Mr Shrenik Raj vs Deepak S Sunderarajan
2021 Latest Caselaw 6939 Kant

                            1




 IN THE HIGH COURT OF KARNATAKA AT BENGALURU


      DATED THIS THE 21ST DAY OF DECEMBER, 2021

                       BEFORE:

      THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

          CRIMINAL APPEAL NO.85 OF 2019

BETWEEN

MR.SHRENIK RAJ
S/O MANIKCHAND
R/AT NO.6
BETWEEN 2ND AND 3RD CROSS
LALBAGH ROAD
BANGALORE - 560 027.                    ... APPELLANT

[BY SRI.MAHESHA.P, ADVOCATE]

AND

DEEPAK S.SUNDERARAJAN
R/AT NO.60, SRI KRISHNA NILAYA
RANGA ROA ROAD
SHANKARAPURAM
BASAVANAGUDI
BANGALORE - 560 004.
                                       ...RESPONDENT
[BY SRI.SOMANATHA.H, ADVOCATE]
                        ***
     THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) OF CRPC PRAYING TO SET ASIDE THE JUDGMENT
DATED 11.12.2018 PASSED BY THE XX A.C.M.M. BANGALORE
IN C.C.NO.1921/2016- ACQUITTING THE RESPONDENT/
ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION
138 OF NEGOTIABLE INSTRUMENTS ACT.

     THIS CRIMINAL APPEAL COMING ON FOR ADMISSION
THROUGH PHYSICAL HEARING/VIDEO CONFERENCE, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
                                     2




                              JUDGMENT

Complainant in C.C.No.1921/2016, on the file of XX

Addl. Chief Metropolitan Magistrate, at Bengaluru city has

preferred this appeal, challenging the judgment dated

11.12.2018, acquitting the accused/respondent for the

offence punishable under Section 138 of Negotiable

Instruments Act (hereafter referred to as 'NI Act').

2. Heard both side and perused the material on

record.

3. It is the case of the complainant that he is

running a Call Centre business in the name and style of "Sri

Misri Solutions Private Limited, BTM layout, Bengaluru. The

accused/respondent along with five other persons received

from him a sum of `4,50,000,00/- (Rupees Four crore fifty

lakhs only) on different occasions between the year 2013 and

2014, promising to procure business projects for BPO/ Call

Centre/ Data entry/ Software Development/ Development and

Human resources. Thereafter, the accused failed to procure

the same and thus cheated the complainant. Hence a criminal

case was filed in Crime No.183/2014 at Central Police Station,

Bengaluru. Subsequently, accused approached the

complainant to settle the issue and as per the settlement

issued a cheque bearing No.000001, dated 26.10.2015 drawn

on HDFC Bank, Jayamahal extension, Bengaluru for

`6,000,00/- (Rupees Six lakhs only) towards part payment.

The said cheque when presented to his banker came to be

dishonoured with an endorsement "Payment stopped by

Drawer" on 06.11.2015. Further, the accused gave untenable

reply to the legal notice issued by the complainant and failed

to make payment within the stipulated period of time and

therefore committed an offence punishable under Section 138

of N.I. Act.

4. The accused has denied that there was any

transaction between the complainant and himself and that he

has issued the cheque in question. It is his defence that the

entire allegations are false and at no point of time he

approached the complainant to settle the issue and handed

over the cheque for a sum of rupees `6,000,00/- (Rupees Six

lakhs only). He has stated that infact the police have filed 'B'

report in the criminal case and the same was suppressed by

the complainant. It is his further contention that on

11.07.2014 itself he had intimated to his banker for stopping

the payment of the cheque, since he had lost the cheque in

question.

5. The learned counsel for the appellant has

contended that the cheque belongs to the accused and

signature on the said cheque is also not disputed and

therefore, there is a legal presumption available in favour of

the complainant. It is his contention that the complainant has

not produced any endorsement for having given the

intimation to the banker on 11.07.2014, regarding loss of

cheque. He submits that the accused and five other persons

received a huge amount as mentioned above and admittedly

there was a criminal case registered against them. For the

settlement in the said case, accused approached the

complainant and handed over the cheque for `6,000,00/-

(Rupees Six lakhs only) as part payment. He further contends

that in view of the dishonour of the cheque and failure on the

part of the accused to repay the amount mentioned on the

cheque, he is liable to be convicted under Section 138 of NI

Act.

6. The complainant has examined himself as P.W.1

and got marked Exs.P1 to P5. Accused has been examined as

D.W.1 and got marked Exs. D1 to D4.

7. It is relevant to see that in his evidence, PW-1

has stated that he has given a sum of `6,000,00/- (Rupees

Six lakhs only) to the accused during the year 2013-14. In

another breath, he has stated that to settle the criminal case

in Crime No.183/2014 as a part payment accused had agreed

to pay the sum of `6,000,00/- (Rupees Six lakhs only) to him.

He has admitted that in the criminal case police have filed 'B'

report. He has stated that he gave `6,000,00/- (Rupees Six

lakhs only) between 2013-14 in installments through bank

transfer and cash. However, he has not produced any

material to show that he advanced a sum of `6,000,00/-

(Rupees Six lakhs only) during the year 2013-14 either by

way of bank transfer or cash.

8. The complainant has taken two different stands.

According to him he gave `6,000,00/- (Rupees Six lakhs only)

to the accused between the year 2013-14 in installments

through bank transfer as well as cash. However, at the same

time he has stated that to settle the criminal case registered

against the accused and others, the accused agreed to pay a

sum of `6,000,00/- (Rupees Six lakhs only). It is relevant to

see that in the cross examination P.W.1 has admitted that

one of the accused in the criminal case by name Abhishek Jar

took hand loan from him and the present accused has not

taken any loan.

9. It is the specific case of the complainant that he

had lent an amount of `4,50,000,00/- (Rupees Four crore fifty

lakhs only) to the accused and five others on different

occasions. The trial Court has observed that though the

complainant has admitted that he is an Income Tax assessee,

he has not produced any document to show that he had such

a huge amount during the year 2013-14. Further, the

complainant has stated that to procure the business project,

they had entered into an agreement which was reduced into

writing and he is the custodian of the said agreement.

However, he has not produced the said agreement.

10. The learned counsel for appellant has relied on a

Judgment of the Hon'ble Apex Court in 'Rohit Bai Jeevanlal

Patel v/s State of Gujarat' reported in (2019) SCC 106, to

contend that once the facts warrant the drawing of

presumption under Section 139 of N.I. Act, the onus lies on

the accused to rebut the said presumption and mere denial or

mere creation of doubt would not rebut the presumption

under Section 139 of N.I. Act.

11. In the case on hand, the complainant has failed to

establish the initial burden. On the other hand, the defence

by adducing evidence and also by cross-examining the

complainant has probabilized the defence taken and thus

rebutted the presumption which was available to the

complainant. The trial Court after an over all consideration of

the evidence and material on record has come to the

conclusion that the defence taken by the accused is probable

and the complainant has not proved that the disputed cheque

was issued by the accused towards any legally recoverable

debt. I find no reason to interfere with the judgment of

acquittal passed by the trial Court. Hence, the appeal is

dismissed.

Sd/-

JUDGE GVP