Sri. S.F. Rajmal vs Mr. Ananth K.

N. Ananda, J.—The trial court has acquitted respondent (hereinafter referred to as ''accused) for an offence punishable u/s 138 N.I. Act. Therefore, the appellant (complainant) is before this Court. I have heard Sri. B.V. Shankara Narayana Rao, learned counsel for the complainant and Sri. B.A. Belliappa, learned counsel for the accused.

The learned trial Judge on appreciation of evidence of the complainant, accused and DW-1 (father of the accused) has held that complainant has failed to prove the existence of legally recoverable debt. The learned trial Judge has disbelieved the evidence of complainant that on 16.02.2006, accused had borrowed a sum of Rs. 5,50,000/- from the complainant after execution of on demand promissory note (Ex. P2) agreeing to repay the same with interest at the rate of 1.25% per month. The learned trial Judge has disbelieved the evidence of complainant that in order to discharge legally recoverable debt, accused had issued a cheque dated 15.04.2006 for a sum of Rs. 5,50,000/- drawn on Vysya Co-operative Bank Limited, Bangalore.

On hearing learned counsel for the parties and after going through evidence (oral and documentary), I find that following facts have been established on record;

On 04.12.2003, the mother of accused namely Smt. Lakshmimurthy had executed an agreement of sale in favour of the complainant agreeing to sell her property bearing No. 4, situated at Jain Temple Cross road, V.V. Puram, Bangalore, for total consideration of Rs. 50 lakhs. On the same day, she had received from the complainant a sum of Rs. 17 lakhs in cash towards the part of sale consideration. The complainant discovered that the said property had been encumbered by the mother of accused. Therefore, the parties decided rescind from agreement of sale dated 04.12.2003 and entered into deed of cancellation of the agreement on 16.02.2006. In terms of the deed of cancellation dated 16.02.2006, complainant received a sum of Rs. 17 lakhs (advance sale consideration) from the mother of accused and the agreement of sale dated 04.12.2003 was treated as cancelled.

It is the case of the complainant that on 16.02.2006, he had lent a sum of Rs. 5,50,000/- to the accused on his executing on demand promissory note (marked as Ex. P2). It is the case of the complainant, in order to discharge the debt under the promissory note, accused issued a cheque dated 16.02.2006 for a sum of Rs. 5,50,000/- in favour of the complainant.

After going through oral evidence of parties and documents relied upon by the parties, I find that the averments made by complainant and evidence adduced by the complainant would clearly demonstrate that there were differences between the complainant on one side and the mother of the accused and her family members including the accused on the other side. The complainant has admitted that accused was present on the date of cancellation of agreement of sale and return of advance sale consideration. The complainant has adduced evidence to prove that he had lent a sum of Rs. 5,50,000/- to accused on 16.02.2006. The complainant has adduced documentary evidence to prove that on 16.02.2006, the mother of accused repaid a sum of Rs. 17,00,000/- (advance sale consideration) to the complainant and they entered into deed of cancellation for cancellation of agreement of sale dated 04.12.2003. The accused has not disputed that on 16.02.2006 his mother repaid advance sale consideration of Rs. 17,00,000/- to complainant in terms of deed of cancellation of agreement of sale dated 16.02.2006. Therefore, a question would arise, "whether the complainant who had suffered at the hands of mother of the, accused and accused and having received a sum of Rs. 17 lakhs (advance sale consideration) from the mother of accused who had retained the same for over a period of 2 years 3 months without there being relative advantage or benefit to complainant, would again lend money (sum of Rs. 5,50,000/-) to the accused on the same day i.e., on 16.02.2006?".

The answer to this question would depend on the application of test of probabilities to the evidence adduced by the parties.

The complainant had filed P.C.R. No. 34298/2005 (Ex. D3) against the mother of accused on 28.12.2005, inter-alia contending that mother of accused had agreed to sell her property in favour of the complainant for total consideration of Rs. 50 lakhs under agreement of sale dated 04.12.2003, she had received Rs. 17 lakhs as part sale consideration from the complainant and had agreed to receive balance amount of Rs. 33 lakhs at the time of execution of registered sale deed. The house property had been encumbered to Vysya Co-operative Bank Limited. The mother of accused failed to discharge encumbrance by repaying loan of Rs. 20 lakhs to Vysya Co-operative Bank Limited. In the circumstances, there were several discussions between the parties. The complainant agreed to receive from the mother of accused a sum of Rs. 13 lakhs as compensation for breach of contract in addition to sum of Rs. 17 lakhs (advance sale consideration received by her under the agreement of sale dated 04.12.2003). Both parties agreed to cancel the agreement of sale dated 04.12.2003. Accordingly, the mother of the accused issued a cheque dated 26.07.2005 for a sum of Rs. 30 lakhs in favour of the complainant and she also addressed a covering letter dated 26.02.2005 to complainant assuring the complainant that cheque would be honoured without fail. On presentation, the cheque was dishonoured with an endorsement of ''insufficient funds''. Thereafter, complainant issued a legal notice. There was no response from the mother of accused. Therefore, the complainant initiated a complaint (PCR no. 34298/2005) on 28.12.2005 alleging an offence punishable u/s 138 N.I. Act against the mother of accused. On 28.04.2006, the complainant filed a application (Ex. D4) for withdrawal of PCR No. 34298/2005 initiated against the mother of accused, inter-alia stating that subject matter of complaint (PCR No. 34298/2005) has been settled out of court.

Accused has adduced evidence to prove that what was agreed to be paid to the complainant due to cancellation of agreement of sale dated 04.12.2003 was a sum of Rs. 30 lakhs. On 16.02.2006, a sum of Rs. 17 lakhs was paid to the complainant by the mother of accused and they had to pay a sum of Rs. 13 lakhs as balance amount, and in this connection, complainant had obtained blank signed cheque from the accused. The complainant has misused the said cheque to initiate the instant complaint alleging that on 16.02.2006, accused had borrowed a sum of Rs. 5,50,000/- from the complainant on executing on demand promissory note and he also agreed to pay interest at the rate of 1.25% per month and accused in order to discharge the aforesaid debt, had issued a cheque dated 15.04.2006 for a sum of Rs. 5,50,000/- in favour of the complainant.

As could be seen from the legal proceedings that had gone between the complainant and the mother of accused and discussions and settlement that had taken place between the two, and the participation of accused in discussions and settlement, one can safely infer that on 16.02.2006, the complainant and accused were at loggerheads. There was no mutual trust and confidence between them. The complainant has admitted the presence of accused on the date of execution of cancellation of deed of agreement of sale on 16.02.2006. In the circumstances, the case of complainant that he had received a sum of Rs. 17 lakhs (advance sale consideration) from the mother of accused on 16.02.2006 by one hand and on the same day, he lent a sum of Rs. 5,50,000/- to the accused by the other hand looks improbable. It is not a situation where the accused had taken neutral position. The complainant has admitted the presence of the accused on the date of cancellation of agreement of sale dated 16.02.2006. He also admitted that advance sale consideration was paid by the mother of accused to the complainant in the presence of accused. In the circumstances, the evidence adduced by the complainant that he had again lent a sum of Rs. 5,50,000/- to the accused on 16.02.2006 knowing fully well that neither the accused nor his mother was prepared to stand by their words and the mother of accused had committed breach of agreement of sale due to escalation in the price of her property.

The complainant has relied on the opinion of the Handwriting expert CW. 1 Rafi Ulla Baig. He was appointed by the trial court for comparison of admitted signature of the accused on the cheque and disputed signature of the accused on demand promissory note. Accused had filed objection to the opinion furnished by the hand writing expert. Therefore, the handwriting expert was examined before the trial court as CW-1. During cross-examination of CW-1 (Hand writing expert) by learned counsel for the accused, he has admitted that he received phone call regarding the date on which he had to give evidence before the court. He had not received warrant from the court. He has also admitted, in Ex. C1, that he has stated he was grateful to the commission fee. He has admitted that he had not produced the documents regarding existence of the firm wherein he had undergone training to get expertise in comparison of handwriting. CW-1 has deposed Hand Writing Institute India Pvt. Ltd., and Handwriting University USA are private firms. He has admitted that he has not produced documents to show that the firm was affiliated to the above University International USA. He has admitted he has not obtained certificate from Government of India to work as Handwriting expert. He has denied that he is a self proclaimed handwriting expert. He has denied he has given opinion as per Ex. C1 to help the complainant.

The law is fairly well settled that the opinion of the handwriting expert is not decisive on the point. The Court can take the aid from the opinion of the handwriting expert in order to appreciate the substantive evidence adduced before the Court. u/s 73 of the Evidence Act, the Court can compare the admitted and disputed signatures with the aid of the opinion of the handwriting expert.

In the case on hand, the evidence given by the handwriting expert that admitted signature (signature found on the cheque Ex. P3) and the disputed signature (signature found on the promissory note Ex. P2) are of one and the same person, cannot be accepted for the reason that a bare perusal of the signature found on the promissory note and the signature found on the cheque have distinct features. There are visible distinctions. A bare perusal of disputed signature indicates the complete name of the signatory, whereas, admitted signature of accused does not indicate the full name of accused, except for the slight similarity in the first alphabet ''A'' in both the signatures, the remaining part of signatures are dissimilar. In the circumstances, the complainant cannot draw sustenance from the report of the handwriting expert. The learned trial Judge has rejected evidence of handwriting expert and his opinion.

The learned counsel for complainant has relied on the judgment of this Court reported in Smt. Peeranbi Vs. Hajimalang, , to contend that if once it is apparent that the cheque has been issued on the account held by the accused, the presumption u/s 139 is clearly in favour of complainant. The proceedings u/s 138 are not in the nature of suit for recovery of money. The limited scope of these proceedings is whether, there was dishonour of cheque issued by the accused.

The learned counsel for complainant would submit that in these proceedings there need not be roving enquiry to record a finding on existence of legally recoverable debt.

The legal preposition enunciated in the aforesaid judgment cannot be controverted. Nevertheless, the Court has to be satisfied that the complainant has proved essential ingredients of an offence punishable u/s 138 N.I. Act, which includes the proof of existence of legally recoverable debt.

In the discussion made supra, I have adverted to the events that had preceded the issuance of cheque by the accused in favour of the complainant and the transactions which had taken place between the complainant on one side and mother of the accused and the accused on other side. The case put forth by complainant and the evidence adduced by complainant that after cancellation of agreement on 16.02.2006, he had received a sum of Rs. 17 lakhs (advance sale consideration) from the mother of accused, on the same day he lent a sum of Rs. 5,50,000/- to the accused on the accused executing on demand promissory note (Ex. P2) looks highly improbable. In any event, it is not free from reasonable doubt. The complainant has failed to prove the existence of legally recoverable debt. Therefore, the complainant cannot invoke presumption u/s 139 of N.I. Act. There are no reasons to interfere with the impugned judgment. The appeal is dismissed.