H.C. Siddaramaiah vs D. Krishnappa

K. Ramanna, J.—This is an appeal filed by the appellant-complainant challenging the judgment and order of acquittal passed by the First Additional Sessions Judge, Tumkur in Cri. A. No. 21 of 2003, dated 17-7-2004.

The case of the appellant-complainant herein is that respondent has borrowed a sum of Rs. 20,000/- as hand loan and for repayment of the same issued a cheque bearing No. 288938, dated 12-4-1999 drawn on State Bank of Mysore, Ammasandra Branch. When the appellant has presented the cheque to his banker for collection which was returned with an endorsement "funds insufficient to honour the cheque". Therefore, the appellant got issued a legal notice on 15-4-1998 to the respondent-accused and he sent a reply on 13-5-1998 wherein he admitted the transaction but he sought six months time for repayment. To prove his case the appellant was examined as P.W. 1 and also examined one S.K Vidya as P.W. 2 to corroborate his evidence, whereas respondent was examined as D.W. 1 and examined one Srikantaiah as D.W. 2. The appellant got marked seven documents-Exs. P. 1 to P. 7, whereas respondent-accused got marked two documents Exs. D. 1 and D. 2. After considering the evidence of both the parties, the Trial Court found that the cheque issued by the respondent was towards legally recoverable debt and convicted the accused for the offence punishable u/s 138 of the Negotiable Instruments Act, 1881 and sentenced to undergo simple imprisonment for six months and to pay fine of Rs. 10,000/- and in default to undergo simple imprisonment for three months. Assailing the same the respondent preferred an appeal before the learned 1st Additional Sessions Judge which acquitted the respondent, setting aside the order of conviction passed by the Trial Court, holding that the complainant has not proved the ingredients of Section 138 of the N.I. Act to convict the respondent and that the cheque in question is not issued towards any discharge of legally recoverable debt. Hence this appeal.

Heard the arguments of Sri B.N. Nanja Reddy for Sri S.K. Venkata Reddy, Advocate for the appellant and Sri Siddarth B.M. for Sri KA. Chandrashekar, learned Advocate for the respondent and perused the records.

It is an admitted fact that the respondent has borrowed Rs. 20,000/- from the appellant and according to appellant towards discharge of said loan amount the respondent had issued cheque-Ex. P. 1 bearing No. 288938 which came to be dishonoured when presented for encashment with share insufficient funds. In the endorsement Ex. P. 2 the Cheque No. 288938 has been duly mentioned so also in the Bank memo-Ex. P. 3. After dishonour of the cheque notice came to be issued through Counsel by the appellant on 15-4-1998 as per Ex. P. 4 wherein instead of Cheque No. 288938 it is typed No. 288939. Of course the respondent who received the notice-Ex. P. 4 had sent a reply on 13-5-1998 wherein he has sought for six months time to repay the amount. He has not shown any little finger or objection with regard to the cheque number wrongly shown in the notice or as to the amount covered under the cheque. But during trial the respondent had taken a contention that he had issued cheque bearing No. 288939, dated 12-4-1998 to the appellant and the same has been returned to him as he discharged the loan borrowed from appellant and to that effect he had produced Ex. D. 1-cheque bearing No. 288939 and Ex. D. 2-receipt said to have been issued by one H.M. Shivanna, the husband of the appellant''s sister, who is said to have received the amount on behalf of appellant. Therefore, it is contended by the respondent that there is no legally recoverable debt under the Cheque-Ex. P. 1. Of course Ex. D. 2 is the receipt, wherein the respondent is said to has repaid the amount to the appellant, the same has been issued by one H.M. Shivanna, lecturer who is said to be the husband of appellant''s sister. The contends of Ex. D. 2 reads thus:

The appellant has not signed on the receipt-Ex. D. 2, the respondent has not explained why he paid the amount to the said H.M. Shivanna, instead of paying it to the appellant. If the amount of Rs. 19,000/- has been received by Mr. H.M. Shivanna, lecturer on behalf of the appellant, it is for the respondent to prove that Rs. 19,000/- has been given to one H.M. Shivanna on behalf of the appellant. The respondent has not examined H.M. Shivanna, to whom Rs. 19,000/- is said to have been paid by him. The respondent has examined one Sreekantaiah one of the witness to Ex. D. 2 but it will not be helpful for the respondent to show that he had repaid cheque amount to the appellant herein. Non-examination of lecturer H.M. Shivanna, is fatal to his case. Moreover the respondent had not explained how the cheque-Ex. P. 1 went to the hands of appellant. Even if respondent''s case is admitted that he repaid the amount covered under Ex. D. 1, but he has not made clear whether he has repaid the amount covered under Ex. P. 1. The respondent himself has sent a reply admitting that he will pay the amount covered under cheque-Ex. P. 1 within six months. But defence taken by him during trial is contrary to his reply. If really the respondent had repaid the cheque amount he would not have admitted that he will pay the amount within six months in his reply to the demand notice sent by the appellant. The very fact that the respondent has admitted his liability towards complainant by having committed himself to pay the cheque amount mentioned in the demand notice, it is not open to the respondent to take the plea that he is not liable to pay any amount to the complainant-appellant. Therefore the defence set up by the respondent cannot be believed. The Trial Court after careful scrutiny of documents placed on record had rightly convicted the respondent for the offence punishable u/s 138 of the N.I. Act, but the learned Sessions Judge contrary to the oral and documentary evidence placed on record by the parties wrongly set aside the judgment and order of conviction passed by the Trial Court, which is totally illegal, incorrect and perverse and the same is liable to be set aside.

Therefore, this appeal is allowed. The order dated 17-7-2004 passed by the learned Sessions Judge in Cri. A. No. 21 of 2003 is hereby set aside. The judgment and order of conviction passed by the Civil Judge (Junior Division) and Judicial Magistrate First Class at Turuvekere in C.C. No. 93 of 1999, dated 3-4-2003 is modified. The respondent-accused is convicted for the offence punishable u/s 138 of the N.I. Act and is sentenced to pay fine of Rs. 40,000/- i.e., double the cheque amount and in default of payment of fine amount he shall undergo simple imprisonment for three months. If the respondent deposits the fine amount, Rs. 38,000/- shall be paid to the complainant-appellant as compensation, the balance of Rs. 2,000/-shall be credited to the State Exchequer.