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2017 DIGILAW 881 (KAR)

Shivanand v. Aravind Narayan Kulkarni

2017-06-02

B.A.PATIL

body2017
JUDGMENT : B.A. PATIL, J. 1. This appeal is filed by the appellant/complainant being aggrieved by the judgment dated 22.10.2009, passed in Criminal Appeal No. 94/2007 by the II Addl. Sessions Judge, Bijapur, wherein the judgment of conviction and sentence passed in C.C. No. 388/2006 by JMFC II Court, Bijapur by order dated 17.09.2007 came to be set aside and the accused came to be acquitted. 2. Brief facts leading to filing of the complaint are that the complainant alleged that the accused for the purpose of family necessity had obtained a hand loan of Rs. 75,000/- and towards repayment of the hand loan, he issued a cheque dated 09.03.2006 drawn on Sri. Basaveshwar Pattina Sahakari Bank Ltd., Bagalkot. Since, the accused did not pay the loan amount, the complainant presented the said cheque for encashment through his banker and it returned dishonoured with a shara' insufficient funds'. The said fact was brought to the notice of the accused and as per the request of the accused the said cheque was again presented for payment on 27.04.2006. Even at that time also the cheque was returned dishonoured with a shara' insufficient funds. Thereafter, the complainant got issued a legal notice dated 05.05.2006 calling upon the accused to make the payment of cheque amount within 15 days from the date of receipt of the notice. Even after service of the notice, the accused failed to pay the cheque amount. As such, the complaint came to be lodged for the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as' N.I. Act' for short). After the complaint, the accused was secured and thereafter the evidence of the complainant was recorded and Exs.P1 to P6 were got marked and after recording the statement of the accused under Section 313 of Cr.P.C. and after hearing the parties to the lis, the learned JMFC II Court, Bijapur, passed an order dated 17.09.2007 wherein the accused was convicted for the offence punishable under section 138 of N.I. Act and he was sentenced to pay fine of Rs. 90,000/- and in default he was ordered to undergo simple imprisonment for a period of six months. Out of fine amount, a sum of Rs. 80,000/- was ordered to be paid to the complainant. 90,000/- and in default he was ordered to undergo simple imprisonment for a period of six months. Out of fine amount, a sum of Rs. 80,000/- was ordered to be paid to the complainant. Being aggrieved by the said order, the respondent herein preferred Criminal Appeal No. 94/2007 and by virtue of the impugned order, the appeal was allowed and the accused was acquitted. Being aggrieved by the said order, the appellant is before this Court. 3. I have heard the learned counsel for the appellant. Though the notice was served on the respondent, he remained unrepresented. 4. The main grounds urged by the learned counsel for the appellant are that the appellate Court has not properly considered and appreciated the facts and evidence on record and has wrongly allowed the appeal and acquitted the accused. It is also contended that the respondent/accused has admitted the signature on the cheque at Ex.P1. When once he admits the signature, the Court has to draw a presumption under section 139 of the N.I. Act in favour of the complainant and thereafter the accused has to re-butte the said presumption and if the said presumption has not been rebutted, under such circumstances, the only alternative left to the Court is to convict the accused under section 138 of N.I. Act. It is further contended that when there is an admission on the part of the accused/respondent regarding the contents of legal notice and the signature on the cheque, under such circumstances, the first appellate Court ought not to have set aside the impugned order. It is further contended that the impugned order is perverse and it is not sustainable in law and the same is liable to be set aside. On these grounds, he prays for allowing the appeal by setting aside the impugned order. 5. It is the contention of the learned counsel for the appellant that the respondent has admitted the signature on the cheque-Ex.P1 and the contents of legal notice. As such, the Court below ought to have drawn a presumption as contemplated under the law and ought to have held that the ingredients of section 138 of N.I. Act have been proved and ought to have convict the respondent/accuse. 6. As such, the Court below ought to have drawn a presumption as contemplated under the law and ought to have held that the ingredients of section 138 of N.I. Act have been proved and ought to have convict the respondent/accuse. 6. It is not in dispute that the cheque-Ex.P1 was in the possession of the complainant and subsequently he presented the said cheque through his banker and it was returned dishonored with a shara 'insufficient funds' on 27.04.2006 and subsequently a legal notice came to be issued on 05.05.2006 and even after the receipt of the notice, the respondent/accused did not pay the cheque amount. As such, the complaint came to be filed. It is the specific case of the appellant/complainant that the accused has taken a hand loan of Rs. 75,000/- for the purpose of securing job for his son and also for the purpose of his family difficulties. The complainant has filed his affidavit evidence and he has substantiated the contents of the complaint and it is the case of the accused that the cheque-Ex.P1 is the self cheque and he has lost the same and the same has been misused by the complainant by presenting the same by altering the name as mentioned in Ex.P1. In the first instance, it is the bounden duty of the complainant to prove that the accused had issued the cheque in consequence of some debt or a liability and thereafter the subsequent presumption and assumption will come into picture. Though it is well settled principle of law that when once the accused/respondent admits the signature on the cheque, then the Court is duty bound to draw a presumption that the said cheque has been issued as a consequences of a debt or a liability. But in the peculiar facts and circumstances of this case, if we peruse the said cheque-Ex.P1, it indicates that earlier the said cheque has been mentioned as ' self' and subsequently it has been altered as ' Selfivanda S. Teggi'. On close observation, it is quite clear that the said cheque earlier was issued as 'Self' cheque and subsequently it has been altered as stated above. The complainant has not specifically stated the said fact either in his complaint or in the legal notice, which has been issued, when he made a demand for the payment of the cheque amount. On close observation, it is quite clear that the said cheque earlier was issued as 'Self' cheque and subsequently it has been altered as stated above. The complainant has not specifically stated the said fact either in his complaint or in the legal notice, which has been issued, when he made a demand for the payment of the cheque amount. It is well established principle of law that, in order to attract the provisions of section 138 of N.I. Act, the cheque in question must be valid, legal and negotiable one. If that ingredients are not forthcoming in the cheque itself, under such circumstances, Ex.P1 cannot be called as negotiable document in the eye of law. Under the circumstances, the presumptions, which are to be drawn by the Court, do not arise at all. It is also well established principle of law that in order to draw the presumption, first of all the cheque in question must be valid as per the N.I. Act. If that itself is a doubtful one, no presumption can be drawn. Be that as it may. In the instant case, the appellant has not come up with any specific case so as to under what circumstances, earlier the cheque was issued as 'self' and subsequently, it has been mentioned as 'Selfivanda S. Teggi'. When the negotiable instrument itself is in a doubtful circumstance, under such circumstances, the further proceedings which have been taken place, even though they are in accordance with law, that will not give any right to the complainant to file the complaint and get the amount or conviction under section 138 of the N.I. Act. Looking from any angle, the contention taken up by the learned counsel for the appellant does not appears to be just and proper. 7. As could be seen from the records, it is the specific case of the respondent/accused that the name of accused has wrongly spelled and the complainant has misused a 'self cheque' belonging to the accused and by bear reading of Ex.P1, the contention raised by the respondent appears to be just and proper and probable also. Under the said facts and circumstances, I feel that the first appellate Court has rightly considered the case on merits and has rightly allowed the appeal by setting aside the order passed by the JMFC II Court, Bijapur in C.C. No. 338/2006. 8. Under the said facts and circumstances, I feel that the first appellate Court has rightly considered the case on merits and has rightly allowed the appeal by setting aside the order passed by the JMFC II Court, Bijapur in C.C. No. 338/2006. 8. I have gone through the contents of the impugned judgment. There is no irregularity or illegality or perverseness in the judgment and it does not require any interference and the same is liable to be confirmed. 9. Keeping in view the above said facts and circumstances, the appeal stands dismissed.