Looking to the above said circumstances, I am of the opinion, the initial presumption under Sections 118 and 139 of Negotiable Instruments Act cannot be said to have been rebutted by the accused. Of course, the accused need not rebut the presumption beyond all reasonable doubt as it is incumbent upon the complainant to prove his case beyond reasonable doubt. Nevertheless, the accused has to place sufficient materials to convince the Court that his case is probablised when it is compared with the case of the complainant. If the accused has failed to establish that 21
his case is proved by means of preponderance of possibility that is to say, probabilities placed by the accused have the capacity to preponder over the case of the complainant then only such materials should be accepted. Mere a distorted version or mere taking up the plea or the defence that he is not liable to pay any amount or he discharged the amount are not sufficient to put back the burden on to the complainant to prove his case beyond reasonable doubt.
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 02ND DAY OF JUNE, 2014
BEFORE:
THE HON’BLE MR. JUSTICE K.N. PHANEENDRA
CRIMINAL APPEAL NO. 2689/2009
BETWEEN:
Sripad
S/o Vasudeva Jannu
Vs
Sri. Ramadas M. Shet,
The present appeal is preferred against the
Judgment passed by the Principal J.M.F.C., Honnavar
in C.C. No. 77/2006 dated 11.06.2009 in acquitting the
accused for the offence punishable under Section 138 of
Negotiable Instruments Act.
2.
Being aggrieved by the said Judgment and Order
passed by the Trial Court, the complainant approached
this Court seeking indulgence of this Court to reverse
the judgment of acquittal and to convict the accused for
the offence under Section 138 of Negotiable Instruments
Act.
3.
The
respondent
appeared
before
this
Court
through his Counsel. I have heard the learned Counsel
for the appellant and as well as the respondent.
4.
I have gone through the oral and documentary
evidence submitted by both the parties before the Trial
Court and also the Judgment of the Trial Court.
On
overall analysis of the entire materials on record, a point
that would arise for consideration of this Court is :
“Whether the Appellant has made out any
reasonable or substantial ground to interfere
4
with the Judgment of acquittal recorded by
the Trial Court” ?
5.
The learned Counsel for the appellant strenuously
contended that on overall reading of the materials on
record
including
the
cross-examination
of
the
complainant and the evidence of the accused it is clearly
established
that
the
accused
has
admitted
the
transaction between himself and the complainant and
the accused has taken up his plea by way of defence
that
the
cheque
which
was
presented
by
the
complainant to the Bank was forged one and the said
cheque was forged by his brother’s son.
The second
contention taken up by the accused was that he has
repaid the entire amount under the cheque on different
dates by way of issuing cheques and also by way of
giving cash amount to the wife of the complainant. The
last contention taken up by the accused is that there
was absolutely no amount due, therefore, he has not
replied the legal notice issued by the complainant under
Section 138 of N.I. Act.
6.
The learned Counsel strenuously contended that
these defence taken by the accused have not been
proved even by preponderance of probabilities.
When
such being the case, the initial presumption under
Section 118 and 139 of the N.I.Act shall be drawn in
favour of the complainant holding that the complainant
has proved his case and therefore, the Trial Court ought
to have convicted the accused person for the offence
under Section 138 of N.I. Act.
7.
Per contra, the learned Counsel for the respondent
strenuously contended that the accused in fact has
admitted that he had previously issued a cheque for
Rs.50,000/- and the said cheque was not presented.
He has also entered into further transaction and the
further transaction has been completely cleared by the
accused by making the payment to the complainant. He
further contends that the accused has specifically
stated in his evidence that, the cheque was forged one
and therefore, it becomes the burden on the part of the
complainant to establish that the said cheque was
issued by the accused by referring the cheque to the
expert in order to prove the signature on the cheque by
the accused. When the complainant has not done that
the complainant has failed in his case and accordingly,
the Trial Court has rightly recorded reasons for
acquittal.
He further contends that the complainant
has not produced any iota of evidence to show that he
has such money with him to advance any loan to the
accused. He has not produced any income tax returns
in order to show that he has money transaction with the
accused.
Therefore, culminating all the above said
circumstances, the Trial Court has rightly acquitted the
accused and the said judgment does not call for any
interference at the hands of this Court.
8.
Having heard the above said arguments, this
Court has to see under what circumstances the Court
can interfere with the judgment of conviction passed by
the Trial Court.
9.
It is well known principle of Law as laid down by
the Hon’ble Supreme Court in a recent decision giving
certain guidelines under what circumstances the Court
can interfere with the judgment of acquittals.
decision
between
Karnataka
S.
reported
Govindaraju
in
2013
(4)
Vs.
AKR
In a
State of
289 at
paragraph 15 the Hon’ble Supreme Court has laid down
certain principles i.e. to say:
“It is a settled legal proposition that in
exceptional
circumstances,
the
appellate
Court, for compelling reasons, should not
hesitate to reverse a judgment of acquittal
passed by the Court below, if the findings so
recorded by the Court below are found to be
perverse, i.e. if the conclusions arrived at by
the Court below are contrary to the evidence
on record, or if the Court’s entire approach
with respect to dealing with the evidence is
found to be patently illegal, leading to the
miscarriage of justice, or if its judgment is
unreasonable and is based on an erroneous
understanding of the law and of the facts of
the case. While doing so, the appellate Court
must bear
in
mind
the presumption
of
innocence in favour of the accused, and also
that an acquittal by the Court below bolsters
such presumption of innocence”.
Bearing in mind the above said principles, now let me
consider the materials on record.
10.
I have carefully perused the complaint averments
and the evidence of the complainant in his examination-
in-chief.
It is the case of the complainant that the
accused has taken a loan of Rs.50,000/- from the
complainant and for discharge of the said loan he has
issued a cheque in No. 749402 dated 28.02.2005 for a
sum of Rs.50,000/-. The said cheque was presented to
the Bank and the same was returned with a shara
“funds insufficient”.
Thereafter, the complainant has
issued a notice on 02.04.2005 and thereafter he has
given Rs.5,000/- cash and he pleaded for time to pay
the remaining amount.
Again, the complainant has
asked for the remaining amount of Rs.45,000/- and for
repayment of the said amount the accused has issued a
cheque bearing No. 005342 for a sum of Rs.45,000/-
drawn
on
Honnavara
Town
Co-Operative
Bank,
Honnavara Branch dated 15.07.2005 and the same was
bounced on the shara that “the account was closed” and
the said cheque was returned on 21.07.2005.
The
complainant has issued a notice on 28.07.2005 but the
said notice though served on the accused he has not
10
replied nor he has paid any amount.
Therefore, the
complaint came to be lodged. The defence has not been
disclosed by the accused by means of issuing any reply
notice.
The parties in fact went on for trial and both
have led the evidence.
In fact, the complainant has
examined himself as PW-1 and accused examined
himself as DW-1 and also examined two witnesses DWs
2 and 3. The complainant has got marked 8 documents
Ex.P1 to P8 and accused also produced 3 documents
Ex.D1 to D3.
The accused was also examined under
Section 313 of Cr.P.C. The Trial Court after analysing
the evidence, recorded the judgment of acquittal.
11.
It is seen from the records that during the course
of examination in chief the complainant has reiterated
the averments made in the complaint, has categorically
stated the issuance of cheque for Rs.45,000/- in No.
005342 and the bouncing of the said cheque for closing
of the account and issuance of notice and non-reply by
11
the accused in his examination-in-chief.
The cross-
examination portion though lengthily done by the
accused, but ultimately it is admitted during the course
of
cross-examination
at
paragraph
by
way
of
suggestions that the complainant has given to the
accused a sum of Rs.50,000/- by cash but not by way
of cheque.
paragraph
In the course of cross-examination at
it
is
categorically
suggested
to
the
complainant that the accused is no way liable to pay
any amount to the complainant. The accused has also
suggested
repayment
schedule.
It
is
specifically
suggested that the assistant of the accused by name
Gangadhar G. Sankolli had been to the house of the
accused to give a cheque for Rs.10,000/- for repayment
of the debt. Then the complainant has demanded for
cash and thereafter the said Gangadhar G. Sankolli has
paid the amount of Rs.10,000/- by way of cash. It is
also suggested that during April 2005 the accused has
paid Rs.5,000/- by way of cash.
It is also further
suggested that even earlier to April 2005 the accused
has paid an amount of Rs.30,000/- by way of three
cheques of Rs.10,000/- each and also paid an amount
of Rs.10,000/- by way of cash. Further, it is suggested
as on 06.05.2005 an amount of only Rs.5,000/- was
due on the part of the accused.
that
the
cheque
for
The records disclose
Rs.45,000/-
was
issued
on
15.07.2005. In view of these suggestions the accused
has made it clear that prior to 15.07.2005 itself he has
paid the entire amount due under the earlier cheque of
Rs.50,000/-. If it had been so, there was no necessity
for the accused to issue a cheque for Rs.45,000/- in
favour of the complainant. Perhaps that may be the
reason the accused has taken up the contention that
the cheque was forged by one of his brother’s son. But
the examination-in-chief of the accused, if it is read in
consonance
with
the
cross-examination
of
the
13
complainant it gives a clear picture that the said
allegations of the forgery of the cheque has not been
plausibly explained before the Court.
12.
in
The evidence of the accused DW-1 is very shabby
nature.
In
the
examination-in-chief
he
has
categorically denied that he was due in a sum of
Rs.50,000/- to the accused, but in the very next
sentence he admitted that he has taken some hand loan
from the accused and he has discharged the said loan
in its entirety.
When actually he has taken the said
loan, how much amount, when he discharged the said
loan has not been categorically and specifically stated in
the examination-in-chief itself.
The next sentence, in
my opinion, clears all the doubts, that the accused has
stated that, when the complainant has issued the notice
immediately he has discharged the entire amount. That
means to say, after issuance of the notice after the
disputed cheque was bounced for Rs.45,000/- it should
14
be understood that the accused discharged the said
loan.
The question is whether, this discharge of the
loan is properly established before the Court atleast by
means of preponderance of possibility has to be looked
into by the Court. It is stated by accused that when he
has received the notice on 05.08.2005 he told the
complainant that transaction between himself and the
complainant was already completed.
Therefore, he
deposed that he has not issued any reply to the
complainant’s notice. This aspect clears out the doubt
that, only after the issuance of the notice i.e. after
bouncing of the cheque issued by the accused according
to accused he has discharged the entire loan in favour
of the complainant.
But in the examination-in-chief
itself nothing has been elicited on what dates the
amounts have been repaid to the complainant.
It is
worth to note here, though it is suggested to the
complainant that an amount of Rs.45,000/- has been
15
repaid to him i.e. three cheques worth Rs.10,000/- each
and Rs.10,000/- cash and another Rs.5,000/- cash has
been given to the complainant, but suggestions are
denied by the complainant as discussed by me above.
The accused has not translated the same into evidence
in
his
examination-in-chief
and
that
supporting
evidence has not been produced to show that the said
amount has been repaid to the complainant.
In the
course of cross-examination of the accused, it is clear
that he has taken up the plea and in one sentence he
has stated that his brother’s son has forged the cheque
for Rs.45,000/-. Atleast when it has come to his notice
that the said cheque was bounced, a notice was issued
and the same was well within the knowledge. In spite of
that he has not taken any action with regard to this,
atleast by intimating his Bankers that the said cheque
was forged by his brother’s son nor he has taken any
action against his brother’s son.
He gives an evasive
16
reply in the course of cross-examination, because the
said cheque was forged by one of his brother’s son,
therefore, due to the close relationship he has not taken
any action.
That means to say, even he forgoes the
offence being committed by his relative even it causes
inconvenience to others. Ultimately it is clear that he
has not taken any action. Atleast when the notice was
issued to the accused by the complainant, he should
have replied that he has not issued any such cheque
and the said cheque was forged one. Therefore, the said
defence taken by the accused has not been probablised
by any of the materials on record.
13.
One more aspect to be borne in mind that when
the cheque was presented by the complainant to his
Bankers the same was returned with shara ‘account
was closed’. It is pertinent to note that the said cheque
was not returned with any shara that the specimen
signature of the accused does not tally with the
17
signature on the cheque. This also fortifies the case of
the complainant that the complainant was innocent of
the signature on the said cheque, how the complainant
could know that it is forged cheque issued when it is the
specific case of the complainant that the said cheque
was issued by the accused himself not by any other
person. In the course of cross-examination, a new case
attempted to be made out by the accused.
He has
stated that he has only taken an amount of Rs.37,000/-
from the complainant and he has returned the same by
issuing three cheques for Rs.10,000/- each and also
paying Rs.10,000/- by cash to the complainant.
It is
also admitted that even after discharging his loan earlier
he has made further transaction with the complainant
and he discharged the said loan also.
The above
evidence in facts supports the case of the complainant.
Even admitting for
a
moment
that
the
previous
transaction under the earlier cheque for Rs.50,000/-
18
has been discharged by the accused. But according to
his own admission he has made further transaction,
perhaps that may be the reason he has issued a cheque
for Rs.45,000/-.
14.
In this background, the case of the complainant
that after issuance of the first cheque for Rs.50,000/-
when notice was issued to the accused, the accused has
paid an amount of Rs.5,000/- and issued cheque for
Rs.45,000/- for the remaining amount has to be
accepted and believed in view of the surrounding
circumstances of the case.
opinion,
has
not
been
All these factors, in my
properly
appreciated by the Trial Court.
considered
and
The Trial Court has
culled out certain unimportant factors into its judgment
stating that the complainant has not produced any
material to show that the complainant has got such an
amount of Rs.50,000/- to advance loan to the accused.
Secondly, he has not produced any income tax returns
19
and thirdly the complainant has admitted that he has
filed several complaints on the basis of the cheque for
recovery of the amount. These materials, in my opinion,
are totally irrelevant so far as this case is concerned.
The Trial Court has not appreciated the evidence on
record led by the parties but swayed away by relying
upon unimportant and irrelevant materials. Of course,
the non-production of the income tax returns, non-
explanation by the complainant as to how in what
manner, on what dates he has paid the amount to the
accused may have some bearing to the case of the
complainant, when there is a denial by the accused with
regard to the amount taken by him, issuance of the
cheque. Then only all those factors shall be taken into
consideration for the purpose of drawing inference in
favour of the accused. When there is sufficient material
to establish before the Court that the accused has
transacted with the complainant, taken the loan and
20
taken up the specific defence that he has repaid the
said amount, in my opinion, on the ground that the
complainant has not produced any income tax returns,
not explained whether he has got such amount to pay to
the
accused,
irrelevant.
all
these
questions
becomes
totally
These factors have not been properly
appreciated and considered by the Trial Court.
15.
Looking to the above said circumstances, I am of
the opinion, the initial presumption under Sections 118
and 139 of Negotiable Instruments Act cannot be said to
have been rebutted by the accused.
Of course, the
accused need not rebut the presumption beyond all
reasonable
doubt
as
it
is
incumbent
upon
the
complainant to prove his case beyond reasonable doubt.
Nevertheless, the accused has to place
sufficient
materials to convince the Court that his case is
probablised when it is compared with the case of the
complainant. If the accused has failed to establish that
21
his case is proved by means of preponderance of
possibility that is to say, probabilities placed by the
accused have the capacity to preponder over the case of
the complainant then only such materials should be
accepted.
Mere a distorted version or mere taking up
the plea or the defence that he is not liable to pay any
amount or he discharged the amount are not sufficient
to put back the burden on to the complainant to prove
his case beyond reasonable doubt.
16.
Under the above said circumstances, I have
absolutely no hesitation to hold that the Trial Court has
committed a serious error in appreciating the legal
aspects and as well as the factual aspects as detailed
above, and came to a wrong conclusion. No Court can
come to such conclusion on the basis of above said
materials on record.
The findings recorded by this
Court are based on the evidence on record. The Trial
Court even not taken any pains to appreciate the
22
evidence on record in detail to arrive at a proper
conclusion.
17.
Under the above said circumstances, I am of the
opinion, the Trial Court has committed a serious error
in
acquitting
the
accused
even
though
sufficient
materials are available on record in favour of the
complainant and that the accused has not proved his
defence by probabilities.
Hence, the Judgment of the
Trial Court acquitting the accused is liable to be
reversed. Hence, I answered the above said point in the
Affirmative and proceed to pass the following :
ORDER
The Appeal is hereby allowed. Consequently, the
judgment of acquittal recorded by the Trial Court in
C.C. No. 77/2006 dated 11th June 2009 is hereby set
aside consequently the accused/respondent is convicted
for the offence punishable under Section 138 of
Negotiable Instruments Act. The accused is sentenced
23
to pay a fine of Rs.75,000/-.
In default to undergo
simple imprisonment for a period of six months.
Out of the fine amount an amount of Rs.70,000/-
shall be paid as compensation to the complainant.
Send a copy of this order to Trial Court for further
necessary action to implement this order.
Accordingly, the appeal is disposed of.
Sd/-
JUDGE
Rbv
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