Devendrappa H. Bandhar vs. Sri. Neelakant K Savadatti

Dated this the 20th day of August 2020

Before

THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD

Criminal Revision Petition No.100205 of 2017

Between

Devendrappa H.Bandhar, Age: 61 years, Occ: Retd. Bank Employee, R/o. Near Murudeshwar Factory, Hubballi, Dist: Dharwad. ...Petitioner

(By Sri. Sadashiv S.Patil, Advocate)

A n d

Sri. Neelakant K.Savadatti, Age: 71 years, Occ: Retd. Employee, Tq: Sanman Colony, Gokul Road, Hubballi, Dist: Dharwad. ...Respondent

(By Sri. Mallikarjunswamy B.Hiremath and Sri Umesh P.Hakkarki, Advocates)

This Criminal Revision Petition is filed under Section 397 read with Section 401 of the Code of Criminal Procedure, praying to set aside the order dated 16.08.2016 in Criminal Appeal No.52 of 2014 passed by the Court of V Addl. District and Sessions Judge, Dharwad, sitting at Hubballi, confirming the judgment and order dated 15.07.2014 passed by the Court of III Addl. Civil Judge and JMFC Court Hubballi in C.C. No.2041 of 2008 and allow the above criminal revision petition.

This Criminal Revision Petition coming on for Admission, this day, the Court made the following:

ORDER

The learned counsel for the petitioner and the learned counsel for the respondent are heard with their consent for final disposal.

2. This revision petition is filed impugning the judgment dated 15th July 2014 in C.C. No.2041 of 2008 on the file III Additional Civil Judge and JMFC Court, Hubballi (for short 'the learned Magistrate') and the common judgment dated 16th August 2016 insofar as the appeal in Criminal Appeal No.52 of 2014 on the file of the V Additional District and Sessions Judge, Dharwad, sitting at Hubballi (for short, 'the Appellate Court'). The appellate Court by this common judgment has also dismissed the appeal in Criminal Appeal No.51/2014, an appeal emanating from the proceedings initiated by the respondent's wife against the petitioner under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the NI Act').

3. The learned Magistrate by the impugned judgment dated 15.07.2014 has convicted the petitioner for the offence punishable under Section 138 of the NI Act and sentenced the petitioner to pay the cheque amount viz., Rs.3,20,000/-, a sum of Rs.35,000/- as compensation to the respondent – complainant and a sum of Rs.1,000/- as fine with default sentence of simple imprisonment of two months. The Appellate Court has dismissed the petitioner's appeal in Criminal Appeal No.52/2014 confirming the petitioner's conviction under Section 138 of the NI Act and the sentence.

4. The respondent initiated proceedings under Section 138 of the NI Act against the petitioner presenting a complaint under Section 200 of the Code of Criminal Procedure (for short, 'Cr.P.C.')asserting that the respondent and the petitioner are acquainted with each other. The petitioner, who was in the midst of completing construction of a house, borrowed different amounts from the respondent over a period of time. The petitioner thus borrowed a total sum of Rs.3,20,000/- as of the end of the year 2007. The petitioner, while borrowing the amounts, had promised to return the loan within four – five months. When the respondent insisted for repayment of the loan, the petitioner issued a cheque dated 23.05.2008 for a sum of Rs.3,20,000/-. The respondent presented this cheque for encashment, but this cheque was returned with an endorsement dated 23.05.2008 for "insufficiency of funds". The respondent caused legal notice dated 06.06.2008 within thirty days from the date of return of the cheque calling upon the petitioner to pay the cheque amount within fifteen days. The legal notice dated 06.06.2008 was served on the petitioner on 14.06.2008. But the petitioner neither replied nor complied with the legal notice.

5. The learned Magistrate took cognizance of the offence punishable under Section 138 of the NI Act against the respondent. The complainant was examined as P.W.1, but before he could tender himself for crossexamination, an application was filed under Section 302 of Cr.P.C. for discarding his evidence and examining his wife as his Power of Attorney stating that the complainant had undergone surgery and was not in a position to attend the Court. The learned Magistrate allowed this application permitting the complainant's wife to be examined as a witness and she is accordingly examined as P.W.1. The documents viz., the cheque in question and return memo are marked as exhibits. On behalf of the complainant, another witness, Sri.Manjunath Halekoti, is examined as P.W.2. The petitioner examined himself as D.W.1, but did not mark any document.

6. The learned Magistrate, on appreciation of the evidence on record, has concluded that the respondent is able to establish the necessary ingredients of an offence under Section 138 of the NI Act and therefore, the petitioner would be entitled to presumption under Section 139 of the NI Act. The petitioner, whose defense is that he has repaid the amount, has not produced any document to establish his evidence. The petitioner's ocular evidence as regards repayment of the loan is inconsistent. The petitioner has failed to rebut the presumption under Section 139 of NI Act. The petitioner's appeal against the learned Magistrate's judgment is confirmed by the Appellate Court.

7. The learned counsel for the petitioner submits that the complainant has not examined himself, and the complainant's wife, who is examined as PW 1, is neither a payee nor a holder in due course and, given the provisions of Section 142 of the NI Act, she is not

competent to give evidence. The learned counsel for the petitioner emphasizes that in support of a complaint under Section 138 of the NI Act, either a payee or a holder in due course could tender evidence; alternatively, a power of a payee or a holder in due course could be competent to give evidence provided that such power of attorney is mentioned in the complaint as emphasized by the Hon'ble Supreme Court in A.C.Narayanan vs. State of Maharashtra and others¹ . The evidence of the complainant's wife as his purported power of attorney also cannot be accepted. The purported Power of Attorney in favour of the complainant's wife is not marked in evidence. Even if the power of attorney, which is unmarked, is perused, there is no reference to the complainant's wife being personally acquainted with the transaction so as to be competent to give evidence as regards the ingredients of Section 138 of NI Act being established. Therefore, the learned magistrate's

¹ 2014 (11) SCC 790

conclusion that the complainant has established the necessary ingredients for an offence under Section 138 of the NI Act is an irregularity.

8. The learned counsel for the respondent meeting this submission submits that the decision of the Hon'ble Supreme Court in the A.C.Narayanan vs. State of Maharashtra and others supra, is in the context of a complaint being presented by a power of attorney and the principles in that decision would not be applicable in the present case where the complainant himself presented the complaint and also tendered evidence initially. The complainant had to undergo surgery and therefore, a separate application is made under Section 302 of Cr.P.C., requesting permission to examine his wife as a witness because she is acquainted with the facts and circumstances of the case. The learned Magistrate has allowed this application on the ground that the complainant is unable to give evidence because of his ill health, and it is only thereafter, the complainant's wife is examined as PW1. The petitioner, who has not challenged the learned Magistrate's order granting permission to examine the wife as a witness in the place of the complainant or raised such ground before the appellate Court, cannot now contend that she is not competent to tender evidence, and her evidence is no evidence.

9. The point that falls for consideration in this revision petition is:

"Whether the learned Magistrate and the Appellate Court have committed error in relying upon the evidence of P.W.1 to hold that the ingredients of Section 138 of NI Act have been established by the complainant to be entitled for presumption under Section 139 of NI Act?"

10. It would be relevant to record the proceedings before the learned magistrate as a prelude to the consideration of this question. The complainant has presented the complaint and summons is issued to the petitioner after the complainant's sworn statement by way of affidavit is received. The petitioner on his appearance has pleaded he is not guilty. The complainant is examined as PW1. The complainant's cross-examination is taken as nil because the petitioner's counsel did not cross-examine the complainant, and in fact, another witness, Sri.Manjunath Halekoti is examined subsequently as PW2. Even this witness is not cross-examined, and the petitioner did not lead evidence. The case is listed for recording the petitioner's statement under Section 313 of Cr.P.C. after many adjournment at the request of the petitioner or because of the petitioner's absence (and change of counsels by the petitioner).

11. At that stage, applications are filed on behalf of the petitioner for recalling of the complainant and the other witness for cross-examination. When such applications are allowed, an application is filed under Section 302 of Cr.P.C on behalf of the complainant seeking leave to examine his wife in his place citing health reasons. This application under Section 302 of Cr.P.C is filed stating the complainant has undergone a heart surgery and is unable to attend to Court because of such ill-health. This application is preceded by an application for cross examination of the complainant on commission. The learned magistrate has considered the application under Section 302 of Cr.P.C on merits and allowed the same.

12. The complainant's wife is examined as P.W.1. The learned magistrate's order allowing the application under Section 302 of Cr.P.C is not challenged and it is undeniable that the petitioner in the proceedings before the learned Magistrate did not challenge the competence of the complainant's wife to lead evidence or the decision based on such evidence. The complainant's wife, in response to a question in cross-examination, has stated that she is personally acquainted with the transaction between the complainant and the petitioner and as such she has personal knowledge. It would be pertinent to record that that the complainant is the petitioner's father-in-law, and the complainant's wife i.e., the petitioner's mother-in-law has initiated another proceedings under Section 138 of NI Act. The petitioner deposited the cheque amount during the pendency of the proceedings before the learned Magistrate2 in the proceedings initiated by P.W.1.

13. The Hon'ble Supreme Court in A.C.Narayanan vs. State of Maharashtra and others supra, while considering inter alia the question: if the Power of Attorney fails to assert explicitly his knowledge in the complaint then can the power of attorney holder verify the complaint on oath on presumption of knowledge3 as held as follows:

30) In the light of the discussion, we are of the view that the power of attorney holder may be allowed to file, appear and depose for

² The sentence to pay fine amount of Rs.20,000/ - which is confirmed in the appeal in Cri. Appeal No. No.51/2014, is set-aside by this Court at the instance of the petitioner.

³ Question number 4 of the five questions considered by the Hon'ble Supreme Court

the purpose of issue of process for the offence punishable under Section 138 of the N.I. Act. An exception to the above is when the power of attorney holder of the complainant does not have a personal knowledge about the transactions then he cannot be examined. However, where the attorney holder of the complainant is in charge of the business of the complainant payee and the attorney holder alone is personally aware of the transactions, there is no reason why the attorney holder cannot depose as a witness. Nevertheless, an explicit assertion as to the knowledge of the Power of Attorney holder about the transaction in question must be specified in the complaint. On this count, the fourth question becomes infructuous.

14. The learned counsel for the petitioner relies upon the penultimate declaration of a requirement in law in the above paragraph to assert that the evidence of the complainant's wife, because she is not explicitly mentioned in the complaint as the power of attorney of the complainant, could not have been considered. However, this enunciation would not apply to the present case where the complaint is filed by the payee himself and summons is issued after his sworn statement; and because of the complainant's subsequent ill-health, which is accepted by the learned magistrate, the complainant's wife is examined. The complainant's wife has stated that she is personally acquainted with the transaction between her husband and the petitioner (their son-in-law). She has stated that this amount was given by her husband to the petitioner from out of his retirement funds. This Court, on considering the relationship between the parties and the testimony of the complainant's wife, and the provisions of Section 120 of the Indian Evidence Act, 18724, is of the considered opinion that the learned magistrate has not erred either in law or in facts in relying upon her evidence in concluding the ingredients necessary to constitute offence

⁴ 120. Parties to civil suit, and their wives or husbands. Husband or wife of person under criminal trial.- In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. In criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness.

under Section 138 of the N I Act are established. This Court, in arriving at this conclusion, would also draw support from the following paragraph in A.C.Narayanan

vs. State of Maharashtra and others supra:

26. As noticed hereinabove, though Janki Vashdeo Bhojwani(supra), relates to powers of Power of Attorney holder under CPC but it was concluded therein that a plaint by a Power of Attorney holder on behalf of the original plaintiff is maintainable provided he has personal knowledge of the transaction in question. In a way, it is an exception to a well settled position that criminal law can be put in motion by anyone [vide Vishwa Mitter (supra)] and under the Statute, one stranger to transaction in question, namely, legal heir etc., can also carry forward the pending criminal complaint or initiate the criminal action if the original complainant dies [Vide Ashwin Nanubhai Vyas vs. State of Maharashtra (1967) 1 SCR 807]. Keeping in mind various situations like inability as a result of sickness, old age or death or staying abroad of the payee or holder in due course to appear and depose before the Court in order to prove the complaint, it is permissible for the Power of Attorney holder or for the legal representative(s) to file a complaint and/or continue with the pending criminal complaint for and on behalf of payee or holder in due course. However, it is expected that such power of attorney holder or legal representative(s) should have knowledge about the transaction in question so as to able to bring on record the truth of the grievance/offence, otherwise, no criminal justice could be achieved in case payee or holder in due course, is unable to sign, appear or depose as complainant due to above quoted reasons.

For the foregoing the petition is dismissed

Sd/- JUDGE

Kms/Rsh