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2018 DIGILAW 540 (KAR)

Shakti Pharmaceuticals v. Santoji Jairam Pavale

2018-04-17

JOHN MICHAEL CUNHA

body2018
JUDGMENT : 1. This appeal is directed against the judgment and order dated 12.01.2010 passed by the III Additional Civil Judge (Jr. Dn.) and Additional JMFC, Belagavi in C.C. No.531 of 2002, whereby the learned Magistrate has acquitted the respondent – accused of the offence punishable under Section 138 of Negotiable Instruments Act (hereinafter referred to as ‘N.I. Act’). 2. The appellant (hereinafter referred to as ‘complainant’) initiated action against the respondent – accused alleging that the accused had borrowed a loan of Rs.4,42,870/from the complainant for his domestic and business purpose and in repayment thereof, he issued a cheque bearing No.001651 dated 11.08.1999 for Rs.4,42,870/drawn on Belgaum Taluka Rural Industrial Cooperative Credit Society Limited, Belagavi. The said cheque when presented for encashment came to be returned as “payment stopped by the drawer”. The complainant caused a notice as required under Section 138 of N.I. Act. The accused issued a false and evasive reply, but failed to comply with the demand and hence, the complainant presented a complaint before the learned Magistrate. 3. The accused having denied the charge, the complainant examined himself as P.W.1 and produced in evidence six documents namely Ex.P1 – cheque, Ex.P2 and P3 – intimation of United Bank, Ex.P4 – office copy of legal notice, Ex.P5 – postal acknowledgment, Ex.P6 – reply notice issued by the accused. In rebuttal, the accused examined himself as D.W.4 and also examined three other witnesses and took up a plea that he did not borrow any amount from the complainant and there were no business transactions between him and the complainant and the blank cheque which was issued by him to D.W.1 (Kirankumar Hirachand Mehta) has been misused by the complainant. 4. Considering the above evidence, learned Magistrate was of the opinion that the complainant has taken inconsistent stand with regard to the alleged debt. The learned Magistrate has noted that in the complaint as well as in the notice, the complainant proceeded on the basis that the accused availed a hand loan of Rs.4,42,870/, but during the course of evidence, the complainant has come forth with a plea that the said amount was due by the accused towards the supply of medicines. Thus, the case of the complainant is doubtful. Thus, the case of the complainant is doubtful. Further, the Trial Court observed that a cheque issued by the complainant for Rs.22,000/itself came to be dishonoured at the relevant time and therefore, the complainant had no capacity to advance a huge sum of Rs.4,42,870/and consequently held that the accused has probablized the defence by examining D.W.1 who had stated on oath that a blank cheque was received by him from the accused was handed over by him to the complainant. Further, the Trial Court relying on the decision in Krishna Janardhan Bhat vs. Dattatraya G. Hegde, 2008 Crl.L.J. 1172, the learned Magistrate has proceeded on the basis that the initial burden is on the complainant to prove the transaction as well as the issuance of the cheque. Based on this reasoning, the learned Magistrate disbelieved the case of the complainant and consequently, acquitted the accused of the alleged offence. 5. Learned counsel for the appellant submits that the learned Magistrate has failed to appreciate the evidence in proper perspective. The evidence adduced by the accused is not sufficient to rebut the presumption attached to the cheque. The accused has not disputed the issuance of the cheque. In his evidence he has admitted that the said cheque bears his signature, whereas the witnesses examined by him have stated that a blank cheque has been received by the complainant. The stand taken by the accused itself being contradictory, there was no reason for the learned Magistrate to doubt the case of the complainant and hence, learned counsel seeks to set aside the impugned judgment and to convict the accused for the above offence. 6. The learned counsel appearing for the accused is not present and has not addressed any arguments. 7. Considered the submissions made by the learned counsel for the appellant. Perused the records and the reasoning assigned by the learned Magistrate in the impugned judgment. 8. On perusal of the impugned judgment, it is seen that the learned Magistrate has relied on inadmissible piece of evidence in deciding the issue. In the course of the judgment, the learned Magistrate has referred to the judgment copy produced by the counsel for the accused in C.C. No.360/2002. Undisputedly, the said order was not produced in evidence and therefore, the learned Magistrate could not have relied on the said document to determine the financial capacity of the complainant. In the course of the judgment, the learned Magistrate has referred to the judgment copy produced by the counsel for the accused in C.C. No.360/2002. Undisputedly, the said order was not produced in evidence and therefore, the learned Magistrate could not have relied on the said document to determine the financial capacity of the complainant. Further, the learned Magistrate has observed that a notarized copy of the credit bill was produced by the complainant, but the same was not marked in evidence being the notarized copy. However, in paragraph 17 of the impugned judgment, the learned Magistrate has elaborately discussed on the contents of this document and has come to the conclusion that the said document does not establish the supply of medicine. The learned Magistrate has even gone to the extent of stating that the said bill relates to a single transaction and therefore, the transaction in hand cannot be believed. The learned Magistrate has also noted that when the complainant could produce the notarized copy of the said bill, the original bill also could have been produced by the accused, forgetting for a while that, in the same paragraph, the learned Magistrate has noted that another criminal case was filed by the complainant against the very same accused in respect of the dishonour of another cheque issued by him for Rs.4,33,395/-. 9. In appreciating the controversy raised in this appeal, it is relevant to note that the accused has taken up a definite stand that there was no business transaction whatsoever between him and the complainant and further he has taken up a plea that the cheque in question was issued by him to D.W.1 in blank form and the same has been misused by the complainant. There is absolutely no explanation as to how the complainant came in possession of the said cheque, which undisputedly contained the signature of the accused. In this regard, if the evidence of D.W.1 is perused, in his affidavit evidence, he has stated that the accused was dealing in medicine business and was having contact and dealings with Rupram Pannaram Choudhary. This statement is contradictory to the very contention set up by the accused that he was not having any business transaction whatsoever with the complainant. 10. Be that as it may. This statement is contradictory to the very contention set up by the accused that he was not having any business transaction whatsoever with the complainant. 10. Be that as it may. In his evidence D.W.1 has stated that, in the month of August 1998, the complainant and the accused together approached him and sought for a loan of Rs.10,000/- and on the security of the complainant, he paid Rs.10,000/- to the accused and while paying the said hand loan, he retained a blank cheque bearing No.001651 of Belgaum Taluk Rural Industrial Cooperative Credit Society Limited, Belagavi and blank nonjudicial stamp of Rs.10/- to the complainant. He has further deposed that in the month of February 1999, the accused repaid Rs.9,000/- to the complainant personally and balance of Rs.1,000/- was repaid by the complainant and at that time, he handed over the blank cheque and the blank nonjudicial stamp of Rs.10/- to the complainant. 11. This story is inconsistent to the stand taken up by the accused. As already stated above, the definite case of the accused was that there was no business transaction whatsoever between him and the complainant and he has pleaded total ignorance about the complainant coming in possession of the cheque. D.W.1 has come forwarded to say that the complainant has stood as guarantor for the loan availed by accused from D.W.1. It is quite unbelievable and improbable that D.W.1 would hand over the blank cheque of the accused to the complainant, when it is the case of D.W.1 that the said cheque was left with him by the accused as security. Even assuming for the sake of argument that he has handed over the said cheque to the complainant, yet in the crossexamination, he has admitted that he did not inform this matter to the accused. This is another circumstance to show that only after the initiation of the criminal proceedings, a cock and bull story has been set up by the accused apparently to wriggle out of the claim made against him based on the cheque issued by him. 12. This is another circumstance to show that only after the initiation of the criminal proceedings, a cock and bull story has been set up by the accused apparently to wriggle out of the claim made against him based on the cheque issued by him. 12. No doubt the complainant has failed to produce documents in proof of the supply of medicines to the accused, but the complainant having substantiated the fact that the cheque in question was issued by the accused and that it contained the signatures of the accused, in my view, the presumption engrafted in Section 139 of N.I. Act comes into play. The evidence adduced by the accused, in my view is not sufficient to rebut the said presumption. By virtue of the provisions of Section 138 of N.I. Act, the burden is on the accused to rebut the presumption attached to the cheque. The learned Magistrate has failed to record any clear finding as to the signature and the handwriting contained in the said cheque. It is seen from the records that the writings of the said cheque were sent for examination of the handwriting expert and a report has been secured. The said material has not been taken into consideration at all by the learned Magistrate. The said documents having been sent for the examination of the expert at the instance of accused, the Trial Court ought to have considered the said matter. Since the learned Magistrate has failed to consider the material evidence available on record and has based his conclusion on inadmissible evidence as discussed above, in my view, the impugned judgment cannot be sustained and the matter requires to be remanded to the learned Magistrate to reconsider the matter afresh, after hearing the parties and if necessary by providing further opportunity to the complainant to produce the original of the credit bill, if any, in support of his case. Hence, I proceed to pass the following: ORDER (i) The appeal is allowed. (ii) The impugned judgment and order dated 12.01.2010 passed by the III Additional Civil Judge (Jr. Dn.) and Additional JMFC, Belagavi is set aside. (iii) The matter is remanded to the learned Magistrate to reconsider the matter afresh, after hearing the parties and if necessary by providing further opportunity to the complainant to produce original bills, if any, in support of his case. Dn.) and Additional JMFC, Belagavi is set aside. (iii) The matter is remanded to the learned Magistrate to reconsider the matter afresh, after hearing the parties and if necessary by providing further opportunity to the complainant to produce original bills, if any, in support of his case. (iv) The Trial Court shall endeavour to dispose of the appeal as expeditiously as possible.