Sri Jagannatha R vs Sri P Venkata Rao
2022 Latest Caselaw 3397 Kant

                           1


   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 28TH DAY OF FEBRUARY, 2022

                        BEFORE

    THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

             CRIMINAL APPEAL No.1259/2011
BETWEEN:

SRI. JAGANNATHA .R
S/O LATE RAMACHANDRA
AGED 51 YEARS
RESIDING AT JAGANNATHA PROVISION STORES
HONGASANDRA, NEAR AYYAPPA TEMPLE
GARVEBHAVIPALYA ROAD
BANGALORE-560 068
                                            ....APPELLANT
(BY SRI. JAGADEESHACHARI, ADVOCATE)

AND:

SRI. P. VENKATA RAO
SRINIDHI BRICKS/SUPRIYA POULTRY FARM
GATTAHALLI VILLAGE, HUSKUR POST
SARJAPURA HOBLI, ANEKAL TALUK
BANGALORE DISTRICT
                                         .... RESPONDENT

(BY SRI. V.B. SIDDARAMAIAH, ADVOCATE)

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)
OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DT: 19.10.2011
PASSED BY THE XVIII ACMM AND XX ASCJ., BANGALORE IN
C.C.NO.35709/2006-ACQUITTING THE RESPONDENT/ACCUSED
FOR THE OFFENCE P/U/S 138 OF N.I.ACT.
                                  2


     THIS CRIMINAL APPEAL HAVING BEEN HEARD    AND
RESERVED FOR JUDGMENT ON 17.02.2022, COMING ON FOR
'PRONOUNCEMENT JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:

                            JUDGMENT

This appeal is filed by the complainant/appellant under

Section 378(4) of Cr.P.C. against the judgment and order of

acquittal passed by the XVIII ACMM and XX Additional

Small Causes Judge, Bengaluru in C.C.No.35709/2006

dated 19.10.2011, whereby the learned magistrate has

acquitted the accused/respondent for the offence

punishable under Section 138 of NI Act.

2. For the sake of convenience parties herein are

referred to their original ranks occupied by them before the

trial Court.

3. The brief factual matrix leading to the case are

as under:

That in the month of February, 2006 accused availed a

hand loan of Rs.1,30,000/- from the complainant for

business purpose. In discharge of the said loan, the

accused has issued two cheques dated 08.08.2006 for

Rs.1,00,000/- and Rs.30,000/-respectively. The

complainant has presented the said cheques on the same

day through his banker and the cheques were returned

unpaid with an endorsement as 'funds insufficient' on

12.08.2006. When the complainant has issued a legal

notice through registered post the same was returned as

'refused'. However, the legal notice sent under the UCP was

served on the accused. As accused has neither replied nor

paid the cheque amount, the complainant has filed the

complaint.

4. After taking cognizance the learned magistrate

has recorded the sworn statement and as there are

sufficient grounds to proceed against the accused, he has

issued process against the accused. The accused has

appeared through his counsel and was enlarged on bail.

5. Then the accusation under Section 138 of NI Act

was read over and explained to accused and he pleaded not

guilty. To prove the guilt of the accused, the complainant

got examined himself as Pw.1 and has also placed reliance

on 10 documents marked at Exs.P1 to P10. Thereafter the

statement of accused under Section 313 of Cr.P.C. is

recorded to enable the accused to explain the incriminating

evidence appearing against him in the case of the

prosecution. The case of the accused is of total denial and

he did not lead any evidence.

6. Having heard the arguments and appreciating

the evidence on record, learned magistrate came to a

conclusion that complainant has failed to establish the

ingredients of the offence and advancement of the loan as

alleged and thereby acquitted him of the charges. Against

this judgment of acquittal, the appellant/complainant has

filed this appeal.

7. Heard the arguments advanced by both the

parties and perused the records of the trial Court.

8. Learned counsel for the appellant would submit

that the trial Court has gravely erred in acquitting the

accused, though the signature on the cheque is admitted

without drawing presumption in favour of the complainant.

He would contend that loan was availed in February, 2006

and cheques were issued on 08.08.2006 and when they

were presented they returned with endorsement as

'insufficient of funds'. He would also contend that legal

notice issued by registered post was returned as 'refused'

and accused has also not lead any defence evidence to

rebut the presumption in favour of the complainant. Since

the cheque and signature have been admitted the learned

magistrate has committed an error in acquitting the

accused. Hence, he has sought for allowing the appeal by

setting aside the impugned judgment of acquittal and

prayed for convicting the accused.

9. Per contra the learned counsel for respondent-

accused would contend that the cheque and signature were

not admitted and the accused has also not admitted receipt

of the money. He would further contend that capacity to

pay amount is not established and the learned magistrate

has appreciated the material evidence in proper perspective

and as such he would contend that the learned magistrate

was justified in acquitting the accused. As such he would

claim that the judgment of acquittal does not call for any

interference and sought for dismissal of appeal.

10. Having heard the arguments and perusing the

evidence on record, it is evident that the complainant is

asserting that he had advanced hand loan of Rs.1,30,000/-

to the complainant in February, 2006. At the outset, it is to

be noted here that in 2006, Rs.1,30,000/- is a huge

amount. Further the complainant has not disclosed any

specific date of advancement of loan and it is simply

asserted that loan was advanced in the month of February,

2006. On perusal of the allegations made in the complaint

as well as in the legal notice, it goes to show that the loan

was advanced at a time.

11. The complainant was examined as Pw.1 and in

his examination in chief he has reiterated the complaint

allegations. However, in the cross examination he has

stated that on earlier occasions also he had advanced loan

of Rs.20,000/-, Rs.10,000/- and Rs.3,000/- etc., to the

accused and same was repaid. But this fact was never

asserted in the complaint and no material evidence is

forthcoming in this regard.

12. Apart from that in his cross examination dated

28.08.2009 at page No.4 the complainant has given a

different version that in February, 2006 he paid

Rs.1,00,000/- to the accused and later again subsequently

he paid Rs.30,000/-. This part of the cross examination

reads as under:

"5 CxÀªÁ 6 ªÀµÀðUÀ½AzÀ £À£ÀUÉ DgÉÆæAiÀÄ ¥ÀjZÀAiÀÄ«zÉ. DgÉÆæAiÀÄ PÉÆý ¸ÁPÁuÉPÉ PÉ®¸ÀªÀ£ÀÄß ªÀiÁqÀÄwÛzÁÝ£É. £À£Àß CAUÀr ¥ÀPÀÌzÀ°è MAzÀÄ PÉÆý CAUÀr EvÀÄÛ, C°è DgÉÆæAiÀÄÄ §gÀÄwÛzÀÝ£ÀÄ, CzÀjAzÀ £À£ÀUÉ DgÉÆæAiÀÄ ¥ÀjZÀAiÀÄ DVzÉ. ªÉÆzÀ®Ä DgÉÆæAiÀÄÄ £À¤ßAzÀ 20,000/- 10,000/- 3,000/- gÀÆ¥Á¬Ä, F jÃwAiÀiÁV ¸Á®ªÀ£ÀÄß ¥ÀqÉAiÀÄÄwÛzÀÝ£ÀÄ. £Á£ÀÄ ªÀÄÄAZÉ PÉÆlÖ, ¸Á®ªÀ£ÀÄß DgÉÆæAiÀÄÄ £À£ÀUÉ wÃgÀĪÀ½ ªÀiÁrzÁÝ£É. DªÉÄÃ¯É ¥sɧæªÀj 2006gÀ°è DgÉÆæAiÀÄÄ £À£Àß PÀqɬÄAzÀ MAzÀÄ ®PÀë gÀÆ¥Á¬Ä ¸Á®ªÀ£ÀÄß ¥ÀqÉzÀÄPÉÆAqÀ£ÀÄ. DªÉÄÃ¯É ªÀÄvÉÆÛªÉÄä 30,000/- gÀÆ¥Á¬Ä ¸Á®ªÀ£ÀÄß £À£Àß PÀqɬÄAzÀ DgÉÆæAiÀÄ ¥ÀqÉzÀÄPÉÆAqÀ£ÀÄ. PÉÆý ¸ÁPÁuÉPÉAiÀÄ ªÁå¥ÁgÀzÀ ¸À®ÄªÁV ¸ÀzÀj ¸Á®ªÀ£ÀÄß DgÉÆæAiÀÄÄ £À£Àß PÀqɬÄAzÀ ¥ÀqÉzÀÄPÉÆAqÀ£ÀÄ. ¢£ÁAPÀ:8-8-2006gÀAzÀÄ DgÉÆæAiÀÄÄ £À£ÀUÉ ZÉPï£ÀÄß PÉÆnÖzÁÝ£É."

(underlined by me)

13. But all along the complainant has specifically

asserted that he paid the amount at one stretch to the tune

of Rs.1,30,000/- but his cross examination speaks a

different story of payment in installments of Rs.1,00,000/-

and Rs.30,000/-.

14. Very interestingly again in subsequent cross

examination at page No.6, Pw.1 claimed that in February

2006, he paid Rs.1,30,000/- in one installment to the

accused. These stands taken by the complainant are

inconsistent. At first instance he did not disclose the date of

advancement of loan. Further he is not sure whether he had

advanced the loan in installment or at one stretch.

15. As observed above Rs.1,30,000/- is a huge

amount. The complainant is required to establish that he

had such a amount during relevant period. However, in his

cross examination on page No.6 complainant deposed in

one breath that he had Rs.1,30,000/- cash with him but

again he deposed that he was possessing some amount and

he pledged the golden ornaments of his brother and availed

loan and advanced hand loan of Rs.1,30,000/- to the

accused. In further cross examination at page No.7 the

complainant claimed that after advancement of hand loan

of Rs.1,30,000/- one month later accused has issued a

cheque, but the complaint allegations are entirely different

as it is alleged that Rs.1,30,000/- was advanced in

February 2006 and on 08.08.2006 cheque came to be

issued i.e., after 6 months. These stands are completely

inconsistent and contrary. Further the complainant has not

produced any document to show that he has pledged the

golden articles belonging to his brother for availment of

loan. There is no pleading as to how much loan he has

availed and how much he has personally contributed.

Further what was the need for the complainant for

advancing the huge loan of Rs.1,30,000/- to accused

without charging interest and that too by pledging golden

articles of his brother is not forthcoming. It is hard to

accept that, in normal course any person would advance a

hand loan without charging interest by pledging his own

articles. This conduct of the complainant is against the

human tendency. The financial status of the complainant

himself is not established. The learned counsel would

contend that before the Court there was certain

negotiations wherein the accused has agreed to pay 50% of

the cheque amount. On the basis of this submission he

would contend that the transaction is established. But that

was the submission on behalf of the accused to pay 50%

but that cannot be termed as an admission. When

complainant has approached the Court with specific

contention of advancement of loan of Rs.1,30,000/-, it is for

him to establish that he did advance the loan and he had

financial capacity to advance such a huge amount. But the

evidence disclose that no such material is forthcoming and

the complainant has failed to establish his financial status.

As such presumption under Section 139 of NI Act cannot be

drawn in favour of the complainant. Admittedly complainant

is running only a provision store and he admits that he does

not have any license. Though he claims that he had landed

property in Tamil Nadu which is a joint family property, he

has not produced any material documents to substantiate

the said contention. Under these circumstances his

contention that he was financially sound to lend a loan of

Rs.1,30,000/- cannot be accepted.

16. The trial Court has rightly observed that no

private man in usual course advance such a huge loan

amount to anyone without obtaining any security,

agreement, promissory note or any other documents. The

admissions given by the complainant in the cross

examination clearly establish that he had no financial

capacity and his evidence is also inconsistent regarding

advancement of loan of Rs.1,30,000/- at a stretch or in the

installment of Rs.1,00,000/- and Rs.30,000/-.

17. Further if at all accused has issued two cheques

there was no explanation as to why the two cheques have

been issued by the accused. If the due is Rs.1,30,000/- the

accused could have issued a single cheque. That clearly

disclose that there may be two different transactions which

were trying to be merged and the complainant has failed to

establish that the ingredients of Section 138 of NI Act are

attracted. As observed above the presumption under

Section 139 of NI Act cannot be drawn in the instant case.

18. Learned counsel for the appellant relies on the

decision of Hon'ble Apex Court in the case of

Modi Cements Ltd., vs. Kuchil Kumar Nandi reported in

(1998) 3 SCC 249 and argued that issuance of cheque

raises presumption under Section 139 of NI Act. There is no

dispute regarding principles enunciated in the said decision

but the said presumption is a rebuttable presumption and

by cross examining Pw.1 the accused has rebutted the said

presumption. Further accused has exposed the financial

status of the complainant also. Under such circumstances,

the burden again shifts on complainant to substantiate the

contention which he has failed to do so.

19. Learned counsel has further placed reliance on

the decision reported in Laws(Ker) 1999 6 21 of the High

Court of Kerala in the case of K.I.George vs. Muhammed

Master, but the facts and circumstances are entirely

different and the said principles cannot be made applicable

to the case in hand. When the accused has rebutted the

presumption, the burden again shifts on the complainant to

substantiate his contention but he has failed to prove his

financial status and lending the amount. Under these

circumstances the trial Court has justified in acquitting the

accused for the offence under Section 138 of NI Act. The

learned magistrate has appreciated the oral and

documentary evidence in proper perspective and the

judgment does not suffer from any perversity or illegality so

as to call for interference by this Court. Hence, the appeal is

devoid of any merits and needs to be rejected.

20. Accordingly, I proceed to pass the following:

ORDER

The appeal is dismissed. The judgment of acquittal dated 19.10.2011 passed by the XVIII ACMM and XX Additional Small Causes Judge, Bengaluru, in CC No. 35709/2006, stands confirmed.

Sd/-

JUDGE

NS