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2023 DIGILAW 797 (KAR)

N. S. Ramarao v. Nazirsab

2023-06-21

J.M.KHAZI

body2023
JUDGMENT 1. This is complainant's appeal challenging the acquittal of respondent/accused for the offence punishable under Sec. 138 of N.I.Act. 2. For the sake of convenience the parties are referred to by their rank before the trial Court. 3. It is the case of the complainant that accused and one Sayad of Hullimatti through the mediation of complainant, entered into a contract on 14/7/2006 with Sri.Kudli Arya Akshobya Tirtha Kudli Mutt (for short 'Kudli Mutt'), to purchase sugarcane and areca crop situated in 2 acres of garden land belonging to the Kudli Mutt for a total sum of Rs.1, 10, 000.00. He paid Rs.501.00 as advance. Accused promised to pay 50% of the balance before Ganesha Chaturthi and remaining on or before 25/12/2006. As agreed, accused removed the crops and paid Rs.50, 000.00 before Ganesha festival through a bearer cheque. Complainant encashed the said amount and credited it to the Kudli Mutt authorities on 5/10/2006. 3.1 With regard to the balance, accused issued a cheque bearing No.406819 dtd. 28/1/2007 (for short subject cheque) for a sum of Rs.50, 000.00 and requested the complainant to present it for encashment after four months. Accordingly, on 28/5/2007, when complainant presented the said cheque for encashment, it was returned with endorsement "insufficient funds". Complainant got issued a legal notice. However, accused has sent an evasive reply. Without any alternative, complainant has filed the complaint. Though the amount is payable to the Kudli Mutt, it is to be paid through complainant as was done earlier. Therefore, complainant has chosen to file the complaint. 4. Before the trial Court accused has put in his appearance and contested the matter. He has pleaded not guilty and claimed trial. 5. In support of his case, complainant has examined himself as PW-1, one witness as PW-2. He has relied upon Ex.P1 to 13. 6. During his statement under Sec. 313 Cr.P.C accused has denied the incriminating evidence. 7. In fact he has stepped into witness box by examining himself as DW-1. However, no document has been marked on his behalf. 8. Vide the impugned judgment and order, the trial Court dismissed the complaint holding that the complainant has no locus standi to file the complaint. He has also failed to prove that the cheque in question was issued towards repayment of any legal recoverable debt or liability. However, no document has been marked on his behalf. 8. Vide the impugned judgment and order, the trial Court dismissed the complaint holding that the complainant has no locus standi to file the complaint. He has also failed to prove that the cheque in question was issued towards repayment of any legal recoverable debt or liability. The trial Court held that the accused has rebutted the presumption under Sec. 118 and 139 of the N.I.Act. However, the complainant has failed to discharge the onus that has shifted on him by establishing that he is authorized by the Kudli Mutt to file the complaint and that accused owed a sum of Rs.50, 000.00 to the Kudli Mutt and issued the cheque in question. 9. Being aggrieved by the impugned judgment and order, the complainant has filed this appeal, contending that the impugned judgment and order is erroneous, contrary to the facts and circumstances of the case. The trial Court has not taken into consideration the oral as well as the documentary evidence placed on record. Having regard to the fact that accused admitted issue of cheque, the defence taken by him is highly improbable. The trial Court has also not appreciated the fact that the earlier cheque issued by the accused was in the name of complainant and after realizing the said sum, he has credited it into the account of the Kudli Mutt. Since the cheque in question was issued towards the repayment of the part of the amount due, the fact that no provision is made for the remaining sum of Rs.9, 500.00 would not affect the credibility of the complainant's case. When the complainant has proved the payment of Rs.50, 000.00 being the first instalment, the trial Court ought to have accepted the case of the complainant that the subject cheque was issued towards repayment of balance consideration of Rs.50, 000.00 and prays to allow the appeal, convict the accused and sentence him appropriately. 10. On the other hand learned counsel representing the accused supported the impugned judgment and order and submitted that according to the complainant the sum due under the subject cheque is towards the Kudli Mutt. However, complainant has failed to prove under what authority he has chosen to file complaint and how the subject cheque reached his hand. 10. On the other hand learned counsel representing the accused supported the impugned judgment and order and submitted that according to the complainant the sum due under the subject cheque is towards the Kudli Mutt. However, complainant has failed to prove under what authority he has chosen to file complaint and how the subject cheque reached his hand. In the absence of any authority issued by the Kudli Mutt, the complainant is not having any locus standi to maintain the complaint. Even otherwise on merits also, the complainant has failed to prove that the cheque in question was issued towards repayment of any legally recoverable debt or liability. In the light of defence established by the accused, the trial Court has rightly rejected the case of the complainant and dismissed the complaint and prays to dismiss the appeal also. 11. Heard arguments and perused the record. 12. According to the complainant, accused entered into a agreement with Kudli Mutt and purchased the areca nut and sugarcane crop raised in two acres of land belonging to Kudli Mutt and towards repayment of part of the sale consideration of Rs.50, 000.00 issued the cheque in question in favour of the Kudli Mutt. It is contended by the complainant that the total worth for which the accused purchased the said crop is Rs.1, 10, 000.00. Out of it, he paid Rs.501.00 as advance. In respect of the first instalment, he paid Rs.50, 000.00 by way of a bearer cheque and in fact it was realized by complainant and credited into the account of Kudli Mutt. With regard to remaining sum of Rs.50, 000.00 he issued the subject cheque and requested the Swamiji to present it after four months. Accordingly, on 28/5/2007, when complainant presented the said cheque, it was returned dishonored for insufficient funds. 13. Accused has admitted that he entered into an agreement to purchase the sugarcane and areca nut crops in two acres belonging to the Kudli Mutt and in fact he harvested 50% of the crop and paid Rs.50, 000.00. However, before he could harvest the remaining 50% of the crop, it was found that complainant and PW-2 Vadiraja, who were employed in the Kudli Mutt had sold the said crop to some other person and therefore, accused could not harvest them. In fact he had issued the subject cheque in favour of the Kudli Mutt by way of security. However, before he could harvest the remaining 50% of the crop, it was found that complainant and PW-2 Vadiraja, who were employed in the Kudli Mutt had sold the said crop to some other person and therefore, accused could not harvest them. In fact he had issued the subject cheque in favour of the Kudli Mutt by way of security. When he could not get the remaining 50% of the crops, he approached the Swamiji and requested him to return the cheque. However, Swamiji informed that writer has left the job and cheque was with him and after he return he will return the cheque. In that way he could not get back the cheque. Alleging that accused along with PW-2 who were removed from the services of the Mutt have taken away the subject cheque and filed the complaint. 14. In other words accused has contended that since he could not harvest the remaining 50% of the crops, he had no liability to pay Rs.50, 000.00 and misusing the cheque which was given by way of security, the complainant has filed a false complaint. In the light of the specific defence taken by the accused, heavy burden is on the complainant to prove that he is authorized by the Kudli Mutt to file complaint. Though in the light of the Sec. 118 and 139 of N.I.Act, a presumption is operating in favour of the complainant that the cheque in question was issued by the accused towards repayment of any debt or liability, heavy burden is on the complainant to prove that accused has harvested the entire crop and he had paid Rs.50, 000.00 towards the first half and the subject cheque was issued towards the balance. 15. Admittedly, according to the complainant the cheque in question is issued towards repayment of Rs.50, 000.00 towards Kudli Mutt Swamiji. In other words, the alleged liability of accused is towards the said Kudli Mutt. Therefore, the complaint ought to have been filed in the name of the Kudli Mutt. Admittedly, the complainant is not prosecuting the complaint on behalf of the Kudli Mutt. In fact in the complaint there are no averments that he has been authorized by the Kudli Mutt to file the complaint and to represent the Kudli Mutt. Therefore, the complaint ought to have been filed in the name of the Kudli Mutt. Admittedly, the complainant is not prosecuting the complaint on behalf of the Kudli Mutt. In fact in the complaint there are no averments that he has been authorized by the Kudli Mutt to file the complaint and to represent the Kudli Mutt. Through the cross-examination of PWs-1 and 2, the accused has proved that both of them have been removed from the services of the Kudli Mutt on the ground of misconduct. Of course PWs-1 and 2 have denied that they misused the funds of the Kudli Mutt and therefore, they were removed from service. However, they have not placed any record to show that they have been removed from the Kudli Mutt for the reasons other than what was suggested by the accused. 16. When the complaint is not filed by the Kudli Mutt and complainant is not acting on behalf of the Kudli Mutt and he has no authority to prosecute the complaint, he cannot plead that accused owed Rs.50, 000.00 to the Kudli Mutt and issued the cheque towards repayment of the same. If at all the cheque in question was issued in favour of the Kudli Mutt, absolutely there was no hindrance or prohibition to submit the said cheque to the account of the Kudli Mutt. The complainant has not explained as to how the cheque in question was issued in his name. When he is not representing the Kudli Mutt, it cannot be accepted that accused has issued the cheque in question in the name of complainant for and on behalf of the Kudli Mutt. 17. The very fact that the cheque bares the name of the complainant goes to support the defence of the accused that he had issued a blank cheque by way of security to the amount which would be due from him after he harvest the balance crops. Complainant has relied upon Ex.P4 to show that earlier instalment of Rs.50, 000.00 paid by the accused through cheque is realized by him and it is paid into the hands of PW-2 and he has received it on behalf of the Kudli Mutt. Complainant has relied upon Ex.P4 to show that earlier instalment of Rs.50, 000.00 paid by the accused through cheque is realized by him and it is paid into the hands of PW-2 and he has received it on behalf of the Kudli Mutt. Ex.P4 is a receipt stated to have been issued by PW-2 in favour of PW-1 saying that he has received Rs.50, 000.00 on behalf of the Kudli Mutt towards payment of sugarcane crop grown in the land of the said Kudli Mutt. However, this documents does not state whether the said amount was paid by the accused. In fact according to the complainant, the said sum of Rs.50, 000.00 was paid by way of bearer cheque. However, this receipt does not state that the said amount was received from accused by way of bearer cheque and complainant has credited it to his account and paying the cash in the hands of PW-2. In fact the complainant has also not produced his account extract to show that the said sum of Rs.50, 000.00 were paid by the accused through his account by way of a bearer cheque. 18. Admittedly, accused is not a signatory to Ex.P4. Having regard to the specific allegations that both PWs-1 and 2 acted contrary to the interest of the Kudli Mutt and have been removed from the services of Kudli Mutt, at no stretch of imagination, it could be accepted that this receipt prove the fact that Rs.50, 000.00 which is reflected in the said receipt was paid by the accused and it is towards repayment of the 50% of the crops collected by the accused. When the subject cheque was issued by the accused in favour of the Kudli Mutth, if accused has harvested the entire crop and failed to pay the balance consideration, absolutely there was no impediment for the cheque to be presented by the Swamiji or on behalf of the Kudli Mutt and file the complaint in the name of the Kudli Mutt or the Swamiji as the case may be. The accused has taken up a specific defence that when he contacted the Swamiji and requested to return the cheque in question, he expressed his inability saying that the writer has taken away the cheque and he will return it as soon as the writer returns. 19. The accused has taken up a specific defence that when he contacted the Swamiji and requested to return the cheque in question, he expressed his inability saying that the writer has taken away the cheque and he will return it as soon as the writer returns. 19. Having regard to the fact that the complainant as well as PW-2 are removed from the Kudli Mutt, the possibility of complainant having come in possession of the cheque while leaving the Kudli Mutt and presenting in his name cannot be ruled out. Therefore, despite the fact the presumption is operating that accused has issued the cheque in question towards repayment of any legally recoverable debt or liability, having regard to the specific defence taken by him that accused is not having any locus standi to present the cheque in his name and file the complaint, the accused has rebutted the said presumption. Of course despite accused taking up a specific defence, the complainant has not chosen to lead any evidence to show that he has been authorized by the Kudli Mutt to file the complaint and prosecute the same. Taking into consideration all these aspects, the trial Court has rightly rejected the case of the complainant and accepted the defence of the accused. 20. In the light of the oral and documentary evidence placed on record by both parties and more specifically in the light of the specific defence taken by the accused, this Court is of the considered opinion that this is not a fit case to interfere with the conclusions arrived at by the trial Court. In the result appeal fails and accordingly, I proceed to pass the following: ORDER (i) Appeal filed by the complainant is dismissed. (ii) The impugned judgment and order of the trial Court is confirmed. (iii) The Registry is directed to send back the trial Court record along with copy of this judgment to the trial Court forthwith.