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2023 DIGILAW 998 (KAR)

Rajesh Anchan v. K. B. Suresh

2023-08-22

RAJENDRA BADAMIKAR

body2023
ORDER 1. This revision is filed under Section 397 r/w 401 of Cr.P.C., challenging the judgment of conviction and order of sentence passed in CC.No.1894/2014 dated 09.01.2017 on the file of JMFC (V Court), Mangaluru, for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'NI Act') and confirmed by I Additional Sessions Judge, Mangalore in Crl.A.No.18/2017 dated 16.07.2019. 2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the trial Court. 3. The brief factual matrix leading to the case are that for urgent financial commitments accused had borrowed a sum of Rs.1,50,000/- from complainant as a hand loan. It is asserted that the accused being friend of complainant, he has paid the said sum and towards repayment the accused has issued the cheque dated 26.07.2014 for Rs.1,50,000/- and when the same was presented, it was dishonored for the reason 'Account closed'. The complainant then got issued a legal notice and the accused did not repay the loan amount and hence, the complaint came to be lodged. 4. On the basis of the complaint, the learned Magistrate has taken cognizance and issued process. Accused has appeared through his counsel and was enlarged on bail. The prosecution papers were also furnished to the accused. He denied the accusation. The complainant has got examined as PW1 and placed reliance on seven documents marked at Exs.P1 to P7. After conclusion of the evidence of the complainant, the statement of accused under Section 313 Cr.P.C. is recorded to enable him to explain the incriminating evidence appearing against him in the case of the prosecution. The case of accused is of total denial. The accused has also got examined himself as DW1. 5. After hearing the arguments and after appreciating the oral as well as documentary evidence, the learned Magistrate has convicted the accused for the offence punishable under Section 138 of the NI Act, and imposed fine of Rs.1,55,000/-. Being aggrieved by this judgment, the accused has approached First Additional Sessions Judge, Mangalore in Crl.A.No.18/2017. The learned Sessions Judge after appreciating the oral and documentary evidence, confirmed the judgment of conviction and order of sentence passed by the magistrate by dismissing the appeal. Against these concurrent findings, this revision came to be filed. 6. Being aggrieved by this judgment, the accused has approached First Additional Sessions Judge, Mangalore in Crl.A.No.18/2017. The learned Sessions Judge after appreciating the oral and documentary evidence, confirmed the judgment of conviction and order of sentence passed by the magistrate by dismissing the appeal. Against these concurrent findings, this revision came to be filed. 6. Heard the arguments advanced by the learned counsel for the revision petitioner and learned counsel for the respondent. Perused the records. 7. The learned counsel for the revision petitioner contended though the cheque and signature have been admitted, it was pertaining to loan transaction with Umashankar for a sum of Rs.20,000/- and the cheque was issued as a security. He would contend that the complainant has not disclosed the date of advancement of loan and admittedly, he is working in a multi national company and to ascertain as to when he advanced the loan, he had not produced any documents to show that he was on leave or serving in different shifts. He would also contend that no documents have been produced to show that he has availed any permission from the company. He would contend that during the course of the trial, the accused tried to improve his case and his financial status is also not established and hence, he contended that both the Courts below have failed to appreciate this aspect and hence, he sought interference of this Court by allowing the revision by setting aside the impugned judgment and conviction passed by both the Courts below. 8. Per contra, the learned counsel for the respondent would contend that there is no rebuttal evidence lead by the accused and the presumption available in favour of the complainant under Section 139 of the NI Act is not rebutted. He would contend that non mentioning of date of the advancement of loan is not fatal and the accused has not proved his defense and reverse onus is casted on accused which he failed to discharge. Hence, he would contend that both the Courts below have appreciated this aspect and have rightly convicted the accused and the said findings does not call for any interference. Hence, he would seek for dismissal of the revision. 9. Hence, he would contend that both the Courts below have appreciated this aspect and have rightly convicted the accused and the said findings does not call for any interference. Hence, he would seek for dismissal of the revision. 9. Having heard the arguments and perusing the records, now the following point would arise for my consideration: 'Whether the Judgment of conviction and order of sentence passed by the trial Court and confirmed by the first appellate Court are perverse, arbitrary and illegal so as to call for any interference by this court?' 10. The complainant has filed a complaint alleging that the accused being his friend and as per his request to meet his financial commitment, he advanced a hand loan of Rs.1,50,000/-. It is his further contention that in this regard towards repayment, a cheque dated 26.07.2014 came to be issued which was bounced for insufficient of funds. The accused has not denied that cheque-Ex.P1 belongs to him and it bears his signature. On the contrary, accused has taken up specific contention that he had transaction with one Umashankar and he has availed a loan of Rs.20,000/- and towards security, the said cheque was issued which was being now misused. Since, the accused has admitted that the Cheque at Ex.P1 belongs to him and it bears his signature, the initial presumption under Section 139 of the NI Act is in favour of the complainant. The accused is required to rebut the said presumption on the basis of preponderance of probability. 11. At the outset in the complaint, the complainant has nowhere pleaded as to when the amount of Rs.1,50,000/- was advanced to the accused. Even in his examination-in-chief, he did not disclose when the amount was advanced. A simple averments is made in the complaint as well as in examination-in-chief that accused borrowed a sum of Rs.1,50,000/- from the complainant as a hand loan for his financial commitments and when repayment was demanded the disputed cheque came to be issued. It is not the case made out by the complainant that he has advanced the loan to the accused in installments. Even in the notice issued as per Ex.P1, the complainant has not disclosed the date of advancement of loan. It is not the case made out by the complainant that he has advanced the loan to the accused in installments. Even in the notice issued as per Ex.P1, the complainant has not disclosed the date of advancement of loan. But first time in the cross examination, the accused has came up with an explanation that he has advanced the loan four times to the accused on 03.04.2013 to the tune of Rs.30,000/-, 08.06.2013 to the tune of Rs.50,000/-, 22.08.2013 to the tune of Rs.30,000/- and 26.12.2013 to the tune of Rs.40,000/-. This fact was never pleaded in the entire complaint, examination-in-chief nor in the legal notice. But it is evident that this fact was stated by the complainant only on the basis of Ex.P7 wherein there is reference of these dates for withdrawal of certain sums. By taking advantage of these withdrawals, the complainant is now asserting the specific date of advancement of loan by improving his case. 12. No explanation is forthcoming from the complainant as to why the details of payments to the accused was not pleaded in the complaint or notice. When the amount was paid in four installments same could have been pleaded in the complaint and same should have been referred in the legal notice but that was not forthcoming. Apart from that, in the cross examination PW1 in para 10 states as under: 13. This cross examination reveals that as per the complainant, accused has initially availed Rs.30,000/-with a assurance of repayment in one week but that was not done and again, he demanded Rs.50,000/- which was assured to be repaid within two weeks together with earlier loan. He further claims that subsequently, Rs.30,000/- was also paid and Rs.40,000/- was paid with assurance that within two months or three months entire amount is being paid. When the accused has failed to repay the first loan itself, it is hard to accept the contention of the complainant that again he has advanced the loan. According to him, he went on advancing the loans as per request of the accused though the earlier three loans were not repaid. This conduct of the complainant is against human behaviour and the same cannot be accepted. 14. Admittedly, accused is working in Hindustan Lever Company. According to him, he went on advancing the loans as per request of the accused though the earlier three loans were not repaid. This conduct of the complainant is against human behaviour and the same cannot be accepted. 14. Admittedly, accused is working in Hindustan Lever Company. He claims that he is also doing real estate business but no documents have been produced by him to prove that he was doing real estate business. The accused in his reply notice denied the transaction itself. The complainant claims that he is paying income tax pertaining to his real estate business. He asserts that regarding his salary there is no income tax but he has not produced any piece of documents to substantiate the contention that he is doing real estate business. Even he has admitted that he has not intimated his employer regarding he doing real estate business. Further, he claims that accused is close friend but he pleads ignorance as to what work he is doing apart from working in ideal ice cream firm. This conduct of the complainant not knowing the nature of work being done by the accused establish that the complainant is not well conversant with accused and they are not friends. It appears to be a pure money lending transaction for interest. 15. The accused has disputed the transaction and though the initial presumption under Section 139 is in favour of the complainant, the conduct of the complainant in not disclosing the date of advancement of loan itself is fatal to his case. No doubt in cross-examination, he tries to make the case regarding advancement of loan in four installments based on Ex.P7, but that was not pleaded and even in legal notice no such assertion has been made. Nothing prevented the complainant to assert that the loan amount was advanced on particular dates in installments, but that was not forthcoming. Further, the complainant is admittedly working in Hindustan Lever Company and though he asserts regarding his real estate business, to substantiate the same he has not produced any documents. Even he claims that he is an income tax assesse for real estate business, but he is also not produced any material documents to substantiate the said contention. He has not even produced any documents to show that on the specific dates the loan is said to have been advanced as asserted in the cross-examination. Even he claims that he is an income tax assesse for real estate business, but he is also not produced any material documents to substantiate the said contention. He has not even produced any documents to show that on the specific dates the loan is said to have been advanced as asserted in the cross-examination. He has not produced any documents to show that on those dates he has either obtained permission or applied for leave. 16. The accused has set up defense regarding transaction with one Umashankar. No doubt accused has not asserted this aspect in his reply notice and he put forward the said defense in the cross-examination but initial burden is on the complainant. In view of the conduct of the complainant in not disclosing the date of advancement of loan and his financial status, the presumption under Section 139 of the NI Act cannot be drawn in favour of the complainant. Though the accused has not proved his transaction with Umashankar, but his defense appears to be more probable considering the conduct of the complainant in not disclosing the date of advancement of loan and subsequently, improving his version of advancement of loan in four installments. 17. There is no evidence to show that complainant has shown this amount in his income tax statement. He has also admitted that while submitting the income tax returns, he did not submit Ex.P7. He admits that he has no other documents to show that the amount withdrawn under Ex.P7 was handed over to the accused. All these facts and circumstances clearly establish that the accused has rebutted the presumption available in favour of the complainant. The complainant is required to prove the case beyond all reasonable doubt, but he has failed to substantiate his contention. Both the Courts below have failed to appreciate this portion of the evidence in proper perspective and failed to consider the conduct of the complainant in not disclosing the specific date of the advancement of loan which is fatal to the case of the complainant. 18. The Courts below did not appreciate the oral and documentary evidence in proper perspective and in a mechanical way only on the basis of the evidence of complainant and admission regarding cheque belongs to the accused and he having admitted the signature proceeded to convict him which has resulted in miscarriage of justice. 18. The Courts below did not appreciate the oral and documentary evidence in proper perspective and in a mechanical way only on the basis of the evidence of complainant and admission regarding cheque belongs to the accused and he having admitted the signature proceeded to convict him which has resulted in miscarriage of justice. The approach of both the Courts below is perverse and arbitrary and hence, the judgment of conviction and order of sentence passed by both the Courts below calls for interference. Considering these facts and circumstances, the point under consideration is answered in the affirmative. Hence, the revision needs to be allowed and accordingly I proceed to pass the following: ORDER 1) The revision petition is allowed. 2) The impugned judgment of conviction and order of sentence passed by the JMFC (V Court), Mangaluru, for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'NI Act') in C.C.No.1894/2014 dated 09.01.2017 and confirmed by I Additional Sessions Judge, Mangalore in Crl.A.No.18/2017 dated 16.07.2019, are set aside. 3) The accused is acquitted for the charge under Sections 138 of the NI Act. 4) The bail bonds executed by the accused stand canceled. 5) The amount deposited if any, shall be returned to the accused/revision petitioner.