1 IN THE HIGH COURT OF KARNATAKA, CIRCUIT BENCH AT GULBARGA DATED THIS THE 30TH DAY OF AUGUST, 2013 BEFORE THE HON'BLE MR. JUSTICE B.V.PINTO CRIMINAL APPEAL NO.3553 OF 2009 BETWEEN: KRISHNA S/O GURUNATH PADAKI AGE: 65 YEARS, OCC: PENSIONER R/O ADAKI GALLI, BIJAPUR APPELLANT (BY SRI R.S.LAGALI, ADVOCATE) AND: SANJEEV S/O NEELAKANTRAO DESPANDE AGE: 54 YEARS, OCC: SERVICE R/O NEAR Dr. DESPANDE'S HOUSE BEHIND GODAWARI HOTEL, BIJAPUR RESPONDENT (BY SRI SHIVANAND V. PATTANSHETTY, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C. PRAYING TO CALL FOR THE RECORDS FROM THE COURT BELOW AND SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 30.01.2009 PASSED BY I-ADDL. JMFC COURT BIJAPUR IN [CASE NUMBER] AND CONVICT THE 2 RESPONDENT FOR THE OFFENCE PUNISHABLE UNDER [SECTION] OF [ACT]. THIS CRIMINAL APPEAL COMING ON FOR DICTATING JUDGMENT, THIS DAY THE COURT DELIVERED THE FOLLOWING: JUDGMENT
This appeal is filed challenging the judgment dated 30.01.2009 passed by the I-Additional JMFC Court, Bijapur in [CASE NUMBER] acquitting the accused of the offence punishable under [SECTION] of the [ACT] (for short '[ACT]').
2. It is the case of the complainant that accused issued a cheque bearing No.611397 for a sum of Rs.1,00,000/- drawn on the State Bank of India dated 03.10.2005 in favour of the complainant and that the cheque when presented was dishonored by the bank on the ground of insufficiency of funds and when the complainant issued a notice calling upon the accused to pay the cheque amount, though the notice is received by the accused, he has not replied the said notice and has also not paid the cheque amount, thereby he is alleged to have committed offence under [SECTION] of [ACT]. After summoning the accused, the accusation was read over to him and the accused pleaded not guilty to the charges made against him. Whereafter, in order to prove the case, complainant examined himself as PW1 and got marked Exs.P1 to P6. Thereafter, incriminating circumstances were put to the accused. In reply to the questions put to him under [SECTION] of [ACT] accused has stated that there was no need to give a reply and that there was no need to give the money and that he has not committed the offence. Thereafter, accused got examined one [ENTITY] as DW1 and got himself examined as DW2 and produced Exs.D1 to D6 in his defence. The learned Magistrate after going through the evidence of the complainant and the accused and the documents produced held that the complainant has not proved the case against the accused beyond all reasonable doubts and passed an order of acquittal. It is this judgment of the acquittal, which is challenged by the complainant in this appeal.
3. Complaint came to be filed before the Court as per Ex.P6 by the complainant stating that accused is a close friend of the complainant and both of them were working in KSRTC and when the complainant got himself relieved from the service, accused requested him to give a hand loan of Rs.2,50,000/- and accordingly, on 03.05.2005, complainant gave a sum of Rs.2,50,000/- to the accused on the promise of the accused returning the same. Since the accused was his friend no documents were created in respect of said loan. However, even after repeated demand by the complainant, accused did not pay the amount taken by him and was postponing the repayment. Finally, on 03.10.2005 accused gave a cheque drawn on the State Bank of India, Bijapur Sainik School Compound Branch, for a sum of Rs.1,00,000/- in his account bearing No.5/1709. It is further stated in the compliant that the aforesaid cheque bearing No.611397 when presented to the Bank on 29.11.2005, the said cheque was returned with an endorsement 'funds insufficient'. Thereafter, complainant issued notice under [SECTION] of [ACT] to the accused on 13.12.2005 calling upon the accused to pay the cheque amount and also a sum of Rs.1,000/- being the cost of the notice. Accused has received the said notice as per the postal endorsement acknowledgement marked as Ex.P5. However, accused has not paid the amount to the complainant. Hence, the complaint.
4. Complainant has filed his evidence in the form of affidavit and has reiterated the contents of his complaint before the Court. He has also stated that accused has not paid the amount despite notice. In the cross-examination, it is elicited that accused is due to him in a sum of Rs.2,50,000/-. However, he is not aware as to the date on which the said amount was advanced to the accused. It is elicited that the complainant has retired in the year 2000. He has stated in the cross-examination that the said amount of Rs.2,50,000/- given to the accused was kept by him in Canara Bank, Bijapur Branch and the said amount was brought by him to his house four days prior to the date on which it was given to the accused. He is still in possession of the passbook of the said Bank. He has stated that presently he had closed the said account but he does not remember the date on which the account was closed. He has further admitted that his son [ENTITY] also filed two criminal cases against the accused stating that accused has taken loan of Rs.2,50,000/- from the son of the complainant and that they were [CASE NUMBER] and [CASE NUMBER]. In the said case, it was claimed that the accused had taken a sum of Rs.2,50,000/- from the son of the complainant on 03.05.2005. It is also admitted by him that accused had returned the amount of the said cheque to his son and a memo had been filed stating that his son has received the amount from the accused on 06.05.2005. It is suggested to PW1 that no amount is due to him and that he is deposing falsely. It is also further suggested to PW1 that cheque bearing No.611397 involved in this case was given as security for the amount payable by the accused and that the said amount having been paid, no amount is due to the complainant from the accused. However, said suggestion has been denied.
5. The accused got himself examined as DW2. In his evidence, he has rebutted the case of the complainant. DW2 has also produced the computerized statement of the passbook of the complainant and has got it marked through DW1 [ENTITY] who was the Branch Manger of Canara Bank, Bijapur Branch. It is elicited from DW1 that from 08.07.2004 to 01.08.2005 complainant had withdrawn a sum of Rs.6,000/- form his Canara Bank account and during the said period a sum of Rs.6225.69 was deposited. DW2 also has reiterated that the complainant did not have the sum of Rs.2,00,000/- at the alleged time of giving the hand loan and therefore, it is stated by him that the complainant has filed false case.
6. The learned Magistrate on going through the above evidence of the complainant and the accused has held that the case of the complainant is not probable firstly on the ground that there is no convincing evidence adduced by the complainant that he was in fact in possession of sum of Rs.2,00,000/- to be advanced to the accused. The learned Magistrate has held that though the complainant in his evidence has stated that four days prior to the date of lending the amount to the accused, he had withdrawn the amount from the Canara Bank, the said evidence of the complainant is falsified by the evidence of DW1-[ENTITY] and the document at Ex.D6. The learned Magistrate has held that son of the complainant had also advanced a sum of Rs.1,00,000/- to the accused and that in this connection son of the complainant had filed cases against the accused in [CASE NUMBER]. But the said fact is also not mentioned in his complaint. However, it is a development made by complainant during his deposition before the Court. Under the circumstances, the learned Magistrate has held that it is doubtful to believe that the complainant had in fact in his possession a sum of Rs.1,00,000/- to give to the accused so that the accused would have given a cheque for Rs.1,00,000/-. It is also held by the learned Magistrate that when [CASE NUMBER] were compromised on 06.05.2005 it is necessary that the said cases were pending on 03.05.2005, the date on which the alleged lending in this case occurred. The learned Magistrate has held that it is improbable that when the case filed by the son were pending and that said cases were compromised on 06.05.2005, the complainant would have again given further sum to the accused on 03.05.2005. On these counts, the learned Magistrate has disbelieved the complainant and has acquitted the accused.
7. I have heard the learned counsel for the appellant Sri [ENTITY] and also Sri [ENTITY], learned counsel for the respondent.
8. Learned counsel for the appellant relying on the ruling in the case of [PRECEDENT] has submitted that the Supreme Court has declared that decision rendered in [PRECEDENT] is not a good law and that complainant need not have proved that he was in possession of the amount as on the date of lending. The fact that the accused had issued cheque raises a presumption under [SECTION] of [ACT] and accused has not rebutted the said presumption and hence, accused is liable to be convicted.
9. However, learned counsel for the respondent - accused relying on the ruling of Bombay High Court in [PRECEDENT] and also evidence of DW1-[ENTITY] submits that there is no proof that the complainant was in fact having a sum of Rs.1,00,000/- as on the date of lending the alleged money to the accused and that his statement before the Court that he had brought the money from the Canara Bank Bijapur Branch four days before the date of lending is falsified by the evidence of DW1 since all that which has been drawn in the entire year from the bank is only Rs.6,000/- and therefore, case of the complainant is not proved beyond reasonable doubt. Learned counsel submits that the learned Magistrate has rightly appreciated the evidence of the complainant and the accused and has acquitted the accused and that this is being an appeal against the order of acquittal, the same may not be lightly interfered with.
10. I have carefully gone through the evidence of the complainant, witnesses and the documents produced by the complainant and also the evidence of DWs.1 and 2 and Exs.D1 to D6. I find that the judgment of acquittal passed by the learned Magistrate is based on the evidence on record and the conclusions arrive at by the learned Magistrate is in consonance with the settled principles of law. It is crystal clear that the say of the complainant that he had withdrawn the money from the Canara Bank, Bijapur Branch, four days before it was lent to the accused is totally false in view of the evidence of DW1 and Ex.D6. In that view of the matter, complainant himself has disproved his case that he was in possession of cash to be paid to the accused and therefore, learned Magistrate has rightly acquitted the accused.
11. This being an appeal against the order of acquittal, if the view taken by the Trial Court is plausible, the appellate Court would not replace its own view to the one taken by the Trial court. There is no reason why this Court should resile from this settled principle of law and therefore, I do not find any good ground to interfere with the well considered order of acquittal passed by the learned Magistrate and therefore, this appeal has no merit and accordingly, appeal is dismissed.
JUDGE NB*