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2020 DIGILAW 1842 (KAR)

Ashalatha v. K. Yakub

2020-09-24

H.B.PRABHAKARA SASTRY

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JUDGMENT H.B.Prabhakara Sastry, J. - The present appellant was the complainant in the Court of the learned Civil Judge and Judicial Magistrate First Class, Belthangady, Dakshina Kannada (hereinafter for brevity referred to as "Trial Court"), in C.C.No.128/2007, which case was filed against the present respondent arraigning him as accused, under Section 200 of Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as "Cr.P.C."), for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as "N.I.Act"). 2. The summary of the case of the complainant in the Trial Court is that, the accused had issued a cheque to her bearing No.281721 for a sum of Rs. 75,000/- for satisfaction of a legally recoverable debt. When the said cheque was presented for its realisation through the Banker of the complainant, on 20-12-2004, the same came to be dishonoured with the banker's endorsement as 'funds insufficient'. The complainant on 05-01-2005 got issued a legal notice to the accused, calling upon him to pay the cheque amount. Though the accused received the said notice on 08-01-2005, but he failed to pay the cheque amount, which constrained the complainant to institute a criminal case against him in the Trial Court for the offence punishable under Section 138 of the N.I. Act. 3. The respondent who was the accused in the Trial Court appeared and contested the matter. In order to prove the guilt of the accused, the complainant examined herself as PW-1 and got marked documents from Exs.P-1 to P-5(a)(b)(c). On behalf of the accused, the accused got examined one Naveen Prasad as DW-2 apart from examining himself as DW-1 and got marked a sole document, i.e. receipt dated 15-01-2005 at Ex.D-1. 4. After hearing both side, the Trial Court by its impugned judgment dated 22-11-2010, acquitted the accused for the offence punishable under Section 138 of the N.I. Act. 5. The Trial Court records were called for and the same are placed before this Court. 6. In view of the fact that the learned counsel for the respondent failed to appear before this Court on several dates of hearing and also considering the fact that this appeal was nearly ten years' old appeal, this Court by a detailed order dated 16-09-2020, appointed the learned counsel Smt. P.V. Kalpana, as Amicus Curiae for the respondent. 7. 6. In view of the fact that the learned counsel for the respondent failed to appear before this Court on several dates of hearing and also considering the fact that this appeal was nearly ten years' old appeal, this Court by a detailed order dated 16-09-2020, appointed the learned counsel Smt. P.V. Kalpana, as Amicus Curiae for the respondent. 7. Heard the arguments of learned counsel for the appellant and the learned Amicus Curiae for the respondent and perused the materials placed before this Court including the Trial Court records. 8. Learned counsel for the appellant in his argument submitted that, the accused was the drawer of the cheque at Ex.P-1, which when presented for realisation, came to be dishonoured for the reason of insufficiency of fund. The legal notice as required under Section 138 of the N.I. Act has also been issued to the accused for which, he did not respond by making the payment of the cheque amount. Thus, the guilt against the accused has been proved beyond reasonable doubt. Learned counsel further submitted that, the Trial Court, however, opined that there was no evidence for lending a sum of Rs. 50,000/- in cash to the accused by the complainant. It also observed that, there was variation in the ink in the cheque at Ex.P-1. Further, the Trial Court observed that the complainant had not approached it with clean hands and had not disclosed the receiving of a part of the cheque amount. Thus, she was not entitled for the relief as sought for. Stating that the said observation made by the Trial Court is erroneous which deserves to be set aside, the learned counsel prayed for allowing of the appeal. 9. Learned Amicus Curiae for the respondent in her arguments submitted that the loan availed by the accused from the complainant was only a sum of Rs. 25,000/- and at the time of availing the said loan, the complainant had collected a blank signed cheque as a security from the accused. Even before the complainant filed the present case, a sum of Rs. 15,000/- was paid to the complainant through her advocate, as such, the legally enforceable debt was not the cheque amount as on the date of filing of the case before the Trial Court. She further submitted that prior to payment of the said amount of Rs. Even before the complainant filed the present case, a sum of Rs. 15,000/- was paid to the complainant through her advocate, as such, the legally enforceable debt was not the cheque amount as on the date of filing of the case before the Trial Court. She further submitted that prior to payment of the said amount of Rs. 15,000/- through the advocate of the complainant, the matter was settled between the parties for a sum of Rs. 32,000/-. After deducting a sum of Rs. 15,000/- paid by the accused to the advocate of the complainant, the remaining balance of Rs. 17,000/- was also paid during the pendency of the criminal case, as such, there exists no liability at all. Thus, the judgment under appeal does not warrant any interference at the hands of this Court. 10. After hearing both side, the points that arise for my consideration in this appeal are : 1) Whether the complainant has proved beyond reasonable doubt that the accused has committed an offence punishable under Section 138 of N.I.Act as alleged in the complaint? 2) Whether the judgment under appeal deserves an interference at the hands of this Court? 11. The complainant got herself examined as PW-1, who in her examination-in-chief, in the form of affidavit evidence, has reiterated the contentions taken up by her in the complaint. In support of her contention, she produced and marked the alleged dishonoured cheque at Ex.P-1; banker's endorsement at Ex.P-2, a copy of the legal notice said to have been sent on her behalf to the accused at Ex.P-3, the postal acknowledgement to show the service of notice upon the accused at Ex.P-4. The accused got himself examined as DW-1 and in his support also got examined one Sri.Naveen Prasad as DW-2. In his support, the accused produced and got marked a receipt dated 15-01-2005 at Ex.D-1. 12. From the evidence of the parties, it remains undisputed that, the complainant and the accused were known to each other even prior to the alleged loan transaction and that there were some loan transactions between them. However, what is in dispute is the alleged quantum of the loan said to have been availed by the accused and its alleged repayment in its entirety. However, what is in dispute is the alleged quantum of the loan said to have been availed by the accused and its alleged repayment in its entirety. It is in that regard in the cross-examination of PW-1, questions and suggestions were put to the witness and as a reply to the same, PW-1 has stated that she brought a sum of Rs. 25,000/- from the Bank and added to it a sum of Rs. 50,000/- which was in her house and thus gave Rs. 75,000/- as loan to the accused. It is only on humanitarian consideration and without even knowing as to what business he was doing, she had lent the money to him. She further stated that it was agreed that no interest was required to be paid on the said loan amount. In the very same cross-examination at a later stage, the witness has stated that, after she issuing a legal notice to the accused, demanding the cheque amount, the accused had paid a sum of Rs. 15,000/- to her advocate and the same was stated to her by her husband. She further stated that, even the advocate has also stated that the said sum of Rs. 15,000/- has been given to the complainant. By stating so, she has admitted that after the issuance of demand notice, which is at Ex.P-3, the accused has paid a sum of Rs. 15,000/- to her through her advocate. Therefore, even according to the complainant, as on the date of the filing of the complaint, the total outstanding liability was not the cheque amount which is Rs. 75,000/-, but any sum not less than Rs. 15,000/- lesser to it was the alleged due. However, without mentioning the same, in her complaint, the complainant had instituted the criminal case showing as though the entire cheque amount had remained unpaid to her by the accused. Suggestions were also made to PW-1 to the effect that subsequent to payment of a sum of Rs. 15,000/- by the accused to her through her advocate, the accused is due to pay only a sum of Rs. 17,000/- since in a Panchayat held between them, it was decided that the accused should pay the complainant a total sum of Rs. 32,000/-. However, PW-1 has not admitted those suggestions as true including the one that the loan taken by the accused was only a sum of Rs. 25,000/-. 13. 17,000/- since in a Panchayat held between them, it was decided that the accused should pay the complainant a total sum of Rs. 32,000/-. However, PW-1 has not admitted those suggestions as true including the one that the loan taken by the accused was only a sum of Rs. 25,000/-. 13. The accused as DW-1 in his examination-inchief has stated that he had availed a loan of only a sum of Rs. 25,000/- from the complainant, since a case was filed against his lorry. To avail the said loan, he had approached the complainant through one Sri.Naveen Gowda. At that time, while giving him the loan, the complainant insisted for a cheque and RTC as security. As such, he went to the Bank and after opening an account, collected a cheque book. He has also stated that as desired by the complainant, he issued to her a signed blank cheque and an RTC document. In return, the complainant gave him a loan of Rs. 25,000/- through a cheque drawn on Syndicate Bank. Though it was agreed that the said loan has to be returned by three months, but he could not pay the amount within the stipulated time. Thereafter, the complainant issued him a notice after which he gave Rs. 15,000/- to the complainant. In that regard, a receipt was also issued on behalf of the complainant which he has produced and identified at Ex.D-1. DW-1 further stated in his examination-in-chief that, after the complainant instituted this case, a Panchayat was held between them where it was agreed that the accused has to pay in total a sum of Rs. 32,000/-. Accordingly, on different dates, he has paid a total sum of Rs. 16,000/- to her. He stated that it is not true that he had issued a cheque for Rs. 75,000/- to the complainant. The witness was subjected to a detailed crossexamination wherein he adhered to his original version. In the cross-examination, he has identified the cheque at Ex.P-1 stating that after putting the signature, he had issued the said cheque to the complainant. He denied the suggestion that the loan availed by him was for a sum of Rs. 75,000/- and that it is for the said sum he had issued the said cheque at Ex.P-1 to the complainant. He denied the suggestion that the loan availed by him was for a sum of Rs. 75,000/- and that it is for the said sum he had issued the said cheque at Ex.P-1 to the complainant. However, he reiterated that till the date of his evidence in the Trial Court, he had repaid a total sum of Rs. 31,000/- to the complainant. The said statement made by the witness that as on the date of his evidence, he has repaid a total sum of Rs. 31,000/- to the complainant has not been denied by the complainant in her crossexamination. 14. Dw-2 Naveen Prasad in his examinationin- chief has supported the case of the accused stating that he knows both the accused as well the complainant. Since the lorry owned and driven by the accused was seized by the police at Madikeri, in order to get it released, he wanted a loan of Rs. 25,000/-. It is him who took the accused to the complainant and got him the said loan of Rs. 25,000/- by the complainant. The witness has also stated that he was present when the complainant gave a loan of Rs. 25,000/- to the accused. He further stated that at the time of giving the loan, the complainant demanded and collected a blank but signed cheque and an RTC document from the accused as a security. In his cross-examination from the complainant side, he adhered to his original stand except stating that the accused was his friend. DW-2 also stated that the loan given by the complainant was in the form of a cheque drawn on Syndicate Bank and on the very same day, both himself and the accused went to the Bank and encashed the said cheque. DW-2 further stated that he also knows about the compromise entered into between the complainant and the accused wherein the accused agreed to pay Rs. 32,000/- to the complainant. The said statement of DW-2 about the alleged compromise between the accused and the complainant for a sum of Rs. 32,000/- has not been denied from the complainant's side in his cross-examination. 15. The above evidence led by both the complainant and the accused would go to show that, the accused had issued a cheque to the complainant, however, the said cheque was a blank cheque. 32,000/- has not been denied from the complainant's side in his cross-examination. 15. The above evidence led by both the complainant and the accused would go to show that, the accused had issued a cheque to the complainant, however, the said cheque was a blank cheque. The evidence of DW-1 and DW-2 in that regard since has withstood the cross-examination, it has proven to be more reliable. According to the complainant, she has given a hand loan of Rs. 75,000/- which she has stated that Rs. 25,000/- was brought by her from the Bank and remaining Rs. 50,000/- was with her in her home. However, both DW-1 and DW-2 have uniformly stated that the loan amount was only Rs. 25,000/- and the said amount was paid to the accused through a cheque drawn on Syndicate Bank. Both of them have further stated that after collecting the cheque from the complainant, both of them went to the Bank and got it encased. Therefore, the evidence of the complainant that it was she who drew a sum of Rs. 25,000/- from the Bank before giving it to the accused, is proved to be not true. 16. The analysis made in the previous paragraphs would further go to show that, after the alleged loan transaction, the accused has returned a sum of Rs. 15,000/- to the complainant through her advocate, as evidenced in the receipt issued by the said advocate which is at Ex.D-1. As observed, the complainant as PW-1 has admitted the same in her cross-examination. Since she has received the said amount of Rs. 15,000/- from the accused, the outstanding liability as on the date of filing of the criminal case in the Trial Court was much lesser than the cheque amount though it would not affect the consequence of dishonor of cheque which was for Rs. 75,000/- but it amounts to suppression of a material fact by the complainant in her complaint filed before the Trial Court. This has been rightly observed by the Trial Court holding that she has not approached the Court with clean hands. 17. In addition to the above, and as already observed, the contention of the accused that after the institution of the criminal case, a Panchayat was held between the complainant and the accused, wherein it was agreed that a sum of Rs. 17. In addition to the above, and as already observed, the contention of the accused that after the institution of the criminal case, a Panchayat was held between the complainant and the accused, wherein it was agreed that a sum of Rs. 32,000/- was to be paid by the accused to the complainant, is further corroborated by the evidence of DW-2. Since DW-2 has successfully withstood the cross-examination from the complainant's side, there is no reason to disbelieve his statement. Added to the same, as observed above, the statement made by DW-1 in his cross-examination at the end stating that, till the date of his evidence, he has paid a sum of Rs. 31,000/- to the complainant has also remained un-denied. Therefore, the said further payment of Rs. 16,000/- by the accused during the pendency of the criminal case though would not annul the effect of dishonor of his cheque at Ex.P-1, but definitely rebuts the presumption that had accrued in favour of the complainant under Section 139 of the N.I. Act. The alleged existence of a legally enforceable debt to an extent of cheque amount which is Rs. 75,000/- is thus shown to be not correct and not true by the accused through the cross-examination of PW-1 as well leading evidence from his side and producing Ex.D-1. In such a circumstance, when the accused has successfully rebutted the presumption formed in favour of the complainant, the burden of proving the existence of a legally enforceable debt was once again reverted to the complainant, which she has failed to discharge. This falls short of proving the guilt against the accused for the alleged offence. 18. Since the Trial Court has arrived at the very same finding, holding that the guilt against the accused has not been proved, I do not find any reason to interfere in the said finding of the Trial Court. Accordingly, I proceed to pass the following: O R D E R The Criminal Appeal is dismissed . The impugned judgment passed by the learned Civil Judge and Judicial Magistrate First Class, Belthangady, Dakshina Kannada, in C.C.No.128/2007, dated 22-11-2010, acquitting the respondent/accused for the offence punishable under Section 138 of N.I. Act, is confirmed. Registry to transmit a copy of this judgment along with the Trial Court records to the concerned Court, without delay. The impugned judgment passed by the learned Civil Judge and Judicial Magistrate First Class, Belthangady, Dakshina Kannada, in C.C.No.128/2007, dated 22-11-2010, acquitting the respondent/accused for the offence punishable under Section 138 of N.I. Act, is confirmed. Registry to transmit a copy of this judgment along with the Trial Court records to the concerned Court, without delay. The Court while acknowledging the services rendered by the learned Amicus Curiae Smt. P.V. Kalpana for the respondent, recommends honorarium of a sum of not less than Rs. 3,000/- to her payable by the Registry.