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2020 DIGILAW 1917 (KAR)

G. Parameshwarappa v. H. T. Palakshaiah

2020-09-30

H.B.PRABHAKARA SASTRY

body2020
JUDGMENT H.B. Prabhakara Sastry, J. - In the complaint filed by the present appellant under Section 200 of Code of Criminal Procedure, 1973, against the present respondent, for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as 'N.I.Act ), the learned Civil Judge (Jr.Dn.) and JMFC., Shikaripura (hereinafter for brevity referred to as 'trial Court ), by the judgment dated 09.03.2010, passed in C.C.No.398/2007 convicted the accused for the said offence and sentenced him accordingly. Aggrieved by the same, the accused preferred an appeal before the learned Sessions Judge, Fast Track Court, Shimoga, (hereinafter for brevity referred to as 'Fast Track Court ), in Criminal Appeal No.27/2010, which by its judgment dated 29.10.2010, while allowing the appeal and setting aside the judgment passed by the trial Court, acquitted the accused of the offence punishable under Section 138 of N.I.Act. Being aggrieved by the same, the complainant/appellant has preferred the present appeal. 2. The summary of the case of the complainant in the trial Court is that, the complainant and the accused were well known to each other, as such, the complainant gave a loan of Rs.1,50,000/- to the accused, at his request, to meet his financial difficulties, in the month of September 2006. The accused had agreed to repay the loan amount within three months. He failed to repay the loan. However, on 2.1.2007 the accused issued a cheque for a sum of Rs.1,50,000/- bearing No.804788 drawn on Shimoga District Central Co-operative Bank Limited, Shiralkoppa branch in favour of the complainant. When the said cheque was presented by the complainant for its realization through its banker, it was dishonoured for want of sufficient funds. Thereafter, the complainant caused a legal notice on 18.1.2007 to the accused demanding repayment of the cheque amount. The notices were sent both under Registered Post Acknowledgement Due as well as under Certificate Of Posting. Since the accused failed to comply the demand made in the notice, the complainant was constrained to institute a case against him in the trial Court for the offence punishable under Section 138 of the N.I.Act. 3. The complainant in the trial Court, in order to prove his case, got himself examined as P.W.1 and got examined one Sri.H.R.Chandrashekar and one Sri.M.S.Ishwaraiah as P.W.2 and P.W.3 respectively. He also got marked documents from Exs.P1 to P8 from his side. 3. The complainant in the trial Court, in order to prove his case, got himself examined as P.W.1 and got examined one Sri.H.R.Chandrashekar and one Sri.M.S.Ishwaraiah as P.W.2 and P.W.3 respectively. He also got marked documents from Exs.P1 to P8 from his side. The accused got himself examined as D.W.1. However, no documents were marked as exhibits from his side. 4. After hearing both sides, the trial Court by its impugned judgment dated 09.03.2010 convicted the accused for the offence punishable under Sections 138 of N.I.Act and sentenced him accordingly. Challenging his conviction ordered by the trial Court, the accused preferred an appeal in Crl.A.No.27/2010 before the Sessions Court, which after hearing both sides, by its judgment dated 29.10.2010 allowed the appeal by setting aside the impugned judgment passed by the trial Court and acquitted the accused of the alleged offence punishable under Section 138 of the N.I. Act. It is against the said judgment of acquittal passed by the Sessions Court, the complainant has filed the present appeal. 5. The trial Court and Fast Track Court s 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 ten years old appeal, this Court by its order dated 10.9.2020, appointed learned counsel Sri Rakshit.R, as Amicus Curiae for the respondent. 7. Heard the arguments of the learned counsel for the appellant and the learned Amicus Curiae for the respondent and perused the materials placed before this Court. 8. Learned counsel for the appellant, in his argument, submitted that the Sessions Court which held that the trial Court comparing the disputed signature of the accused with the admitted one was an erroneous step taken by it, however, it on its own, has committed the same act of comparison of signature, though P.W.3, the Bank Manager, who had confirmed the signature of the accused on the cheque. He further submitted that notice sent under Certificate Of Posting has been served upon the accused, though he failed to receive the notice sent under Registered Post Acknowledgement Due. Learned counsel also stated that P.W.2 and P.W.3 have stated that the cheque in question was belonging to the accused. He further submitted that notice sent under Certificate Of Posting has been served upon the accused, though he failed to receive the notice sent under Registered Post Acknowledgement Due. Learned counsel also stated that P.W.2 and P.W.3 have stated that the cheque in question was belonging to the accused. However, the accused has failed to show any reason as to how the said cheque came into the hands of the complainant. With this, he prayed for allowing the appeal. 9. Learned Amicus Curiae for the respondent, in his argument, submitted that there is no valid service of notice upon the accused. He has also disputed the alleged signature on the cheque as that of the accused. The non-examination of one Sri.H.M.Basavaraja, the person at whose instance the loan is said to have been given, imbibes a doubt in the case of the complainant. Further stating that the alleged purpose of the loan stated by the complainant varies at different stages and no document is produced by the complainant to prove the giving of the loan to the accused, the learned Amicus Curiae submitted that the interference in the acquittal judgment of the Sessions Court is not warranted. 10. After hearing, the points that arise for my consideration are : [i] Whether the complainant has proved beyond reasonable doubt that the accused has committed an offence punishable under Section 138 of the N.I.Act as alleged in the complaint? [ii] Whether the judgment of acquittal under appeal deserves an interference at the hands of this Court? 11. Complainant - Sri.Parameshwarappa got himself examined as P.W.1, who in his examinationin- chief in the form of affidavit evidence has reiterated the contentions taken up by him in his complaint. In support of his contention, he has produced and marked the cheque in question at Ex.P1; the endorsements issued by the bankers at Exs.P2 and P3; a copy of the legal notice said to have been sent to the accused on his behalf at Ex.P4; a postal receipt, a certificate of posting and returned registered post cover at Exs.P5, P6 and P7 respectively. The vakalath filed by the accused with his identified signature therein were marked at Exs.P8 and P8(a) respectively. The vakalath filed by the accused with his identified signature therein were marked at Exs.P8 and P8(a) respectively. Even in his cross-examination he adhered to his original stand and did not admit the suggestion made by the accused to the effect that there was no loan transaction as alleged by the complainant and no cheque was issued by the accused. Even the denial suggestion to the effect that no legal notice was served upon the accused was also not admitted as true by the witness. 12. P.W.2, H.S.Chandrashekar, the Manager of the collecting bank has stated that the endorsement at Ex.P3 is issued by his bank. Similarly, P.W.3 Sri.M.S.Ishwaraiah working in the drawee bank had stated that the cheque at Ex.P1 pertains to the account of the accused maintained in his bank. He has identified the signature in Ex.P1 as that of the accused. Denial suggestions made to him in his cross-examination were not admitted as true by the witness. 13. The accused got himself examined as D.W.1, who in his examination-in-chief in the form of affidavit evidence, has denied the alleged loan transaction as well he issuing a cheque at Ex.P1 to the complainant. He also denied his signature on the said cheque. He was subjected to a detailed cross-examination from the complainant s side wherein certain statements were elicited from the witness. 14. The statement of P.W.1 that accused was well-known to him and they were acquainted with each other has not been specifically denied from the accused side. As such, it goes to show that the complainant and the accused were well known to each other even prior to the alleged transaction. The complainant, in his cross-examination, has stated that accused was a resident of his neighboring village and had given the crop of paddy and jowar to him in the year 2005-06. He has stated that in his complaint he has mentioned that the loan was given to the accused for supplying paddy and jowar. However, in the cross-examination of D.W.1, a suggestion was made to the wtiness that since the accused had one more case in the Court, for his expenses towards the Court case and other expenses, a loan was availed by the accused from the complainant. However, in the cross-examination of D.W.1, a suggestion was made to the wtiness that since the accused had one more case in the Court, for his expenses towards the Court case and other expenses, a loan was availed by the accused from the complainant. Though D.W.1 did not admit the said suggestion as true, however, considering the point that the purpose of the loan as stated by the complainant in his complaint and what purpose was shown in the form of suggestion to D.W.1 are differing to each other, the learned Amicus Curiae for the respondent contended that the loan transaction itself is suspicious. However, in the very same crossexamination of D.W.1, in the very next sentence, it was also suggested to the accused/D.W.1 that accused was supplying the crops grown by him to the complainant since 7-8 years. It is for the said reason a trust has been developed between them, as such, the complainant gave loan to him. No doubt, the witness has not admitted the said suggestion also as true, but a reading of the cross-examination of D.W.1 would go to show that the purpose of the loan canvassed by the complainant does not vary from his complaint to the cross-examination of D.W.1. At both places he has stated that accused was supplying the crops grown by him to the complainant and out of the said trust, for his necessities he had availed loan. Therefore, the argument of the learned Amicus Curiae on the said point is not acceptable. 15. According to complainant, the loan was given to the accused in the month of September 2006. Though, in his complaint, he has not stated as to the presence of any third party at the time of loan transaction. However, in his cross-examination, he has stated that one Sri.H.M.Basavaraja was present at the time of loan transaction. However, the said H.M.Basavaraja was not examined as a witness. When according to the accused he had not availed any loan and not issued any cheque in favour of the complainant, it was for him to give reasons as to how come his cheque at Ex.P1 came into the possession of the complainant. It is because the accused has nowhere denied that the dishonoured cheque at Ex.P1 pertains to him and it is shown as drawn in favour of the complainant for a sum of Rs.1,50,000/-. 16. It is because the accused has nowhere denied that the dishonoured cheque at Ex.P1 pertains to him and it is shown as drawn in favour of the complainant for a sum of Rs.1,50,000/-. 16. Even the evidence of P.W.3, the official of the drawee bank of Ex.P1 also established that the said cheque at Ex.P1 pertains to the bank account of the accused maintained with their bank. Therefore, when a negotiable instrument in the form of a cheque has been shown to have been drawn in the name of the complainant, the presumption under Section 118 of the N.I Act forms in favour of the complainant to the effect that the said cheque was issued for consideration, on the date shown in the cheque by the drawer in favour of the payee shown therein. As such, the non-answer from the accused side as to how the said cheque came in the hands of the complainant and undisputed fact that the said cheque pertains to the account of the accused goes to show that accused had issued the said cheque to the complainant. In that circumstance, the non-examination of alleged Sri.H.M.Basavaraja, who is said to be present during the loan transaction, is not fatal to the case of the complainant. 17. The accused has taken a specific contention that the signature at Ex.P1(a) in the cheque is not his signature. Except taking such a plea, the accused has not placed any material to show how he contends that the signature at Ex.P1(a) is not his signature. However, the complainant in the course of crossexamination of D.W.1/accused, got his vakalath and the signature of the accused therein marked at Ex.P8 and Ex.P8(a). Similarly, the summons sent to the accused from the trial Court and the signature of the accused therein were also got marked as Ex.P9 and Ex.P9(a) respectively. The trial Court, by exercising its power under Section 73 of the Indian Evidence Act, has compared the admitted signatures of the accused with the disputed signatures and has come to an opinion that the disputed signature at Ex.P1(a) and Ex.P1(b) tallies with the admitted signatures Ex.P8(a) and P9(a). However, the Sessions Court, in its judgment, observed that the said exercise done by the trial Court was not warranted in the circumstances of the case. However, the Sessions Court, in its judgment, observed that the said exercise done by the trial Court was not warranted in the circumstances of the case. But at the same time, the Sessions Court also on its own has compared the disputed signatures of the accused with the admitted one and opined that those signatures differ. It is not known why the Sessions Court which had objected with the trial Court comparing the signature had undertaken the very same exercise upon its shoulder. However, it cannot be ignored of the fact that the Sessions Court while undertaking that exercise has not considered the evidence of P.W.3 the bank official with whom the accused had maintained his bank account. The said official apart from stating that the cheque at Ex.P1 pertains to their bank and to the account maintained by the accused with them, has also in very clear term has stated that signature at Ex.P1(a) in the cheque and another signature at Ex.P1(b) on the reverse side of the cheque, both are of the accused only. Except making denial suggestion in his cross-examination, nothing more could be elicited in the cross examination of P.W.3 towards denying the signatures at Ex.P1(a) and Ex.P1(b) as that of the accused. Therefore, in the circumstance, where the trial Court giving the reasons has compared the admitted signatures of the accused with his disputed signatures and opined that they are tallying and also in the circumstance that the banker with whom the accused is maintaining the bank account has also confirmed that signatures on the cheque at Ex.P1 are of accused only and also in the circumstance, where the accused has not at all shown any reason for his cheque coming into the possession of the complainant, I am of the view that there is no reason to disbelieve that the signatures at Ex.P1(a) and Ex.P1(b) are not that of the accused. Therefore, the finding of the Sessions Court, on the said point, is not a properly reasoned finding. 18. The other contention taken up by the accused was the alleged non-service of notice upon him. Undisputedly, the cheque at Ex.P1 has been dishonoured by the banker for the reasons of insufficiency of funds as could be seen from the banker s endorsement at Ex.P2 and Ex.P3 respectively and the said fact has been further corroborated in the evidence of P.W.2 and P.W.3. Undisputedly, the cheque at Ex.P1 has been dishonoured by the banker for the reasons of insufficiency of funds as could be seen from the banker s endorsement at Ex.P2 and Ex.P3 respectively and the said fact has been further corroborated in the evidence of P.W.2 and P.W.3. It is thereafter, according to the complainant, he got issued a legal notice to the accused with the statutory time as per Ex.P4. The said notice is said to have sent to the accused both under Registered Post Acknowledgement Due, as evidenced in the postal receipt at Ex.P5 and under Certificate Of Posting, as evidenced in the certificate at Ex.P6. The said registered post article sent to the accused has been returned to the complainant as could be seen in the returned postal cover which is at Ex.P7 with the postal shara that the addressee was not met for 7 days . As such, it was sent back to the sender. In the very same endorsement made on Ex.P7 the postman has also written the dates and endorsement showing that for 7 consecutive days he has gone to the place of the accused and tendered the notice to him. Admittedly, it is not the case of the accused that the address shown on the postal cover was not his address. Therefore, when a legal notice under a registered post was sent to the correct and complete address of the accused with the proper postage and also when the postman has tendered that said postal article to the addressee continuously for 7 days, but the addressee had remained unavailable to the postman during the delivery time of the postal article, it cannot be held that no notice was sent to the accused/addressee. In such a circumstance, there is a deemed service of notice upon the addressee. Added to that, P.W.1 has clearly stated that the very same notice was also sent to the accused under Certificate Of Posting and the said postal article is not returned to him. The postal certificate at Ex.P6 confirms that a postal article was sent to the accused at the very same address under Certificate Of Posting. Therefore, necessity of examining the beat postman would not arise in the said circumstance and it can be safely held that the notice issued on behalf of the complainant has been served upon the accused. 19. The postal certificate at Ex.P6 confirms that a postal article was sent to the accused at the very same address under Certificate Of Posting. Therefore, necessity of examining the beat postman would not arise in the said circumstance and it can be safely held that the notice issued on behalf of the complainant has been served upon the accused. 19. Admittedly, the accused has not responded to the said notice either by sending reply or by paying the cheque amount. The accused, though, has lead the evidence from his side, could not able to rebut the presumption that was formed in favour of the complainant under Section 139 of the N.I.Act. Thus, the complainant has proved beyond reasonable doubt that the accused has committed an offence punishable under Section 138 of the N.I.Act. Though, the trial Court has rightly convicted the accused guilty of the said offence, but the Sessions Court, in the appeal before it, giving the reason of difference in the signature of the accused between his admitted signature and the disputed cheque and also observing that the postman was not examined, has set aside the judgment and conviction passed by the trial Court. 20. Since the above reasoning would go to show that the reasoning given by the Sessions Court and its finding being erroneous, the same deserves to be set aside. On the other hand, the judgment and conviction passed by the trial Court deserves to be restored and confirmed. Further, considering the gravity of the offence and the circumstance of the case, the sentence ordered by the trial Court also does not warrant any interference, at the hands of this Court. Accordingly, I proceed to pass the following: O R D E R [i] The appeal is allowed. [ii] The judgment of acquittal passed by the Court of the Sessions Judge, Fast Track Court, Shimoga dated 29.10.2010 in Crl.A.No.27/2010, is set aside. [iii] The judgment of conviction and order of sentence passed by the Court of Civil Judge (Jr.Dn.) and JMFC., Shikaripura dated 09.03.2010 in C.C.No.398/2007, is restored and confirmed. Registry to transmit a copy of this judgment along with trial Court and Fast Track Court s records to the concerned Courts without delay. The Court while acknowledging the service rendered by the learned Amicus Curiae for the respondent Sri Rakshit.R, recommends honorarium of a sum not less than Rs. Registry to transmit a copy of this judgment along with trial Court and Fast Track Court s records to the concerned Courts without delay. The Court while acknowledging the service rendered by the learned Amicus Curiae for the respondent Sri Rakshit.R, recommends honorarium of a sum not less than Rs. 3,000/- to him, payable by the Registry. The accused is entitled for a free copy of this judgment immediately.