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2022 DIGILAW 171 (KAR)

Prakash Shetty v. Venkatesha

2022-02-08

RAJENDRA BADAMIKAR

body2022
JUDGMENT 1. This appeal is filed by the complainant/appellant under Sec. 378(4) of Cr.P.C. against the judgment and order of acquittal passed by the XXII ACMM, Bengaluru ('trial Court' for short) in C.C.No.9997/2017 dtd. 30/4/2018, whereby the sessions judge has acquitted the accused/respondent for the offence punishable under Sec. 138 of Negotiable Instruments Act, 1881 ('NI Act' for short). 2. For the sake of convenience parties herein are referred to their original ranks occupied by them before the trial Court. 3. The brief factual matrix leading to the case are as under: That the complainant is running his own bakery in the name and style of Prakash Tea House(Bakery) and accused is doing real estate business. That in the first week of October 2015, the complainant has approached the accused with an intention to purchase the site and accused has agreed for the same. That in the second week of October, 2015, the accused has shown the complainant the sites bearing Nos.36, 37 and 38 in Dwarakanagar, Chikkabanavar, Bengaluru City and then the complainant had paid a sum of Rs.12,50,000.00 as an earnest amount. That the accused has failed to get register the sites in favour of the complainant inspite of persistent demands made by the complainant and on 5/12/2015 there was an agreement entered between the parties. Then accused has issued a cheque dtd. 5/12/2015 for a sum of Rs.12,50,000.00 after execution of the agreement and asked the complainant for presenting the cheque for encashment on 21/2/2017. The complainant has presented the said cheque on 21/2/2017 and same was returned with a shara as 'insufficient funds'. Then on 1/3/2017 the complainant had issued a legal notice to the accused. The accused did not repay the said amount nor replied to the notice and hence, the complainant has filed a complaint under Sec. 200 of Cr.P.C. alleging that accused has committed an offence under Sec. 138 of NI Act. 4. After submission of the complaint, the learned magistrate has recorded the sworn statement and after appreciating the material records he has taken cognizance and issued process against the accused. The accused has appeared through his counsel and was enlarged on bail. The plea was recorded and accused pleaded not guilty. Then the complainant got examined himself as PW.1 and also got examined one witness on his behalf as Pw.2. The accused has appeared through his counsel and was enlarged on bail. The plea was recorded and accused pleaded not guilty. Then the complainant got examined himself as PW.1 and also got examined one witness on his behalf as Pw.2. Further he placed reliance on 16 documents marked as Ex.P1 to Ex.P16. 5. After completion of evidence of complainant, the statement of accused under Sec. 313 of Cr.P.C. is recorded to enable the accused to explain the incriminating evidence appearing against him in the case of the prosecution. The case of the accused is of total denial. However, he did not lead any defence evidence. 6. Having heard the arguments and after appreciating the evidence on record, learned magistrate came to a conclusion that complainant has failed to prove that the accused has availed hand loan of Rs.12,50,000.00 from the complainant and in discharge of the same he has issued a cheque as per Ex.P1. Hence, he has acquitted the accused of the charge under Sec. 138 of NI Act. 7. Being aggrieved by this judgment of acquittal the complainant has filed this appeal. 8. Heard the arguments advanced by both the counsels and perused the records of the trial Court. 9. Learned counsel for the appellant would contend that the trial Court has committed an error in acquitting the accused. He would further contend that there is no challenge to the signature on the cheque and admittedly cheque belongs to the accused and the trial Court has committed an error in not drawing presumption in favour of the complainant under Sec. 139 of NI Act. He would further contend that the trial Court on presumptions and assumptions has misconceived the evidence and acquitted the accused which has resulted in miscarriage of justice. Hence, he would seek for setting aside the impugned judgment of acquittal by allowing the appeal and convicting the respondent-accused. 10. Per contra the learned counsel for respondent- accused would support the judgment of the acquittal passed by the trial Court. He would contend that the defence of the accused disclose that the cheque does not belong to him and the cheque and account number does not tally. He would further contend that the cheque is in the name of Prakash Tea Shop but the transaction is alleged with present complainant and no documents has been produced to show that the complainant is the sole proprietor. He would further contend that the cheque is in the name of Prakash Tea Shop but the transaction is alleged with present complainant and no documents has been produced to show that the complainant is the sole proprietor. He would further contend that there is no material evidence to show that the complainant is having financial capacity to pay such a huge amount and Ex.P5-Agreement relied does not substantiate the contention of the complainant. Hence, he would seek for dismissal of the appeal by confirming the judgment of acquittal passed by the trial Court. 11. Having heard the arguments and perusing the records, it is not under serious dispute that complainant is running a tea shop while accused is doing real estate business. According to the complainant he approached the accused in first week of October, 2015 with an intention to purchase the sites and in second week of October, 2015 the accused has shown sites bearing Nos.36,37 and 38 in Dwarakanagar, Chikkabanavar and at that time complainant had paid Rs.12,50,000.00 as earnest amount. It is further the contention that accused did not execute registered sale deed and hence, the agreement came to be entered between them on 5/12/2015 as per Ex.P5 and a cheque dtd. 5/12/2015 came to be issued. He would contend that when the said cheque was presented, it bounced and hence, this complaint came to be lodged. 12. The complainant all along claimed that he has paid Rs.12,50,000.00 towards purchase of sites. On perusal of this aspect, it is evident that transaction between the parties is of civil nature. According to the complainant as accused failed to execute the sale deed towards repayment of the earnest amount, this cheque under Ex.P1 came to be issued. Further the complainant has also relied on Ex.P5 agreement between the parties in this regard. On perusal of these pleadings and Ex.P5, it is evident that it is an outcome of sale transaction and matter is of civil in nature. But the complainant instead of filing a civil suit tried to give a criminal colour to the transaction which is not permissible under the law as he had a civil remedy. 13. On perusal of these pleadings and Ex.P5, it is evident that it is an outcome of sale transaction and matter is of civil in nature. But the complainant instead of filing a civil suit tried to give a criminal colour to the transaction which is not permissible under the law as he had a civil remedy. 13. Though during the course of argument an half- hearted attempt has been made by the learned counsel for respondent-accused to dispute the signature and the cheque as that belonging to accused, the evidence disclose that no such serious attempt has been made. However, the accused during the cross examination of complainant has disputed his signature on the cheque but did not denied that the cheque belongs to his account. However, it is evident from the cross examination that he has disputed the signature on the cheque. Under such circumstances when the accused has disputed the signature on the cheque- Ex.P1, the presumption under Sec. 139 of NI Act cannot be drawn. No attempt has been made by the complainant to prove the signature of the accused. However, on perusal of the signature of the accused on plea and signature on Ex.P1, it is evident that they are one and the same. 14. However, it is to be noted here that the complainant all along claiming to be the holder of the cheque in due course. According to complaint-allegations the transaction was between complainant and accused. The complainant also claims that he is running Prakash Tea House. Admittedly, there is no transaction between the Prakash Tea Shop and accused. But on perusal of Ex.P1- Cheque, it is evident that the cheque was not issued in the name of complainant Prakash, but it was issued in the name of 'Prakash Tea House'. No evidence is also placed to prove that the complainant is the sole proprietor of the tea house. Further the complaint is also not filed by the proprietary firm. Hence, complainant cannot claim to be the holder of the cheque in due course. 15. Further all along complainant has placed reliance on Ex.P5-Agreement. It is pleaded that on 5/12/2015, Ex.P5 was executed. In Examination in chief also it is stated that the agreement is said to have been executed on 5/12/2015. Further in legal notice-Ex.P2, the date of agreement is mentioned as 5/12/2015 itself. 15. Further all along complainant has placed reliance on Ex.P5-Agreement. It is pleaded that on 5/12/2015, Ex.P5 was executed. In Examination in chief also it is stated that the agreement is said to have been executed on 5/12/2015. Further in legal notice-Ex.P2, the date of agreement is mentioned as 5/12/2015 itself. But on perusal of Ex.P5, it is evident that it does not bear any specific date of execution of the document. But on contrary the stamp itself was issued on 15/12/2015. When stamp for Ex.P5 was issued on 15/12/2015, question of execution of the document on 5/12/2015 i.e., prior to issuance of stamp paper does not arise at all. Even in the cross examination, PW.1 has specifically stated that it is executed on 5th or 6/12/2015 but the stamp was issued on 15/12/2015. Further PW.1 specifically stated that the accused has got prepared Ex.P5 and got it notarized when it was brought to him which clarifies that accused has not signed in the presence of complainant on Ex.P5 and Ex.P5 was not executed in his presence. 16. Apart from that on perusal of Ex.P5, it is evident that on the same day the cheque bearing No.58051 was issued and even in Ex.P5 there is reference that on the same day cheque under Ex.P1 was issued and the amount was agreed to be repaid on 15/1/2016. But Ex.P1-cheque is dtd. 21/2/2017. When the cheque was said to have been issued on 5/12/2015 or 15/12/2015 with an undertaking to repay the amount on 15/1/2016, there is no explanation as to why the complainant has got endorsed the date of issuance of cheque as 21/2/2017. Further the cheque is also not issued in the name of the complainant but it was issued in the name of firm 'Prakash Tea House'. The complainant has also not specifically stated as to on which exact date he has paid sum of Rs.12,50,000.00. All these anomalies were not explained by the complainant as burden is on him to establish this aspect. 17. The complainant has placed reliance on evidence of PW.2 who is also signatory to Ex.P2. But PW.2 admitted that at the time of payment of money he was standing outside and as such his evidence cannot be accepted that he is an eye witness for payment of amount of Rs.12,50,000.00 by the complainant to the accused. 18. 17. The complainant has placed reliance on evidence of PW.2 who is also signatory to Ex.P2. But PW.2 admitted that at the time of payment of money he was standing outside and as such his evidence cannot be accepted that he is an eye witness for payment of amount of Rs.12,50,000.00 by the complainant to the accused. 18. Further the accused has also challenged the financial status of complainant. The complainant claimed that he had pledged golden ornaments and availed loan from bank and other institutions and paid the amount. But on perusal of Ex.P6 to Ex.P14, it is evident that they were pertaining to year 2016 and 2017 and the alleged transaction of payment of money is in the month of October 2015. Though there is an attempt to explain that the pledge was earlier and it was renewed but no material evidence is forthcoming and no documents have been produced in this regard. Hence, these Ex.P6 to Ex.P14 does not establish that golden ornaments were pledged by the complainant to secure the amount to be paid to the accused. Apart from that the complainant though has produced certain Income tax returns submitted by him, they were not got marked. Even on perusal of this income tax returns and cross examination of PW.1, it is evident that this amount of Rs.12,50,000.00 is not shown in income tax returns either pertaining to firm or pertaining to complainant. The evidence of PW.2 does establish that the amount of Rs.12,50,000.00 was not paid in his presence. PW.2 in his chief deposed that Ex.P5 was executed on 15/12/2015 but complainant all along asserted that it was executed either 5th or 6th of December. The evidence of Pws.1 and 2 is inconsistent in this regard. Even the cross examination of PW.2 disclose that he is not aware of execution of Ex.P5 and as such the evidence disclose that the complainant has failed to establish his financial status as on the date of the alleged transaction. The cheque was not presented within the stipulated period from December 2015, when it was alleged to have been issued. Further the complainant was not the holder of the cheque in due course and the cheque was issued in the name of the firm. Complainant has not lead any evidence to show that he is the sole proprietor of the firm. Further the complainant was not the holder of the cheque in due course and the cheque was issued in the name of the firm. Complainant has not lead any evidence to show that he is the sole proprietor of the firm. The evidence lead by the complainant does not inspire the confidence of the Court and the pleadings also in this regard are inconsistent and contrary to the documentary evidence Ex.P1 and P5. Further considering the complaint allegations, it is evident that the dispute between the parties is of civil in nature and complainant has tried to give a criminal colour to the transaction instead of approaching the civil Court. Looking to all these facts and circumstances, it is evident that the complainant has failed to bring home the guilt of the accused beyond all reasonable doubt. 19. Learned magistrate has considered all these aspects in proper perspective and he has analysed the oral and documentary evidence in accordance with law. After appreciating the evidence he has come to a right conclusion that the complainant has failed to bring home the guilt of the accused for the offence under Sec. 138 of NI Act. 20. Looking to the evidence on record, no perversity is found so as to interfere with the finding of the trial Court. It is not possible for this Court to take any other view than that of the trial Court. Under these circumstances, the appeal is devoid of any merits and needs to be rejected. Accordingly, I proceed to pass the following: ORDER The appeal is dismissed. The judgment of acquittal dtd. 30/4/2018 passed by the XXII ACMM, Bengaluru in C.C.No.9997/2017 dtd. 30/4/2018 for the offence under Sec. 138 of the N.I Act, is hereby confirmed.