Karnataka High Court
S Raghu vs Smt. Vanaja on 30 July, 2024
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NC: 2024:KHC:30254
CRL.A No. 202 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL APPEAL NO. 202 OF 2013 (A)
BETWEEN:
S. RAGHU
S/O LATE T.V. SUBBARAO
AGED ABOUT 59 YEARS
NO.24/1, GOWRI SHANKAR NILAYA
3RD CROSS, R. KRISHNAPPA LAYOUT
BHUVANESHWARINAGAR
SULTANPALYA MAIN ROAD
R.T. NAGAR POST
BANGALORE - 560 032.
...APPELLANT
Digitally
signed by (BY SRI. R. KUMAR, ADVOCATE)
NANDINI B G
AND:
Location:
high court of SMT. VANAJA
karnataka
W/O B. RAJANNA
AGED ABOUT 37 YEARS
NO.7, 2ND STREET, I CROSS
LINGAPPA BLOCK
H.D DEVEGOWDA ROAD
THIMMAIAH GARDEN
R.T. NAGAR POST, BANGALORE - 32
...RESPONDENT
(BY SRI. SHAHNAWAZ MAMADAPUR, ADVOCATE(VC))
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:21.1.13 PASSED
BY THE XII ACMM, BANGALORE IN C.C.NO.10772/2009 -
ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 138 OF N.I. ACT.
THIS CRIMINAL APPEAL, COMING ON FOR FINAL HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE M G UMA
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NC: 2024:KHC:30254
CRL.A No. 202 of 2013
ORAL JUDGMENT
The complainant in CC No.10772 of 2009 on the file of the learned XII Additional Chief Metropolitan Magistrate, Bengaluru, is impugning the judgment dated 21.01.2013 acquitting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act (for short 'NI Act').
2. For the sake of convenience, the parties shall be referred to as per their rank and status before the Trial Court.
3. Heard Sri R Kumar, learned counsel for the appellant and Sri Shahnawaz Mamadapur, learned counsel for the respondent. Perused the materials including the Trial Court records.
4. Learned counsel for the appellant - complainant submitted that the complainant had lent an amount of Rs.1,50,000/- to the accused during 2006. Towards repayment of the said amount, the cheque - Ex.P1 was issued by the accused on 19.05.2008. When the cheque was presented for encashment, same was dishonored as there is no such account. Legal notice was issued to the accused as per Ex.P3. The same was served on the accused as per the postal acknowledgement -3- NC: 2024:KHC:30254 CRL.A No. 202 of 2013 Ex.P3(a). The accused has issued reply as per Ex.D2 contending that the account in question was closed during December, 2000 and all the remaining cheque leaves were already returned to the Bank and therefore, there is no question of issuing the cheque in question during 2008 or the accused repaying the cheque amount to the complainant.
5. Learned counsel submitted that the complainant examined himself as PW1 and spoken about his contention. During cross examination, it is elicited from PW1 that he was doing electrical contract business and was earning Rs.25,000/- per annum. Nothing has been elicited from the complainant to deny his financial capacity to lend an amount of Rs.1,50,000/-.
6. Learned counsel further submitted that during cross examination, it is suggested that the complainant has taken away the cheque leaf in question, but the same was denied by PW1. Admittedly, no complaint was filed for loss of cheque and it is not stated as to when cheque leaf was stolen by the complainant. Moreover, this defence was not taken while issuing Ex.D2. DW1 has stated that the complainant was also working as a photographer. The accused has not denied the -4- NC: 2024:KHC:30254 CRL.A No. 202 of 2013 financial capacity of the complainant. Therefore, it is clear that the accused has taken the defence about the complainant stealing the cheque - Ex.P1 only during trial and not while issuing Ex.D2. Hence, it is an after thought.
7. Learned counsel submitted that even though the defence that the complainant was not having financial capacity to lend the hand loan was taken, the same is not probablised. On the other hand, the financial capacity of the complainant was substantiated and the signature on the cheque in question is admitted by the accused. Therefore, the presumption under Section 139 of NI Act arises and the accused is liable for conviction. Learned counsel submitted that the Trial Court ignoring all these facts and circumstances and also position of law passed the impugned judgment acquitting of the accused. The same calls for interference by this Court. Accordingly, he prays for allowing the appeal.
8. Per contra, learned counsel for the respondent opposing the appeal submitted that admittedly, the account in question was closed during December, 2000 and according to the complainant, he has lent hand loan during 2006. Nothing -5- NC: 2024:KHC:30254 CRL.A No. 202 of 2013 has been placed before the Court to probablise the same. It is the contention of the complainant that the cheque in question was issued on 19.05.2008 i.e., 8 years after the closure of bank account which is most improbable to be accepted.
9. Learned counsel submitted that during cross examination of PW1, he has stated that his income during 2006 was only Rs.25,000/- per annum. Under such circumstances, the complainant lending huge amount of Rs.1,50,000/- to the accused is most improbable. The complainant admits that he used to assist the accused in her milk vending business, which is also improbable. He states that the complainant has stolen the cheque without notice of the accused. When the complainant has not proved lending of the amount and also issuance of cheque towards discharge of legally recoverable debt, the presumption under Section 139 of NI Act cannot be raised. The Trial Court was right in holding that the complainant has not proved the guilt of the accused for the offence punishable under Section 138 of NI Act. There are no reasons to interfere with the impugned judgment of acquittal. Accordingly, he prays for dismissal of the appeal. -6-
NC: 2024:KHC:30254 CRL.A No. 202 of 2013
10. In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is:
"Whether the appellant has made out any grounds for allowing 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 'Affirmative' for the following:
REASONS
11. It is the contention of the complainant that he was having acquaintance with the accused since several years, which is not in dispute. It is the further contention of the complainant that during 2006, he had lent an amount of Rs.1,50,000/- to the accused, which is denied by him. It is the further contention of the complainant that on 19.05.2008, the accused had issued the cheque as per Ex.P1 towards discharge of legally recoverable debt. This fact is also denied by the accused. However, the cheque in question and the signature found therein are not denied by the accused. When the cheque
- Ex.P1 was presented for encashment, the same was -7- NC: 2024:KHC:30254 CRL.A No. 202 of 2013 dishonored as per endorsement Ex.P2 stating that the account is closed.
12. Now it is the contention of the complainant that the accused knowing fully well about the closure of account had issued the cheque with an intention to cheat the complainant and has committed the offence punishable under Section 138 of NI Act. However, it is the contention of the accused that the cheque in question was stolen by the complainant and presented the same for encashment about 8 years after closure of the account.
13. Even though it is contended by the accused that the complainant was not having financial capacity to lend Rs.1,50,000/-, the complainant who is examined as PW1 has stated that he was doing electrical contract business. During cross examination, it is elicited from the witness that he was having income of Rs.25,000/- per annum during 2006. There is no further cross examination to deny the financial capacity of the complainant.
14. It is pertinent to note that after receipt of legal notice issued by the complainant as per Ex.P3, the accused has -8- NC: 2024:KHC:30254 CRL.A No. 202 of 2013 issued reply as per Ex.D2. It is only at that point of time, the accused has taken a defence in Ex.D2 that the account in question was closed in December 2000 and the cheques leaves in question were already returned to the Bank. But however, during cross examination, an attempt was made to contend that the cheque leaf in question was stolen by the complainant and presented for encashment. Conspicuously, the said defence was never taken while issuing Ex.D2. Hence, the defence taken by the accused prima facie cannot be accepted. It is pertinent to note that the cheque leaf and the signature on the cheque - Ex.P1 are admitted. The presumption under Section 139 of NI Act arise in favour of the complainant when the accused has failed to probabalise his defence. Even after looking to the evidence and the documents produced before the Court, it cannot be said that the accused has probabalised his defence.
15. In this regard, learned counsel for the complainant has placed reliance on the decision of the Hon'ble Apex Court in 1 M/s Kalamani Tex and another Vs P Balasubramanian , 1 (2021) 5 SCC 283 -9- NC: 2024:KHC:30254 CRL.A No. 202 of 2013 wherein, the Hon'ble Apex Court referred to its various decisions and held in paragraphs 15 and 17 as under:
"15. No doubt, and as correctly argued by Senior Counsel for the appellants, the presumptions raised under Sections 118 and Section 139 are rebuttable in nature. As held in M.S. Narayana Menon v. State of Kerala, which was relied upon in Basalingappa, a probable defence needs to be raised, which must meet the standard of "preponderance of probability", and not mere possibility. These principles were also affirmed in Kumar Exports, wherein it was further held that a bare denial of passing of consideration would not aid the case of accused.
17. Even if we take the arguments raised by the appellants at face value that only a blank cheque and signed blank stamp papers were given to the respondent, yet the statutory presumption cannot be obliterated. It is useful to cite Bir Singh v. Mukesh Kumar, where this court held that:
"36. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent
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NC: 2024:KHC:30254 CRL.A No. 202 of 2013 evidence to show that the cheque was not issued in discharge of a debt."
(emphasis supplied)
16. In view of the above, position of law is very well settled and the burden is on the accused to rebut the presumption under Section 139 of NI Act. Even though the standard of proof required to rebut the presumption is only a preponderance of probabilities, the accused is not successful in probablising his defence. Under such circumstances, is to be held that the complainant is successful in proving the guilt of the accused beyond reasonable doubt and therefore the accused is liable for conviction.
17. I have gone through the impugned judgment of acquittal passed by the Trial Court. It has not taken into consideration all these facts and circumstances and also the position of law while acquitting the accused. Therefore, I am of the opinion that the impugned judgment of acquittal passed by the Trial Court is required to be set aside. Accordingly, I answer the above point in the affirmative.
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NC: 2024:KHC:30254 CRL.A No. 202 of 2013 ORDER REGARDING SENTENCE Dated: 31.07.2024 Heard learned counsel appearing for the complainant and the learned counsel appearing for the accused. The accused is also physically present before the Court.
Learned counsel appearing for the accused submits that the accused is a lady aged about 48 years without any independent income. Hence, prays for maximum leniency in awarding sentence. Learned counsel has placed reliance on the decision of the Hon'ble Apex Court in the case of Damodar S.Prabhu v. Sayed Babalak H.2, wherein, it is held that "the complainant's interest lies primarily in recovering the money rather than seeing the drawer of the cheque in jail". Hence, he prays for imposition of reasonable fine without imposing sentence to undergo any imprisonment.
Per contra, learned counsel appearing for the appellant submitted that the complainant is also an aged person without any avocation or income at present. He was made to suffer for 16 long years for having accepted the cheque issued by the 2 (2010) 5 SCC 663
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NC: 2024:KHC:30254 CRL.A No. 202 of 2013 respondent and therefore prays that maximum sentence to be imposed.
Considering the contentions of learned counsel for both the parties and in the light of the facts and circumstances, I am of the opinion that imposition of sentence to undergo imprisonment to the respondent may work out very harsh as she is a lady aged 48 years and therefore only fine could be imposed with default sentence of imprisonment.
Hence, I proceed to pass the following:
ORDER
(i) The Criminal Appeal is allowed.
(ii) The judgment dated 21.01.2013 passed in CC No.10772 of 2009 on the file of the learned XII Additional Chief Metropolitan Magistrate, Bengaluru is hereby set aside.
(iii) Consequently, the accused is convicted for the offence punishable under Section 138 of NI Act and she is sentenced to pay a fine amount of Rs.2,25,000/- (Rupees Two Lakhs Twenty Five Thousand only) to the complainant within
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NC: 2024:KHC:30254 CRL.A No. 202 of 2013 four weeks, failing which, the accused shall undergo simple imprisonment for a period of one year.
Sd/-
(M G UMA) JUDGE *BGN & GVP CT:VS List No.: 2 Sl No.: 26