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2019 DIGILAW 778 (KAR)

K. Ishwaran v. Ashok B Bannikol

2019-04-01

H.P.SANDESH

body2019
JUDGMENT : H.P. SANDESH, J. 1. This appeal is filed under Section 378(4) of Cr.P.C. challenging the judgment of acquittal passed in CC No.129/2006 on the file of the J.M.F.C.Hukkeri, dated 2/7/2009 for the offence punishable under Section 138 of N.I.Act. 2. The brief facts of the case is that, the complainant was acquainted with the accused and he has given a hand loan of Rs.1,10,000/- on 6/1/2005 and accused did not pay the said amount inspite of several demand and ultimately, he has issued the cheque on 17/2/2006. When the same was presented, it was returned with an endorsement that funds insufficient. The complainant got issued legal notice and the same was served and he did not repay the amount and hence, he filed the complaint and the Court below has taken cognizance, and thereafter, the complainant himself has examined as PW-1. The complainant also examined another witness as PW-2 and got marked Exs.P1 to P4. The accused did not choose to lead any evidence. The Court below after considering both the oral and documentary evidence, acquitted the accused and hence, the present appeal. 3. The complainant in this appeal has contended that the Court below fails to appreciate both oral and documentary evidence available on record. The Court below also failed to note that there is promissory note and consideration receipt signed by the accused in support of the said transaction and also failed to take note of the fact that no reply was given to the notice and the Court below ought to have drawn the presumption under Section 139 of N.I.Act and the same has not been done. 4. The other contention of the appellant/complainant that the Court below has failed to note that the accused admitted that his father had borrowed Rs.1,10,000/- from the complainant who is running a chit fund business, that itself is sufficient to hold that there is a transaction and ought to have convicted the accused. 5. The other contention is the Court below has mainly given prominence to source of amount to pay the said amount to the accused and erroneously comes to the conclusion that the source has not been proved. 6. 5. The other contention is the Court below has mainly given prominence to source of amount to pay the said amount to the accused and erroneously comes to the conclusion that the source has not been proved. 6. The other contention that the Lower Court is not correct in coming to the conclusion that the father of the accused has returned the loan amount and therefore, complaint filed against the accused is not correct and erroneously relied upon the documents Exs. D1 to D3 and no explanation was given by the complainant and hence, the impugned order is liable to be set aside. 7. The appellant's counsel in his arguments he vehemently contends that the Court below has proceeded in a erroneous direction and failed to take note of the fact that the accused has not rebutted the presumption under Section 139 of N.I.Act. Counsel also contends that when he has not disputed the issuance of cheque and no reply was given to the legal notice, the trial Court ought to have drawn the presumption as held in the judgment of the Apex Court and it requires an interference of the Court. 8. Counsel also mainly contended that the Court below given more prominence to the source of income and in support of his contentions, he relied upon the recent judgment between Rohitbhai Jivanlal Patel Vs. and State of Gujarat and Another, 2019 SCC OnLine 389 brought to my notice para 30 of the judgment that the observation of the trial Court that there was no documentary evidence to show the source of funds with the respondent to advance the loan, or that the respondent did not record the transaction in the form of receipt of even kachcha notes, or that there were inconsistencies in the statement of the complainant and his witness, or that the witness of the complaint was more in know of facts etc. would have been relevant if the matter was to be examined with reference to the onus on the complaint to prove his case beyond reasonable doubt. These considerations and observations do not stand in conformity with the presumption existing in favour of the complainant by virtue of Sections 118 and 139 of the N.I.Act. 9. would have been relevant if the matter was to be examined with reference to the onus on the complaint to prove his case beyond reasonable doubt. These considerations and observations do not stand in conformity with the presumption existing in favour of the complainant by virtue of Sections 118 and 139 of the N.I.Act. 9. By referring this judgment the counsel contends that the very approach of the trial Court is erroneous with regard to the source of income for advancing the loan amount and the Court below merely on the ground of creation of doubt proceeded to pass the order of acquittal and hence, the judgment of the Lower Court is liable to be set aside. 10. Per contra, the counsel appearing for the accused in his arguments he vehemently contends that the Court below while appreciating the evidence taken note of the admission elicited from the mouth of PW-1 and also the complainant has not given any explanation in respect of Exs.D1 to D3 and having considered all these materials, the Court below has rightly comes to the conclusion that the very transaction is doubtful and there was no source of income to pay the amount and also relied upon the documents Exhibits-Bank statements, which disclose that he was not having any amount in his account and he was indebted to several persons and hence, there are no grounds to interfere with the order of the trial Court. In support of his contentions, he relied upon the judgment of this Court between M.B. Rajasekhar Vs. Savithramma, 2012 1 AIR Karnataka 718 and brought to my notice the principles laid down in the judgment in respect of Sections 138 and 139 Failure of complainant to discharge initial burden of getting post-dated cheque from accused as security for payment of loan and his evidence was in contradiction with his pleadings. 11. The counsel also relied upon the judgment of this Court between S.Timmapa Vs. L.S.Prakash, (2010) 3 AirKarR 207 in respect of the presumption under Section 118(a), (b) and 139 of the N.I.Act. The complainant in the complaint merely stating that accused borrowed the hand loan from the complainant and not mentioned as to date on which the complainant advanced the loan and did not spell out the date on which the loan was advanced and in the cross-examination, elicited the particular date. The complainant in the complaint merely stating that accused borrowed the hand loan from the complainant and not mentioned as to date on which the complainant advanced the loan and did not spell out the date on which the loan was advanced and in the cross-examination, elicited the particular date. It is clear that no consideration was passed and hence, it is duty cast upon the complainant to initially prove that the consideration was passed as there was existence of legalliability. 12. The counsel also relied upon the judgment of this Court between Smt. Threja Vs. Smt. Jayalaxmi, 2016 2 KArLR 194 and in this judgment, this Court held that the Court below was erred in coming to the conclusion that accused was not able to probabalise his defence and the Courts have not critically evaluated the evidence placed on record and exercising the revisional jurisdiction acquitted the accused. 13. The counsel also relied upon the judgment of the apex Court between K.Prakashan Vs. P.K.Surenderan, 2007 7 SCC 500, in support of Section 139. In this judgment, it is observed that laying great emphasis on the burden of proof on the accused. It is settled that accused need not disprove the prosecution case in its entirety and accused has only to discharge his initial burden and the High Court reversing the findings of acquittal on the ground that the accused has not discharged the burden of proof cast on him; not examining himself is erroneous. 14. The counsel also relied petition the judgment of the Apex court between M.S.Narayana Menon Alias Mani Vs. State of Kerala, (2006) 6 SCC 39 and Another held that onus of proof on accused held, is not as heavy as that of the prosecution. Such onus compared with that of a defendant in civil proceeding and it was for the accused only to discharge the initial onus of proof. He was not necessarily required to disprove the prosecution case. 15. The counsel appearing for the accused referring all these judgment contends that the Court below rightly appreciated the evidence available on record and no need to enter into evidence box to rebut the evidence of complainant and if answers elicited from the mouth of the complainant itself is enough to rebut the case of the complainant and the same has been done in the case on hand. Complainant did not place any material that the said judgments are not applicable and the Court below considering the admission given by PW-1 regarding transaction between the complainant and the father of the accused and returning of the cheque has rightly comes to a conclusion that there was no any debt or liability and the complainant has fails to prove his case against the accused and prayed this Court to dismiss the appeal. 16. Having heard the arguments of complainant's counsel and also the counsel for the accused, this Court has to examine whether the Court below has committed an error in acquitting the accused for the offence punishable under Section. 138 of N.I.Act. 17. Before appreciating the oral and documentary evidence, I would like to make a mention in nutshell, the case of the complainant. The complainant in the complaint has contended that he gave a hand loan of Rs.1,10,00/- to the accused and on his insistence to repay the amount, he gave the cheque in question on 17/2/2006 and when the same was presented and it was dishonored. 18. On the other hand, the defence of the accused is that the complainant has not paid any amount of Rs.1,10,000/-and his father borrowed the loan from the complainant and he gave the cheque as security and the accused contend that his father had returned the money and hence, the transaction was completed and this complainant did not return the cheuqe which he had taken as security and misused the same. Hence, the present complaint is filed. 19. Before appreciating the oral and documentary evidence, I would like to make it clear that in the appeal against acquittal, this Court has ample power to reappreciate both the oral and documentary evidence and to examine whether the Court below has committed any error in acquitting the accused. PW-1 who is the complainant, in order to substantiate his contention he himself has examined as PW-1 and in his affidavit under Section 145 of N.I.Act he reiterated the contents of the complaint and also examined himself and got marked documents Exs.P1 to 4. In the cross examination, it is elicited that he came to know the accused through his father. In the cross examination it is also elicited that he advanced the loan to two to three persons who are friendly with him. In the cross examination, it is elicited that he came to know the accused through his father. In the cross examination it is also elicited that he advanced the loan to two to three persons who are friendly with him. He also mentioned the name of one Masurgol and this accused and further admits that he has not obtained any document from the said persons. He says that he obtained a cheque from the accused with regard to the loan advanced to him. Further he admits that he has obtained the chque after advancing the loan and he has not produced the bond executed by the accused and in the cross examination also he admits that he does not know where the said bond is at present and also he does not remember whether the same is with him. But, he did not produce those documents in spite of he has been cross examined with regard to the execution of the document in respect of loan transaction and now appellant's counselin the grounds of appeal also has contended that he has executed promissory note and also consideration receipt. Though it is contended, those documents are also not produced before the Court to prove the fact that there was a hand loan transaction between the complainant and accused. On perusal of the cross examination of PW-1, mainly cross examined with regard to the capacity to lend the amount of Rs.1,10,000/- and answer elicited that he made the payment by withdrawing the amount from his O.D. account and also the amount which he has having cash in his hand. During the cross- examination, he also admits that during June 2004 to January 2005 he has not advanced any loan to anybody except this accused. PW-1 also admits that the father of the accused has not issued any cheque in respect to loan availed by the accused. However, he admits that before the date of loan transaction, the father of the accused had issued a cheque. He also admits that the said cheque was dishonoured with an endorsement that insufficient fund. He does not know where the said cheque is. However, he admits that on repayment of amount, he used to return the cheque and document of cheque, endorsement and also the Kachcha accounts confronted to witness and he admits the same as Ex.D1 to D3. He also admits that the said cheque was dishonoured with an endorsement that insufficient fund. He does not know where the said cheque is. However, he admits that on repayment of amount, he used to return the cheque and document of cheque, endorsement and also the Kachcha accounts confronted to witness and he admits the same as Ex.D1 to D3. It is suggested that on repayment of Rs.1,10,000/- loan amount by the accused and his father, he has returned the cheque Ex.D1 and the said suggestion was denied. Further suggestion was made that Ex.D1 given by the father of the accused was given before advancing the loan amount and even after repayment of the loan amount, by utilizing the cheque given by the accused, he has filed the false complaint and the said suggestion was denied. PW-2 is the witness of the Bank Manager, he has spoken with regard to issuance of cheque and returning of the cheque and there was no fund in the account and PW-2 is only a formal witnesses with regard to the return of cheque as insufficient fund. Accused did not choose to lead any evidence before the Court below. 20. Now, let me see the reasons given by the Court below while acquitting accused. The Court below while acquitting the accused, considered the evidence of PW-1 and PW-2 and also documentary evidence and specifically mentioned that defence of the accused is that his father borrowed the loan and his father has repaid the amount and hence, the cheque was handed over to his father and the contention that the complainant took one cheque from this accused as security to loan borrowed by his father and same has been misused, the Court below in pars 11, 12 and 13 of the judgment discussed with regard to the source of income for payment of hand loan of Rs.1,10,000/- and also taken note of the answer elicited from the mouth of PW-1 with regard to Exs.D1 and D2 and ultimately, in para 18 of the judgment comes to a conclusion that respondent has failed to prove that on the date of transaction he had Rs.1,10,000/- in his possession and also he has failed to prove the bank documents to show that he had amount in the bank. Also considered the evidence of PW-1 admitting that amount has been returned by his father and comes to a conclusion that the complainant has failed to prove the guilt of the accused and his case cannot be believed. 21. On careful examination of findings of the Court below and also on perusal of the materials available on record, I would like to make a mention that the contents of Para Nos.1 and 2 of the complaint. In para 1 he contends that in the first week of January 2005 he lent an amount of Rs.1,10,000/- to the accused and in para 2 complainant says that accused did not pay the amount in the first week of January 2006 and on his insistence, he has issued the subjected cheque dated 17/2/2006 and the same has been reiterated in his evidence in the form of affidavit and it has to be noted that in the cross-examination, the complainant admits that the accused known to him through his father and further he admits that he had advanced the loan to two to three persons that i.e. one Masurgol and also to this accused. He did not mention anything about the loan transaction between him and the father of the accused. But, though he claims that in respect of the loan transaction he obtained the document, did not produce any documentary proof. When the accused has taken specific defence that he gave a cheque as security, when his father has availed the loan and same has been misused, the complainant ought to have placed the material for having advanced the loan to this accused and though he claims that he has got the document, he did not produce the same before the Lower Court. No doubt, the Apex Court in the judgments referred supra recently held that the Court cannot bank upon the source of income for payment of the amount and Section 139 of the N.I.Act come into the aid of the complainant. It has to be noted that in one breath PW-1-complainant says that the father of the accused has not issued any cheque in respect of loan availed by the accused. It has to be noted that in one breath PW-1-complainant says that the father of the accused has not issued any cheque in respect of loan availed by the accused. But, he admits that before the date of loan transaction, the father of the accused had issued the cheque and both the statements of PW-1 are contrary to each other and however, important to note that in the cross-examination of PW-1, it is elicited that the cheque of his father was dishonoured and endorsement was issued and now he cannot say where the said cheque is at present and further important to note that he categorically admits on repayment of any amount, he used to return the cheque. Hence, documents Exs.D1 to 3 are confronted. It is not the case of the complainant that he has not advanced the loan in favour of the father of the accused also and when Exs.D1 to 3 are confronted and complainant admits the same, he has to give an explanation why those documents are came into existence and when the accused has taken specific stand that he has issued the subject matter of cheque as security in respect of loan advanced in favour of his father. There is no explanation in respect of Exs.D1 to D3. The Court below taking note of Exs.D1 to 3 which have admitted by the complainant and when the complainant did not give any explanation to the said documents Exs.D1 to 3 has rightly comes to the conclusion that the very transaction is doubtful. Further the defence of the accused is probable. No doubt the Court can presume that the cheque was issued towards debt or liability and the complainant has to discharge his initial burden regarding transaction and the same has not been done in this case. Even though he claims that there are documents with regard to transaction, he did not produce the same and also suppressed Exs.D1 to 3 and even after answer eliciting from the mouth of the complainant in respect of Ex.D1 to 3. The complainant did not place any material and also not offered any explanation. Even though he claims that there are documents with regard to transaction, he did not produce the same and also suppressed Exs.D1 to 3 and even after answer eliciting from the mouth of the complainant in respect of Ex.D1 to 3. The complainant did not place any material and also not offered any explanation. The Apex Court in the recent judgments referred supra no doubt held that the source of income no needs to necessarily prove when the notice was issued and same was not replied and in the case on hand also no doubt notice was issued and no reply was given by the accused and also he has not chosen to enter into witness box and when the evidence of complainant did not inspire the confidence of this Court that there was a transaction and he is silent about Exs.D1 to 3. I am of the opinion that the Court below has not committed any error in appreciating both the oral and documentary evidence The Court below taken note of the material available on record that too particularly in respect of admission elicited from the complainant in respect of Exs.D1 to 3 and also taken note of Exs.D4, bank statement with regard to the source also concerned. Accused though he has not been examined, he has rebutted the case of the complainant eliciting the answer from the mouth of the complainant regarding transaction as it is doubtful . The Court below not acquitted the accused on the ground of creation of doubt as observed in para 30 of the judgment of the Apex Court. But, in the case on hand, the very transaction of lending the money in favour of the accused by the complainant itself is not proved by the complainant and question of drawing the presumption does not arise and the Court below rightly has comes to a conclusion that defence of the accused is probable and hence I do not find any reasons to interference with the order of the Court below. 22. In view of the discussions made above, I proceed to pass the following: ORDER The appeal is dismissed.