Research › Search › Judgment

Karnataka High Court · body

2017 DIGILAW 1320 (KAR)

Khuddas Pasha v. N. Ravikumar

2017-09-18

RATHNAKALA

body2017
ORDER : Rathnakala, J. In this revision petition, the challenge is to the judgment passed by the lower Appellate Court whereby the order of the Trial Court in convicting the accused in respect of the offence under section 138 of N.I. Act is reversed. 2. Briefly stated, the revision petitioner (complainant herein) filed a private complaint against the respondent (accused herein) before the jurisdictional Magistrate Court in respect of offence under section 138 of the N.I. Act. His case was, one Muniyappa was the absolute owner of the land bearing Sy. No. 71 measuring 1 acre 20 guntas situated at Bychapura village and he had executed a GPA in favour of the complainant in respect of the said land and on the basis of the GPA, the complainant sold the land to his wife Smt. Zabina Taj under a registered sale deed dated 3.11.1995. The accused is the Managing partner of Sitara Projects, Bangalore, engaged in real estate business. The complainant sold the above land to the accused through his wife under a registered sale deed dated 7.2.2007 for Rs. 1,76,35,000/-. To avoid stamp duty, the accused had shown the consideration amount in the sale deed as Rs. 15 lakhs which was the prevailing Government market rate for the land. Towards the balance sale consideration amount, the accused issued four cheques bearing Nos. 679327, 679328, 679326 and 679323 dated 12.2.2007, 14.2.2007, 17.2.2007 and 9.7.2007 for Rs. 25,00,000/-, 30,00,000/-, 25,00,000/- and 81,35,000/- respectively drawn on Canara Bank, Koramangala, in a total sum of Rs. 1,61,35,000/-. As per the assurance given by the accused, the cheques when presented for encashment, were returned with the endorsement 'Funds insufficient'. On 30.7.2007 a legal notice was issued by the complainant to the accused calling upon him to repay the cheques amount. The notice sent under Certificate of Posting is served on him. Intentionally he has avoided notice issued through RPAD. 3. On registration of the complaint, after taking cognizance and recording the statement of the accused, criminal case was ordered to be registered and the accused was procured. He pleaded not guilty to the accusation. 4. The complainant examined himself as PW-1 and one witness as PW-2 and 16 documents were marked as per Exs. P1 to P16 on behalf of him. 5. He pleaded not guilty to the accusation. 4. The complainant examined himself as PW-1 and one witness as PW-2 and 16 documents were marked as per Exs. P1 to P16 on behalf of him. 5. The statement of the accused under section 313 of Cr.P.C, 1973was recorded and he denied the incriminating circumstances appearing in the statement of PWs. He adduced rebuttal evidence by examining two witnesses and himself as DWs-1 to 3 and got marked documents Exs.D1 to D7. 6. After giving his audience to both, the learned Magistrate convicted the accused for the offence under section 138 of N.I. Act. 7. In appeal, the lower Appellate Court has reversed the judgment of conviction and acquitted the accused of the offence under section 138 of the N.I. Act. 8. Learned counsel Sri. Basavaraj V. Sabarad for the petitioner/complainant submits the conclusion reached by the lower Appellate Court is contrary to the fundamental principles of law applicable to cases of dishonor of cheques. By ignoring the provisions of section 143 of the N.I. Act, the lower Appellate Court re-appreciated the evidence. The complaint contained details necessary for constituting an offence under section 138 of the N.I. Act. The accused had not replied to the demand notice. The complainant had produced relevant documents like sale deed Ex.P1 and P4 and had explained its contents. The finding of the court below that the complaint was bad for not making the Partnership Firm as accused is erroneous. No question about transaction with the Firm was put on behalf of the accused during cross examination or no such statement was made by the accused during rebuttal evidence. The accused had not placed any material to support that it was a Partnership Firm or Company and ; such contention was taken for the first time in the appeal and the Court relied on the same. The complainant had no opportunity to deal with the said contention taken in the appeal for the first time. Since his auditor had advised that the money of the Firm can be utilized for private business also, he had issued cheques from the Partnership Firm. Hence, it was not a case falling under section 141 of the N.I. Act. It was not the case of the complainant that the transaction was between the Firm and the individual. Since his auditor had advised that the money of the Firm can be utilized for private business also, he had issued cheques from the Partnership Firm. Hence, it was not a case falling under section 141 of the N.I. Act. It was not the case of the complainant that the transaction was between the Firm and the individual. The lower Appellate Court has placed its reliance on the judgment of the Apex Court in Aneeta hada v. M/s Godfather Travels and Tours Private Limited, 2012 (2) Crimes 229 : ( (2012) 5 SCC 661 ) : 2012 (2) NIJ 103 (SC). But same is not applicable to the present case. The findings recorded by the court below is contradictory within itself. At one stage of the judgment it was recorded that the sale consideration was Rs. 15 lakhs as per the sale deed, but during the further course of discussion it was observed that parties had agreed by oral agreement during January 2007 for a sum of Rs. 73 lakhs and Rs. 15 lakhs was paid through demand draft and subsequently Rs. 21 lakhs and Rs. 37 lakhs were paid by the accused to the complainant. The accused being a business man would not have given four blank cheques during the course of business towards security. In his examination-in-chief, he has stated, totally six cheques including the encashed cheques were issued to the complainant but his defence was, four signed cheques were issued as security to be returned after encashment of first two cheques. He has not taken any action against the complainant or his wife for not returning the cheques or for alleged misuse of cheques. His witness DW-1 had stated that the payment of Rs. 73 lakhs was paid by way of cash. From the very suggestion put to the complainant during the course of cross examination, it is clear that the land was sold by the complainant in the name of his wife who was a nominal owner and he had singed the sale deed and Rs. 15 lakhs shown as sale consideration was not the full consideration. 9. Learned counsel continues to submit that the contention of the accused was, cheques were filled up by the complainant, but the Trial Court has inferred in its judgment that the accused had filled the contents of Exs. P5 to P8. 15 lakhs shown as sale consideration was not the full consideration. 9. Learned counsel continues to submit that the contention of the accused was, cheques were filled up by the complainant, but the Trial Court has inferred in its judgment that the accused had filled the contents of Exs. P5 to P8. The lower Appellate Court has disbelieved the complainant version that he is the owner of the land. The accused himself had admitted that the cheques were issued to the complainant on the instruction of his wife. The appellate court has failed to appreciate the admission by the accused during his cross examination that the complainant himself has introduced him to the owner of the land and at the time of business negotiation, himself, the complainant and his wife were present. The cheques were issued on the date of registration. The accused had admitted that the property was undervalued and instead of Rs. 75 lakhs, it was mentioned as Rs. 15 lakhs and that the name of the complainant was entered in the cheques by his assistant one Kumar. Appreciating the said fact, the Trial Court has held that the entire writing in the cheque was by the accused or some one on his behalf. Without any basis, the Lower Appellate Court has brushed aside the evidence of PW-2. Hence, the judgment of the lower Appellate Court requires to be set aside and the judgment of conviction and sentence returned against the accused to be restored. 10. The response of the learned counsel Sri. Vipin Kumar Jain for the respondent in his written arguments is that the complaint is hit by section 319 of Cr.P.C., 1973 for non prosecution of the principal accused, i.e. a partnership Firm. Admittedly the cheques are concerning the partnership Firm. Thus, for non arraying the partnership Firm as accused, the proceedings is not maintainable. The cheques are pertaining to the partnership Firm and the Firm is defined under section 141 of the N.I. Act. Hence, it was a necessary party. The property was sold by the wife of the complainant and the accused was not due any amount to the complainant. Consequently the question of issuing cheques in his favour will not arise. The partnership Firm was not due any amount to the petitioner. Hence, it was a necessary party. The property was sold by the wife of the complainant and the accused was not due any amount to the complainant. Consequently the question of issuing cheques in his favour will not arise. The partnership Firm was not due any amount to the petitioner. Thus, no presumption can be raised in favour of the complainant and non production of the vital document by the complainant itself is sufficient to infer automatic rebuttal of presumption. The judgment of acquittal is passed by the lower Appellate Court by considering the entire evidence. Hence, there is no valid ground to interfere with the judgment of acquittal. 11. With the above rival submissions, perused the judgments of the courts below and also the lower court records. 12. What over weighed against the order of the Trial Court for the lower Appellate Court was, the complainant is not the owner of the property for which the accused is alleged to have issued cheques. Secondly, the complaint allegations fell short of categorical pleading to the effect that the cheques were issued towards the consideration amount of Rs. 1,76,35,000/- only to avoid stamp duty and real sale consideration was not shown in the registered sale deed. The sale transaction was between the complainant and Smt. Zabina Taj and comparing the sale consideration of Rs. 15 lakhs with that of the alleged transaction, Rs. 76,35,000/-, it is not a real transaction and the case made out was against the contents of the complainant's very own document i.e. the registered sale deed Ex.P2. The cheque was issued on behalf of the Managing partner of the partnership Firm without arraigning the Directors of the Firm as the accused persons. Complaint filed is not legal. 13. While holding as above, the learned lower Appellate Court did not discuss how the finding arrived by the Trial Court was misconceived/perverse. 14. As per the judgment of the Apex Court in Sanwat Singh v. State of Rajasthan, (1961) 3 SCR 120 "the Appellate Court has power to review the entire evidence and to come to its own conclusion. 13. While holding as above, the learned lower Appellate Court did not discuss how the finding arrived by the Trial Court was misconceived/perverse. 14. As per the judgment of the Apex Court in Sanwat Singh v. State of Rajasthan, (1961) 3 SCR 120 "the Appellate Court has power to review the entire evidence and to come to its own conclusion. In doing so, it should not only consider every matter on record having a bearing on the question of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts but should also express those reasons in its judgment which lead it to quote that the I acquittal was not justified". Though it is a case of reversal of conviction recorded by the Trial Court into acquittal by the Appellate Court, the principle laid as above applies to the present circumstances also. 15. In another judgment in the case of State of U.P. v. Dinesh (Crl.Appeal No. 1271 of 2001) reported in 2009 (11) SCC 566 it was observed thus : "In some cases (Ramaphupala Reddy v. State of A.P., ( AIR 1971 SC 460 ) Bhim Singh Rup Singh v. State of Maharashtra, ( AIR 1974 SC 286 ), it has been said that to the principles laid down in Sanwat Singh case may be added the further principle that 'if two reasonable conclusions can be reached on the basis of the evidence on record, the Appellate Court should not disturb the finding of the Trial Court'. This, of course, is not anew principle. It stems out of the fundamental principle of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt. If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But, fanciful and remote possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt. It is, therefore, essential that any view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable." 16. Yet in another judgment in the case of State through Inspector of Police A.P. v. K. Narasimhachary, 2005 (8) SCC 364 , it was thus observed thus: "24. Having regard to the facts and circumstances of this case, we are of the opinion that two views are possible and the view of the High Court cannot be said to be wholly improbable; it cannot be said, in view of the discussions made hereinbefore, that the materials brought on record would lead to only one conclusion i.e. the guilt of the accused. The impugned judgment, therefore, is sustained." 17. Regarding non arraying the Firm and the other partners as accused persons, it was never the case of the accused that it was a transaction between himself and the Firm. It was also not the case of the accused that he transacted with the complainant on behalf of the Firm. Regarding the question of liability towards legally outstanding due, the accused had admitted issuing the cheques with his signature. But his contention was, it was a blank cheque issued towards security. It is his own case that apart form the above four cheques, he had issued two more cheques which came to be encashed and the contents in those cheques were filled up by his own person. If the signature was filled by his own person in respect of two cheques which was encashed by the complainant, it cannot be presumed otherwise in respect of the cheques in question. That being so, there is no reason why he would issue blank cheques to the complainant's wife. His parallel contention is that the disputed cheques are stolen from his vendor. If that is so, no action is initiated by him for not returning his blank cheques after the sale transaction was complete or about theft of his signed cheques. That being so, there is no reason why he would issue blank cheques to the complainant's wife. His parallel contention is that the disputed cheques are stolen from his vendor. If that is so, no action is initiated by him for not returning his blank cheques after the sale transaction was complete or about theft of his signed cheques. The learned Trial Court on proper evaluation of the evidentiary material has recorded that the disputed cheques were issued by the accused to the complainant who is the husband of his vendor towards part consideration of the sale amount. 18. Learned counsel for the accused relied on a judgment of Bombay High Court reported in 2016 (1) Bom. C.R. (Cri.) 63 (it was a revision by the complainant against the order of the Appellate Court dismissing his complaint). In the said case reliance was placed on the following judgments of the Apex Court, Crl.A. 42/2010 in the case of Shri Shirish Vasant Borkar v. Shri Vijaykumar K. Pillienkar Fadke and another AIR 1971 S.C. 66 in the case of Khedu Mohton and others v. State of Bihar. wherein it was held that from the evidence on record if two views are possible and the one view is adopted by the Trial Court, there is no scope for interference by the High Court against that order even if the High Court is inclined to accept the other view taken as above by the Apex Court. Above rationale rather than benefiting the case of the accused favours the complainant. The Trial Court on factual analysis of the evidence has found that the transaction in respect of the disputed cheques was directly between the complainant and the accused and not the Firm. Hence, section 141 of the N.I.Act had no application and having admitted the signature on the cheque, he had not successfully rebutted the statutory presumption under section 139 of the N.I. Act. Without recording its reasoning as to how said finding was erroneous, the learned lower court hypothetically finds that the complainant is not the owner of the land in respect of which he has received the cheques and that he has failed to prove the outstanding legal liability towards the cheques issued. 19. It is ridiculous that the Trial Court is expecting a vivid description of complainant's entitlement for the cheque amount from the complaint averments. 19. It is ridiculous that the Trial Court is expecting a vivid description of complainant's entitlement for the cheque amount from the complaint averments. The fundamentals of pleadings contemplated in the Code of Civil Procedure by Order 6 Rule 2 of CPC has no application to a complaint under section 200 of Cr.P.C., 1973 The accused had not disputed his liability under the cheques at the earliest by replying to the demand notice served on him. Though a faint defense was taken by him that notice was not served on him, he did not dispute the address on the postal cover and he was served with court notice to the same address. It is the circumstances which at the first instance went against the accused. The totality of evidence by both parties drive inference that it was the business transaction between the complainant and the accused though property stood in the name of the complainant's wife. Of course there was difference between the sale amount mentioned in the sale deed and claimed in the complaint. The accused himself admits that the sale price of Rs. 15 lakhs mentioned in the sale deed was not real price and he had paid further amount of Rs. 21 lakhs and Rs. 37 lakhs by way of demand draft and cash towards consideration. The allegation that the sale amount was actually Rs. 1,76,35,000/- is disbelieved by the Appellate Court as unreal. But sale price of a property depends upon the will and wish of purchaser and the seller. The accused is not a lay person to issue blank cheques to the vendor, he is a business man. He does rebut the initial statutory presumption arising from section 139 of the N.I. Act by explaining under what terms disputed cheques were issued as security. Appreciation of evidence by Trial Court is proper and judicious. The lower Appellate Court misdirected itself in acquitting the accused much against the evidence borne on record. 20. Accordingly, the revision petition is allowed. The judgment of the lower Appellate Court in acquitting the respondent-accused from the charges under section 138 of the N.I. Act is set aside and the judgment of the Trial Court in convicting the accused for the offence under section 138 of the N.I. Act and sentence imposed thereon is upheld.