P.B. Jayaprakash Rai vs Samson Tevence and State of Karnataka

Subhash B. Adi

This appeal is by the complainant against the judgment of acquittal in Criminal Appeal No. 77/2007 dated 11th June 2008 on the file of 1 Addl. Sessions Judge, D.K. District at Mangalore, reversing the judgment of conviction in CC. No. 1199/2003 dated 13th March 2007 on the file of J.M.F.C., Puttur. D.K. District.

Case of the complainant was that, accused had borrowed a sum of ` 2,10.000/- on 24.11.2002 and in this regard, he had issued a cheque dated 15.3.2003 for ` 2,10,000/-, however, when the said cheque was presented, it returned with an endorsement "insufficient funds". Complainant issued a legal notice on 1.4.2003. Accused replied to the same, denying the liability and as such. complainant was forced to filed a private complaint u/s 200 of Cr. P.C. for an offence punishable u/s 138 of the Negotiable Instruments Act.

The accused on service of summons appeared and pleaded not guilty.

Complainant in order to prove his case got himself examined as PW-1. He also examined his wife as PW-5 and examined the Managers of Syndicate Bank as PWs-2, 3 and 4. Respondent - accused got himself examined as DW-1 and in the evidence of complainant. Exs. P1 to P29 were marked and in the evidence of the accused, Exs. D1 to D15 were marked.

The trial court relying on the evidence of the complainant, his wife and PWs-2 to 4 and also relying on the cheque - Ex. P2 held that the accused has committed an offence punishable u/s 138 of the Negotiable Instruments Act and accordingly, it convicted the accused.

Being aggrieved by the said conviction, accused filed an appeal before the lower appellate court. The lower appellate court on re appreciation of the entire evidence held that, though the complainant has shown that the cheque belongs to accused and it has been dishonored, however, has not proved any transaction between the complainant and the accused much less passing of the consideration under the cheque and accordingly held that the complainant has filed to prove that there is a legally recoverable debt against the accused and accordingly, acquitted the accused. It is against the said judgment of acquittal, complainant is before this Court.

Heard Sri. S.S. Sripathy, learned Counsel for the complainant and Sri. A.G. Sridhar, learned Counsel for the accused.

Learned Counsel for the complainant strongly relied on the evidence of PWs-1 and 5 and submitted that, PW-1 was a Bank employee, he had retired and as the retirement benefit, he had received the amount and from the said amount, he had paid cash of ` 2,10.000/--, as the accused was known to him through his wife, who was the partner of Venus Rubbers and the accused had transaction with Venus Rubbers. He relied on the bank endorsement, notice and reply of the accused and submitted that, the accused though has taken a defence that he had transaction with Venus Rubbers and used to give blank cheques, but has not substantiated with any evidence to show that he used to issue blank cheques. Initial presumption arises in favour of the complainant and it can be rebutted only if there is contrary evidence to rebut, however, the evidence led by the accused does run prove the came. Even the documents relied by the accused relate to Venus Rubbers and they do not relate to any transaction with the complainant and such an evidence should not have been relied by the lower appellate court to reverse the judgment of conviction.

He also submitted that, the Bank Managers - PWs-2 to 4 have been examined to show that the complainant had bank account and he had amount in his Bank. In August 2002 Itself, he had credited ` 4,00.000/-, even thereafter he had credited several amounts and used to withdraw and from out of the amount withdrawn from the bank, he had paid ` 2,10.000/-.

On the other hand, learned Counsel for the accused submitted that, complainant has admitted that his wife PW-5 was the partner of Venus Rubbers and according to the complainant, the amount was paid on 24.11.2002 and the cheque was dated 15.3.2003 whereas, PW-5 has stated that, on 24.11.2002, ` 2,10,000/- was paid with a promise that the accused would repay the said amount within one week. He also relied on Exs. D6 and D7 and submitted that. it is not in dispute that the accused had transaction with Venus Rubbers. Exs. D6 and D7 prove that, whenever the cheques were given to the Venus Rubbers and if they are not encashed, they used to be returned by Venus Rubbers or on payment by the customer. He relied on Ex. D11 to show that the cheques, which were not returned by the Venus Rubbers, were demanded by the accused and submitted that, even the transaction with Venus Rubbers was never more than ` 50,000/- He submitted that, if the complainant had paid ` 2,10,000/- from out of the savings from the retirement benefit, the bank account produced by the complainant at Exs P20 and P21 should have reflected the withdrawal of the said amount. If is not that the complainant is an uneducated person, he was a bank employee, but there is no evidence produced to show that the complainant had withdrawn the amount or he had other source.

He also pointed out from the cross-examination of PW-1 that, PW-1. has admitted that the cheque in question was not filled by the accused, according to the complainant, some other person has filled the figures and the name. This only shows that the signed cheque is misused by the complainant. as the accused had transaction with the Venus Rubbers and further submitted that, even the figures mentioned on the cheque are tampered.

He also pointed out from the evidence of PW-5 that, Venus Rubbers had suffered loss in 2001 and it was in financial problem, which fact is admitted by PW-5, even then, it is not stated as to how the complainant would pay the money to the accused instead of bailing of the company, in which PW-5 was the partner and submitted that, lower appellate court on proper appreciation of the entire evidence has rightly acquitted the accused.

In the light of the submissions made by both the Counsel the point that arises for consideration is:

whether judgment of acquittal passed by the lower appellate court calls for interference?

PW-1 s the complainant and PW-5 is his wife. PW-1 and PW-5 both admit that, there was Venus Rubber firm in which PW-5 was a partner. PW-5 has not disputed the signature on Exs. D6 and D7. Exs. D6 and D7 show some transaction between the accused and the Venus Rubbers. It also reflects that certain cheques, which were given to Venus Rubbers, which were returned by the Bank, have been returned to the accused on payment of the amount. Complainant has admitted that, he does not have any other transaction except the amount of ` 2.10,000/- and it is his case that, he had received that amount as a retirement benefit. It has come in the evidence of PW-5 that, KSFC had seized the Venus Rubbers firm in 2001 and there was outstanding loan of ` 8,00,000/- to ` 9,00.000/-. If there was a serious problem in respect of Venus Rubbers, in the normal course, there would have been some effort to bail out the said firm.

The bank statement, which is produced by the complainant at Ex. P20, shows that he had credited the amount of ` 4,15,747,50 paise on 27.8.2002, however, on the very same day, the said amount has been withdrawn. The bank statement does not show the balance of ` 2,10,000/- at any time. It is not the case of the complainant that he had separate money received from any other source and kept in the house. If he had received any amount as a retirement benefit, as shown in Exs. P26, 27, 28 and 29, the said amount must have been credited in his account. Even assuming that the complainant withdrawn the amount and paid the same to the accused, but it is withdrawn in August 2.002 itself and according to the complainant, payment to the accused is made on 24.11.2002. Further, in the reply Ex. P7, accused has specifically stated that he had transaction with Venus Rubbers and this fact is also not in dispute and in this regard, there were several cheque transactions. Whether Ex. D11 is admitted or not. but Exs. D6 and D7, which are not in dispute, do show that there was cheque transaction between Venus Rubbers and the accused. Barring this, there is no connection between the complainant and the accused and in the business transaction, several cheques were issued either by the accused or through his purchasers or directly by him, if the transaction is completed, then the Venus Rubbers has returned the cheques to the customers or the accused, The case of the complainant is that, he had paid the amount from his personal account, but having not proved that he had money and having not proved that said amount was withdrawn from the bank or any other source and also in view of the fact that the accused had transaction with Venus Rubbers and accused has shown that cheques were issued several times and were returned by the Venus Rubbers, it is an undisputed fact that, PW-5 - wife of the complainant was partner of Venus Rubbers and the accused''s ease is that, two cheques were remained with the wife of the complainant, it probabalises that the wife of the complainant might have retained the cheque belonging to the accused.

Merely because the cheque is issued, that by itself does not prove the legally recoverable debt. Though presumption arises in favour of the complainant, when the documents produced by the accused do show that he had transaction with Venus Rubbers and cheques were issued to Venus Rubbers and PW-5 - wife of the complainant being a partner of the said firm and if the cheques had remained with her and if the said cheque, which is not even filled up by the accused, is used by the complainant, it does not create any liability unless it is shown that such an amount has been passed on to the accused and more so. when the complainant is a bank employee, he would not have made payment without any security document or would not have made such payments by cash having withdrawn from the Bank.

In these circumstances. I find that the lower appellate court on proper appreciation of the entire evidence has rightly held that the complainant has not proved his case of passing on of the consideration under the cheque and has also not proved that there is any debt legally recoverable against the accused. Hence, I find no reason to interfere with the judgment of the appellate court.

Accordingly, the appeal fails and same dismissed.