Allowed

N.Vijaya Kumar v. The State of Telangana

Telangana HC7 Sept 2022CRLA/134/2018

Case brief

AI extract

What is this about?

High Court allowed criminal appeal against acquittal in a cheque bounce case. It held that the accused failed to rebut the presumption of legally enforceable debt under the Negotiable Instruments Act, even without specific documentary evidence of the loan source.

What did the court decide?

Accused convicted and sentenced to pay a fine of Rs. 3,25,000/-. Compensation of Rs. 3,00,000/ to the complainant payable on realization of the fine.

N.Vijaya Kumar Vs The State of Telangana — Cheque Dishonour | Telangana HC (2022)

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I I I

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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WEDNESDAY.THE SEVENTH DAY OF SEPTEMBER TWO IHOUSAND AND TWENTY TWO

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PRESENT

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THE HONOURABLE SRI JUSTICE N.TUKARAMJI

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CRIMINAL APPEAL NO: 134 OF 2018

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Crl.Appeal Under Section 378 (4) of Cr.P.C. against the Judgment dated 06-04-2017 in CC No. 676 ot 2O13 on the file of the Court of the Additional Judicial Magistrate of First Class at Kalwakurthy

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Between:

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N.Vrjaya Kumar S/o. Late Srisarlam , Aged about 50 years Occ-Busrness, Rio. H.No. 1 9-121 , Grampanchayath Road. Kalwakurthy Village and Mandal, Mahabubnagar Drstrict. ...APPELLANT/ Complainant

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AND

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The State of Telangana, Rep. by its Public Prosecutor, High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh .. Respondent

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Gtidharlala Agarwal S/o. Kishorelal Agarwal , aged about 57^years, Occ: Business, Proprietor of Sharad Dresses, Grampanchayath Road, Kalwakurthy, Mahabubnagar Drstrict

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...RESPODENTi Accused

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Counsel for the Appellant: SRl. DIDA VIJAYA KUMAR

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Counsel for the Respondent No.1 : THE PUBLIC PROSECUTOR

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Counsel forthe Respondent No. 2 : NONE APPEARED

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The Court made the following: ORDER

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THE HoNOURABLE SRIJUSTICE N. TUKARAMJI

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CRIMINAI APPEAL No.134 of 201u

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ORDER:

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1'his rrppc.rl has been filccl i:y, thc con-rplrrinant, cl-rallcnging ttrc proplicry o[ judgment of acqtrittal undcr Section i38 of Negotiable Instruments,Acr, 1881 (lor short,'the Nl Act') clatcd 06.04.2011 in (-.C.No.676 oi 2013 passed by the ;\ddirional Judicial Magistratc of First Class rr I(alwakurthy.

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Iror thc sake o[ convenience thc parties would hereinalter be rc[erred as l)er thcir arrav bclorc thc^'l'rial Court.

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The casc of the complair.rant in brief is that on 04.01.2013, the accused approrched him ftir hand loan to mcct his urgent business nccessitics.^{'fl.rcreupon,} (a) on 10.10.2013, the amoLrnt of Rs.1,25,000/\'as extenclecl agarnst rvhich the post datcd chcquc bearing No 175633/llx.P1 rvas drarvn on the Andhra Bank, Raghupathipet Brarrch. (b) Sirniiarly, on 1,1 .04.2013, the accused obtained hand load of Rs.75,000 /- and issucd anothcr post datcd chequc bearing No.175637/Ex.P2. (c) l.ater, on 24.07.2013, the accused requested [or 1ts.1,00,000/ as hand kran and the same rvas lcnr under post dated

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'I IT.J 2 i ria Ill 2018

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chcque datcd bearing Nr>.263502llix.P-l lor l{s.1,00,000/-. All thc cheque s were drawn on Andhra Ilank, Ragl.rupathipcr llranch

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As the accuscd neglccted rcpavmcnr, the compiainant demandcd the ioan amount in the first vcek o[ October, 2013. I'lowever, on assurance givcn by thc accused, thc complainant presented all the thrce chcqucs at his bank ar APG.rll, Kahvakurthy second branch on 10.10.2013 for realizaaol. Floter.cr, thosc cheques wcre returned unpaid with an endorsement "lnsufficicnt funds" undcr the cheque return memos/Exs.P4 and P5.^'Ihcreupon, complainant got issuecl statutory noticc on 12.11 .2013 /L;,x.P6 undcr the Itegistered Post for Acknowledgment Due/Ex.P7, which was served under acknowlcdgment/Flx.P8. ,\s the respondent failed to clcar the cheque dues, [rled the complaint.

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In enquiry, the complainant got examined himself as P.W-1 and markcd Exs.P1 to P9. No deFcncc evidence was adduced.

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The trial Court having regard to thc materials on record concluded that the cornplainant failed to provc the signature of the accused on the cheque and also the legal enforceable dcbt. Thus .rccorded^{the finding of acquittal against the accused.}

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NIR.J ( ria ll.l 2018

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Aguricved thcrc[:r', thc conrplainant in appeal contcstcd that the

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lcarncd trial Cotrrt lailed to apprcciate that tl-re cltcclucs bclonging to tlre accused.^'l l-rc obscn arior-r that loan is not rcflcctccl in lncomc^'I'ax llcturn as sucl-r, it is lcgallt, unenforceable is crroncous and as the enure transaction is rvithin thc months of April, 20 1 3 to Dccembcr, 2013 rvhich is u,ithin the financial year, therc woulci bc no occasion to file 'Income Tax Rerurn. lrurther, the obsen,ation regarcling the material lltcration of cheque has no place as the correction is r.erified and signed by the drawer/accused. That apart, by the suggestions the accused admittccl that the cheques and signaturcs on them belong to hirn.^'l'hercfore, the observation o[ Trial Court that thc che<1ues are ncithcr proved nor disproved is flallacious and thc trial Court had tailed t,r properl1, considcr the lactual and legal aspccts, hcncc praycd for re appreciation antl record the guilt and convict the accused.

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-- In spitc of due noticc, the accused appeared tl-rrough counsel but

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choose to rcmain silent.

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In this positiofl, the point that arises for dctcrrmnarion is:

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'l%hether the complainant fu able to bring the accused tnder Sectioi-^* I i8 of rbe NI Act belond rcannabb doabt?"

NTIT.J Crla lll l0lS

POINT:

The complainant as Ir.W-1 rcitcrated thc conrcnts o[ complainr as to thc hand loan transactions oi Rs. 1,25,000/-, Rs.75,000/- ant) Rs.1,00,000/- and assurance rhurgh lfxs.Pl to I)3, thc post clated chcques given by the accuscd.^'l-hc case of thc accused is bare dcnial. However, in cross-examination, the accuscd suggestcd that the signed \VCTC chequcs which kcpt in tl-rc officc wcre misused b1, 6hg complainant. It is also suggcsted that the cheques rverc kept fcrr thc pulpose of joint real estate business and in vicw o[ the dispute rcgarding 1000 squarc yards, thosc blank checlues werc filled up and presentcd by the complainant. Thus, suggestions are cxplicatiflg the stand o[ the accused and the implied admission as to thc che<1ucs/ Ilxs.Pl to P3 bclongs to him and thcv contain his signatures. Thus prima facie, the essential facts that the chcques belong to the accused and they were drawn on his bank account and it contains his signature stands prima facie cstablished.^'Ihus, presumptions raised under Section 139 of the NI Act shall come into play in Favour o[ thc complainant.

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NIt.J trr ll,1 21.)lli

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lhc ll,)11'l)lc Apcxt^(.or.rr:r irr Triyambak S.I{egdc r,. Sripadr lrad approvcd thc dictum in Basalingappa v. Mudibasappa2 and hclcl tlrar thc llresLrmption under Scction 139 of thc NI Act mandates tlrat tlre ch. tprc issucd lor the dischargc o[ anv debt or lcgal tiabilitv, h, rs'cvcr it is rcbuttablc. Thr-rs the onus would be on thc accused to rrLtse probairlc dclcncc cvcn b)'rclving on thc n1,rtc1:ial subrnitred by thc c, ,n-rirlrrinan t. ln consequence, it shail be hcld that the prcsumption cor.crs thc lcgal enflorceable dcbt against the I]xs.P1 to P3.

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i2.^'l'he lccused raised the lollowing aspects in cross-cxamination of the conrplainant/P.W-1 to defend his case:

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a)^'lhc []x.P-1, cheque bearing No. 175633 is rnaterially altered bv thc cornplainant.

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werc b) 1'hc signed cheques, which were kcpt in the oflfice misLrsecl by the complainant.

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c)^'l'hc blank cheques which were kept for the purpose o[ realcstttc business were filled by thc complainant

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t 1zozz1 t scc t+z ' lzors;^{s scc<to}

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Nl R-r Crla lll :t)18

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d)^'fhe cornplainant failed to put trp thc sourcc of thc amounr or

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[r]ed thc Income^-1 ax Returns and also failcd ro pl1)vc rhc genuiniq, oI transactio,

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1,3. It is setded proposition that thc instrumcnt of cl.reque i[ rnatcriallv altcrcd, rcndctccl rt voicl. T'herefi;re, ii the rnatcrial altcrauon o[ the instrumcnt, i[ cstablished, it cannot bc cnf<rrccd against the drawer who did not give his approval [r-rr such matcrial alteration. On perusal, the cheque/Ex.P-1 is disclosing that the digit '2' appears to bc o\rcr wrltten. However, thc signarure of the drarver in full is appearing beneath it. Furthcr, the amount in words on thr: chequc is shown as corrected numerical on thc chequc. Irurthcr, the cndorscment by the drawer is propedy made on the instrumcnt is reflecung his intcnuon. Thercfore, the contcntion of material allegauon o[ chc<1ue/llx.P-1 stands unsustainable.

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The next objection is the blank chequcs which r.vere kcpt for t[.re WCfC purposc o[ reai-cstate business in the office used by the complainant. However, the complainant except^{suggestingthc P.W-1} did not give any particulars, as to how marry blank^{cheques u',ere kept} and where thc accused came to know, rvhat was the real estate busincss

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N IR.I Crl.! Ii1 20ls

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tr:lni:rcri()lr lr,. nvccr-r the complainant and accused wcrc lcit r-rncrplerncrl. liurthcr, colnmon prudencc suggcstcd that oncc signcd ncg()tiabic lrlstrLrmcnt is nrisplaced or takcn as,av bv s()me pcrson, the agurrcvccl^.,r ill tirkc Llp s()me legal course to protect his intere sts. N<r such rror.c wlrs f,tlcrst pleadcd by the accused.

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l'ire orhcr conrcndon is that thc source of lunds is not explained and thc Inc, rnrc^'l'ax lte rurns arc not filed to prove the genuniq,' of transaclion rLnd lcgally enflorceable debt per re does not burden the com;rlainant. Lrnul the accused places probablc defence to rcbut thc P^{rcsrl l.n} ll^L1()11

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In thc sin.rilal conrcxr, the Hon'blc Apex Court in Rohitbhai Jivanlal^{Prtel Vs, State of Gujarat& Another3} 1n para.No.19

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obscrved thar

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".....'l'be obrcruatiou of the Trial Court that there wat no docanenlary euidence to thow the nurce o/fundt with the respondent lo adt,,tnce lbe loan, or that tbe rcspondenl did not record the transalion in the Jorm of rccerpt of euen kachcha noteq or tltat there uere ircon-rislencies in the statemefit of the nmp/ainant and his uitttet.s, or that the atitnat of tbe complaint uar more in know of factt^{tlc.u,au/d hauebeenrebuanl if tbe nafurwas to be examined} with ralitence to tbe onw on the complaint t0 pmue h* case bgond teann,th/e doubl These considerationr and obyruations do not $andⁿ - in cotfbmtig uith the pruumption exitting fu fauour o/ the

r zoro 1ts1 scc 106

\tR.-

t'rla lll 2013

rlntPlaittant b1 uirlue oJ.fectioas /18 and 1)9 of t/te i:tl Act. )iecdhss /0 rciterale /hat the ftrillt 0f such prcswtption i.; t/tat existence of a lega//1 enforceabb debt is to be prc.rumed in.farour oJ' lhe conplainant. lYben sach a presuruption is drawtt, l/te.t'aion relating to the want of dorumcntary euidence in the .fbntt oJ'rcceiVts or dcclafitr 0r u./anl of euidenre as regardt source ofJnnd.r tere ml oJ' rc/euant consideration abi/c examining lf the accuted ha.r been able to rebut the presamption or not. . . "

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11 . T'hercfore, the dissension of the accuscd docs not susrain simply

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because complainant has not filed anything regarding sourcc o f funds. Thus, the onus lasts on the accused to shorv that the chcque was not given for discharge o[legally cnforccable debt or the liabitiq, had becn discharged.^'fhere[ore, all thc necessary ingrcdicnts t() constttutc the offcncc under Section 138 of the NI Act stands establshed and thcrefore, the accused should be held guilty o[ oflence under Scction 138 ol the NI Act.

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In the circumstanccs, considering the nature of transaction rvhich is of the year 2073, to tedress the loss to thc complainant directing the accused to pay the finc and on rcaltzatton rule to pav compensation to the complainant is found reasonable instead o[ imposing the substantivc sentences.

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\ I It.J Crla l.]1 20lS

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19 [n thc restrlt, thc rrppcrl is allorvcd.^{'fhc judgnrcnt} of actluittal trndcr Scction li8 of thc NI r\ct dated 06.04.2017 in C.C.No.676 <:f 2[)13 passecl bv rhc r\dtliti()r)al -]udicial Magistrate <.,f Irirst Class at I(a ls,'r lirr rth v is sct asiclc.^'l'lic accused is convicted and scntenced to par' fine ol l{s.3,25,000/ Qlupees three lakhs rwenq, Frve thousand onll) and in dcf:tult shall undcrgo simple imprisonmcnt for one year firr the oflencc rrnclcr: Scction 138 of the NI Act and on realtza:j.or, of tht flnc amount. lts 3,t)0,000i - (llupces thrce lakhs onll) shall bc paid tc-r thc complainant.^'fhc rccuscd shall pay the fine within a month of reccipr of a c()pv of this juclgment, failing which hc shall surrender bclore thc tlial^(-ourt elsc, thc trial Court shall take all necessary steps fc>r erccutiorr of thc scntcnce in accordancc with the law.

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N{iscelllncous I)ctitions, pcnding if any, shall stand closed.

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sd/- K.^{SRI N lvA9} JOINT^REGISTRAR -83-O-.r t. / v/ //TRUE^COPY// SECTION^OFFICER

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The^{Additional Judicial Magistrate of First Class at Klwakurthy' Mahabubnagar} Dist

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Two CCS^{to Public Prosecutor'High Court for the State of Telangana at} Hyderabad^(OUT)

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One^{CC to SRI DIDA VIJAYAKUMARAdvocate IOPUC]}

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4- Two CD^CoPies

HIGH^COURT

NTRJ

DATED:0710912022

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J LiDG { l!N1'

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CRL.APPEAL No.134 of 2018

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ALLOWIN(; TH I,-^('RI,.APPEA I-

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N.Vijaya Kumar v. The State of Telangana

Case brief

What is this about?

What did the court decide?

N.Vijaya Kumar v. The State of Telangana

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

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