Jagadish vs H V Prabhakara
2022 Latest Caselaw 11358 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.112/2012 (A)

BETWEEN:

JAGADISH
S/O SIDDARAMAPPA
AGED ABOUT 48 YEARS
SPANDANA NILAYA
1ST CROSS, KUMBAR BEEDI
ADLIMANE ROAD, HASSAN
                                              ....APPELLANT
(BY SRI. M. SHARASS CHANDRA, ADVOCATE)

AND:

H.V. PRABHAKARA
S/O LATE VENKATASUBBAIAH
AGED ABOUT 51 YEARS
MAYURA TRADERS AND RASHMI
GAS AGENCIES, RANGOLIHALLA
HASSAN
                                          .... RESPONDENT

(BY SRI. R.B. DESHPANDE, ADVOCATE (ABSENT))

     THIS APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C.
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED
05.12.2011 PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC,
AT HASSAN IN C.C.NO.1545/2006 AND PASS AN ORDER OF
CONVICTION, CONVICTING THE RESPONDENT FOR THE
OFFENCE COMMITTED AND PASS SUCH OTHER ORDERS THIS
HON'BLE COURT DEEMS FIT TO GRANT IN THE FACTS AND
CIRCUMSTANCES OF THE CASE BY ALLOWING THE PETITION.
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     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:
                      JUDGMENT

This is an appeal filed under Section 378(4) of Criminal

Procedure Code, 1973 ('Cr.P.C.' for short) by the

appellant/complainant challenging the judgment of acquittal

passed by the Principal Civil Judge and JMFC at Hassan in CC

No.1545/2006 dated 05.12.2011, whereby the learned Judge has

acquitted the accused/respondent herein for the offence

punishable under Section 138 of the Negotiable Instruments Act,

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

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,

the complainant and accused are well-versed with each other, as

they are friends; that the accused has availed hand-loan of

Rs.8.00 Lakhs from the complainant and towards discharge of

the said debt, he has issued a cheque dated 27.03.2006 in

favour of the complainant. It is the further case of complainant

that, when the complainant has presented the said cheque for

encashment, it was bounced for insufficient funds and

immediately the complainant has got issued a legal notice on

07.04.2006, which was served on the accused, but he did not

respond. Hence, the complainant claims that the accused has

issued a cheque towards legally enforceable debt, having

knowledge that he had no sufficient amount in his account and

thereby he lodged a private complaint.

4. After recording the sworn statement, the learned

Magistrate has taken cognizance and issued summons to the

accused. The accused appeared through his counsel and was

enlarged on bail. The plea under Section 138 of the N.I. Act was

recorded and read-over to the accused and he pleaded not

guilty.

5. The complainant got examined himself as PW.1 and

he has placed reliance on Eight documents marked at Exs. P1 to

P8. Thereafter, the statement of accused under Section 313 of

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

evidence led against him.

6. It was the contention of the accused that he has

issued 3 to 4 cheques in favour of the complainant in respect of

a site purchase transaction and the same have been misused.

However, the accused has not led any evidence.

7. After hearing the arguments and after appreciating

the oral as well as documentary evidence, the learned Magistrate

observed that the complainant has failed to prove that the

cheuqe was issued towards the legally dischargeable debt and

thereby acquitted the accused for the offence under Section 138

of the N.I. Act vide judgment dated 05.12.2011.

8. Being aggrieved by the said judgment, the

complainant has filed this appeal.

9. Heard the arguments advanced by the learned

counsel for the appellant/complainant and perused the records.

10. Learned counsel for the complainant would contend

that the signature on the cheque is admitted by the accused and

admittedly the cheque belongs to the accused and as such, there

is a presumption in favour of the complainant under Section 139

of the N.I. Act. Hence, he would contend that the accused has

failed to rebut the presumption, as he has not led any evidence

and the trial Court has erred in considering the financial status of

the complainant erroneously and acquitting him. Hence, he

would seek for allowing the appeal by setting aside the impugned

judgment of acquittal and sought for convicting the accused/

respondent herein.

11. Though the respondent is represented by his counsel,

the learned counsel for respondent did not appear before the

Court to advance arguments.

12. Having heard the arguments and perusing the

records, now the following point would arise for my

consideration:-

"Whether the trial Court is justified in acquitting the accused/respondent herein for the offence under Section 138 of the N.I. Act?"

13. It is an undisputed fact that the cheque belongs to

the accused and it bears his signature. Hence, prima facie, the

presumption under Section 139 of the N.I. Act is in favour of the

complainant. However, at the same time, it is also important to

note here that the complainant in his entire complaint or in his

legal notice, no where asserted as to when exactly he has

advanced hand-loan of Rs.8.00 Lakhs to the accused. This

assertion is completely missing in the complaint. Even there is

no pleading as to whether the amount was paid by way of cash

or cheque or other mode of transfer. However, first time during

the course of cross-examination, the complainant has claimed

that the amount was paid on 20.10.2005 evening at 5.00 'O'

Clock. But, he admitted that, this fact was not brought to the

notice of his counsel. The complaint allegations and legal notice

are completely silent regarding date of advancement of the

amount.

14. There is no dispute of the fact that the complainant

is the holder of cheque in due course and as such, the

presumption is in his favour under Section 139 of the N.I. Act.

However, if accused raises defence regarding financial capacity

of the complainant to advance such a huge loan, then it was

incumbent on the part of the complainant to prove his financial

status to draw the said presumption. It is important to note

here that in 2005 or 2006 Rs.8.00 Lakhs is a huge amount. It is

also important to note here that the complainant in his

complaint, nowhere asserted the date of advancement of hand-

loan. Further, it is hard to accept that the complainant has

advanced such a huge amount without there being any security

or without claiming any interest. This appears to be very un-

natural. Apart from that, the complainant has not produced any

single document to prove his financial status. No doubt, he has

admitted that he is doing real estate business. It is also elicited

in the evidence that the accused has transacted with him in

respect of purchase of a site. However, the amount of Rs.8.00

Lakhs is a huge amount and the complainant is required to prove

his financial status to advance such a huge amount as a hand-

loan to the accused. He has not produced his bank statement to

show that he was financially sound.

15. Apart from that, in the cross-examination, PW.1 i.e.,

the complainant himself has admitted that, he is facing two

cheque bounce cases and he was prosecuted in this regard. He

admits that, one case is pertaining to cheque bounce of Rs.8.00

Lakhs and another case is also still pending regarding cheque

bounce against him. When the complainant himself is facing

prosecution regarding cheque bounce cases, it is hard to accept

that he could mobilize such a huge amount of Rs.8.00 Lakhs and

advance the same to the accused without any security or without

charging any interest. This behavior of the complainant is un-

natural and cannot be accepted. Though the accused has not

replied the notice, that itself cannot be a ground for drawing an

inference regarding payment of Rs.8.00 Lakhs as hand-loan.

The burden is on the complainant and he has not discharged his

burden to prove that he was financially sound to advance such a

huge amount of Rs.8.00 Lakhs to the accused. Apart from that,

the complainant also admitted in his cross-examination that the

accused has handed-over 3 to 4 cheques to him in respect of

transaction of purchase of a site. This admission goes to the

very root of the case, as admittedly the complainant is in

possession of 3 to 4 cheques issued by the accused. Then it is

for the complainant to explain all these aspects in detail, but the

complainant has not made any attempt to explain all these

aspects. Hence, the complainant has failed to establish his

financial status to advance such a huge amount of Rs.8.00 Lakhs

and as such, the presumption in favour of the complainant

stands rebutted. For rebutting the presumption, the accused

need not to enter into the witness box and he can rebut the

presumption on available records also. In the instant case, the

evidence on record discloses that the presumption available in

favour of the complainant under Section 139 of the N.I. Act,

stands rebutted. No evidence is led by the complainant to

establish his financial status.

16. The learned Magistrate has considered all these

aspects in detail and has appreciated the oral and documentary

evidence in a proper perspective and arrived at a just decision.

The judgment of acquittal passed by the trail Court cannot be

said to be erroneous or illegal so as to call for any interference.

17. Looking to these facts and circumstances, the point

under consideration is answered in the affirmative and as such,

the appeal fails. Accordingly, I proceed to pass the following:-

ORDER

The appeal is dismissed by confirming the Judgment of acquittal dated 05.12.2011 passed by the Principal Civil Judge and JMFC at Hassan, in C.C.No.1545/2006.

Sd/-

JUDGE

KGR*