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Karnataka High Court · body

2020 DIGILAW 58 (KAR)

M. Jayaram v. S. Basavaraj

2020-01-07

K.SOMASHEKAR

body2020
JUDGMENT 1. Heard learned counsel for the appellant and learned counsel for the respondent. 2. This appeal is preferred by the appellant challenging the judgment rendered by the Court below in C.C.No.3733/2013 dated 09.09.2016 acquitting the accused for the offence punishable under Section 138 of N.I. Act. 3. The factual matrix of this appeal is that the accused was known to the complainant for the past 10 years. In the first week of February 2012, the accused approached the complainant and borrowed Rs.9,10,000/- as hand loan and he assured to repay the same within a period of three months. Even after lapse of three months, accused failed to repay the said amount. After repeated demands by the complainant, accused issued two cheques in favour of the complainant one is dated 20.09.2012 for Rs.1,50,000/- and another cheque dated 21.10.2012 for a sum of Rs.7,60,000/- drawn on Canara Bank, Lottegollahalli Branch, Bengaluru. When the complainant presented the aforesaid cheques, the same came to be returned unpaid on account of 'insufficient funds'. After following the requisite procedure under the N.I.Act, the complainant filed the complaint against the accused for the offence punishable under Section 138 of the N.I. Act. 4. After filing of the complaint, cognizance of the offence was taken by the trial Court. Accused was secured on issuance of summons and he was enlarged on bail. The substance of the accusation was read over to the accused and he did not plead guilty and claimed to be tried. 5. In order to prove the complaint averments, the complainant was examined as PW.1 and Exs.P1 to P8 were got marked. The accused was examined as Dw.1 and on his behalf Exs.D1 to D3 were got marked. During the pendency of the proceeding, report of the hand writing expert was secured and the same finds place in the record. During the pendency of the proceeding, the original complainant died and his LRs were brought on record. After hearing arguments of learned counsel on both sides, the Court below passed the impugned judgment acquitting the accused for the offence punishable under Section 138 of the N.I.Act. Hence, this appeal by the appellant/complainant. 6. Ex.P1 and P2 are two cheques. Ex.P3 and P4 are two bank endorsements, Ex.P5 is the office copy of the demand notice, Ex.P6 is the postal receipt, Ex.P7 is the postal acknowledgement and Ex.P8 is the bank Statement. Hence, this appeal by the appellant/complainant. 6. Ex.P1 and P2 are two cheques. Ex.P3 and P4 are two bank endorsements, Ex.P5 is the office copy of the demand notice, Ex.P6 is the postal receipt, Ex.P7 is the postal acknowledgement and Ex.P8 is the bank Statement. Ex.D1 is the bank pass book, Ex.D.2 is the certified copy of the sale deed and Ex.D3 is the RTC extract. 7. The accused in his evidence has stated that for the past 10 years he is acquainted with the complainant. Further, he admitted that in 2010 he borrowed a sum of Rs.1,10,000/- hand loan from the complaint. At the time of borrowing, he claims to have issued two cheques in favour of the complainant for a sum of Rs.60,000/- and Rs.50,000/- respectively. He has also admitted Ex.P1 and P2 cheques relates to his Bank account and his signature. But he disputes the amount of the cheques. At the time of issuing the cheque, he filled the amount only in letters as Rs.50,000/- and Rs.60,000/- respectively and he further claims that in 2012 he had paid Rs.1,20,000/- towards repayment of the loan borrowed from the complainant through cheque pertaining to the Bank account of his wife. The accused has specifically denied that in the year 2012 he had borrowed loan of Rs.9,10,000/- from the complainant or in discharge of the said debt issued Ex.P1 and Ex.P2 cheques. It is his contention that in Ex.P1 and Ex.P2 cheques the numerical letters 1 and 7 appearing in Rs.50,000/- and Rs.60,000/- there is over writing and the possibility of insertion of the said letters is also probable. It is his further defense that Ex.P5 notice issued by the complainant was not served upon him. 8. Ex.C.1 is the opinion of hand writing expert. It is observed by the handwriting expert that the writings marked as Ex.P1, Ex.P2 and signatures marked as Ex.P1A, Ex.P2A under the light source of different wavelength show variations in their pixel values and express and has expressed his opinion. As per the first opinion, the writings marked Ex.P1 were found to have been executed on the document with prior signature marked Ex.P1A at a different time with different ink. Further, as per the second opinion, it is observed that the writings marked Ex.P2 were found to have been executed on the document with prior signature marked Ex.P2A a different time with different ink. 9. Further, as per the second opinion, it is observed that the writings marked Ex.P2 were found to have been executed on the document with prior signature marked Ex.P2A a different time with different ink. 9. Learned counsel for the appellant contends that though the opinion of the handwriting expert is considered by the Court below and a mention has been made in the list of court documents as Ex.C1, but the same has not been got marked. But the respondents counsel contends that DW.1 has been examined and Exs.D1 to D3 has been got marked relating to issuance of cheques as per Exs.P1 and P2 and the accused has successfully rebutted the presumption in favour of the complainant under Section 139 of the N.I.Act and the Court below has rightly held that the complainant has failed to prove advancement of Rs.9,10,000/- and in discharge of the said debt the accused had issued Exs.P.1 and P2 cheques. 10. Having regard to the contentions taken by the learned counsel for the complainant and so also, the accused, it is relevant to note here that Exs.P1 and P2 cheques were sent for opinion of handwriting expert regarding overwriting and insertion of the numerical letters in the cheques. In this regard the handwriting expert has given opinion stating that the writings marked in Ex.P1 and P2 were found to have been executed on the document with prior signature marked Ex.P1A and Ex.P2A at a different time with different ink. But the handwriting expert has not been examined or cross-examined in order to arrive at a opinion relating to the contents of Exs.P1 and P2. Further, though the Court below has mentioned the opinion of the handwriting expert in the annexures as Ex.C1, but the same does not indicate as Ex.C1 in the impugned judgment. Therefore, in terms of the aforesaid reasons and findings, the impugned acquittal judgment rendered by the Court below needs interference. Accordingly, I have to proceed to pass the following: ORDER The appeal filed by the appellant/complainant is hereby allowed. Consequently, the judgment rendered by the Court below in C.C.No.3733/2013 dated 09.09.2016 acquitting the accused for the offence punishable under Section 138 of the N.I.Act is hereby set-aside. Accordingly, I have to proceed to pass the following: ORDER The appeal filed by the appellant/complainant is hereby allowed. Consequently, the judgment rendered by the Court below in C.C.No.3733/2013 dated 09.09.2016 acquitting the accused for the offence punishable under Section 138 of the N.I.Act is hereby set-aside. The matter is remitted to the Court below for fresh disposal of the case, with regard to marking of opinion of handwriting expert relating to Exs.P1 and P2 - cheques, which indicates as Ex.C1 as Annexures in the impugned judgment, by securing handwriting expert for examination as a witness in order to substantiate their case. However, the court below shall dispose of the case within an outer limit of three months from the date of receipt of copy of this judgment. Any observation made in this judgment shall not influence the mind of the trial Court while disposing the case on merits.