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2011 DIGILAW 295 (KAR)

H. P. Moodalappa v. C. A. Chowrappa

2011-03-10

B.V.PINTO

body2011
Judgment : 1. This appeal is filed by the complainant in C.C. No. 34387/2000 on the file of the 16th Additional Chief Metropolitan Magistrate, Bangalore challenging the judgment dated 31.08.2004, acquitting the respondent of the offence punishable under Section 138 of N.I.Act. 2. The case of the appellant is that on 23.12.1997, the respondent accused has taken a loan of Rs.1,00,000/-and in respect of the repayment of the said loan, accused has issued cheque dated 13.12.1999 for Rs.3,36,000/-and when the said cheque was presented for payment, the same was dishonoured on the ground that the funds lying to the credit of the accused in the said account is insufficient to honour the cheque and therefore, the said cheque was returned on 22.12.1999. Thereafter, when a notice under Section 138 of N.I.Act was issued on 30.12.1999, by Registered Post and under Certificate of Posting, despite service of notice to the accused, he neither paid the amount nor replied to the notice, thereby, he is liable to be punished under Section 138 of N.I. Act. 3. The complainant filed the complaint before the 16th Additional Chief Metropolitan Magistrate, Bangalore on 20.01.2000 and the learned Magistrate after taking cognizance of the offence, summoned the accused and after appearance of the accused, the accusation was read over to the accused and he has pleaded not guilty to the charges leveled against him. Thereafter, complainant has examined himself as PW1 and further, got produced documents Exts.P.1 to P.10. 4. The defence of the accused was that he has repaid the said amount nd therefore, there is no liability existing on the respondent and he has got himself examined as DW.1 and further examined two witnesses PWs.2 and 3 and produced 6 documents Exs.D.1 to D.6. 5. After hearing the complainant and the accused, by judgment dated 31.08.2004, the learned Magistrate has acquitted the accused of the charges leveled against him. The complainant ha filed this appeal. 6. Heard Sri. Rajendra Prasad, learned Senior Counsel for the appellant and Sri. H.N. Manjunath appearing for the appellant and Sri. N. Amaresh, learned Counsel for the respondent. 7. 5. After hearing the complainant and the accused, by judgment dated 31.08.2004, the learned Magistrate has acquitted the accused of the charges leveled against him. The complainant ha filed this appeal. 6. Heard Sri. Rajendra Prasad, learned Senior Counsel for the appellant and Sri. H.N. Manjunath appearing for the appellant and Sri. N. Amaresh, learned Counsel for the respondent. 7. Learned Counsel for the appellant submits that the judgment of the trial Court is erroneous, since the evidence of PW1 clearly establishes that the accused had taken a loan of Rs.1,00,000/-on 23.12.1997 and has issued a cheque on 13.12.1999 in respect of the repayment of the loan taken in the year 1997 and cheque when presented for payment was dishonoured for want of sufficient funds. The complainant has proved the case against the accused beyond reasonable doubt and therefore, the trial Court ought to have convicted the accused for the offence leveled against him. He further submits that the defence taken by the accused is an after thought and despite receipt of the notice, under Section 138 of N.I.Act, the accused has not replied the said notice. Therefore, the evidence of the accused and his witnesses does not rebut the presumption available to the complainant under Section 139 of N.I.Act. They submit that the accused had failed to rebut the presumption and therefore, the trial Court ought to have convicted the accused and ought to have directed to pay the compensation to the complainant and prayed for allowing the appeal. 8. Sri. N. Amaresh, learned Counsel for the respondent on the other hand, submits that evidence of DWs.2 and 3 clearly establishes that the accused has repaid the amount of loan taken from the complainant and therefore, he submits that there is no legally enforceable liability as on the date of issuance of cheque. He further submits that except the signature on the cheque in question the other matter is typewritten, which itself indicates that it was not given at the time when it is alleged to have been given or issued by the accused. He submits that the accused has explained the circumstances under which a blank cheque was given to the complainant as security to the loan taken by DW-3 and for which accused has stood only as a guarantee. He submits that the accused has explained the circumstances under which a blank cheque was given to the complainant as security to the loan taken by DW-3 and for which accused has stood only as a guarantee. He submits that there is no legally enforceable liability against the accused, as he has not personally taken the amount/loan from the complainant. Hence, he prays that appeal may be dismissed. 9. The complaint in this case is filed on 20.01.2000, before the 16th ACMM, Bangalore. In the complaint, it has been stated that the accused is potato merchant having his business in APMC, Chikkabaliapur and the complainant is an advocate by profession. Accused was introduced to the complainant by one B. Narayana Swamy who is an agriculturist by profession. It is in the complaint that the accused approached the complaint in-person on 23-12-1997 and requested the complainant to give a hand loan of Rs.1,00,000/-. As that time one B. Narayana Swamy his wife Parvathamma and his son Ravi Kumar were all present and represented that they are carrying on the business of sale of potato seeds procured from jalandhar and other parts of north India and in this connection, they wanted some money and with a promise to repay the said Rs. 1,00,000/-after the potato business season, the complainant had given Rs.1,00,000/-to the accused, on the accused agreeing to pay an interest of Rs.100/-per Rs.1,000/-per month. Accordingly, it is the case of the complainant that he gave a cheque bearing No.844260 drawn on the Canara Bank, Rajajinagar Branch for a sum of Rs.1,00,000/-and in lieu of the said amount of loan, accused issued a cheque bearing No.535079 drawn on Vijaya Bank Limited, Chikkaballapur. It is the further case of the complainant that when the complainant demanded the said amount, accused issued the cheque bearing No.535079 calculating the interest up to 13.12.1999 for a sum of Rs.3,36,000/-on 14.12.1999 drawn on the Vysya Bank Limited, Chikkaballapur. When the said cheque was sent for collection through the Canara Bank, Rajajinagar, the cheque was returned on 22.12.1999 with an endorsement ‘insufficient funds’. A notice was issued by the complainant on 31.12.1999, under the registered post acknowledgment due and the said notice was returned with a shara “Refused”. Thereafter, in view of there being no payment of the cheque amount, the complainant has filed this case after waiting for 15 days as per law. A notice was issued by the complainant on 31.12.1999, under the registered post acknowledgment due and the said notice was returned with a shara “Refused”. Thereafter, in view of there being no payment of the cheque amount, the complainant has filed this case after waiting for 15 days as per law. It is stated by the complainant that accused has issued a cheque for Rs.3,36,000/-and since, the cheque is dishonoured, accused is liable for conviction. 10. The complainant examined himself as PW-1 before the Court. He has re-iterated the contents of the complaint. He has stated that he is working as a lawyer for the last 36 years and on 27.12.1997 he has given loan of Rs.1,00,000/-to the accused by cheque No.849260 drawn on Canara Bank. The accused had promised to give back the cheque amount by January, 1998. Thereafter on 13.12.1999 accused came to his office voluntarily and issued a cheque bearing No.0535079 for Rs.3,36,000/-drawn on Vysya Bank Ltd., Chikkaballapur. When the cheque was presented for payment, the same was dishonoured on the ground of insufficiency of funds. Thereafter he has issued a notice, but the accused has not replied the said notice and thereafter he has filed the complaint. In the cross-examination he has stated that he is not carrying on the business of lending. However, he will give hand loan to known persons. He has stated that he is not aware whether the wife of Narayanaswamy and his son are involved in the business of Chowrappa in respect of sale of potato seeds. He has further stated that the amount of cheque given to the accused is not connected with the other three persons who had come to his office for taking loan. He has stated that the accused had given cheque in his Chambers and at that time only accused was present. He has not taken any other document while giving loan to the accused. He ha stated that Chowrappa accused knows to read and write. No discussion took place regarding interest at the time of giving loan to the accused. However, accused himself has calculated the amount as Rs.3,36,000/-/-and had given cheque. He has admitted that another notice dated 31.12.1999 was given and marked as Ex.P-4 in this case. Ex.D-1 is the notice issued by the complainant to the accused prior to Ex.P-4. No discussion took place regarding interest at the time of giving loan to the accused. However, accused himself has calculated the amount as Rs.3,36,000/-/-and had given cheque. He has admitted that another notice dated 31.12.1999 was given and marked as Ex.P-4 in this case. Ex.D-1 is the notice issued by the complainant to the accused prior to Ex.P-4. It is elicited in the cross-examination of PW-1 that except Narayanaswamy, his wife Parvathamma and son Ravikumar, no one else had come to his office in connection with this cheque. He does not know who Rajanna is. It is suggested to him that the accused had given loan of Rs.1,00,000/-to the complainant at the time of construction of Kuvempu Krupa which is the own house of the complainant but the said suggestion has been denied by PW-1 and has stated that the said house was constructed long back. It is also elicited in the cross-examination that the house by name Kuvempu Krupa does not belong to him and also is not owned by any members of his family. Respondent has examined himself as DW-1. He ha stated in his evidence that in connection with the legal problems he had gone to the office of the complainant along with Narayanaswamy. He has denied the averments that himself, ‘Narayanaswamy. Parvathamma and Ravikumar were carrying on business and that in order to carry on the said business loan was taken by them and said loan amount was paid to him by way of cheque as mentioned by the complainant. He has stated that in the year 1997 he had given loan of Rs.1,00,000/-to the complainant, while complainant was building a house. In repayment of the said loan of Rs.1,00,000/-accused had given cheque on 23.12.1997 and he has admitted that the said cheque has been encashed. He has further stated that so far as the cheque in question is concerned, complainant had asked the security for the amount paid by him to one Rajanna which was an amount of Rs.50,000/-and he had given a blank cheque to the complainant. At the time of issuing the said cheque there was no writings on the cheque except the signature. When he demanded for return of cheque, complainant repeated that Rajanna has not given the amount, therefore he cannot return the cheque in question. At the time of issuing the said cheque there was no writings on the cheque except the signature. When he demanded for return of cheque, complainant repeated that Rajanna has not given the amount, therefore he cannot return the cheque in question. DW-2 Narayanaswamy has given evidence in favour of the accused and has stated that himself and accused were friends and the complainant was a lawyer and complainant had handled his case in Mayo Hall Court. The accused is the owner of two lorries and he is not carrying on his business along with his wife and son. It is stated by him that when the complainant was building a complex, he was short of money and accused had given amount to him. Thereafter, in consideration of the said amount, complainant had given a cheque to the accused for Rs.1,00,000/-in 1997. It is also mentioned in the evidence of PW-2 that one Rajanna was his friend, so also the accused. Complainant Mudlappa had given loan of Rs.50,000/-to the said Rajanna and as a security for the said amount accused had given a blank cheque to the complainant. In the year 2000, cases handled by the complainant Mudlappa were taken back and handed over to another lawyer. He has stated that cheques given by DW-3 also are still in the hands of the complainant and he has misused the cheques so given by him. The cases are pending before the Court in respect of the said cheques mis-used by the complainant. In the cross-examination of DW-3, it is elicited that he is not aware as to the date on which the complainant had given the amount to Rajanna. However, he has further admitted in the cross-examination that the signature found in Ex.P_10 which is an acknowledgment for Rs. 3,200/-is that of Rajanna. DW-3 is one Rajanna. He has also stated before the Court he has contacted the complainant who is a lawyer in Bangalore, he has asked for some financial assistance from the accused and the accused had taken him to the complainant and he has taken a sum of Rs.50,000/-from the complainant on the surety of the accused. At the time of disbursing Rs.50,000/-to him. i.e., DW-3, accused had given a blank cheque to the complainant. He has also produced cheque given by the complainant to him which is marked as Ex.D-2. At the time of disbursing Rs.50,000/-to him. i.e., DW-3, accused had given a blank cheque to the complainant. He has also produced cheque given by the complainant to him which is marked as Ex.D-2. He has stated that Ex.D-2 could not be enacashed due to non-availability of funds in the account of the complainant to honour the said cheque Ex.D-2. He has re-iterated the fact of cheque issued by the accused to the complainant towards the security of the loan given by the complainant to him (Dw-3) and that the said cheque was a blank cheque. It is from the evidence of witnesses that the learned trial Magistrate has come to the conclusion that very issuance of cheque for Rs.3,36,000/-as against the loan of Rs.1,00,000/-does not inspire the confidence in the mind of the Court. Learned Magistrate has held that when PW-1 complainant states that the accused had personally come to his office to take the amount from him and that when the accused knows how to read and write, if at all a cheque for Rs.3,36,000/-was issued by the accused to the complainant, the accused would have written the cheque in his own hand-writing. In the ordinary course of transaction when the person issuing the cheque was present, there was no necessity to enter the amount of the cheque by a type-writer and therefore learned Magistrate has held that the entire transaction is shrounded with suspicion. Under the circumstances trial Court had held that there is no legally enforceable liability on the accused to honour the cheque issued by the accused. 11. I have gone through the judgment of acquittal passed by the trial Court. Accused is facing a criminal trial. The burden of proof in a criminal trial is more than the burden of proof in a civil case since accused is facing a punishment of imprisonment and therefore criminal Courts are cautious while convicting the accused. If the Court entertains a doubt which is of legal nature, normally criminal Courts would not tend to convict the accused person or rather it would give benefit of doubt to the accused. Learned Magistrate has entertained a serious doubt about the very transaction and has come to the conclusion that the complainant has not proved the case beyond reasonable doubt. 12. Learned Magistrate has entertained a serious doubt about the very transaction and has come to the conclusion that the complainant has not proved the case beyond reasonable doubt. 12. On a thorough re-appreciation of evidence bearing in mind the principles laid down by the Hon’ble Supreme Court in respect of appreciation of evidence in an appeal against the acquittal. I do not find any convincing or pressing reasons to upset the well-considered judgment passed by the trial Court. The reasonings given by the trial Court are in accordance with law and are neither capricious nor against the principles of law. I do not find any mis-carriage of justice in the findings of the trial Court. In that view of the matter, this appeal is liable to be dismissed and accordingly the appeal is dismissed. Appeal dismissed.