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2013 DIGILAW 1061 (KAR)

S. T. Krishna Shetty v. Hari Charansingh

2013-09-06

ANAND BYRAREDDY

body2013
JUDGMENT Anand Byrareddy, J. 1. Heard the learned Counsel for appellant. The respondent is served and remains absent. The appellant was the complainant before the Court below alleging an offence punishable under Section138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'N.I. Act', for brevity). 2. It was the case of the complainant that the appellant and the respondent were friends and since the respondent wanted to borrow a large sum of money, the appellant herein had lent him a sum of Rs. 7,55,000/- on 3-8-2005 and in repayment of the same the respondent is said to have issued five cheques in favour of the complainant.--(i) cheque bearing No. 175935, dated 20-9-2005 for a sum of Rs. 1,35,000/- in account bearing No. 7733; (ii) cheque bearing No. 179536, dated 20-9-2005 for a sum of Rs. 1,50,000/- in account bearing No. 7733; (iii) cheque bearing No. 0627340, dated 21-9-2005 for a sum of Rs. 1,00,000/- in account bearing No. 298; (iv) cheque bearing No. 0627334, dated 4-10-2005 for a sum of Rs. 2,30,000/- in account bearing No. 7733; and (v) cheque bearing No. 175934, dated 17-10-2005 for Rs. 1,30,000/- in account bearing No. 7733. These were sent for collection through the appellant's banker on 4-2-2006, but they were returned dishonoured, with an endorsement that the funds were insufficient. While two other cheques were returned with an endorsement that the account was closed. It is thereafter that the appellant had issued a legal notice dated 22-2-2006 making a demand for payment of the amounts covered under the respective cheques and inspite of service of notice the respondent had failed to reply nor make any payment, and therefore, the complaint was lodged. The Court below having taken cognizance and having issued process the respondent appeared and pleaded not guilty and claimed to be tried. The appellant had examined himself as P.W. 1 and produced material documents marked as Exs. P. 1 to P. 11 and had closed his evidence. Thereafter the statement of the respondent-accused was recorded under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.', for brevity) and after hearing the arguments of the parties and on consideration of the material documents the Court below had framed the following points for consideration: 1. Thereafter the statement of the respondent-accused was recorded under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.', for brevity) and after hearing the arguments of the parties and on consideration of the material documents the Court below had framed the following points for consideration: 1. Whether the complainant proves beyond reasonable doubt that the accused in discharge of his liability issued five cheques bearing No. 175935, dated 20-9-2005 for Rs. 1,75,000/-; (2) cheque No. 175936 dated 20-9-2005 for Rs. 1,50,000/-; (3) cheque No. 0627340, dated 21-9-2005 for Rs. 1,00,000/-; (4) cheque No. 0627334, dated 4-10-2005 for Rs. 2,00,000/-; and (5) cheque No. 175934, dated 17-10-2005 for Rs. 1,30,000/- to the complainant and the said cheques, on presentation came to be dishonoured vide memo dated 7-2-2006 for "Funds insufficient" and "Account closed" and that inspite of the receipt of the legal notice dated 22-2-2006 issued by the complainant, the accused has failed to repay the cheque amount within 15 days from the date of receipt thereof and thereby committed an offence punishable under Section 138 of N.I. Act? 2. What order? 3. The Trial Court has answered the same in the negative. Primarily, the Court below has proceeded on the footing that one of the defences raised was that there was no legally recoverable debt or any transaction between the appellant and respondent and it was alleged that the cheques in question were stolen by one of the partners of the respondent, who had fallen out with him and the said stolen cheques were handed over to the appellant, who has misused the same in presenting the same, as if the cheques had been issued in discharge of any legally recoverable debt and further the appellant was not possessed of the means to lend such huge amounts. The Court below had also negated the contention of the appellant to the effect that the appellant had received compensation in respect of acquisition of his land and this money was kept at hand by the appellant to conduct the marriage of his children and it is that amount which had been lent to the respondent. The Court below had also negated the contention of the appellant to the effect that the appellant had received compensation in respect of acquisition of his land and this money was kept at hand by the appellant to conduct the marriage of his children and it is that amount which had been lent to the respondent. The Court below has held that no documents were produced in support of the said claim and further that the appellant had not chosen to cross-examine the respondent, who had examined himself as D.W. 1 to urge the above defences, and therefore, the defence set up by the respondent was not rebutted and hence the appellant had failed to establish that there was a legally recoverable debt in respect of the cheques in question, which had been issued. It is that which is under challenge. 4. The learned Counsel for the appellant would submit that though it was not relevant for the purposes of establishing a complaint for an offence punishable under Section 138 of the N.I. Act to prove the transaction, if any, in the first instance on the part of the complainant the respondent having raised a defence that there was no possibility of the appellant having any funds and to have lent such a substantial amount was not tenable as there was material document to evidence the fact that the appellant had received compensation in respect of lands, which have been acquired by the State and these documents, however, were not produced before the Court by inadvertence and seeks leave of this Court to produce the same before this Court in appeal. 5. Further the learned Counsel would candidly admit that no application was made to the Court in terms of sub-section (2) of Section 145 of the N.I. Act, to cross-examine D.W. 1 and under the impression that D.W. 1 ought to have offered himself for cross-examination, and therefore, would submit that the finding of the Court below to that extent is unfair as not only was there no substance in the contention raised by the respondent, but there were material documents to substantiate the case of the appellant, even if it was to be held that the burden was on the appellant to establish that he had the means to lend the money and that it was in fact lent. 6. 6. Given the above circumstances, and as the respondent who has been served and remains unrepresented and as this Court is of the firm opinion that the documents which are now sought to be produced though were not relevant in the first instance, a defence having been raised and the Court below also having found favour with the said defence, the same could be very well dislodged by the production of these documents. Hence, in the opinion of this Court, documents which are sought to be produced at the time of the hearing before this Court, can very well be received in evidence and since the respondent has not chosen to appear before this Court, it would be appropriate if the documents are produced in the presence of the respondent and that he is given an opportunity of testing the veracity of those documents in cross-examination. Further since the Trial Court has also negated the case of the complainant on the basis that the respondent had not been cross-examined, interest of justice would be met if the appellant is permitted to file an application seeking to recall the respondent for the purposes of cross-examination and if he is so offered for cross-examination and if the Court below should reconsider the matter in the light of such additional evidence and the possible cross-examination of the respondent and thereafter render its judgment, the adjudication would be complete. Accordingly, the appellant is permitted to tender the additional documents sought to be produced before this Court, on remand, before the Trial Court for which purpose the Trial Court shall permit the appellant to tender evidence and produce the documents and the Court below shall after issuing summons to the respondent shall proceed in accordance with law. On other aspect of the matter is concerned, the appellant is also at liberty to file an application seeking cross-examination of the accused in terms of sub-section (2) of Section 145 of the N.I. Act. Accordingly, the appeal is allowed the judgment of the Court below is set aside. The Court below shall proceed further in the matter on remand in terms as above. 7. Having regard to the age of the proceedings, it is appropriate that the Court below expedite the reconsideration of the matters on remand and in any event within a period of four months from the date of receipt of the record. The Court below shall proceed further in the matter on remand in terms as above. 7. Having regard to the age of the proceedings, it is appropriate that the Court below expedite the reconsideration of the matters on remand and in any event within a period of four months from the date of receipt of the record. The office is directed to remit the record forthwith to the Trial Court. It is further brought to the attention of this Court that the very same respondent is an accused in Criminal Case No. 1386 of 2006 before the Court below namely the Principal Judge (Junior Division) and J.M.F.C., Hospet. The respondent having been convicted therein for an identical offence punishable under Section 138 of the N.I. Act, the same was questioned before the Additional District and Sessions Judge, Hospet in Criminal Appeal No. 107 of 2007 that appeal having been dismissed, was subject-matter of a further revision petition before this Court, in Criminal Revision Petition No. 393 of 2008 which was dismissed as on 27-5-2009. Therefore, in view of an identical complaint and defence having been raised the same having been held against the respondent and that having attained finality shall also be kept in view by the Court below in addressing the present case.