Sridhara G. Bhat vs Ramachandra Acharya

Budihal R.B., J.—This appeal is preferred by the complainant being aggrieved by the judgment and order passed by the first appellate Court passed in Crl. A. No. 16/2006, wherein the first appellate Court has allowed the appeal and set aside the judgment and order passed by the trial Court in C.C. No. 814/2003.

Brief facts of the complainant''s case is, respondent herein borrowed a sum of Rs. 1,80,000/- from the appellant towards his business and in this regard issued a cheque bearing No. 897014 dated 9.12.2002 for a sum of Rs. 1,80,000/- drawn on Syndicate Bank, Puttur Main Branch, Puttur. Appellant presented the said cheque for encashment on 9.12.2002 through his banker Corporation bank. On 11.12.2002 bank issued an endorsement informing the appellant that cheque was dishonoured for ''insufficient funds''. Thereafter, appellant got issued legal notice dated 13.12.2002 demanding payment of money and respondent sent the reply denying the allegations. Thereafter, appellant herein filed the complaint before the trial Court under Section 200 of Cr.P.C. against the respondent herein for the alleged offence punishable under Section 138 of the Negotiable Instruments Act. Respondent herein has appeared before the trial Court and the trial Court after considering the materials placed on record both oral and documentary, has ultimately convicted the respondent for the offence under Section 138 of the Negotiable Instruments Act and imposed fine of Rs. 1,85,000/-. Being aggrieved by the judgment and order of the trial Court, respondent herein preferred an appeal before the Fast Track Court, Puttur in Crl. A. No. 16/2006 challenging the legality and correctness of the judgment and order passed by the trial Court. The first appellate Court, after re-appreciating the materials placed on record, ultimately, has allowed the appeal and set aside the judgment and order of the trial Court and acquitted the respondent-accused. Against the said judgment and order of the first appellate Court, present appeal is preferred by the complainant.

Heard the arguments of learned counsel appearing for the appellant-complainant and also the learned counsel for the respondent-accused.

Learned counsel for the appellant has submitted that the signature on the cheque is admitted as that of respondent-accused. The defence of the respondent-accused is that he had borrowed the money from one Rajesh Shetty and as a security for the said loan, gave five signed cheques to said Rajesh Shetty and when Rajesh Shetty demanded for repayment of the amount from him, respondent-accused paid Rs. 10,000/- out of the total amount of Rs. 15,000/- said to have been borrowed. When the accused insisted Rajesh Shetty to issue receipt for Rs. 10,000/-, he told that he will issue the receipt after payment of the entire amount and went on postponing the matter. In that regard there was difference of opinion between Rajesh Shetty and the respondent-accused. Taking undue advantage of the same, Rajesh Shetty gave one cheque to the complainant and through the complainant has got filed the case. It is submitted that when such defence has been taken in the reply notice as well as before the Court, no supporting material has been placed by the respondent-accused and as such, the trial Court has rightly convicted the accused. This aspect has not been considered by the first appellate Court. Hence, it is submitted that appeal may be allowed.

Per-contra, learned counsel appearing for the respondent-accused submitted that looking to the materials placed on record it is seen that complainant was not having financial capacity to advance an amount of Rs. 1,80,000/-. During the course of cross-examination P.W. 1-complainant has clearly admitted that he was doing panipuri business and to show that he was having that much money with him, he has not produced any documents before the Court. It is also submitted that it is the clear defence of the respondent-accused that he borrowed Rs. 15,000/- loan from one Rajesh Shetty of Sangam Finance and gave five signed cheques to Rajesh Shetty and out of said cheques, Rajesh Shetty got filed the case through the complainant and similarly one Narayan Bhat and Satyananda Rai have also filed two criminal cases in C.C. Nos. 173/1999 and 517/2002. It is submitted that these aspects were properly considered by the first appellate Court and rightly dismissed the complaint. Hence, there is no merit in this appeal and the same may be dismissed.

I have perused the grounds urged in the appeal memorandum, judgments and orders of the Courts below, the oral evidence of P.W. 1 and D.W. 1 and documents produced in the case.

It is the consistent case of the appellant-complainant that respondent-accused had borrowed Rs. 1,80,000/- and when he asked for return of the said amount, respondent-accused issued the cheque in question and when it was presented for encashment, the same was dishonoured. Hence, he has filed the case before the trial Court.

Looking to the oral evidence of parties, it is no doubt true that in the reply notice as well as during the course of trial, while cross-examining P.W. 1, it is the defence of accused that he borrowed the amount from Rajesh Shetty of Sangam Finance and gave him five signed cheques as security, but he did not return the cheques. The defence of the respondent-accused clearly shows that he has admitted his signature on the cheque. The cheque has been produced before the trial Court from the custody of the appellant-complainant and when the signature of the accused on the said cheque is admitted, initial legal presumption will arise as per Section 118(a) and Section 139 of the N.I. Act that it is for consideration and the instrument is given towards discharge of an existing debt. This initial legal presumption is to be rebutted by the respondent-accused. Rebuttal evidence does not mean a plausible explanation, but that explanation is to be established with cogent and satisfactory material. The materials on record, so also, the oral evidence of the parties, shows that the respondent-accused even after receiving legal notice from the complainant with regard to the said cheque has not taken any legal action against Rajesh Shetty, the financier of Sangam Finance nor has examined Rajesh Shetty or any other person to establish his defence that he has given five signed cheques to Rajesh Shetty and not given them to the complainant. Even he has not established the fact that how the complainant came into possession of the instrument when it was given to Rajesh Shetty. Therefore, the accused has completely failed to rebut the legal presumption in favour of the complainant. It may be true that the complainant has admitted in the evidence that he is doing panipuri business and he is not having the documents to show that he was having that much of money at the time of such transaction. But this aspect would be considered only after the respondent-accused places rebuttal evidence. As I have already observed above, no such rebuttal evidence has been placed by the respondent-accused for his explanation. The trial Court has rightly considered these aspects of the matter and convicted the accused person. But the first appellate Court has not taken these aspects into consideration and has wrongly proceeded in dismissing the complaint ignoring the statutory presumption arising under Section 118(a) and 139 of the N.I. Act. Therefore, the judgment and order of the first appellate Court is not in accordance with law. The appellant-complainant has made out a case to interfere with the judgment and order of the first appellate Court.

Accordingly, appeal is allowed. The judgment and order dated 7.11.2009 passed by the Fast Track Court, Puttur in Crl. A. No. 16/2006 is hereby set aside confirming the judgment and order passed by the trial Court.