Sri G Ramakrishnan vs Sri R Ekambaram
2022 Latest Caselaw 11357 Kant

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   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 12TH DAY OF AUGUST, 2022

                         BEFORE

    THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

           CRIMINAL APPEAL No.132/2012 (A)

BETWEEN:

SRI. G. RAMAKRISHNAN
S/O LATE GOVINDASWAMY
AGED ABOUT 71 YEARS
RESIDING AT NO. K 17/C, 15TH CROSS
LAKSHMINARAYANA PURAM
BANGALORE-560 020
                                              ....APPELLANT
(BY SRI. K. GOVINDARAJ, ADVOCATE FOR
    M/s. P. NEHRU AND ASSOCIATES, ADVOCATE)

AND:

SRI. R. EKAMBARAM
S/O LATE RAMASWAMY
AGED ABOUT 40 YEARS
R/AT NO.8, 5TH CROSS, 7TH MAIN
LAKSHMINARAYANA PURAM
BANGALORE-560 021
                                         .... RESPONDENT
(BY SRI. N. KRISHNAPPAN, ADVOCATE (ABSENT))

     THIS APPEAL IS FILED UNDER SECTION 378(4) OF
CR.P.C. PRAYING     TO SET ASIDE THE ORDER DATED
26.11.2011  PASSED BY     THE XVIII ACMM AND XX ASCJ,
BENGALURU IN C.C. NO.13147/2006 ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 138 OF THE N.I. ACT.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 29.07.2022, COMING ON FOR 'PRONOUNCEMENT
OF JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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                              JUDGMENT

This appeal is filed by the appellant/accused under Section

378(4) of Criminal Procedure Code, 1973 ('Cr.P.C.' for short)

challenging the judgment dated 26.11.2011 passed by the XVIII

ACMM and XX ASCJ, Bengaluru City, in CC No.13147/2006,

whereby he has acquitted the accused/respondent herein for the

offence under Section 138 of the Negotiable Instruments Act,

1881 ('N.I. Act' for shot).

2. For the sake of convenience, the parties herein are

referred with the original ranks occupied by them before the trial

Court.

3. The brief factual matrix leading to the case are that,

in the month of June 2005, the accused had approached the

complainant for hand-loan of Rs.1,35,000/- for his Lathe

business by promising to repay the same by 30.11.2005; that

the complainant had advanced the hand-loan as sought by the

accused and the accused has failed to keep-up his promise. On

demand by the complainant for repayment of loan amount, the

accused has issued a cheque dated 10.12.2005 for a sum of

Rs.1,35,000/- drawn on Federal Bank Limited, Rajajinagar, in

favour of the complainant. When the said cheque was

presented by the complainant through his banker, it was

dishonoured for Insufficient Funds and immediately, the

complainant has issued a legal notice to the accused and though

notice was served on the accused, he did not respond.

According to the complainant, the accused has issued the

cheque towards legally enforceable debt having knowledge that

he had no sufficient funds in his account and hence, it is alleged

that, he has committed offence under Section 138 of the

Negotiable Instruments Act and as such, he filed a private

complaint before the learned Magistrate.

4. After registering the complaint, the sworn statement

was recorded and the learned magistrate found that there are

sufficient grounds to proceed against the accused and hence, he

has taken cognizance of the offence and issued summons to the

accused. The accused appeared in pursuance of the summons

issued to him and was enlarged on bail.

5. The plea under Section 138 of the N.I Act is

recorded against the accused and the same is read-over and

explained to the accused. The accused pleaded not guilty and

claimed to be tried. Then the complainant got examined himself

as PW.1 and he has also placed reliance on Seven documents

marked at Exs.P1 to P7. After conclusion of the evidence of the

complainant, the statement of accused under Section 313 of the

Cr.P.C was recorded to enable him to explain the incriminating

evidence appearing against him in the case of the prosecution.

The accused denied the same and got examined himself as

DW.1 and also got marked Exs.D1 to D3.

6. After perusing the evidence on record and after

hearing the arguments, the learned Magistrate has observed

that the complainant has failed to prove that the cheque was

issued towards legally enforceable debt and hence, he has

acquitted the accused of the offence under Section 138 of the

N.I. Act. Being aggrieved by this judgment of acquittal, the

complainant has filed this appeal.

7. Heard the arguments advanced by the learned

counsel for the appellant/complainant and perused the records.

8. Learned counsel for the appellant/complainant would

contend that the accused has admitted his signature on the

cheque and admittedly the cheque belongs to the accused.

Hence, he would contend that, he is the holder of the cheque in

due course and as such, there is a statutory presumption in his

favour under Sections 118 and 139 of the N.I. Act and the

accused has not rebutted the said presumption. He would also

contend that the accused has taken-up the defence that, he had

transacted with son-in-law of the complainant and cheques were

issued in favour of son-in-law of the complainant, but the same

is not substantiated. It is also argued that accused has not even

replied to the legal notice issued. Hence, he would contend that

the evidence on record clearly establish that the complainant

has discharged his burden and as such, he would argue that the

trial Court has committed an error in acquitting the accused. As

such, he would seek for allowing the appeal by convicting the

accused for the offence under Section 138 of the N.I. Act.

9. Learned counsel for the respondent/accused did not

appear before the Court so as to advance the arguments.

10. After having heard the arguments and perusing the

records, now the following point would arise for my

consideration:-

"Whether the trial Court has erred in acquitting the accused for the offence under Section 138 of the N.I. Act?"

11. As per the case of the complainant, the accused has

availed hand-loan of Rs.1,35,000/- from him and in discharge of

the said debt, a cheque under Ex.P1 came to be issued. There

is no serious dispute of the fact that the cheque belongs to the

accused. Further, the accused has also no disputed his

signature on the cheque. Hence, prima facie there is a statutory

presumption in favour of the complainant under Sections 118

and 139 of the N.I. Act. However, the said presumptions are

rebuttable presumptions. Apart from that, it is also important

to note here that the complainant is required to prove his case

beyond all reasonable doubt. But, however, the accused is not

required to prove his defence on the same principle of beyond

all reasonable doubt. But, he is required to prove his defence

on the basis of preponderance of probabilities. If the accused is

able to create some dent in the case of the complainant, then

the statutory presumption stands rebutted and the burden again

shifts on the complainant.

12. It is the defence of the accused that, he has issued

2 to 3 cheques in favour of one Sri. Vajravelu, who is the son-

in-law of the complainant, as he has availed hand-loan of

Rs.35,000/- from him and he has already paid Rs.10,000/- and

in this context, he placed reliance on Exs.D1 & D2. He would

also contend that, as he was unable to pay the interest and

balance in time, then the land-lord and Sri. Vajravelu have

threatened the accused and hence, he was compelled to lodge a

complaint in this regard. According to accused, with this

vengeance a false complaint came to be lodged by misusing the

cheques issued as security. Further, the accused has

specifically asserted that, he had no transaction with the

complainant and also disputed the financial status of the

complainant to advance such a huge amount.

13. The complainant is examined as PW1 and in his

examination-in-chief, he has reiterated the complaint

allegations. Ex.P1 is the disputed cheque. In the cross-

examination, he admits that he has retired from Government

service in the year 1997 and he has received all his retirement

benefits in the year 1997 itself. He further admitted that, he is

not doing any other work after his retirement. In the instant

case, the alleged transaction as claimed by the complainant is of

2005. The complainant has not produced any Bank Statement

to show his financial status. No doubt, he asserts that he used

to receive rents and his son is also earning and hence, he has

mobilized an amount of Rs.1,35,000/-. But, there is no

evidence as to how many properties are owned by the

complainant and to whom he has let them on rent and what was

the rent received by him. Even his evidence is also silent

regarding his post-retirement pension as on the date of

advancing loan to the accused. Even he has not examined his

son to establish that, his son has financially helped the

complainant in advancing the alleged hand-loan or to prove

financial status of complainant.

14. Very interestingly, in the entire complaint and in the

evidence, the complainant has nowhere asserted the exact date

of advancement of the hand-loan. It is simply asserted that,

there was a demand by accused in June 2005 with a promise to

repay by 30.11.2005. But, as to when exactly the hand-loan

was advanced is not at all forthcoming in the entire complaint or

in the evidence of the complainant. Even in the notice issued,

there is no reference regarding specific date of advancement of

loan. It is to be noted here that the complainant is a retired

Government employee. Though he asserts that his son is

earning and he is getting rent, no material evidence is placed to

substantiate this contention. He has retired from service in

1997 itself and in the year 2005, Rs.1,35,000/- is not a small

amount, that too for a retired Government Employee. Further,

it is hard to accept that this amount is paid without there being

any interest or security document. Further, it is a specific

assertion on the part of the accused that he had never

transacted with the complainant and he had availed hand-loan

of Rs.35,000/- from Vajravelu, the son-in-law of the

complainant and he had already paid Rs.10,000/- under Exs.D1

and D2. These documents are not disputed. To deny these

transactions, the complainant ought to have examined his son-

in-law viz., Vajravelu. But, no such attempt has been made to

examine him. Absolutely there is no material placed by the

complainant to show that he had capacity to pay Rs.1,35,000/-

at a stretch to the accused. Very interestingly, the complainant

claimed that, this amount was paid by cash and his bank

statement is also not produced to show his financial status.

15. The offence under Section 138 of the N.I. Act is

attracted only if the cheque in dispute is being issued towards

legally enforceable debt. In the instant case, though the

complainant has asserted that he had advanced hand-loan of

Rs.1,35,000/-, the evidence discloses that, he has failed to

establish his financial status to advance such a huge amount to

the accused. Further, Ex.D3 discloses that, on behalf of

Vajravelu, notice has been issued to the accused for repayment

of the hand-loan. Though it is asserted that Ex.D3 is a

concocted document, but to substantiate the same, the

complainant ought to have examined his son-in-law Sri.

Vajravelu. But, no attempt has been made. Exs.D1 and D2

establish that some amount is paid to Vajravelu, the son-in-law

of the complainant. Looking to these facts and circumstances, it

is evident that the defence raised by the accused is more

probable than that of complainant, as the complainant has failed

to prove his financial status. Further, it is hard to accept that,

he had advanced such a huge amount without there being any

security or agreement, that too without charging any interest.

Looking to these facts and circumstances, it is evident that the

complainant has failed to substantiate his contention that Ex.P1

was issued in discharge of legally enforceable debt. Non-reply

to the legal notice itself cannot establish the defence or financial

status of the complainant.

16. The learned Magistrate has considered all these

aspects in a proper perspective and he has analysed the oral as

well as documentary evidence in accordance with law and has

arrived at a just decision and thereby acquitted the

accused/respondent herein. No illegality or infirmity is found in

the judgment of acquittal passed by the trial Court.

Considering these facts and circumstances, the point under

consideration is answered in the negative. As such, the appeal

being devoid of any merits, needs to be dismissed. Accordingly,

I proceed to pass the following:-

ORDER

The appeal is dismissed by confirming the Judgment of acquittal dated 26.11.2011 passed by the XVIII ACMM and XX ASCJ, Bengaluru City, in C.C.No.13147/2006.

Sd/-

JUDGE

KGR*