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Karnataka High Court · body

2008 DIGILAW 736 (KAR)

P. Satya Narayana v. C. H. Jayathertha

2008-11-26

JAWAD RAHIM

body2008
JUDGMENT ( 1. ) CONVICTED accused is in revision against the judgment in Crl. A. 32/06 passed on 28. 6. 2006 confirming the judgment in c. C. 1871/05 passed on 10. 2. 2006 on the file of Judicial Magistrate First class-II, Davanagere, convicting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (in short, referred to the Act ). ( 2. ) HEARD both sides. The relevant facts for consideration are: a) Respondent herein sought prosecution of the petitioner for the offence under Section 138 of the Act on the premise that he had borrowed from him Rs. 2,00,000/- in April 2004 and towards repayment of the said amount, issued cheque on 6. 12. 2004; the cheque was presented on 24. 2. 2005 to the Bank, but was returned with the endorsement dated 25. 4. 2005 as 'account closed'; statutory notice was issued to the in through certificate of posting and also by registered post; the registered cover was returned unclaimed, but the notice through certificate of posting was duly served. Accused failed to comply with the demand made therein within the statutory period. b) The jurisdictional Magistrate took cognizance; summoned the accused; subjected him to trial. During trial, complainant examined himself and placed reliance on 9 documents; accused also tendered evidence as DW1 and produced 3 documents. c) Considering the evidence, the trial Court rejected the defence and accepted the complainant's evidence, consequently convicted him for the offence indicated above and directed him to pay compensation of Rs. 3,00,000/- and a fine of Rs. 5,000/- with simple Imprisonment for one year. Such judgment was impugned in Crl. A. 32/06 but the same came to be rejected confirming conviction of the petitioner-accused. The Appellate Court, however, modified the sentence and directed him to pay fine of rs. 5,000/- with default sentence of 3 months and reduced compensation from Rs. 3,00,000/- to Rs. 2,40,000/ -. Against it, the petitioner is before this Court. ( 3. ) LEARNED Counsel for the petitioner, reiterating the defence, contends the claim of the complainant that he had lent Rs. 5,000/- with default sentence of 3 months and reduced compensation from Rs. 3,00,000/- to Rs. 2,40,000/ -. Against it, the petitioner is before this Court. ( 3. ) LEARNED Counsel for the petitioner, reiterating the defence, contends the claim of the complainant that he had lent Rs. 2,00,000/- to the accused was not established; accused had succeeded in pointing out that the complainant had no means to pay so much as loan; accused had established that there was no privity of contract between the complainant and him; there was money transaction between the accused and one Channageri, father of the complainant; accused had returned the money borrowed and requested Channageri to return the cheque which was given as collateral security; Channageri pleaded inability to return the cheque on the ground he had misplaced it and issued Ex. Dl-letter; accused believed him in good faith and did not take any action; after the death of Chennageri, complainant misused the cheque and initiated prosecution; It is further contended the trial Court failed to notice these aspects and has not considered the defence in the right perspective; the complainant had failed lo discharge the burden of proving his case 'beyond reasonable doubt' and therefore, as held by the apex Court in various decisions, the impugned order has to be set aside. ( 4. ) PER contra, learned Counsel for the respondent submits the accused had put forward a flimsy untenable defense not supported by material evidence; the fact that the complainant had lent Rs. 2,00,000/- to the accused was established through the cheque itself whose signatory being the accused has not disputed it and he is now estopped from contending otherwise; accused had mischievously closed the account on 25. 2. 2005 to defraud the complainant; despite receipt of notice, he did not comply with the demand. Therefore, he submits all contentions urged are after-thought and not enough to defeat the evidence lead by the complainant; the trial court having considered all attending circumstances and the fact that the accused had not taken any action against the father of the complainant to return the cheque, held that there was no merit in the defense. Lastly, he contends the transaction between the complainant and accused was required to be accused had not taken any action against the father of the complainant to return the cheque, held that there was no merit in the defense. Lastly, he contends the transaction between the complainant and accused was required to be accused had not taken any action against the father of the complainant to return the cheque, held that there was no merit in the defense. Lastly, he contends the transaction between the complainant and accused was required to be proved only through the cheque and bank endorsement; since the complainant had done so, he had discharged the burden of proving the cheque against the accused. Keeping in mind what is urged, I have examined the records. Undoubtedly, complainant had based his charge on Ex. P-1 cheque dated 6. 12. 2005 and bank endorsement dated 25. 2. 2005. 'these documents no doubt, prove prima facie that he was the holder of the cheque which on presentation was dishonoured as the account was closed. At the same time, the defense of the accused that the complainant was a stranger and the said cheque was issued to his father requires to be considered. In this regard, he has produced Ex. D1 which reads as under: Ex. D2 is the Bank statement which reads thus :these documents show that on 15. 7. 2003 a sum of Rs. 82,500/- was credited to the account of Channageri on the basis of the cheque issued by the accuse. Ex. D1 does not bear date but there is reference that Channageri had received back the loan amount advanced by him to the accused on 18. 7. 2003. Though dates are different, there is clear acknowledgment of having received money by Channegeri. ( 5. ) THE question is, whether Ex. Dl is executed by Channageri. While the accused contends it is under the signature of Channageri, the complainant on being confronted, denied it to be that of his father. Therefore, the trial Court was required to consider as to whether Ex. Dl could be believed. The trial Court has failed to consider Exs. Dl and D2 in the right perspective. On the other hand, in paragraph 12 of the judgment, it has made the following observation: "12. In order to establish his defence, accused himself examined as DW1 and got documents marked at Exs. Dl to D3. First and foremost thing is, PW1 has clearly denied the defence taken by the accused. As discussed above, in the present case, accused has admitted the signature on Ex. In order to establish his defence, accused himself examined as DW1 and got documents marked at Exs. Dl to D3. First and foremost thing is, PW1 has clearly denied the defence taken by the accused. As discussed above, in the present case, accused has admitted the signature on Ex. P. l This being the fact now entire burden shifts on accused in order to establish his defence by adducing cogent and material evidence. In my humble view, accused miserably failed to establish his defence in order to rebut the presumption which is in favour of the complainant. In the present case, as discussed above, complainant has successfully proved the service of statutory notice on accused. It is pertinent to note here that though accused has received statutory notice but he has not at all sent reply notice to the complainant denying the allegations of statutory notice. When accused has not at all denied allegations at early stage, in my humble view, accused miserably failed to establish his defence. Moreover, in the chief examination DW1 deposed on 1. 1. 2002 he had availed loan of rs. 75,000/- from the father of complainant namely H. R. Channagiri. Further- DW1 deposed during that time he had handed over signed blank cheque to the father of the complainant as security. It is pertinent to note here that accused has not at all produced any piece of document to show that he had obtained loan of Rs. 75,000/- from the father of the complainant on 1. 1. 2002. Further accused has not produced any piece of document to show that he has handed over signed blank cheque to the father of complainant as security." ( 6. ) FROM what is extracted above, it is seen that the trial Court has held that since defence of the accused was denied by the complainant, it was of no consequence, and was perhaps of the opinion that the defence theory was worthless. When the allegations made by the complainant are denied, should in such allegations be worthless? It is in this context the trial Court needs to be reminded that the nature of proof required to be laid by the complainant and accused is not at par. The complainant needs to prove his case on a higher degree by acceptable, cogent, convincing evidence and the charge must be proved 'beyond reasonable doubt', and there is no escape. It is in this context the trial Court needs to be reminded that the nature of proof required to be laid by the complainant and accused is not at par. The complainant needs to prove his case on a higher degree by acceptable, cogent, convincing evidence and the charge must be proved 'beyond reasonable doubt', and there is no escape. On the other hand, the negate such accusation, the accused is not expected to lead any clear clinching cogent evidence; all that is expected of him is to put forward defence showing untenability in the plea of the complainant so as to show a possibility of taking a view different than what the complainant alleges. In other words, by preponderance of possibilities, accused can show he is not guilty of such charge. This aspect has been succinctly laid down by the Apex Court in the case of M. S. Narayana Menon Vs. State of Kerala, AIR 2006 SC 3366 and Krishna Janardhan Bhat Vs. Dattatreya G. Hegde, 2008 AIR SCW 738. From the ratio of the decisions cited above, I am satisfied that the defence of the accused that Channageri had advanced him some money and he had repaid it was worth acceptance. Ex. D2 shows Rs. 82,500/- was credited to the account of Channegeri on 15. 7. 2003. Therefore, payment to Channageri is established. Consequently, the accused's contention that he (Channageri) was required to return the cheque issued to him as security, becomes probable. Though the complainant has denied the signature in Ex. Dl to be that of his father, it creates a probable defence in favour of the accused that the transaction was between him and channageri and not the complainant. On these aspects, I find penal action initiated against the accused does is not established by acceptable evidence. ( 7. ) AS held by the Apex Court in the decisions referred to above, complainant is expected to lay absolute proof without any scope for doubt. The documents produced by the accused in the instant case are enough to show by preponderance of possibilities that the transaction was not as stated by the complainant but it was between complainant's father and the accused. In such circumstances, the complainant being guilty of suppression of these facts, would not be entitled to penal action against the accused. The documents produced by the accused in the instant case are enough to show by preponderance of possibilities that the transaction was not as stated by the complainant but it was between complainant's father and the accused. In such circumstances, the complainant being guilty of suppression of these facts, would not be entitled to penal action against the accused. Moreover, Section 138 being penal and consequence being sentence of imprisonment, stricter proof is required. I notice no such proof of allegations in the complaint. The trial Court has misapplied the evidence of the accused and had a negative approach while appreciating evidence. ( 8. ) THEREFORE, exercising the power conferred under Section 401, cr. P. C, I am satisfied conviction of the accused needs interference. In the result, the petition succeeds. The impugned judgment dated 10. 2. 2006 passed in C. C. 1871/05 convicting the accused is set aside. Consequently, the judgment in Crl. A. 32/06 dated 28. 6. 2006 is also set aside. The revision petition is allowed. Accused is acquitted of he charge levelled against him. The amount in deposit, if any, is ordered to be refunded to the accused.