Dismissed

Dr. G. Venkat Rao, v. Dr. a. Pattabhi Ramaiah

Telangana HC20 Aug 2014CRLA/1681/2006

Case brief

AI extract

What is this about?

In this criminal appeal, the appellant challenged the acquittal of the accused for offense under Section 138 NI Act. The High Court held the lower appellate court’s view that the receipt was for discharge of partnership dues, not a loan, and the defence was established on probabilities.

What did the court decide?

Criminal Appeal dismissed; original conviction and acquittal of the accused at the lower appellate stage set aside.

Dr. G. Venkat Rao, Vs Dr. a. Pattabhi Ramaiah — Cheque Dishonour | Telangana HC (2014)

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HON’BLE SRI JUSTICE C. PRAVEEN KUMAR

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CRIMINAL APPEAL No.1681 of 2006

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JUDGMENT:

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The appellant/complainant preferred the present appeal under Section 378 (4) Cr.P.C. aggrieved by the judgment dated 31.08.2006 passed in Crl.A.No.56 of 2005 on the file of the Sessions Judge, Warangal, wherein the appellate Court reversed the finding of the trial Court and acquitted the accused.

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For the sake of convenience, the parties will hereinafter be referred to as arrayed in C.C.

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The facts in issue are as under:

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The complainant filed a private complaint against the accused for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short “the Act”). The averments in the complaint would disclose that the accused and the complainant are Orthopedic Surgeons and are acquainted with each other both professionally and personally. It is stated that taking advantage of the acquaintance, the accused approached the complainant on 20.06.2001 and requested him to lend money to meet his necessities. Pursuant to the repeated requests made by the accused, on 20.06.2001 the complainant advanced an amount of Rs.1,35,000/-. To that effect the accused is said to have issued a receipt Ex.P1 on the same day so as to induce confidence in the mind of the complainant. When the complainant demanded the accused for repayment of the amount, the accused is said to have issued a cheque Ex.P2 bearing No. 955871 for an amount of Rs.1,00,000/- towards partial discharge of the debt drawn on State Bank of India, Balasamudram Branch, Hanamkonda, on

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15.12.2002, assuring that there was sufficient balance in his account. The said cheque when presented for collection was returned due to insufficient funds vide Ex.P3 cheque return memo. The complainant orally informed the said fact to the accused and also issued a notice dated 18.12.2002 by Registered Post with Acknowledgment Due, which was served on the accused on 19.12.2002. But the accused neither gave a reply nor repaid the amount covered under cheque. Hence, a private complaint came to be filed for an offence punishable under Section 138 of the Act.

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After recording the sworn statement of the complainant, the case was taken on file as C.C.No.141 of 2003 on the file of the IV Additional Judicial First Class Magistrate, Warangal, and summons were issued to the accused. On appearance of accused, copies of the documents were furnished to him as required under Section 207 Cr.P.C. and thereafter he was examined under Section 251 Cr.P.C., in which he denied the offence and claimed to be tried.

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In support of his case, the complainant examined PWs.1 and 2 and got marked Exs.P1 to P12.

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After closure of the complainant’s evidence, the accused was examined under Section 313 Cr.P.C. explaining the incriminating material available on record, but the same was denied by the accused.

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In order to prove his defence the accused examined himself as DW1 and got marked Exs.D1 and D2.

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After analyzing the evidence available on record, the trial Court convicted the accused but in appeal the lower appellate Court acquitted the accused holding that an offence under Section

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138 of the Act is not made out. Challenging the same the present appeal is filed by the complainant.

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The learned counsel for the appellant would contend that the defence of the accused that the cheque was not issued in discharge of any debt or liability has no legs to stand. According to him, Ex.P1 receipt said to have been issued by the accused for Rs.1,35,000/- on 20.06.2001 i.e. the date on which the loan was taken, establishes the fact of taking hand loan. Since the signature on Ex.P2 cheque is not in dispute, it is to be presumed that the cheque was issued in discharge of a debt. It is thus contended that Exs.P1 and P2 amply established taking of loan from the complainant and issuing of cheque in discharge of the said debt. He further submits that an adverse inference has to be drawn since the accused failed to rebut the initial version of the complainant by giving a reply to the notice. In any event he submits that the complainant and accused being good friends, the complainant has no motive to foist a false case. In fact, no material has been placed on record to show that the said complaint is filed with a malafide intention.

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On the other hand, the learned counsel for the accused would submit that subsequent to taking of hand loan on 20.06.2001, the complainant had issued two cheques on 27.06.2001. One was for Rs.2,40,000/- in favour of the wife of the accused and another was for Rs.1,40,000/- in favour of the accused, for the amount due by him. Issuance of those two cheques by the complainant is not in dispute. That being the position, the question of accused taking a hand loan of Rs.1,35,000/- from the complainant on 20.06.2001 appears to be highly improbable. According to him, these two cheques were

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given pursuant to the dissolution of partnership firm on 30.05.2001. He further submits that if really Ex.P1 receipt was issued in discharge of a loan taken, the same should have been reflected in the receipt itself. He further submits that from the evidence of PW.1 an amount of Rs.9,00,000/- was due by the complainant pursuant to a dissolution of firm. Out of which some amount was paid by cash and some amount was paid by way of cheques. Ex.P1 receipt was issued with regard to the cash received from the complainant and not towards any hand loan as alleged. Since the accused has discharged his burden not only through the evidence of PW.1 and also examined himself as DW.1, he submits that the lower appellate Court has rightly rejected the complaint and acquitted the accused.

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Before dealing with the rival issues, it would be appropriate to refer to the evidence of PW.1 and DW.1.

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PW.1 in his examination in chief reiterated the averments made in the complaint. During cross examination, PW.1 admits about he joining as a partner in Udaya Clinic, Balasamudram in the year 1996 and investing an amount of Rs.3.00 lakhs. In the said nursing home the accused and his wife also joined as partners. According to him, the said partnership firm was dissolved on 30.05.2001. He also admits that at the time of dissolution of partnership firm he fell due an amount of Rs.9.00 lakhs to the accused and his wife. Out of which some amount was paid by way of cash and the remaining amount by way of cheque. He further admits that after dissolution of the firm, there were cordial terms between him and the accused for a period of one year. He further admits that on 27.06.2001 he issued two cheques bearing Nos. 948677 and 948676 for Rs.2,40,000/- and Rs.1,40,000/- to

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the wife of the accused and the accused respectively. He also admits that except dissolution of partnership firm there was no other transaction between him and the wife of the accused who was a homeopathy doctor. He speaks about the pendency of a case with regard to the medical negligence before the District Consumer Forum vide C.D.No.109 of 1999. He also admits that the accused was an opposite party in the said case. Pursuant to a registration of consumer dispute case, the complainant and the accused together deposited an amount of Rs.2.00 lakhs towards payment of compensation if any awarded by the District Consumer Forum. The Xerox copy of the FDR was filed. He also speaks about accused taking loan on the said FDR and himself signing on the loan documents i.e. giving consent for taking loan on the FDR.

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It is further stated that at the time of taking loan amount, the accused promised to repay the same. However, to a suggestion that Ex.P2 cheque in dispute was taken as a security, while giving consent to the loan taken by the accused on the FDR was denied by him. PW.1 in his cross examination also admits that the contents of Ex.P1 the receipt said to have been issued by the accused were scribed by him and the signature belongs to that of the accused. He further admits that Ex.P5 the legal notice issued by him, is silent about the hand loan of Rs.1,35,000/- taken by him. To a suggestion that a false case has been filed by taking advantage of Ex.P1 receipt was denied by him.

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PW.2 is the Branch Manager, State Bank of India, Balasamudram Branch. He speaks about the presentation of the cheque and return of the same due to insufficient funds. He also speaks about a joint FDR being taken in the name of the complainant and the accused in the year 2003. He also admits

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that except Ex.P2 no other cheque issued by the accused was dishonoured and that the account of the accused is still in existence.

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To counter the evidence of PW.1, the accused examined himself as DW.1. In his evidence DW.1 deposed about the existence of a consumer dispute case, deposit of Rs.1.00 lakh each by the complainant and the accused in case of damages to be awarded in the said case, dissolution of partnership firm due to strained relations between the complainant and the accused and issuance of cheques by the complainant to the accused and his wife. The accused, who examined himself as DW.1 was subjected to lengthy cross examination. He denied taking of hand loan from the complainant and also the execution of Ex.P1 for the alleged hand loan taken by him.

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It has been elicited from the evidence of DW.1 that in Ex.P2 cheque issued by him except the date, the writings on the cheque are written by him. He also admits that the signature and date mentioned on Ex.P1 are that of him. He admits the receipt of Rs.1,35,000/- was executed on 20.06.2001. He voluntaries and says that as the firm was dissolved, some of the amount due to him was paid by way of cash for which the receipt was issued. He tried to explain the issue of non-issuing of reply notice by stating that after the receipt of notice from the complainant, he approached the complainant in the month of December, 2002 and appraised about the circumstances. He also admits about taking a loan of Rs.1.00 lakh and issuing of an undated cheque for Rs.1.00 lakh as security to the complainant pursuant to a demand made by the complainant.

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That being the position, the question that arises for

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consideration is whether Ex.P1 receipt was issued pursuant to a hand loan taken from the complainant and whether the cheque dated 15.12.2002 was issued in discharge of the said debt.

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The genesis of the case is the receipt dated 20.06.2001. The contents of receipt go to show that the accused received a sum of Rs.1,35,000/- from one G.Venkat Rao. The signature on the receipt is not in dispute but as admitted by PW.1 the contents of receipt are written by him. It has also come on record that there was no transaction between the complainant and the accused except receipt of the amount after dissolution of the firm.

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As seen from the evidence, a week after execution of receipt dated 20.06.2001, the complainant is said to have issued two cheques for Rs.2,40,000/- and Rs.1,40,000/- in favour of the wife of the accused and in favour of the accused respectively. PW.1 also admits about dissolution of a partnership firm on 30.05.2001, he has to pay a sum of Rs.9.00 lakhs to the accused. He also admits that out of Rs.9.00 lakhs he paid some amount by way of cash and some amount by way of cheques. When the complainant is due to pay a sum of Rs.9.00 lakhs pursuant to a dissolution of partnership firm on 30.05.2001 and when two cheques dated 27.06.2001 for Rs.2,40,000/- and Rs.1,40,000/- were given by the complainant to the accused and his wife on 27.06.2001 itself, the question of accused taking hand loan on 20.06.2001 for Rs.1,35,000/- appears to be improbable. Further, PW.1 in his evidence admits about the pendency of a consumer dispute in which the accused was shown as an opposite party. He also admits about the contribution of Rs.1.00 lakh each by both of them for payment of any damages in case the issue is decided against the partnership firm by the forum. The said

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amount was deposited in a bank by way of fixed deposit in the year 2003. The said fact was also spoken to by the Branch Manager, who was examined as PW.2.

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It is also the version of PW.1 that the accused has taken a loan of Rs.1.00 lakh on the joint FDR of Rs.2.00 lakhs and that he went to the bank and signed on the document for giving consent to the loan. The version of the accused is that at that time the complainant demanded issuance of an undated cheque for Rs.1.00 lakh as a security for the loan taken on the fixed deposit in which the contribution of the complainant was Rs.1.00 lakh. Under those circumstances, the accused is said to have issued an undated cheque for Rs.1.00 lakh in favour of the complainant. It may be noted that the said loan was obtained on 10.07.2002 and the cheque which is subject matter of dispute is dated 15.12.2002.

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One of the ground urged by the learned counsel for the appellant is that there was no need for filing a false case against the accused as the evidence on record establish that both the complainant and accused were on cordial terms. According to him no malafide intention is established for filing a false complainant against the accused. But the evidence of PW.1 would show that both the complainant and accused were on cordial terms for a period of one year after dissolution of the firm on 30.05.2001. The cheque in dispute is dated 15.12.2002. Therefore, it cannot be said that both of them were on cordial terms even on the day when the cheque was presented for collection. In any event the relationship between the parties cannot be a ground to show as to whether the cheque was issued in discharge of any debt or liability.

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It is true that the accused did not give any reply to the

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notice issued by the accused, but that by itself cannot be a ground to draw an adverse inference against him. Drawing of an adverse inference against the accused on the ground that he failed to issue a reply notice depends upon the facts and circumstances of each case. In case on hand the accused was able to probabalise his defence by eliciting information from PW.1 himself, thereby causing no prejudice to the complainant by not giving any reply to the notice. As stated above, the probability of the accused obtaining loan on 20.06.2001 is inherently improbable, when the complainant himself was due to accused a sum of Rs.9.00 lakhs as on 30.05.2001 and a sum of Rs.3,80,000/- was paid a week thereafter. Further, the admission of PW.1 that he paid part of amount by way of cash and part of amount by way of cheques, lends credence to the defence of the accused that Ex.P1 receipt was executed pursuant to payment of cash by the complainant towards part of his share pursuant to the dissolution of partnership firm.

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It is to be noted that if really Ex.P1 receipt was given in discharge of hand loan taken, PW.1 would have definitely mentioned about the same in the legal notice issued by him. He admits in his evidence that Ex.P5 legal notice is silent about taking of hand loan of Rs.1,35,000/- by the accused and issuing of Ex.P1 receipt. The defence of the accused is that he obtained a loan of Rs.1.00 lakh on a joint fixed deposit of Rs.2.00 lakhs taken in the name of the complainant and himself. According to him, the complainant came to the bank, gave consent for taking loan and while giving consent he said to have asked for an undated cheque for Rs.1.00 lakh as security. The said defence of the accused stands established to the utmost extent, since PW.1 himself admits in his evidence about a consumer case being filed against

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the accused, both of them taking fixed deposit jointly, accused obtaining loan of Rs.1.00 lakh on the said FDR and he giving consent while taking loan. He admits the entire case of the accused but however denies the issuance of cheque as security for the loan taken on the FDR towards the share of the complainant. Therefore, the plea of the accused which appears to be probable cannot be rejected as unsustainable when all other circumstances in the case throw a needle of suspicion on the case of the complainant.

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For the aforesaid reasons, the appeal is liable to be dismissed and the same is accordingly dismissed.

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As a sequel thereto, Miscellaneous Petitions, if any, pending shall stand closed.

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_____________________ C. PRAVEEN KUMAR, J 20.08.2014. gkv

Dr. G. Venkat Rao, v. Dr. a. Pattabhi Ramaiah

Case brief

What is this about?

What did the court decide?

Dr. G. Venkat Rao, v. Dr. a. Pattabhi Ramaiah

Case brief

What is this about?

What did the court decide?

What the court decided

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