P.S. Somashekaraiah vs Krishnamurthy

A.S. Pachhapure

Though the matter is posted for admission, with the consent of the counsel, it is taken up for final disposal.

The petitioner has challenged the Judgment and Order of acquitting the respondent for the charge u/s 138 of the Negotiable Instruments Act [hereinafter referred to as "the Act" for short].

The facts relevant for the purpose of this revision are as under;

The petitioner is the complainant, whereas the respondent is the accused before the trial Court. The complainant is an agriculturist by profession, whereas the accused is a school teacher and they were acquainted with each other since 8 years. It is the grievance of the complainant that the accused approached him for financial assistance on 30.03.2002 and borrowed a sum of `1,50,000-00 and in order to discharge the said debt, he issued cheque bearing No.338192 dated 13.06.2002 with an assurance to discharge the debt within three months. As the accused did not repay the amount, the complainant presented the cheque on 19.08.2002 for encashment and it returned dishonoured on the ground that the account was closed. The complainant issued a statutory notice on 26.08.2002 and despite the service of the notice, the accused did not comply the demand. In these circumstances, the complainant approached the trial Court with an application u/s 200 Cr.P.C. to initiate action against the accused for the offence punishable u/s 138 of the Act.

During the trial, the complainant was examined as P.W.1 and a bank official P.W.2 and in their evidence, documents Exs.P1 to 7 were marked. The statement of the accused was recorded u/s 213 Cr.P.C. The accused examined himself as D.W.1 and 3 witnesses D.Ws.2 to 4 and got marked the documents Exs.D1 to 8. The trial Court heard the counsel for the parties and on appreciation of the material on record, convicted the accused for the charge and ordered him sentence of imprisonment, fine, etc. Aggrieved by the conviction and sentence, the accused preferred an appeal before the first appellate Court in Crl.A. No.121/2008 and the said appeal came to be allowed setting aside the conviction and sentence and granting an order of acquittal vide Judgment and Order dated 31.10.2003. Aggrieved by the acquittal, the present revision petition has been filed.

I have heard the learned counsel for the petitioner and also the respondent.

It is the contention of the learned counsel for the petitioner that the signature on the cheque has been admitted by the respondent and therefore, a presumption arises u/s 139 of the Act to the effect that the respondent issued the cheque for discharge of the debt or liability. It is also his contention that though a defence of chit transaction has been taken over by the respondent, particulars have not been given in the evidence. So also, it is his contention that though the respondent contended that he gave instructions for stop payment, convincing evidence has not been placed before the Court for acquittal. He submits that the petitioner has given his hard-earned money to the respondent and the trial Court was justified in awarding conviction.

Per contra, the learned counsel for the respondent quoting the discrepancies in the evidence of P.W.1 submits the presumption that arose u/s 139 of the Act is rebutted by the material placed on record.

As could be seen from the averment made in the complaint, at the time when the alleged amount of `1,50, 000-00 was paid to the respondent, except the petitioner and the respondent there were no other persons. P.W.1 states in his evidence that he owns 3 acres of agricultural land, which is partly irrigated and partly non-irrigated and gets an amount of `60,000-00 p.a. as income from the said agricultural land. It is relevant to note that generally, a person did not retain cash amount at the residence except for the necessities. But, P.W.1 is said to have kept an amount of `1,50,000-00 as cash amount in home. He did not deposit the amount of cash in bank and also did not withdraw the amount from the bank for payment. Furthermore, rather it is difficult for an agriculturist to earn so much of amount as an agricultural income. In such circumstances, if the evidence of P.W.1 is looked into, rather it is difficult to accept the version of the petitioner that he had earned `1,50,000-00 and had cash amount of `1,50,000-00 on the day when he has alleged to give to the respondent.

Apart from the circumstances stated above, so far as Ex.P1, the cheque is concerned, at one stretch, P.W. 1 states that this cheque was given at the time when the loan was advanced. But, it is further asserted that the cheque was given one month after the loan transaction. So there is inconsistency as to when the cheque Ex.P1 was given by the respondent to the petitioner. Apart from this, it is necessary to know that the signature has been admitted by the respondent and as could be seen from the evidence of P.W.1, he specifically states that the cheque was filled in his presence by the respondent and was handed over to him. The perusal of the cheque-Ex. P1 reveals that the ink used for the signature is different from the ink used to fill in the blanks of the cheque and the handwriting is also different. So, when P.W.1 stated in his evidence that the cheque was filled in and signed by the respondent on the date when it was handed over to him, the perusal of the contents give an inconsistent version so far as the issuance of the cheque is concerned. Apart from this, it is further necessary to note that the cheque is dated 13.06.2002 and the amount alleged to have been given by the petitioner to the respondent was to be returned within 3 months from 13.03.2002. But, the cheque was not presented by the petitioner till 19.08.2002. So, the person, who claims to have handed over a loan of `1.50,000-00 to the respondent and had a cheque in his possession and was to receive back the money from the respondent cannot keep the cheque without presentation for collection for a period over 2 months. So, it raises suspicion as to genuiness of the transaction and advancement of the loan by the petitioner.

Now, as could be seen from the defence put-forth by the respondent, it is his grievance that he had a chit transaction with one Kallappa, a retired teacher and at the time of availing the chit amount he had given 5 cheques inclusive of a disputed cheque to the said Kallappa towards repayment of 5 instalments. He further submits that the said Kallappa despite receipt of the chit amount, misused the cheques and gave one cheque leaf to the petitioner and the remaining cheque leaves to the other persons and got filed the complaint against him. On this aspect of the matter, though there appears to be litigation between Kallappa and the respondent and the members of his family, as when the litigation commenced is not stated. In case if the respondent had chit transaction with the said Kallappa and he had availed of the chit amount, it could be inferred that at that time there could have been no such litigation between them. The respondent has produced Ex.D3, the cheque bearing No.338193 dated 16.06.2002 for an amount of `60,000-00 signed by the respondent. The certified copy of this cheque has been issued by the JMFC, Gubbi. So also, the cheque bearing No.338195 dated 02.06.2002 produced at Ex.D4 is for an amount of `1,50,000-00 and said to have been signed by the respondent and the payment to be made in favour of P.C. Kallappa. Ex.D5 Is another cheque bearing No.338194 dated 20.06.2002 for an amount of `2,00,000-00. So, according to the respondent, all these cheques were given to said P.C. Kallappa, which were blank, signed by him and the said P.C. Kallappa had misused them by giving each of toe cheque leaves to different other persons and got filed a complaint by them u/s 138 of the Act. It is relevant to note that the cheque in dispute at Ex.P1 bears No.338132 for `1,50,000-00 dated 13.06.2002. So all these cheques were given in the month of June 2002 by the respondent. In the context of these documents, if the evidence of D.Ws.2 and 3 is looked into, they state in their evidence about the chit transaction and D.W.3 states that he accompanied the respondent at the time of receiving the chit amount and further that he witnessed the incident for having given 5 blank cheques to P.C.Kallappa. Rather D.W.3 is not the person, who is related to the respondent. So, there is no reason for D.W.3 to give false evidence against the petitioner. Though it is oral evidence, there is nothing to disbelieve the evidence of D.W.3 so far as the chit transaction is concerned. So, if this material placed on record by the respondent is looked into, a probable defence has been raised which is sufficient to rebut the presumption that arises u/s 139 of the Act. It is no-doubt true that there is some discrepancies in the evidence of the respondent. But, the overall defence that has been taken and the cheques at Exs. D2 to 4 substantiate the defence to the maximum extent. In these circumstances, I am of the opinion that merely because that the respondent did not produce authenticated document for stop payment, or that he did not produce the document pertaining to the litigation between the said P.C. Kallappa and himself or further that the details of the chit transactions have not been furnished, do not affect the defence put-forth by the respondent. In these circumstances, looking to the material placed on record by both the parties, the first appellate Court, having assessed the material in a proper perspective has rightly taken a decision to set aside the Order of conviction and granted acquittal.

This is a revision petition and the scope is limited. Even in a case against acquittal, the appellate Court will be slow in interfering with the orders. But, anyhow, here is a case where the revision has been filed, the evidence cannot be re-appreciated except for the purpose of glaring error or inherent defects of the parties and overall estimation of the material placed on record, makes this Court to believe the version put-forth by the, accused/respondent. In these circumstances, I am of the opinion that there is no merit in this revision petition and it is dismissed accordingly.