B Rajappa vs N T Basavaraj

J.M. Khazi, J

These two appeals are by the complainant challenging the impugned common judgment and order passed by the Sessions Court in Crl.A.No.79/2011 and Crl.A.No.80/2011, whereby, the Appellate Court set aside the judgment and order of conviction imposed by the trial Court in C.C.No.1429/2006 and C.C.No.1430/2006. The trial Court convicted and sentenced the accused to pay a fine of Rs.5 lakhs and Rs.4 lakhs respectively with default clauses.

For the sake of convenience, the parties are referred by their rank before the trial Court.

In this appeal, the complainant and accused are same. The case put forth by the complainant as well as the defence taken by the accused are common to both cases. Moreover, the Sessions Court has disposed of both appeals by a common order. In view of the same and also the fact that common discussion is involved, these two appeals are clubbed together and decided by a common order.

In C.C.No.1429/2006, the complainant has pleaded that on 13.08.2005, accused borrowed hand loan of Rs.2.5 lakhs and towards repayment of the same he issued a post dated 15.11.2005 cheque for Rs.2.5 lakhs on 24.04.2006. However, when presented for realization, it was dishonoured on the ground of "Insufficient funds".

So far as CC.No.1430/2006 is concerned, it is the case of the complainant that on 05.11.2005, accused purchased Maize worth Rs.2 lakhs and issued a post dated 05.11.2005 cheque for Rs.2 lakhs. When it was presented for realization, it was also dishonoured on the ground of "Insufficient funds".

Though the complainant issued legal notice and it is duly served on the accused, he has neither paid the amount due under the cheques nor sent any reply and without any alternative, the complaints are filed.

After due service of summons accused has appeared through counsel and resisted the complaints. He has denied of having borrowed hand loan of Rs.2.5 lakhs or purchased Maize worth Rs.2 lakhs and issued the subject cheques towards repayment of the amount due. He has also denied that the legal notices were served on him. He has taken a specific defence that complainant and the relative of accused by name Rudramuni were running a business in partnership by name RR Enterprises. He i.e., accused was running a business in the name and style of Maralusiddeshwara Traders and as he did not renew the license of Maralusiddeshwara Traders, he continued the business through complainant and Rudramuni and in this connection he had kept several cheques i.e. self cheques, signed both on the face and overleaf. After difference of opinion arose between him and Rudramuni, in order to pressurize Rudramuni to agree to his terms, misusing two of such cheques, the complainant has chosen to file false complaints.

In both cases, the complainant and accused have led their oral and documentary evidence.

The trial Court accepted the version of the complainant, convicted and sentenced the accused as detailed above. However the Sessions Court found favour with the accused and acquitted him, by reversing the judgment and order of the trial Court.

Being aggrieved by the impugned judgments and orders, the complainant is before this Court, contending that the impugned judgment and orders are not tenable either in law or on facts and as such liable to be set aside. The partnership between the complainant and Rudramuni-the brother-in-law of accused was dissolved on 25.03.2006 and its business was taken over by the complainant as a Proprietorship. The business run by accused in the name and style of Maralusiddeshwara Traders has nothing to do with the partnership between the complainant and Rudramuni. The accused has unnecessarily tried to mix these two aspects. In the light of the fact that the cheques in question are drawn by the accused on his account maintained with the bank and they bear his signature, the presumption is in favour of the complainant and the burden is on accused to rebut the same. However, the accused has failed to rebut the presumption and the Sessions Court has failed to appreciate this fact and thereby fell into error by reversing a well reasoned judgment of the trial Court and prays to allow appeals, set aside the impugned judgment and order of Sessions Court and restore the judgments and orders of the trial Court.

In support of his arguments, the learned counsel for complainant has relied upon the following decisions:

(i) Rangappa Vs. Sri Mohan (Rangappa) Crl.A.No.1020/2010 Spl (Crl) No.407/2006: (2010) 11 SCC 441

On the other hand, learned counsel for the accused has supported the impugned judgment and order and prays to dismiss the appeal.

In support of his arguments, the learned counsel for accused has relied upon the following decisions:

(i) K.Prakashan Vs. P.K.Surendran (2008) 1 SCC 258

(ii) Mr.Kirshna Gopal Khetan Vs. M/s Pearl Valley Silks Ltd, Bengaluru and ors. 2021 (4) KCCR 2988

(iii) M.S.Narayana Menon @ Mani Vs. State of Kerala and Anr. (2006) 6 SCC 39

(iv) Srichand Vs. Sekha R.Kundagol 2021 (3) KCCR 2165

(v) Mr.Syed Sulaiman Shahid Vs. Sri.N.D. Subramanyam 2020 (1) KCCR 458

(vi) Prakash vs. Ramanath M.Hegde 2020 (5) KCCR 545

Heard elaborate arguments of both sides and perused the record.

Having regard to the fact that the accused admitted that the cheques in question are drawn by him and they bear his signature, as held in Rangappa, M.S.Narayana Menon and K.Prakashan, the presumption under Section 118 and 139 of N.I. Act comes into operation and Court is required to presume that the cheques were issued towards legally recoverable debt or liability, shifting the burden on the accused to rebut the resumption by establishing that the cheques were not issued towards repayment of any debt on liability and to bring forth the circumstances in which the said cheques were issued or reached the hands of the accused. Of course accused is required to discharge this burden on preponderance of probabilities, after which the burden would shift on the complainant to prove his case. This time the complainant is expected to discharge the burden shifted on him beyond reasonable doubt. In the light of above, now it is necessary to examine whether the accused has discharged the initial burden and in that event, whether the complainant has discharged the burden shifted on him beyond reasonable doubt.

The fact that complainant and one Rudramuni who is later examined by accused as DW4 is relative of accused and were running a partnership business in the name and style of RR Enterprises is not in dispute. Later on, due to some difference of opinion, they fell apart and separated, is also not in dispute and in fact during the course of their evidence and cross-examination of respective witnesses, this fact is proved and suggested by both parties. By examining DW-6-Ishwarappa an ex-employee of complainant, the accused has proved that the business of Maralusiddeshwara Traders was being run by complainant and Rudramuni and in that connection, several self drawn cheques signed by the accused both on the face as well as overleaf of the cheques were kept with the complainant. In fact, the evidence of DW-6 – Ishwarappa also establish the fact that when complainant and Rudramuni did not have accounted money to purchase Maize from Food Corporation of India, they deposited a sum of Rs.20 lakhs into the account of accused and withdrew the same through the self cheque of accused. Therefore, the contention of accused that he had lent Rs.20 lakhs to the complainant is not correct.

However, the sum total of the evidence placed on record by both parties prove that complainant was in possession of several signed self cheques of accused and the same was utilized for the business of accused and in fact the said cheques were presented to the Bank through DW-6 – Ishwarappa, an ex-employee of complainant. The fact that the subject cheques based on which the complaints in question are filed are signed by the accused on the face as well as overleaf of cheques goes to show that they were intended to be used as self cheque. If at all these cheques were issued by the accused to the complainant towards repayment of the money due from him, there was no occasion for him to sign on the overleaf, making it self cheque.

Moreover, the fact of DW-4-Rudramuni the partner of complainant approached the Sringeri Mutt to resolve the dispute between him and complainant also supports and corroborate the defence taken by the accused that on account of the said dispute with the said Rudramuni to force him to come to terms with him, complainant has chosen to file false complaints misusing the signed cheques of accused available with him. DW-2 Sharanappa, DW-3 - Theerthappa, DW-4 - Rudramuni have categorically deposed regarding DW-4 - Rudramuni having approached the Sringeri Mutt to resolve the dispute and the fact of complainant being summoned to the said Mutt and though Rudramuni deposited Rs.2 lakhs payable to the complainant, he did not choose to withdraw it. DW-7 - Nijalingappa, administrator of Sringeri Mutt has deposed with regard to the notices issued by the Mutt as per the directions of the Sringeri Mutt.

In fact before the Appellate Court i.e., Sessions Court the accused has examined the Swamiji of Sringeri Mutt on commission as DW-8. He has also deposed regarding the request made by Rudramuni to resolve the dispute between him and complainant Rajappa with respect to the partnership between them. He has also deposed that in respect of the same Rs.2 lakhs was deposited with the Mutt. However, the complainant did not come forward to withdraw the said amount and as the matter was pending before the Court, no decision was given in the said matter. Though the evidence with regard to Rudramuni, taking the matter to the Mutt has no bearing on the merits of the present case, it establishes the fact that there was a dispute between complainant and Rudramuni and since the said Rudramuni is a relative of accused and in the light of accused of having left signed self cheques with the complainant, it probabalise the possibility of utilising them for filing the complaints in question.

Through the oral and documentary evidence placed on record and also in the light of admissions given by the complainant during his cross-examination, the accused has discharged the burden placed on him and thereby rebutted the presumption. Consequently, the burden shifts on the complainant to prove the allegations against the accused beyond reasonable doubt.

Despite the fact that accused has not sent reply to the legal notice, at the trial he has disputed the capacity of complainant to lend him Rs.2.5 lakhs as hand loan and also the allegations that he sold Maize worth Rs.2 lakhs and the subject cheques were given towards the payment of the same. Though the complainant has produced the day book extract, ledger book and IT returns, he has not produced the relevant documents. These registers are self-serving, and there is nothing to cross verify their authenticity. Moreover, the complainant has not explained as to why he accepted cheques which are also signed overleaf, making it self cheque. There was no impediment for the complainant to insist upon issuing regular cheques.

In the light of specific defence taken by the accused that signed self cheques were with the complainant and they have been misused, this Court is of the considered opinion that the complainant has failed to prove that he has financial capacity to advance Rs. 2.5 lakhs and he raised Maize crop in his land and sold the same to accused and the cheques in question were issued towards repayment of any legally recoverable debt or liability. The trial Court failed to appreciate the oral and documentary evidence in the light of specific defence taken by the accused and thereby erred in convicting him. On the other hand on re-appreciation of the oral and documentary evidence placed on record, the Sessions Court has rightly reversed the conviction and acquitted the accused. I find no justifiable grounds to interfere with the conclusions arrived at by the Sessions Court. In the result, the appeals fail and accordingly the following:

ORDER

(i) The appeals filed by the complainant are dismissed.

(ii) The impugned judgment and order of the Sessions Court setting aside the conviction and sentence of accused is confirmed.

(iii) The Registry is directed to send back the trial Court and Sessions Court records along with copy of this order forth with.