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2011 DIGILAW 1015 (KAR)

T. Jagannatha Shetty v. A. Shashiprabha

2011-10-18

K.GOVINDARAJULU

body2011
ORDER K. GOVINDARAJULU, J.—The accused In. C.C. No. 10733/2004 on the file of the XII Additional Chief Metropolitan Magistrate Bangalore is the revision petitioner. 2. The parties will be referred according to their ranking found before the Magistrate. 3. The complaint, under Section 200 Cr.P.C. is filed by the complainant complaining an offence under Section 138 of the Negotiable Instruments Act. 4. The facts pleaded by the complainant are that the accused is known to the husband of the complainant. The husband of the complainant Arun Kumar was an employee of Vijaya Bank. He took voluntary retirement. Then the accused borrowed a sum of Rs. 5 lakh for the purposes of Hotel business, he agreed to repay within few months to Arun Kumar, executed an agreement, also issued a cheque bearing No. 053457 dated 3.3.2004 drawn on Global Trust Bank, Jaynagar Branch, Bangalore, The said cheque was presented, the said cheque returned with the endorsement as “account dosed” on 4.3.2004. So, the complainant got issued notice on 8.3.2004. There was no compliance, so the complainant contend that the accused has committed an offence punishable under Section 138 of the Negotiable Instruments Act. 5. The defence of the accused is: (1) he has not borrowed any sum, as the one contended by the complainant; (2) the complainant/her husband has no capacity to advance the said amount; (3) there is no pleading as to the circumstances under which the complainant’s husband paid money to the accused; (4) D.W.2 advanced the loan, the accused paid back the said loan to D.W. 2. D.W. 2 was Introduced by the complainant’s husband. 6. The presence of the accused is secured by the learned Magistrate. Evidence is recorded. P.Ws. 1 and 2 are examined. In response, D.Ws. 1 and 2 are examined. 7. The learned Magistrate has disbelieved the defence thereby believed the case of the complainant, convicted the accused. The conviction is challenged in Criminal Appeal No. 613/2008 on the file of the XXXVI Additional City Civil and Sessions Judge Bangalore, finding is confirmed by the learned Sessions Judge while dismissing the appeal. 8. The learned Advocate for the accused vehemently contend that the evidence placed through P.W. 1-wife of Arun Kumar lacks material particulars. She is not definite about the agreement, date of payment of the money; when the agreement was written; whether the agreement was written or not. 8. The learned Advocate for the accused vehemently contend that the evidence placed through P.W. 1-wife of Arun Kumar lacks material particulars. She is not definite about the agreement, date of payment of the money; when the agreement was written; whether the agreement was written or not. So, the evidence placed is not in consonance with the ruling of this Court in Deviprasad Rai vs. A.M. Ganesh Rai, reported in 2005(3) KCCR 1576 . This Court has held that it is for the complainant to plead and prove that there is a legally recoverable debt payable by the accused. No such evidence is forthcoming in the facts and circumstances of the case. On the other hand, the evidence of D.W. 1. would probablize that the amount is advanced by D.W.2 and not by the husband of the complainant. The said amount borrowed is cleared in favour of D.W.2. D.W.2 himself has given the evidence. In the evidence, a suggestion is that there is a promise to pay, so, D.W.2 has given a false evidence, so, plead for setting aside the conviction recorded by both the Courts. 9. Learned Advocate for the complainant, on the other hand reads the evidence of D.W.1. Stresses that it is found from the reading of the evidence that two cheques are issued; one for a sum of Rs. 60,000/- and another Rs. 15,000/- in the name of husband of the complainant. If the transaction is with D.W.2, there was no necessity for the accused to give cheques towards repayment of the interest in favour of the husband of the complainant. This cuts the defence of the accused. So, pray for dismissal of the revision petition. 10. Carefully considered the material submission. The complainant has to prove under Section 138 of Negotiable Instruments Act, that there is a legally recoverable debt due and payable by the accused, so also, the accused has to prove under Section 139 of the Negotiable Instruments Act that there is no liability, as the one contended by the complainant. With this mandate under law, the facts are taken up for consideration. 11. The case of the accused is that he knew the husband of the complainant through D.W.2. D.W.2 has advanced the money and it is reflected in Ex. D1. So, the complainant’s husband has not paid any loan amount. With this mandate under law, the facts are taken up for consideration. 11. The case of the accused is that he knew the husband of the complainant through D.W.2. D.W.2 has advanced the money and it is reflected in Ex. D1. So, the complainant’s husband has not paid any loan amount. In this backdrop, the law is that it is for the complainant to prove her case, that there is a legally recoverable debt payable by the accused to the complainant. No evidence is forthcoming in the facts and circumstances of the case to substantiate the same. 12. The learned Advocate for the defence relies on the evidence of D.W.1; It reads as follows: (Vernacular matter not given) The version in cross-examination would probablize that accused had issued two cheques to the husband of complainant, one for Rs. 60,000/-, other for Rs. 15,000/-. Little later, the evidence of the very same witness reads as follows: (vernacular matter not given) The version would probablize that accused is educated person, his occupation is to run hotels. 13. The case of the complainant is that in regard to the debt payable in a sum of Rs. 5 lakhs, the replies are two fold one is issue of two cheques one for Rs. 60,000/- and the other for Rs. 15,000/-. In the name of the husband of the complainant. The second defence is that D.W. 1 has documents to show he having paid Rs. 3 lakhs. Ex. D1 relied by the learned Defence Counsel is also in regard to Rs. 2,82,000/- that is somewhere nearing Rs. 3 lakhs. In the course of evidence of D.W.2, the chief examination reads as follows: “I submit that after receiving the above said loan amount, in the month of July 2003, I gave receipt to him and I could not trace out the signed, undated, blank cheque of Global Trust Bank Limited and the stamp paper of Rs. 100. I assured him return the same on the next day through Mr. Arun Kumar. While setting the loan Mr. Arun Kumar was also present and he came along with Mr. T. Jagannatha Shetty to my house. Mr. Arun Kumar collected the signed, undated, blank cheque and the signed blank stamp paper of Rs. 100/- after a week. Later when Mr. T. Jagannatha Shetty told me that Mr. Arun Kumar. While setting the loan Mr. Arun Kumar was also present and he came along with Mr. T. Jagannatha Shetty to my house. Mr. Arun Kumar collected the signed, undated, blank cheque and the signed blank stamp paper of Rs. 100/- after a week. Later when Mr. T. Jagannatha Shetty told me that Mr. Arun Kumar had not delivered the blank, undated, signed cheque and the stamp paper of Rs. 100/-. I expressed my inability been handed over to Mr. Arun Kumar by me”. The defence of D.W. 2 is about his acts with dead person, i.e., husband of complainant. 14. The burden is on D.W. 2 to show where he has kept the stamp paper containing the signature of D.W. 1. According to him, it is missing. If it is missing what is the effort made by D.W. 2 to trace out the same is important. Not even a complaint is lodged before the jurisdictional police to probalize minimum efforts made by D.W. 2 to trace out Rs. 100/- stamp paper containing the signature of D.W.1. Be that as it may. The transaction that is relied is in regard to Rs. 3 lakhs, the document-Ex. P10 would disclose not only the signature of D.W. 1. but also the writing/typing to the effect that D.W. 1 is due In a sum of Rs. 5 lakhs. Added to the above writing in Ex. P10, there is a cheque admittedly consisting of the signature of D.W. 1. So, the contention of the defence Counsel that there was no transaction between the husband of the complainant is not substantiated. More so, it is not the case as if the Court is dealing with illiterate rustic people. D.W. 1 according to his evidence is running a group of Hotels, dealing in lakhs of rupees, so, the Court holds that the approach of both the Courts in believing the case of the complainant requires no interference. 15. In regard to the submission of the learned Advocate placing reliance on the ruling of this Court in Deviprasad Rai vs. A.M. Ganesh Rai, settled law declared by this Court in Mahalingappa vs. Kenchamma, reported in ILR 2004 KAR 4689, is that the Court has to decide the criminal case on facts, there is no precedent. 15. In regard to the submission of the learned Advocate placing reliance on the ruling of this Court in Deviprasad Rai vs. A.M. Ganesh Rai, settled law declared by this Court in Mahalingappa vs. Kenchamma, reported in ILR 2004 KAR 4689, is that the Court has to decide the criminal case on facts, there is no precedent. So, the submission that, in the facts of the case, the complainant has not placed material to prove the liquidity of her husband is without any merit, So, rejected. No merit in the revision petition. The revision petition is dismissed.