R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE3D DAY OF NOVEMBER, 2020 BEFORE THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO CRIMINAL APPEAL No.1191/2011 BETWEEN: SRI.K.A.ANANDA S/O SRI.KRISHNAPPA AGED ABOUT33YEARS OCC: AGRICULTURE R/AT: AVANI VILLAGE & HOBLI MULBAGAL TALUK, KOLAR DISTRICT ..APPELLANT (BY SRI.H.RAMACHANDRA, ADVOCATE FOR SRI.H.R.ANANTHAKRISHNAMURTHY AND ASSOCIATES) AND: SRI.N.GANGADHARA S/O NARAYANAPPA AGED39YEARS R/AT: ANANTHAPUR VILLAGE AVANI HOBLI, MULBAGAL TALUK, KOLAR DISTRICT AND R/O: VARADAGANAHALLI GOVERNMENT SCHOOL KOTHAMANGALA POST2AVANI HOBLI, MULBAGAL TALUK. ..RESPONDENT (BY SRI.T.NAGARAJ, ADVOCATE –ABSENT) THIS CRIMINAL APPEAL IS FILED UNDER SECTION3784) CR.P.C. BY THE ADVOCATE FOR THE APPELLANT PRAYING TO SET ASIDE THE ORDER
DATED2105.2011 PASSED BY THE PRINCIPAL CIVIL JUDGE (JR.DN) AND JMFC, MULBAGAL IN C.C.NO.28/10-ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION138OF NEGOTIABLE INSTRUMENTS ACT. THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT
The appeal is directed against the Judgment and order dated 21.05.2011 passed by the Principal Civil Judge (Jr.Dn) and JMFC, Mulbagal, in C.C.No.28/2010 wherein the accused was acquitted for the offence punishable under Section 138 of Negotiable Instruments Act. Being aggrieved by the said order the complainant has come in appeal under Section 378(4) of Cr.P.C. 3
2. In order to avoid confusion and overlapping the parties are addressed in accordance with their ranks and status as stood before the trial court.
3. Learned counsel for appellant Sri.H.Ramachandra is present and learned counsel for respondent absent. Matter is listed for final hearing. Perused the documents and material available on record. Heard Sri.H.Ramachandra, learned counsel for appellant.
4. A criminal case was filed before the trial court by the complainant K.A.Ananda, S/o Krishnappa, agriculturist against N.Gangadhara, S/o Naraynappa, teacher by profession. 4
5. The substance of the complaint is that complainant and accused were well acquainted with each other for the past 10 years. Accused approached the complainant and requested for financial assistance to the tune of Rs.2,00,000/- for family necessities and difficulties. The complainant paid a sum of Rs.2,00,000/- to the accused during first week of February, 2009. The accused even agreed to pay interest at the rate of 2% per month within two months from the date of borrowal. After lapse of two months when complainant demanded payment of debt accused issued a cheque bearing No.356307 for Rs.2,00,000/- dated 04.04.2009 drawn on Canara Bank, Mulbagal branch in favour of complainant.
6. The complainant presented the cheque on the same day for payment and collection through his banker Pragathi Gramina Bank, Avani Branch, 5 Mulbagal. The said cheque went for clearing to Canara Bank, Mulbagal and it returned dishonoured with endorsement “Funds Insufficient in the account of the accused”. The complainant got issued a legal notice to the accused through RPAD and Certificate of Posting. Notice was served on the accused on 15.06.2009 and the payment was not made. Hence, criminal complaint was filed by the complainant on 07.07.2009.
7. Learned trial Judge was accommodated with the oral evidence of PW-1-Krishnappa, PW-2 – Sathyamurthy, PW-3- S.C.Venkatesha on behalf of the complainant and documentary evidence on behalf of complainant are as under: Ex.P-1 –Original cheque Ex.P-1(a & b) – Signatures of accused Ex.P-2- Bank Endorsement Ex.P-3-Office copy of legal notice Ex.P-4 & 5 – Two postal receipts Ex.P-6- COP receipt 6 Ex.P-7 & 8 – Postal acknowledgement 8. Accused examined himself as DW-1 and documents marked on his behalf are: Ex.D-1- Copy of reply notice Ex.D-2- Postal receipt Ex.D-3- Postal acknowledgement 9. Learned counsel for complainant-appellant Sri.H.Ramachandra submits that the learned trial Judge has totally deviated from the scope and domain of the case and the provisions of law governing the Negotiable Instruments Act. The Judgment suggests that the learned trial Judge has gone ahead with the case with presumption in favour of accused which is not permitted. The complainant was a holder in due course and cheque was issued for consideration. The complainant had discharged all burden caste on him. 7
10. Learned trial Judge noted the identification of cheque and also the endorsement by the complainant through the evidence of PW-1-complainant, PW-2- Sathyamurthy, Manager of Canara Bank, Mulbagal and PW-3 –S.C.Venkatesh, Manager of Pragathi Gramina Bank, Avani. Thus, PW-2 and PW-3 have deposed regarding transaction and maintenance of account of the accused in the bank. Ex.D-1 reply notice sent to the complainant by the accused no date is mentioned and also the advocate has not put the date after his signature. This observation is by the learned trial Judge as well. Trial Judge focused on the cross examination of PW-1 to the extent that complainant was working in a stone quarry and not an income tax assessee and he denied the subsequent version made against his version. It was suggested to the complainant that regarding the cheque issued by the accused it was to one Sathyamma as a security and in 8 order to make wrongful gain from the accused, complainant has filed this case as he is a Government employee. Regarding the source of income to the complainant, learned Judge finds that suggestion is not put to accused witness. Learned Judge has observed that the copy of the decisions relied by the complainant is filed without serving copy on the other side. The decisions so referred are as under: (i) AIR2001SC2895-K.N.Beena Vs Muniyappan and anr (ii) AIR2011SC3897-Hiten P. Dalal Vs Bratindranath Banarjee 11. Thus, capacity to lend amount is questioned and it is stated that the complainant did not prove the case.
12. On perusal of the Judgment, learned Judge has mentioned relevant paragraphs of various Judgment 9 and reasoning part of his Judgment are very limited. This approach of the trial Judge does not appear to be a proper one, that too being the Presiding Officer of a trial court. It is seen that the learned trial Judge wanted to take exception on every step or activity of the complainant for example even not serving of the copy of the judgment to the other side is mentioned in the Judgment.
13. Negotiable Instruments Act are three in numbers- Promissory note, bill of exchange and cheque. Cheque is defined under Section 6 of the Act as under: “6. A cheque is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand and it includes the electronic image of a truncated cheque and a cheque in the electronic form.” 10 14. The very commencement of the word in the definition states that cheque is a bill of exchange. Insofar as cheque is concerned it is in writing signed by drawer, name of the drawee is mentioned in whose name cheque is issued. Name of the bank is Canara Bank amount mentioned is Rs.2,00,000/-. As a matter of provision of law even certain gaps are permitted to be filled in by the drawee so long it does not cause prejudice to the drawer in the matter of date, amount, signature and related. In this connection any part of alteration that effects the very nature of the cheque would be a material alteration that renders the cheque invalid. In the given case learned trial Judge is tight lipped regarding issuance of cheque and its feature more particularly in the light of the specific admission by the accused that the signature found on the cheque was made by him. 11
15. The plain reading of Section 20 of the Negotiable Instruments Act reveals that the instrument may be either wholly blank or having written thereon an incomplete negotiable instrument. Thus, even if a blank promissory note is given it cannot be taken as a defence to avoid a decree based on such instrument, once it is found that the document produced before the court satisfies the requirements of a promissory note within the meaning of the Act. In this connection I am guided by Judgment of this court in the case of H.Maregowda Vs Thippamma reported in AIR2000Kant 169.
16. The next aspect is whenever holder of a negotiable instrument is presumed to be a holder in due course such as whether cheque or promissory note or a bill of exchange the persons entitled to the possession of instrument and to receive or recover the 12 amount is holder in due course. Holder in due course is a person who comes into possession of negotiable instrument, promissory note, bill of exchange or cheque for consideration in good faith. When the complainant was fully aware that the cheque has been dishonoured and the endorsement is only after it was returned by the bank and had lost the negotiability he cannot be called a holder in due course. This essential character having not been comprehended more so when the cheque had not been presented to the bank for endorsement, the suit as laid could not have been decreed (1991(1)LW40.
17. The case of the complainant is that amount was lent during first week of February, 2009. However the cheque was dated 04.04.2009 that means the cheque was issued in consideration of past payment. Under the Indian Contract Act consideration may be past, 13 present or future. In this connection Section 2(d) of the Indian Contract Act, 1872 defines consideration as under: Section 2(d) - "When at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise".
18. In the whole lot of circumstances the complainant possessed the cheque as it was handed over by the accused towards the repayment of the amount of Rs.2,00,000/- as claimed by the complainant. In a system of proceedings whether advisory system is not vogue, a normal rule suggests that burden of establishing existence or non-existence of fact is on him who asserts it and when the same is 14 denied by the adversary. The present case is one wherein the complainant claims that the cheque was issued by the accused towards repayment of amount owed of Rs.2,00,000/-. The transaction took place during the first week of February, 2009 and the cheque was issued when the repayment was demanded. In this connection the correspondence, date of cheque, presentation into the bank, Ex-P-2- communication of dishonour, Ex-P-3-legal notice, Ex.P-7 and P-8 acknowledgement and date of filing of the complaint assumes significance.
19. Between material proposition asserted by one and denied by another the element of special plea arises in many of the cases. Insofar as present case is concerned it is only denial and issuance of cheque. Signature of the drawer is not denied. But the accused contends a different circumstance under 15 which the cheque was issued to him. Thus, according to him two years back he had issued a cheque to one Sathyamma and had issued the cheque as a security for repayment. If so no details are forthcoming from the accused that when he received amount from Sathyamma and through what mode he repaid it regard being had to the fact that it was an amount of Rs.20,000/-.
20. The complainant, a rustic villager who is a quarry worker is incapable of possessing Rs.2,00,000/- according to accused.
21. It cannot be forgotten for a while a female who is relative of complainant, quarry worker, admittedly had lent Rs.20,000/- to the accused. According to his own admission regard being had to the fact there is no material to show exception, averments nor the 16 complainant has produced any document or produced oral evidence in this connection. Thus, nodoubt, the burden is on the complainant to prove the assertion made by him denied by the accused. But the question is special plea is assertion made by the accused denied by the complainant. Plea of lack of capacity to garner the amount cannot be raised only for the sake of objections it must be substantial and believable based on cogent materials. One circumstance in the present case is Rs.2,00,000/-. But the admitted circumstance by the accused is he is a teacher and borrowed Rs.20,000/- from the aunt of complainant. Thus accused is blowing hot and cold at the same time. There is no logical reason to the objection and stance taken by the accused. When once the initial burden is discharged accused is responsible to a considerable extent. The mechanical objections or denials unless being corroborated by substantial 17 circumstances is of no avail whether to the complainant or to the accused.
22. In the over all circumstances of the case the way in which the adjudication is made by the trial Judge is far from satisfaction. The appreciation of evidence on the material do not answer the legal proposition. Totally, learned trial Judge in most part of the Judgment relied on only mentioning without assigning reasons on the subject matter. It is liable to be set aside. Accordingly set aside and complaint filed by the complainant under Section 200 Cr.P.C succeeds. Appeal is allowed. Judgment of acquittal passed in C.C.No.28/2010 dated 21.05.2011 is hereby set aside and accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentenced him to pay fine 18 amount of Rs.2,60,000/-. Out of which Rs.2,50,000/- shall be paid to the complainant as compensation and balance Rs.10,000/- is ordered to be adjusted to the State Exchequer. In default of payment of fine accused to undergo Simple Imprisonment for six months. Sd/- JUDGE SBN