G M Nanjunda vs Ankaraju S/O Channaiah
2022 Latest Caselaw 3073 Kant

                                          CRL.A.No.862/2011

                            1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 23RD DAY OF FEBRUARY 2022

                        BEFORE

       THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

         CRIMINAL APPEAL NO.862/2011
BETWEEN:

G.M.NANJUNDA
S/O MADAPPA
AGE: 45 YEARS
OCC: CIVIL CONTRACTOR
R/O SARASWATHI NAGAR
'A' BLOCK, NITUVALLI
DAVANAGERE                                 ...APPELLANT

(BY SRI.BASAVARAJ R BANNUR, ADV.)

AND:

ANKARAJU
S/O CHANNAIAH
AGE: 61 YEARS
LINEMAN MECHANIC (RETIRED)
R/O D.NO.9192-A, 7TH CROSS
K.B.EXTENSION, DAVANAGERE                 ...RESPONDENT

(BY SRI.D.P.MAHESH, ADV.)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF THE CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED
15.07.2011 PASSED BY THE II ADDITIONAL SESSIONS JUDGE,
DAVANAGERE     IN   CRL.A.NO.178/2010-ACQUITTING    THE
RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 138 OF N.I. ACT AND BY CONFIRMING THE
ORDER DATED 29.11.2010 PASSED BY THE J.M.F.C.-II,
DAVANAGERE IN C.C.NO.1411/2009.
                                                CRL.A.No.862/2011

                               2


     THIS CRIMINAL APPEAL COMING ON FOR DICTATION
THIS DAY, THE COURT THROUGH VIDEO CONFERENCE
DELIVERED THE FOLLOWING:


                         JUDGMENT

Aggrieved by the order of acquittal passed by the

First Appellate Court in favour of the respondent-accused,

the complainant in C.C.No.1411/2009 on the file of the

Judicial Magistrate First Class II Court, Davanagere has

preferred the above appeal.

2. The respondent was the accused and the

appellant was the complainant before the trial Court. For

the purpose of the convenience parties will be referred to

according to their ranks before the trial Court.

3. The accused was working as a lineman in KEB

in Davanagere. The complainant presented the cheque

Ex.P1 purportedly dated 21.11.2008 for a sum of

Rs.1,50,000/- drawn on the account of the accused in

Canara Bank P.J. extension Davanagere. As per the

banker's memos Ex.P2 to 4 dated 22.11.2008 the said

cheque was dishonored for want of sufficient funds.

CRL.A.No.862/2011

4. The complainant got issued statutory notice to

accused informing him about dishonor of the cheque and

calling upon him to pay the cheque amount. During trial

notice was not marked and Ex.P8 is Postal

Acknowledgment for having served notice. The accused did

not dispute the service of notice and he did not reply that

notice. But he did not pay the money. Therefore the

complainant filed complaint before the trial Court on

29.04.2009 in PCR No. 236/2009 seeking prosecution of

the accused for the offence punishable under Section 138,

149 of Negotiable Instrument Act, 1881 ('N.I.Act' for

short) and Section 420 of IPC.

5. The trial Court summoned the accused. On his

appearance accused disputed the substance of accusation.

Therefore the trial was conducted. In support of his case,

complainant got himself examined as PW.1 and got

marked Exs.P1 to P8. After 313 Cr.PC statement accused

got himself examined as DW.1. On his behalf Exs.D1 to D3

were marked.

CRL.A.No.862/2011

6. The defence of the accused was that of total

denial of issuance of cheque on 21.11.2008. He claimed

that he had borrowed sum of Rs.1 lakh on 06.09.2000 and

repaid the same on 2003. He further claimed that after

clearing the first loan he borrowed one lakh on

21.11.2003. He further claimed that towards security for

repayment of the said loans, in the first instance

complainant had taken Demand Promissory Note and at

the second instance he had taken promissory note and

cheque. He alleged that the complainant without returning

those original documents misused the cheque and has filed

false case.

7. The trial Court on hearing the parties by the

impugned order dated 29.11.2010 convicted the accused

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

and sentenced him to pay fine of Rs.2,000/- and awarded

compensation of Rs.1,50,000/- to the complainant on the

following grounds:

i) Since accused admitted his signature on the

cheque and that cheque pertains to his account, the CRL.A.No.862/2011

presumption under Section 139 of N.I. Act that cheque

was issued towards discharge of legally recoverable debt

or liability arises.

ii) The accused has not rebutted the said

presumption.

iii) The case of the accused is that he has repaid

Rs.1,80,000/- is unacceptable.

iv) Ex.D3 does not say that the amount

transferred to the account of complainant. That only shows

withdrawal by the accused himself.

8. Challenging the order of conviction and

sentence, the accused filed Criminal Appeal No.178/2010

before the II Additional Sessions Judge, Davanagere.

Questioning the adequacy of the sentence, the

complainant filed Criminal Revision Petition No.27/2011

before the same Court.

9. The Sessions Court on hearing the parties by

the impugned judgment and order allowed the appeal of CRL.A.No.862/2011

the accused and dismissed the Revision Petition of the

complainant on the following grounds:

i) The complainant failed to discharge his initial

burden of proof that cheque was issued by the accused.

ii) There was material alteration with regard to

the year of the cheque and that was also not explained.

iii) The evidence of complainant himself shows

that the contents of the cheques were not written by the

accused.

iv) The evidence of complainant itself shows that

the complainant was in the habit of taking Demand

Promissory Notes as security and had not returned to them

after repayment of the loan. That probabilized the defence

of the accused that Ex.P1 was received by the complainant

for loan in 2003 and that was misused.

v) On examining Ex.P1 exercising the power

under Section 73 of the Indian Evidence Act, 1872 it is

found that the year mentioned in the cheque is altered.

CRL.A.No.862/2011

vii) Lending a sum of Rs.1,50,000/- in cash was

contrary to Section 269 of Income Tax Act and no material

was produced in proof of such lending.

Submissions of Sri Basavaraj.R.Bannur, learned

Counsel for the appellant :

10. Once the signature on the cheque and that

cheque pertaining to the account of the accused are

admitted, the Court is bound to raise the presumption

under Sections 118 and 139 of N.I. Act. The burden is on

the accused to rebut the presumption by probable defence.

The accused did not reply the notice denying the execution

of cheque nor initiated any proceedings for alteration of

the cheque. Therefore the Sessions Court was not justified

in holding that presumption was rebutted. When the

accused himself did not seek the reference of the cheque

for Hand Writing Expert's opinion to prove the allegation of

alteration of the cheque, the trial Court was not justified in

invoking Section 73 of the Indian Evidence Act. Exs.D1 and CRL.A.No.862/2011

D2 being Xerox copies, the trial Court could not have relied

on that.

11. In support of his submissions he relied on the

following judgments:

1. Hiten P.Dalal Vs. Bratindranath Banerjee1

2. Bir Singh Vs. Mukesh Kumar2

3. Rohitbha Jivanlal Patel Vs. State of Gujarat and Another3

4. Uttam Ram Vs. Devinder Singh Hudan4

Submissions of Sri D.P.Mahesh, learned Counsel for the accused-respondent :

12. The burden of proving that cheque was issued

towards discharge of liability was on the complainant. The

complainant himself during the course of cross-

examination admitted that except for signing, the accused

did not know reading and writing. He also admitted that he

has not instructed his counsel that the contents of Ex.P1

was filled up by the accused. Under such circumstances,

(2001)6 SCC 16

(2019) 4 SCC 197

AIR 2019 SC 1876

Criminal Appeal No.1545/2019 Date of Disposal 17.10.2019 CRL.A.No.862/2011

the initial burden of issuance of cheque on 21.11.2008 was

not discharged. The accused probabilized his defence that

the complainant had collected the cheque as security for

earlier loan. The complainant himself admitted that earlier

loan was discharged, thereby the defence of the accused

that the cheque taken on the earlier occasion was misused

was probabilized. Thereafter the complainant did not

discharge the reverse burden that he had lent the loan of

Rs.1,50,000/- in 2004 and cheque was taken by that time.

The contention that debt was taken in the year 2004 and

after four years post dated cheque was issued creates

doubt. The trial Court did not notice all those things. The

First Appellant Court on re-appreciation of the evidence,

considering the legal aspects has rightly acquitted the

accused and the said order does not call for interference of

this Court.

13. In support of his submissions he relies upon

the following judgments:

1. Triyambak S.Hegde vs. Sripad 5

2021 SCC Online SC 788 CRL.A.No.862/2011

2. Rangappa Vs. Sri Mohan6

3. H.T.Kenchegowda Vs. S.D.Umesh7

14. Having regard to the rival submissions, the

question that arises for consideration is, "Whether the

impugned order of acquittal passed by the First Appellate

Court is sustainable in law?".

15. Before considering the facts of the case, it is

necessary to examine the legal position regarding the

offence punishable under Section 138 of the NI Act. As per

Section 138 of the NI Act, a person can be prosecuted and

convicted for the offence of cheating, if any cheque drawn

by him towards the discharge of any debt or any other

liability is returned unpaid for want of sufficient funds and

if he fails to pay the said amount within 15 days from the

date of receipt of notice as contemplated under Section

138(b) of the N.I.Act.

(2010)11 SCC 441

Criminal Appeal NO.1040/2010 Date of Disposal 23.04.2019 CRL.A.No.862/2011

16. Though both side relied on several of

judgments referred to above, the ratio in the said

judgments is as follows:

(i) The initial burden of establishing the issuance

of cheque is on the complainant. The complainant

discharges the said initial burden, if accused admits his

signature on the cheque and that cheque pertains to his

account. The Court has to draw the presumption under

Section 118 of the NI Act that cheque was issued for

consideration. The Court has to further draw the

presumption under Section 139 of the NI Act that the

cheque was issued for discharge of any debt or any other

liability.

ii) The presumptions under Sections 118 and 139

of the NI Act are rebuttable presumption.

iii) On raising such presumptions the accused has

to rebut such presumption by probable defence. The

burden of rebutting the presumption on the accused is not

as strict as on the complainant. Mere denial or plausible CRL.A.No.862/2011

explanations are not sufficient. The accused has to

probabilize the defence by placing such material which is

acceptable by a man of ordinary prudence.

iv) The accused can probabilize his defence by

leading his evidence. In exceptional cases he can

demonstrate by the evidence of complainant itself.

v) If once accused rebuts the presumption,

burden reverses to the complainant. Then complainant has

to discharge the burden of proof that cheque was issued

for money lent by him. He has to prove that the accused

has borrowed the loan.

17. It is no doubt true that accused admitted his

signature on Ex.P1 and Ex.P1 pertains to his account. The

complainant in his complaint alleged that the accused

borrowed a sum of Rs.1,50,000/- in December 2004 for

the purpose of his daughter's marriage expenses and

family necessity, assuring to return the same within two

years with interest at the rate of 2% per month. He further

claimed that towards discharge of said loan the accused

issued the cheque dated 21.11.2008 i.e. Ex.P1.

CRL.A.No.862/2011

18. At this juncture, first doubt that arises is, if

assurance to return the loan was within two years, why the

cheque was taken with time gap of four years. It is no

doubt true that the accused did not reply to the notice.

However, that will not exonerate the complainant of his

initial burden of proving that cheque Ex.P1 dated

21.11.2008 was issued for the loan of 2004.

PW.1/complainant in his cross-examination unequivocally

admits that except subscribing his signature accused does

not know reading and writing.

19. PW1 further states that he does not know who

filled up the contents of Ex.P1 namely name, figures and

sums. He further states that he did not tell his counsel that

the date 21.11.2008 on the cheque was written by the

accused. When he was questioned why he took the cheque

of 2008 for loan in 2004, he said that accused was going

to retire in October 2008, therefore he took the cheque

with such long time gap. He admits that the accused did

not retire in October 2008.

CRL.A.No.862/2011

20. It was said that the accused borrowed the loan

for marriage expenses for his daughter. Complainant says

that he does not know when the marriage was performed.

He admits that accused had borrowed the loan in 2000 and

repaid the same in 2003. He also admits that the loan

borrowed by the accused in 2003 was also repaid. Exs.D1

and 2 are the Xerox Copies of Promissory Notes. When

they were confronted to PW.1, he admitted the said

documents, therefore those documents stood proved as

per Section 58 of Indian Evidence Act.

21. As per Section 65B of the Indian Evidence Act

the secondary evidence may be admitted when the

existing condition and contents of the original are admitted

by the person against whom the same sought to be

proved. In view of Section 65B and Section 58 of the

Indian Evidence Act there is no merit in the contention that

Exs.D1 and 2 were improperly admitted in the evidence.

22. The initial burden of issuance of cheque itself

was not satisfactorily discharged. Even if it is assumed that CRL.A.No.862/2011

the presumption under Section 118 and 139 of the NI Act

arises, then the question is whether the accused rebutted

the said presumption.

23. The defence of the accused was that for his

earlier two loans the complainant had taken demand

promissory notes as per Exs.D.1 and 2 and for the second

loan in addition to the demand promissory note he had

taken blank cheque Ex.P1. It is his further defence that

misusing the said cheque, complainant filled up the

contents of the same and filed false complaint. It is his

further defence that cheque taken for the year 2003 was

altered as 2008.

24. It is the defence of the accused that the

complainant has not returned the original of Exs.D.1 and

2. In the ordinary course original Exs.D.1 and 2 shall be

with the complainant. The accused in his chief-examination

stated that the original of Exs.D1 and 2 are with the

complainant. In the cross-examination the said statement

was not controverted. It has to be said that the CRL.A.No.862/2011

complainant admitted the earlier two transactions under

Exs.D.1 and 2. Ex.D1 is dated 06.09.2000 and Ex.D.2 is

dated 21.11.2003.

25. Under the aforesaid facts and circumstance it

was for the complainant to explain why for the loan of

2004 he took the cheque for the year 2008. The other

explanation of the complainant is that accused was due to

retire in 2008, therefore he collected the cheque for the

year 2008. That was also not acceptable as accused did

not retire in 2008. Having regard to the said glaring

inconsistency and admission of the complainant about the

accused not filling any contents of the cheque, in the

considered opinion of this Court there was no need for the

First Appellate Court to resort to Section 73 of the Indian

Evidence Act to compare or examine Ex.P1 to find out

whether it was written in 2003 or in 2008.

26. The other circumstances which create doubt is

that the cheque was allegedly issued in 2004. The

contents of the cheque Ex.P1 the seal are dated CRL.A.No.862/2011

21.11.2008. It is not the case of the complainant that the

accused was using the seal. Then he has to explain, who

put that impression/seal on the cheque. The contention of

the counsel for the accused is that to bring the date of

hand writing mentioned in the cheque in conformity with

his complaint, seal of the date is put.

27. In the light of the aforesaid facts and

circumstance, suffice to say that the accused rebutted the

presumption and probabilized his defence by leading

cogent evidence and by the admissions of the complainant

himself. Therefore the accused rebutted such

presumptions. The complainant failed to discharge his

burden that the cheque was issued for legally by

recoverable debt. In APS Forex Services Private Limited

Vs. Shakti International Fashion Linkers and others8, the

Hon'ble supreme Court held that on the accused rebutting

the presumption onus shifts again to the complainant and

(2020)2 SCC 724 CRL.A.No.862/2011

he has to prove the lending of the loan more particularly

when it is case of loan by cash.

28. The complainant himself admitted that earlier

two loans of accused were discharged. On the earlier two

occasions he had taken demand promissory notes. There

was no evidence to show that the cash of Rs.1,50,000/-

was paid to the accused in 2004. Thereby the First

Appellate Court was justified in holding that the

complainant failed to discharge his reverse burden. This

Court does not find any illegality in the impugned order.

The appeal is dismissed.

Sd/-

JUDGE

PKN