G SIDDANNA v. K. JAYADEVAPPA

(BY SRI C.P.PUTTARAJ, ADVOCATE) …RESPONDENT THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:11.11.11 PASSED BY THE PRL.Sr.CIVIL JUDGE AND CJM, DAVANAGERE IN C.C.NO.1847/09-ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S.138 OF N.I.ACT. IN CRL.A NO.18/2012: BETWEEN: B. BASAVARAJ AGED ABOUT 43 YEARS, S/O LATE G SIDDALINGAPPA, OCC: AGRICULTURIST, R/O D NO.2402/1, UPSTAIRS, 10TH MAIN, MCC A BLOCK, NEAR BAKKESWARA HIGH SCHOOL, DAVANAGERE. (BY SRI P.B.UMESH, ADVOCATE) AND: K. JAYADEVAPPA, S/O KADLEBALU SIDDAPPA, AGED ABOUT 53 YEARS, MANAGING PARTNER OF M/S DEEPA AGRO AGENCIES, R/O DOOR NO.5452/20, 2ND CROSS, ANJANEYA EXTENSION, EXTENDED MCC B BLOCK, DAVANAGERE ALSO AT #2037, MALATI NILAYA, …APPELLANT - 4 - NC: 2024:KHC:31730 CRL.A No. 21 of 2012 C/W CRL.A No. 17 of 2012 CRL.A No. 18 of 2012 CRL.A.No. 19 of 2012 CRL.A.No. 20 of 2012 CRL.A.No. 22 of 2012 G R VIJAYA, 1ST C MAIN ROAD, 13TH CROSS, OPP WATER TANK, TARALABALU BADAVANE, VIDYANAGARA, DAVANAGERE. (BY SRI C.P.PUTTARAJ, ADVOCATE) …RESPONDENT THIS CRL.A. IS FILED U/S 378(4) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DT.11.11.11 PASSED BY THE PRL. Sr.CIVIL JUDGE AND CJM, DAVANAGERE IN C.C.NO.1987/09-ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S.138 OF N.I.ACT. IN CRL.A NO.19/2012: BETWEEN: B. BASAVARAJ, AGED ABOUT 43 YEARS, S/O LATE G SIDDALINGAPPA, OCC: AGRICULTURIST, R/O D NO.2402/1, UPSTAIRS, 10TH MAIN, MCC A BLOCK, NEAR BAKKESWARA HIGH SCHOOL, DAVANAGERE. (BY SRI P.B.UMESH, ADVOCATE) AND: K. JAYADEVAPPA, S/O KADLEBALU SIDDAPPA, AGED ABOUT 53 YEARS, MANAGING PARTNER OF M/S DEEPA AGRO AGENCIES, R/O DOOR NO.5452/20, 2ND CROSS, ANJANEYA EXTENSION, EXTENDED MCC B BLOCK, DAVANAGERE ALSO AT #2037, MALATI NILAYA, G R VIJAYA, 1ST C MAIN ROAD, 13TH CROSS, OPP WATER TANK, TARALABALU BADAVANE, VIDYANAGARA, DAVANAGERE. …APPELLANT - 5 - NC: 2024:KHC:31730 CRL.A No. 21 of 2012 C/W CRL.A No. 17 of 2012 CRL.A No. 18 of 2012 CRL.A.No. 19 of 2012 CRL.A.No. 20 of 2012 CRL.A.No. 22 of 2012 (BY SRI C.P.PUTTARAJ, ADVOCATE) …RESPONDENT THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DT.11.11.11 PASSED BY THE PRL. Sr.CIVIL JUDGE AND CJM, DAVANAGERE IN C.C.NO.713/09-ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S.138 OF N.I.ACT. IN CRL.A NO.20/2012: BETWEEN: S T SHASHIKALADEVI, AGED ABOUT 36 YEARS, W/O G BASAVARAJAPPA, HOUSEWIFE, R/O D NO.2402/1, 10TH MAIN, MCC A BLOCK, NEAR BAKKESWARA HIGH SCHOOL, DAVANAGERE. (BY SRI P.B.UMESH, ADVOCATE) AND: K. JAYADEVAPPA, S/O KADLEBALU SIDDAPPA, AGED ABOUT 53 YEARS, MANAGING PARTNER OF M/S DEEPA AGRO AGENCIES, R/O DOOR NO.5452/20, 2ND CROSS, ANJANEYA EXTENSION, EXTENDED MCC B BLOCK, DAVANAGERE ALSO AT #2037, MALATI NILAYA, G R VIJAYA, 1ST C MAIN ROAD, 13TH CROSS, OPP WATER TANK, TARALABALU BADAVANE, VIDYANAGARA, DAVANAGERE. (BY SRI C P PUTTARAJ, ADVOCATE) …APPELLANT …RESPONDENT - 6 - NC: 2024:KHC:31730 CRL.A No. 21 of 2012 C/W CRL.A No. 17 of 2012 CRL.A No. 18 of 2012 CRL.A.No. 19 of 2012 CRL.A.No. 20 of 2012 CRL.A.No. 22 of 2012 THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DT.11.11.11 PASSED BY THE PRL. SR.CIVIL JUDGE AND CJM, DAVANAGERE IN C.C.NO.712/09-ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S.138 OF N.I.ACT. IN CRL.A NO.22/2012: BETWEEN: G NAGARAJA, AGED ABOUT 28 YEARS, S/O LATE G SIDDALINGAPPA, OCC:LECTURER , R/O D NO.2402/1, 10TH MAIN, MCC A BLOCK, NEAR BAKKESWARA HIGH SCHOOL, DAVANAGERE. (BY SRI P.B.UMESH, ADVOCATE) AND: K. JAYADEVAPPA, S/O KADLEBALU SIDDAPPA, AGED ABOUT 53 YEARS, MANAGING PARTNER OF M/S DEEPA AGRO AGENCIES, R/O DOOR NO.5452/20, 2ND CROSS, ANJANEYA EXTENSION, EXTENDED MCC B BLOCK, DAVANAGERE ALSO AT #2037, MALATI NILAYA, G R VIJAYA, 1ST C MAIN ROAD, 13TH CROSS, OPP WATER TANK, TARALABALU BADAVANE, VIDYANAGARA, DAVANAGERE. (BY SRI C P PUTTARAJ, ADVOCATE) …APPELLANT …RESPONDENT - 7 - NC: 2024:KHC:31730 CRL.A No. 21 of 2012 C/W CRL.A No. 17 of 2012 CRL.A No. 18 of 2012 CRL.A.No. 19 of 2012 CRL.A.No. 20 of 2012 CRL.A.No. 22 of 2012 THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DT.11.11.11 PASSED BY THE PRL. SR.CIVIL JUDGE AND CJM, DAVANAGERE IN C.C.NO.1848/09-ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S.138 OF N.I.ACT. THESE APPEALS COMING ON FOR ORDERS THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS JUSTICE M G UMA ORAL JUDGMENT The complainants in C.C.Nos.1847/2009, 1987/2009, 713/2009, 712/2009, 711/2009 and 1848/2009, have preferred these appeals impugning the common judgment dated 11.11.2011 passed by the learned Principal Senior Civil Judge & CJM, Davanagere acquitting the accused respondent for the offence punishable under Section 138 of The Negotiable Instruments Act, 1881 (for short hereinafter referred to as ' NI Act').

2. For the sake of convenience the parties shall be referred to as per their rank and status before the Trial Court. - 8 - NC: 2024:KHC:31730 CRL.A No. 21 of 2012 C/W CRL.A No. 17 of 2012 CRL.A No. 18 of 2012 CRL.A.No. 19 of 2012 CRL.A.No. 20 of 2012 CRL.A.No. 22 of 2012

3. Brief facts of the case are that, the complainant in C.C.Nos.1847/2009, 1987/2009, B.Basavaraj, a petty businessman. Complainant C.C.No.712/2009 - S.T.Shashikaladevi the wife of B.Basavaraj and she is a house wife. The complainant in C.C.No.711/2009 - G. Siddanna is the brother of B.Basavaraj and he is an agriculturist, while the complainant in C.C.No.1848/2009 - G. Nagaraj, the other brother of B.Basavaraj and he was working as a lecturer in a College. 1

4. It is the contention of all the complainants in the above cases that they were in acquaintance with the accused and have lent different amounts i.e., in C.C.No.1847/2009 Rs.1,66,282/-, and other criminal complaints Rs.4,00,000/- each to the accused on various dates. The accused had issued the post dated cheques marked as Ex.P1 and requested to present the same after some time. When the accused failed to repay the loan amount, the cheques in question were presented by the complainants concerned and - 9 - NC: 2024:KHC:31730 CRL.A No. 21 of 2012 C/W CRL.A No. 17 of 2012 CRL.A No. 18 of 2012 CRL.A.No. 19 of 2012 CRL.A.No. 20 of 2012 CRL.A.No. 22 of 2012 the same were dishonoured with the endorsement 'Exceeds Arrangements'. In few cases, the cheques issued by the accused to other complainants were re-presented to the Bank, even then, the cheques came to be dishonoured with similar endorsements. Legal notices were issued to the accused in each of the cases. Inspite of service of notice, accused has not given any reply, nor repaid the cheque amount and thereby he has committed the offence. Therefore, the complainants filed the private complaints seeking initiation of action against the accused for the offence punishable under Section 138 of NI Act.

5. Learned Magistrate took cognizance of the offence in all the complaints. B. Basavaraj, who is the complainant in C.C.Nos.1847/2009, 1987/2009 and 713/2009 was examined as P.W.1. Complainants in C.C.No.712/2009, C.C.No.711/2009 and C.C.No.1848/2009 have not stepped into the witnesses box but got examined B. Basavaraj as their power of attorney holder. The complainant also - 10 - NC: 2024:KHC:31730 CRL.A No. 21 of 2012 C/W CRL.A No. 17 of 2012 CRL.A No. 18 of 2012 CRL.A.No. 19 of 2012 CRL.A.No. 20 of 2012 CRL.A.No. 22 of 2012 examined PWs 2 to 5 in all the cases and got marked Ex.P1 to P6. The accused denied all the incriminating materials on record in his statement under Section 313 of Criminal Procedure Code. He examined himself as DW.1, and got marked 83 documents in support of his defence.

6. The Trial Court after taking into consideration all these materials on record, passed the common judgment holding that the complainants failed to establish their financial capacity to lend the amount and therefore acquitted the accused.

7. Being aggrieved by the same, the complainants are before this Court in these appeals.

8. Heard Sri P.B.Umesh, learned counsel for the appellants. Learned counsel for the respondent has appeared before this Court during the course of dictation and has not addressed any arguments. His arguments is taken as Nil. Perused the materials including the Trial Court records. - 11 - NC: 2024:KHC:31730 CRL.A No. 21 of 2012 C/W CRL.A No. 17 of 2012 CRL.A No. 18 of 2012 CRL.A.No. 19 of 2012 CRL.A.No. 20 of 2012 CRL.A.No. 22 of 2012

9. Learned counsel for the appellant contended that B.Basavaraj, the complainant in three cases, and power of attorney holder in other three cases has specifically stated in his evidence regarding lending of the amount, issuance of cheques, dishonour of the same, issuance of legal notices and filing of the complaints. Issuance of cheques, dishonour of the same are not disputed by the respondent. The accused admits that the cheques belong to him and bear his signatures. Under such circumstances, the burden is on the accused to rebut the presumption under Sections 118 and 139 of NI Act. Even though the accused examined himself as DW.1 in all cases, he is not successful in rebutting the presumption. Inspite of that, the Trial Court proceeded to acquit the accused without any basis. Hence, he prays to allow the appeal in the interest of justice.

10. In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is: - 12 - NC: 2024:KHC:31730 CRL.A No. 21 of 2012 C/W CRL.A No. 17 of 2012 CRL.A No. 18 of 2012 CRL.A.No. 19 of 2012 CRL.A.No. 20 of 2012 CRL.A.No. 22 of 2012 "Whether the appellant has made out any grounds to allow the appeal and to convict the accused for the offence punishable under Section 138 of NI Act?" My answer to the above point is in the 'Negative' for the following: REASONS

11. It is the specific contention of the complainant in all the cases that they were having acquaintance with the accused and he had requested for loan. Accordingly, B.Basavaraj, the complainant in C.C.No.1847/2009, had lent Rs.1,66,282/-, in C.C.1987/2009 lent Rs.4,00,000/- and in C.C.No.713/2009 had lent Rs.4,00,000/-. Similarly, C.C.No.712/2009, C.C.No.711/2009 C.C.No.1848/2009, complainants Rs.4,00,000/- each to the accused. Therefore, in all cases, Rs.21,66,282/- was lent by the complainants to the accused in the year 2001. - 13 - NC: 2024:KHC:31730 CRL.A No. 21 of 2012 C/W CRL.A No. 17 of 2012 CRL.A No. 18 of 2012 CRL.A.No. 19 of 2012 CRL.A.No. 20 of 2012 CRL.A.No. 22 of 2012

12. B.Basavaraj, who was examined as P.W.1 in all the six cases is the husband of S.T.Shashikaladevi, the complainant in C.C.No.712/2009. His brothers G.Siddanna and G.Nagaraja are the complainants in C.C.No.711/2009 C.C.No.1848/2009 respectively. Admittedly, B.Basavaraj, is a petty businessman who is not an income tax assessee. Wife of B.Basavaraj - S.T.Shashikala is a housewife, G.Siddanna is an agriculturist and G.Nagaraja is working as a Lecturer. None of them are income tax assesses.

13. The complainants have produced the cheques as per Ex.P.1 in the respective cases and contended that it was issued by the accused towards discharge of legally recoverable debt. Accused had admitted that the cheques in question were issued with his signatures. However, according to the accused, he had issued blank cheques in favour of H.R.Basavaraj who is working as Marketing Officer in Sriram Bio-seeds Genetic Industries. - 14 - NC: 2024:KHC:31730 CRL.A No. 21 of 2012 C/W CRL.A No. 17 of 2012 CRL.A No. 18 of 2012 CRL.A.No. 19 of 2012 CRL.A.No. 20 of 2012 CRL.A.No. 22 of 2012

14. P.W.1 during cross-examination categorically admitted that one H.R.Basavaraj referred to by the accused was working as Marketing Officer in Sriram Bio- Seeds Limited. It is the specific defence taken by the accused that since he was purchasing bio-seeds from B.Basavaraj, he had issued 11 blank cheques with his signatures and the same were misused by the said B.Basavaraj who is the relative of these complainants. Under the given facts and circumstances, the defence taken by the accused is so probable. Moreso, when the complainants who are the agreement holders as per Ex.D2. have not chosen to seek specific performance of the contract against the accused till date.

15. By these evidence on record, the accused is successful probabalising his defence, thereby he is successful in rebutting the presumption under Section 139 of NI Act. Once the accused has probaballised his defence and rebutted the presumption, the reverse burden shifts on - 15 - NC: 2024:KHC:31730 CRL.A No. 21 of 2012 C/W CRL.A No. 17 of 2012 CRL.A No. 18 of 2012 CRL.A.No. 19 of 2012 CRL.A.No. 20 of 2012 CRL.A.No. 22 of 2012 complainant to prove his financial capacity of lending the amount and existence of legally recoverable debt.

16. It is pertinent to note that PW.1 during his cross- examination has specifically stated that there was partition in the family and under the partition deed he got Rs.4,00,000/- so also his brothers got the amount. But he has not produced any document to evidence the fact of partition and that the complainants were having sufficient cash with them to lend the amount.

17. Even though PWs 1 to 5 are examined before the Trial Court on behalf of the complainant, sources of income of the complainants in all the six cases are not proved. Serious doubt arises in the mind of the Court regarding contention of the complainants. It is pertinent to note that in C.C.No.1847/2009, it is contention of the complainant- B.Basavaraj that he had lent an amount of Rs.1,66,282/- that too paid in cash. There is no explanation as to why such an amount of Rs.1,66,282/- was paid in cash to the - 16 - NC: 2024:KHC:31730 CRL.A No. 21 of 2012 C/W CRL.A No. 17 of 2012 CRL.A No. 18 of 2012 CRL.A.No. 19 of 2012 CRL.A.No. 20 of 2012 CRL.A.No. 22 of 2012 respondent. There is also no explanation as to why the partition deed said to have been entered into between the parties under which the complainants received Rs.4,00,000/- each was not produced before the Court to evidence the availability of cash with them.

18. All these facts and circumstances give rise to serious thought and therefore it cannot be said that the complainants are successful in discharging their burden in proving that they have lent the cash to the accused, beyond reasonable doubt. Therefore, I am of the opinion that the accused is entitled for acquittal.

19. I have gone through the impugned judgment of acquittal passed by the Trial Court. It has taken into consideration all the relevant facts and circumstances and arrived at a right conclusion. I do not find any illegality or perversity in the order passed by the Trial Court. I find no reasons to interfere with the impugned judgment passed by - 17 - NC: 2024:KHC:31730 CRL.A No. 21 of 2012 C/W CRL.A No. 17 of 2012 CRL.A No. 18 of 2012 CRL.A.No. 19 of 2012 CRL.A.No. 20 of 2012 CRL.A.No. 22 of 2012 the Trial Court. Hence, I answer the above point in Negative and proceed to pass the following:

20. Hence, the following: ORDER Appeals are dismissed. Sd/- (M G UMA) JUDGE GVP List No.: 2 Sl No.: 3