and promissory note also he has not given any

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notice in writing and all these admissions goes against the defense of the accused.

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The counsel also would vehemently contend

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that when the D.W.2 was also examined by the accused that he was a witness for availing loan amount of Rs.35,000/- that he accompanied the accused at the time of availing the loan and he was very much present at the time of issuance of blank Cheque and promissory note but in one Cheque he has mentioned the amount as Rs.5,000/- and also says that he was paying interest of Rs.1,550/- and also says that accused was unable to make the payment of interest for a period of six months and hence, the complainant demanded the interest and the principle amount. Hence, the accused demanded six months time. In the cross-examination, he admits that he was discharging the duty as per the instructions of the accused when he was working as supervisor in Vokkaligara Sanga. He says that while advancing the Rs.35,000/- no document was collected and also he says that when the

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promissory note was given in favor of the complainant, he had not signed as witness to the promissory note, both accused and complainant did not request him to sign the document as witnesses to the promissory note. He also admits that he was not aware of what was the mode to make the payment of Rs.1,750/- as interest.

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Per Contra, the counsel appearing for the respondent would vehemently contend that transaction was taken place in the year 2003 and that too an amount of Rs.35,000/- was allowed and the counsel would submits that interest was paid from 2003 to 2010 periodically and not committed any default. The counsel also would vehemently contend that principle amount was not paid and thereafter also interest was not paid from 2010 onwards. The counsel also would vehemently contend that in support of his contention, he also relied upon the evidence of D.W.2 and he was a witness to the loan transaction. The counsel also brought to notice of this Court the admission elicited from the mouth of P.W.1

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during the course of cross-examination and he

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categorically admits that he did not enquire the salary and also the financial condition of the accused at the time of advancing the loan amount. He says that he was having annual income of Rs.8,00,000/- in the year 2010 and 2011 and also he admits that he did not mention the same in

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the income tax returns for having lend the amount of Rs.5,00,000/- and also he is not having any document to show that he was having Rs.5,00,000/- in the bank and he admits that except obtaining the Cheque, he had not obtained any other document. It is suggested that he gave

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7 Cheques and the same was denied. The suggestion was made that in Ex.P1, the signature and contents are in different ink and the same was denied that he was not aware of the same. He also admits that except the salary, he was not having any other income and he was getting the salary of Rs.25,000/- per month in the year 2010 and he was spending Rs.20,000/- per month. It is suggested that he is falsely deposing before the Court that he had made the payment of Rs.5,00,000/-. The counsel referring

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the admission given by the P.W.1, would vehemently contend that he was not having any source of income and hence, the Trial Court given the reasons that the complainant has not proved his case for having lend the money of Rs.5,00,000/-.

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Having heard the appellant’s counsel and also the counsel appearing for the respondent and also considering the material on record and also the grounds urged in the appeal as well as the oral submission of appellant’s counsel and also the counsel for respondent, the point that would arise for consideration of this Court are:

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1) Whether the Trial Court committed an error in dismissing the complaint and whether it requires interference of this Court by exercising the appellate jurisdiction?

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2) What Order?

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Having heard the respective counsels and also

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on perusal of the material avilable on record, the very averments made in the complaint are specific that the

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accused had approached him in the year 2010 requested to make the payment of Rs.5,00,000/- and also both of them having acquaintance with each other and both of them are working in the very same institution and also it is the specific case that having received the amount he gave the post dated Cheque and when the same was presented, the same was dishonored. The complainant produced the document Ex.P1 Cheque for an amount of Rs.5,00,000/dated 09.08.2010 and also produced endorsement Ex.P2 and legal notice Ex.P3 and Ex.P6 postal receipt and acknowledgment for having served the notice in terms of Ex.P7 and Ex.P8.

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Having considered the material on record, it is very clear that the Cheque was issued and the same was dishonored and notice was given and the same was served and the accused also produced the document of reply notice and the complainant did not place on record the reply and he set up the defense that he was not having any money to make the payment of Rs.8,00,000/- and he

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has availed only an amount of Rs.35,000/- and agreed to pay the interest at the rate of 5% and also he gave 7 Cheques and out of that he mentioned the amount in one Cheque an amount of Rs.1,000/- and also executed two on demand promissory note that is Ex.D1 reply was given and acknowledgment is also produced as Ex.D.3.

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The counsel appearing for the respondent also brought to notice of this Court that the reply notice was not placed before the Court, however, the counsel brought to notice of this Court the reply notice placed on record before the Trial Court. It is important to note that when the accused takes the defense that he had borrowed an amount of Rs.35,000/- and paid the interest and it is not the case that he paid the entire amount what he has received Rs.35,000/- and in the cross-examination also he categorically admits that for having received the amount of only Rs.35,000/- he was not having any documents to show the same. Apart from that he made the payment of interest of Rs.1,750/- and categorically admits that for

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having paid the interest also he was not having any documents. However, he volunteers that he has got the document, but nothing is placed on record before the Court. It is also admitted by him that when he made the payment, the complainant has not issued any receipt and also categorically admits that he has not given any notice when he did not return the Cheque and promissory note and this admission is very clear that the Cheque Ex.P1 belongs to him and he admits the signature also and only contention that he has received the amount of Rs.35,000/and in order to substantiate his contention that he has availed the amount of only Rs.35,000/-, no document is placed before the Court and also he relies upon the evidence of D.W.2 before the Trial Court and he claims that he was very much present and he accompanied the accused while availing the loan and he also given the evidence in corroborates with the evidence of P.W.1 and he was subjected to cross-examination and in the crossexamination he categorically admits that accused was working as supervisor at Vokkaligara Sanga and also he

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categorically admits that he works as per the directions of the accused. Hence, it is very clear that both of them are having acquaintance with each other and also the D.W.2 working under the instructions of P.W. 1 and in the crossexamination he says that at the time of availing the loan of Rs.35,000/-, he did not obtain any document, but very

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case of complainant that at the time of advancing the amount, the accused gave a post dated Cheque. It is important to note that it is the case of accused also that he gave total 7 Cheques, in one Cheque mentioned the amount as Rs.5,000/- and the same is not spoken by P.W.2 for having issuance of 7 Cheques and mentioning of the Rs.5,000/- but he says that in one Cheque only an amount of Rs.5,000/- was mentioned, but when the accused claims that he had also executed a two promissory note, the D.W.2 categorically admits that he did not signed the document and witness to the promissory note and when the accused says that he had given two promissory notes when he had availed the loan and what made him to give 7 Cheque as well as two

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promissory note while availing only an amount of Rs.3,35,000/-, nothing is explained and also even the D.W.2 says that interest payable is Rs.1,750/- and also he does not know what was the mode of interest payment and hence, it is very clear that D.W.2 giving evidence at the instance of D.W.1.

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It is also important to note that in 313 statement not stated anything about the payment of Rs.35,000/- as well as payment of interest and no such statement was made when he was asked to make submission with regard to incriminating evidence and hence, it is very clear that nothing is stated in 313 statement and no explanation was given and even for having received only Rs.35,000/- and even not having made the payment of interest Rs.1,750/- as contended by the accused, nothing is placed on record and no explanation was made for issuance of Cheque for an amount of Rs.5,00,000/-. It is suggested that the signature and also the contents of the Ex.P1 are in

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different ink, but on perusal of the document Ex.P1 and the same is not in different ink and even the hand writing and also the amount mentioned are in the same ink. When there is no explanation on the part of the accused, what made him to give a Cheque for Rs.5,00,000/-, no explanation. No doubt in the cross-examination of P.W.1 it is elicited that he was having the acquaintance with the accused and also he was having the income of Rs.25,000/per month. Though he claims that he was having the income of Rs.8,00,000/- per year in the year 2010, he did not place any document and also he does not have any document to show that he is having Rs.5,00,000/- in his bank account, but once the accused admits the issuance of Cheque and signature burden lies on him and what made him to issue the Cheque for an amount of Rs.5,00,000/and unless the same is rebutted by placing any probable defense and only he took the defense that he has availed loan amount of Rs.35,000/- and made the interest and having received the amount of Rs.35,000/- and also made the payment of interest, nothing is placed on record, even

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not issued any notice when the Cheque and promissory note were not returned and the admissions takes away the case of the accused and in the absence of any probable defense, though defense was set up at the first at the initial stage in terms of Ex.D1 and the same has not been proved. The Trial Court fails to take note of the said fact into consideration and also even though discussion was made that there was a legal presumption under Section 139 of N.I Act in paragraph No.15 erroneously comes to the conclusion that accused by relying upon the evidence adduced by the complainant and under these circumstances or by getting positive evidence can discharge his burden of proof regarding non existence of legally enforceable debt. The Trial Court though taken note of the judgment of the Apex Court in Rangappa V/s Mohan’s case discussed paragraph No.14, 15 and mere defense is not enough and same has to be proved by placing cogent evidence and committed an error in coming to the conclusion that the complainant has misused the Cheque by filing instrument for imaginary amount of

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Rs.5,00,000/- and when the accused himself admits the Cheque and signature, he has to rebut the same and what made him to issue the Cheque for an amount of Rs.5,00,000/- and nothing is on record to show that complainant only mentioned the amount of Rs.5,00,000/in the Cheque. The very observations made by the Trial Court is erroneous and hence, though the counsel appearing for the respondent taken the contention that he has not paid the principle amount but he has paid the interest from 2003 to 2010 and transaction was taken place in the year 2003 also nothing is placed on record and the very case of the complainant that transaction was taken place in the year 2010 and post dated Cheque was also given and in order to prove the same also the Cheque was also placed on record and when such being the case, I do not find any force in the contention of the counsel appearing for the respondent that it was only a transaction of Rs.35,000/- and he had made the payment of interest in the year 2010 and nothing is placed on record and Trial Court ought not to have accepted the defense in the

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absence of any documentary evidence as well as cogent evidence and when there is no any probable defense on the part of the accused, except taking the defense that he has availed only Rs.35,000/- instead of Rs.5,00,000/- and the same ought not have been accepted by the Trial Court and hence, the Trial Court committed an error in coming to such a conclusion. Hence, it requires interference of this Court exercising the appellate jurisdiction and hence, I answer the point as ‘Affirmative’.

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In view of the discussions made above, I pass

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the following:

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ORDER

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i) The Criminal Appeal is allowed.

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ii) The impugned judgment of acquittal order passed in C.C.No.15700/2011 dated 17.10.2014 is set-aside. Consequently, the respondent is directed to pay the compensation amount of Rs.5,25,000/- (Rupees Five Lakhs Twenty Five Thousand only) and out of that Rs.5,00,000/- is payable to the appellant and remaining Rs.25,000/- shall vest with the State. If

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the respondent fails to pay the amount within two months from today, he shall undergo sentence for a period of one year.

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Sd/(H.P.SANDESH) JUDGE

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RHS List No.: 1 Sl No.: 47

N M Puttaswamy v. Sri H Shivanna

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N M Puttaswamy v. Sri H Shivanna

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