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2023 DIGILAW 1284 (KAR)

Puttaraju v. Y. Rajgopala Naidu

2023-11-07

G.BASAVARAJA

body2023
JUDGMENT 1. The appellant/complainant has preferred this appeal against the judgment of acquittal dtd. 14/8/2013 passed in CC No.127 of 2012 by the Senior Civil Judge and JMFC, Nagamangala (for brevity, hereinafter referred to as the "trial Court"). 2. For the sake of convenience, the parties in this appeal are referred to as per their status and rank before the trial Court. 3. Brief facts of the case of the complainant/appellant are that in the years 2010 and 2011, the complainant and accused were doing business under partnership. In the year 2011, misunderstanding arose between them. Therefore, they decided to close the partnership business and at the time of closing the partnership business, the accused by accepting liability of Rs.1, 50, 000.00, issued a cheque dtd. 10/10/2011 to the complainant to be drawn on Axis Bank, Ramanagar (Andhra Pradesh). The complainant presented the same for encashment to Canara Bank, Bellur Branch, Nagamangala. The Canara Bank has sent the cheque to Axis Bank, Ramanagar (Andhra Pradesh) for clearance, but the same came to be returned on 14/10/2011 with endorsement "Account closed". The complainant sent legal notice dtd. 4/11/2011 to the accused through registered post. After receipt of the same, the accused sent reply, but he has not paid any cheque amount. Therefore, the complainant lodged a complaint under Sec. 200 of the Code of Criminal Procedure for commission of offence punishable under Sec. 138 of Negotiable Instruments Act, 1881. 4. After recording sworn statement, trial Court has taken cognizance against the accused for commission of offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 and registered a case in CC No.127 of 2012. In pursuance of the summons, accused appeared before the Court. Plea of the accused was recorded. Accused pleaded not guilty and claim to be tried. 5. In order to prove the case of the complainant, one witness was examined as PW1 and ten documents were marked as Exhibits P1 to P10. After completion of the complainant's side evidence, statement of the accused under Sec. 313 of Code of Criminal Procedure was recorded. The accused denied all the incriminating evidence found against him. Accused examined himself as DW1 and produced six documents as Exhibits D1 to D6. Upon hearing the arguments on both sides, the trial Court has acquitted the accused for commission of offence under Sec. 138 of the Negotiable Instruments Act, 1881. The accused denied all the incriminating evidence found against him. Accused examined himself as DW1 and produced six documents as Exhibits D1 to D6. Upon hearing the arguments on both sides, the trial Court has acquitted the accused for commission of offence under Sec. 138 of the Negotiable Instruments Act, 1881. Being aggrieved by this judgment of acquittal, the appellant/complainant has preferred this appeal. 6. Learned counsel for the appellant/complainant submits that the impugned judgment passed by the trial Court is contrary to law and also contrary to the evidence on record. The trial Court is not justified in acquitting the accused after holding that the cheque in question came to be issued by the accused to the complainant. Learned counsel further submits that the finding of the trial Court that the complainant has not produced any document to show that he is authorised to represent Kruti Agencies and as such, the presumption envisaged under Sec. 139 of the Negotiable Instruments Act, 1881 will not come to the aid of the complainant is wrong and contrary to the provisions. He submits that the statutory presumption under law is, once the cheque is issued and the accused admits the issuance of cheque, then it is the bounden duty of the accused to prove that cheque is not issued towards discharge of legally recoverable debt. The trial Court has not properly appreciated the evidence on record in accordance with law and facts and on all these grounds sought to allow the appeal. 7. Learned counsel for the respondent is absent and hence arguments on the side of respondent is taken as nil. 8. Having heard the arguments of the learned counsel for the appellant/complainant, the following points would arise for my consideration in this appeal: 1. Whether the appellant/complainant has made out a ground to interfere with the impugned judgment of acquittal? 2. What order? 9. My answer to the above points are as under: Point No.1: in the negative; Point No.2: as per final order Regarding Point No.1: 10. I have carefully examined the material placed before this Court. To prove the case, the complainant has adduced oral along with documentary evidence. The cheque-Exhibit P1 reveals that the accused has issued the same in the name of Kruti Agencies, Bellur Cross for Rs.1, 50, 000.00 dtd. I have carefully examined the material placed before this Court. To prove the case, the complainant has adduced oral along with documentary evidence. The cheque-Exhibit P1 reveals that the accused has issued the same in the name of Kruti Agencies, Bellur Cross for Rs.1, 50, 000.00 dtd. 10/10/2011, and when the same was presented to Bank for encashment, the cheque was returned with endorsement "Account closed". Exhibit P5 reveals that on 4/11/2011, the complainant has issued legal notice to the accused through Registered Post Acknowledgement Due calling upon him to repay the cheque amount. The same was duly served on 5/11/2011. Exhibit P8 is the reply notice issued by the respondent-accused. For the reasons assigned in the reply notice, he has not paid the amount. Therefore, the complainant has lodged complaint on 26/11/2011. Perusal of these materials placed before this Court, makes it clear that the complainant has complied with the mandatory provisions of Sec. 138 of Negotiable Instruments Act, 1881, except the explanation to the provisions of Sec. 138 of the Act as to the legally recoverable debt. 11. As regards to legally recoverable debt is concerned, the accused has adduced his evidence as DW1 and produced documents as Exhibits D1 to D6. Considering the contents of Exhibit P8-reply notice and Exhibits D1 to D6 and the oral evidence of DW1 and also the admission made by PW1 during the cross-examination, the trial Court, as to the legally recoverable debt is concerned, in paragraphs 17 to 19 of its judgment, has observed as under: "17. A careful perusal of the facts stated by complainant in the evidence would show that in one breath he says that accused issued Ex.P.1 cheque towards discharge of liability which was settled at the time of closing the partnership business and in another breath he says that he given a loan of Rs.1, 50, 000.00 to the accused and towards discharge of the said loan accused issued Ex.P.1 cheque. The above inconsistency in the evidence of complainant would create serious doubt to believe his case. 18. Complainant in the cross-examination at page no.6 has stated that on 28/6/2011 accused given complaint against him to Belluru Police Station in respect of Ex.P.1 cheque. From the above testimony of complainant it could be inferred that before 28/6/2011 dispute arose between him and accused in respect of Ex.P.1 cheque. 18. Complainant in the cross-examination at page no.6 has stated that on 28/6/2011 accused given complaint against him to Belluru Police Station in respect of Ex.P.1 cheque. From the above testimony of complainant it could be inferred that before 28/6/2011 dispute arose between him and accused in respect of Ex.P.1 cheque. When such is the case, the contention of the complainant that on 10- 10-2011 i.e., about 3 1/2 months after the dispute arose between him and accused, accused issued Ex.P.1 cheque to him cannot be accepted. 19. Complainant in the cross-examination at page no.8 has stated that while he and accused were doing solar business on partnership they jointly received an advance amount of Rs.3, 00, 000.00 from New Tech Solar Company, as security for the said amount he issued a cheque in a sum of Rs.3, 00, 000.00 in favour of New Tech company, he and accused equally shared the advancement amount of Rs.3, 00, 000.00, in respect of the said amount accused given Ex.P.1 cheque to him in a sum of Rs.1, 50, 000.00. Accused produced Ex.D.2 a document dtd.: 5/6/2011 made at the time of he and complainant closing their partnership business. In Ex.D.2 it is specially stated that accused issued Ex.P.1 cheque to the complainant as a security of his share of Rs.1, 50, 000.00 in the advance amount of Rs.3, 00, 000.00 received from New Tech Solar Company to promote solar business. In Ex.D.2 it has been specifically stated that complainant and accused by utilizing an advance amount received by New Tech Solar Company traveled to Hydarbad and contacted so many persons in connection with doing solar business by spending their share of advance amount received from New Tech Solar Company and at the time of closing the said partnership business they had no money in their hand which they received from New Tech solar company to promote solar business. A perusal of Ex.D.2 would show that it was signed by both complainant and accused. A perusal of Ex.D.2 would show that it was signed by both complainant and accused. The terms of settlement arrived between complainant and accused under Ex.D.2 agreement made at the time of closing the partnership business would support the contention of the accused that Ex.P.1 cheque was issued as a security for 50% of advance amount i.e., Rs.1, 50, 000.00 received by him in total advancement amount of Rs.3, 00, 000.00 given by New Tech Solar Company and after receipt of the said advance amount he and complainant spent the said amount to travel to Hydarabad and other places and to contact so many persons to do the solar business. At the risk of repetition I say that complainant in the cross-examination at page no.8 has admitted the said fact. Thus, in the instant case, accused by examining himself as DW.1 and producing Ex.D.2 memorandum of understanding took place between him and complainant at the time of closing the partnership business and by eliciting admissions in the cross-examination of complainant made out a probable defence that Ex.P.1 cheque was not issued in respect of any debt or liability as contended by the complainant, on the other hand it was issued towards 50% share of accused in advance amount of Rs.3, 00, 000.00 received from New Tech Solar Company to promote solar business which he spent for the purpose for which it was given to him. In view of my aforesaid findings I hold that complainant miserably failed to prove that at the time of closing the partnership business of himself and accused, accused was in due of Rs.1, 50, 000.00 to him and towards the payment of the said amount accused issued Ex.P.1 cheque. In view of the above, I answer point no.2 in the negative." 12. On re-examination/re-consideration and reappreciation of the evidence on record, I do not find any legal infirmity/illegality in the impugned judgment of acquittal passed by the trial Court. The reasons assigned by the trial Court for acquitting the accused are in accordance with law and facts. Accordingly, the appellant/complainant has failed to make out a ground to interfere with the impugned judgment of acquittal. Hence, I answer the point No.1 in the negative. Regarding Point No.2: 13. For the aforesaid reasons and discussions, I proceed to pass the following: O R D E R 1. Appeal dismissed. 2. Order dtd. Accordingly, the appellant/complainant has failed to make out a ground to interfere with the impugned judgment of acquittal. Hence, I answer the point No.1 in the negative. Regarding Point No.2: 13. For the aforesaid reasons and discussions, I proceed to pass the following: O R D E R 1. Appeal dismissed. 2. Order dtd. 14/8/2013 passed in CC No.127 of 2012 by the Senior Civil Judge and JMFC, Nagamangala, is confirmed. 3. Send copy of this judgment to the trial Court.