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Shivalingappa v/s Basagonda

    Criminal Appeal No. 2637 of 2009 [A]

    Decided On, 23 October 2013

    At, High Court of Karnataka Circuit Bench At Dharwad


    For the Appellant: Mrutyunjay Tata Bangi, Advocate. For the Respondent: Anil Kale, Advocate.

Judgment Text

(Prayer: This Crl.A. is filed u/s.378(4) Cr.P.C by the advocate for the appellant praying that this Hon'ble court may be pleased to:

a) Grant leave to appeal;

b) Setaside the order passed by the judicial magistrate first class, Banahatti passed in C.C.No.750 of 2002 dated 16.3.2009 and convict the accused for the offences punishable under Section 138 of the Negotiable Instruments Act by allowing the present appeal in the interest of justice and equity;

c) Pass such other order or orders as this Hon'ble court deems fit in the facts and circumstances of the case.)

1. A complainant's appeal against the acquittal of respondent for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act').

2. Heard the learned counsel for the appellant and learned counsel for the respondent. Perused the records in supplementation thereto. It reveals:

(A) The appellant Sri.Shivalingappa Ma llappa Vajramatti initiated prosecution of the respondent for an offence punishable under Section 138 of the Act on the accusation that the respondent had borrowed from him a sum of Rs.34,000/- on 06.01.2001 and in discharge of the said liability, issued the impugned cheque. The impugned cheque on presentation to the Bank was dishonoured on 31.10.2001. In view of dishonour of cheque, he issued statutory notice to the accused on 05.11.2001, which was refused by endorsement dated 13.11.2001.

(B) The learned Magistrate took cognizance and summoned the respondent who entered appearance and denied the charge. While admitting his signature on the cheques impugned, he denied cheque was issued to the appellant in discharge of any liability. According to the respondent/accused, he had borrowed loan from M/s.Banashankari Finance Company situated in Rabakavi on 24.09.1996 and at the time of availing the loan, the Finance Company insisted and obtained from him two blank cheques as security. Though he had repaid the loan, the Finance Company did not return the cheques and when he approached them, he found that the Company was closed in the year 2000. He alleged that the cheques have been misused by the complainant having obtained them from his daughter who was one of the Director of the said Company. (C) In the trial that ensued the complainant tendered evidence as PW-1 and examined one Sangamanath and relied on nine documents while the accused tendered evidence as DW-1 and examined two witnesses and he also relied thirteen documents.

(D) Learned trial Judge had analysed the evidence noticing the ocular testimony of the complainant was not believable version, firstly because he had not proved that accused was his friend and because of the friendship, he did not obtain any receipt while advancing the loan. This opinion is formed by the learned trial Judge considering the age difference between them, as the complainant was 67 years while the accused was found to be 40 years old. The second ground is the complainant had not explained the difference in the ink used to sign and filling up of the amount in the cheque. The third circumstance noticed by the learned trial Judge is the complainant has not established that he is financially well- off and capable of lending money in a sum of Rs.34,000/- to the accused. To gain support to his opinion, the learned trial Judge relied on the decision of the Hon'ble Apex Court in the case of KRISHNA JANARDHAN BHAT Vs. DATTATREYA G. HEGDE, AIR 2008 SC 1325 and also the decision in the case of K.NARAYANA Vs. SRI.M.SHIVARAMA SHETTY, ILR 2008 KAR PAGE 3635. Being of that view, he recorded the acquittal.

Assailing the said finding, the complainant is before this Court.

3. The learned appellant's counsel would contend that the approach of the learned trial Judge to non-suit the complainant is based on the dictum of the Hon'ble Apex Court in the case of KRISHNA JANARDHAN BHAT (Supra), which was no longer a good law as on the date the judgment was rendered. He submits, the presumption under Section 139 of the Act has not been given a statutory credence by the learned trial Judge as otherwise, the burden of proof should have been shifted on the accused. Lastly, he submits that the conduct of the accused had been ignored. The accused had refused to receive the statutory notice. If the accused was not due any amount, he would have certainly replied to the notice. On these grounds, he seeks setting aside of the impugned judgment.

4. Learned counsel for respondent has supported the impugned judgment.

5. As could be seen from the finding of the learned trial Judge, no doubt as rightly pointed out by the appellant's counsel, the learned trial Judge has mislead himself in believing that the judgment in the case of KRISHNA JANARDHAN BHAT (supra) compelled the complainant to disclose his financial position and capacity to lend money and that presumption under Section 139 of the Act was not always available to the complainant. Such a view undoubtedly is not proper in view of the subsequent decision of the Hon'ble Apex Court in the case of RANGAPPA Vs. MOHAN, AIR 2010 SCW 2946 wherein the Hon'ble Apex Court has re-examined the effect of statutory presumption engrafted under Section 139 of the Act and discussed about in whose favour a presumption could be raised. To th is extent, the judgment impugned herein passed by the learned trial Judge is not proper. Similarly, the view of the learned trial Judge that the complainant has not established his financial position or capacity to lend money, was also not a proper conclusion in view of the decision of the Hon'ble Apex Court in the case of RANGAPPA (supra). However, on merit it could be seen, the accused had taken a specific defence that he had borrowed money from M/s.Bana shankari Finance Company of which the complainant's daughter was admittedly a Director. The contention of the accused that he had issued two cheques as security to the said Company had remained un- controverted.

6. The complainant, having admitted that his daughter was the Director of M/s.Bana shankari Finance Company and having not disputed the statement of the accused that he had borrowed money from that Company, should have atleast examined his daughter to state as to whether the Company had taken two cheques as alleged by the accused as security or the statement of the accused was false. In this context it could be seen, the learned trial Judge has noticed the change in the ink used for signing and the ink used for filling up of the cheque. No doubt under Section 20 of the Act, an incomplete blank instrument is legally enforceable. But, it is only on proof that there is an agreement between the parties authorising the holder of the promissory note or bill of exchange to fill up. The complainant has not taken the stand that the cheque was blank and he was permitted to fill up. In the circumstances, the complainant had to explain the difference in the ink. This certainly makes the defence of the accused probable that he may have given the cheque as security in the transaction with M/s.Banashankari Finance Company.

7. At this juncture, it must be noticed that action under Section 138 of the Act is an action under criminal law and on proof of guilt, the drawer will be visited with punishment upto two years of imprisonment. Therefore, under the common criminal law, the burden rests on the complainant to establish the charge with acceptable evidence and it is only then the burden will shift upon the accused to rebut it. The presumption under Section 139 of the Act is rebuttable pre

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sumption. If the accused caused a dent in the case of complainant about the transaction of loan itself and if that accused could succeed by eliciting anything by his independent evidence or could point out from the evidence of the complainant itself, that there is a doubt about the transaction, then that would be sufficient to uphold his evidence. 8. In this view, though in certain aspects, the trial court has erred, but on taking into consideration the evidence in its totality, I am satisfied the complainant had not established the charge under Section 138 of the Act against the respondent and therefore, ultimately, the conclusion of the trial court acquitting the accused cannot be faulted. Being of this view, I find no reason to interfere with the acquittal recorded by the trial court. The appeal is therefore, dismissed.

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