Sri Shivanna vs Sri Nagaraja Gowda
2022 Latest Caselaw 918 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 20TH DAY OF JANUARY, 2022

                        BEFORE

THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

        CRIMINAL APPEAL No. 1012/2012

BETWEEN:

SRI. SHIVANNA
S/O. MUNIRANGAIAH
#62, 11TH MAIN
VRISHABAVATHI NAGAR
MARUTHI TEMPLE STREET
NEAR SRS FLOUR MILLS
KAMAKSHIPALYA
BENGALURU - 560 079
                                          ....APPELLANT
( BY SRI. SAGAR B.B., ADVOCATE)

AND:

SRI. NAGARAJA GOWDA,
S/O. LATE HANUMANTHARAYAPPA
# 157/1, 6TH MAIN,
PRASHANTH NAGAR,
BENGALURU - 560 079.
                                        .... RESPONDENT
(BY SRI. K.T. GOVINDE GOWDA,ADVOCATE)

                        *****

    THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374
OF CR.P.C. PRAYING TO SET ASIDE THE IMPGUNED
JUDGMENT DATED 10.08.2012 PASSED BY THE XIX
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ADDITIONAL C.M.M., BENGALURU IN C.C. NO.1356/2004-
ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 138 OF THE N.I. ACT.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
13.01.2022, COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:


                            JUDGMENT

The appellant-complainant has filed this appeal against

the judgment of acquittal passed in C.C. No. 1356/2004 on

the file of the XIX Additional Chief Metropolitan Magistrate,

Bengaluru City, Bengaluru dated 10.08.2012, whereby the

learned Magistrate has acquitted the accused/respondent 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 is that,

the complainant is carrying on business in Bengaluru City and

the accused is also a neighbouring resident. The accused was

running two buses and he used to approach the complainant

for various helps. It is further alleged that, accused has

approached the complainant for hand loan on the ground that,

he incurred huge loss. The complainant was keeping some

amount with him for the purpose of constructing the house

and considering the promise made by the accused of

repayment at the earliest, he had advanced the hand loan of

Rs.4.00 Lakhs to accused by way of cash in the 2nd week of

January, 2002. It is also alleged that, after receiving the

amount, the accused has issued two post-dated cheques for

Rs.2.00 Lakhs each dated 25.11.2003 and for repayment of

the said loan amount, the complainant has approached the

accused on number of times for repayment. But, the accused

failed to repay the amount and as such the complainant has

presented the said cheques to the Bank. The cheques were

returned on 28.11.2003 with an endorsement 'Payment

Stopped'. Then the complainant has got issued a legal notice

to the accused demanding the cheque amounts and the legal

notice came to be served on the accused. But, the accused

has given an evasive reply. Hence, the complainant has filed

a complaint under Section 200 of Criminal Procedure Code,

1908 ('Cr.P.C.' for short) before the learned Magistrate.

4. The learned Magistrate after recording the sworn

statement of the complainant has taken cognizance of the

offence and issued process against the accused. The accused

appeared before the Court and was enlarged on bail. The

accusation was read-over to the accused and he pleaded not

guilty. The complainant was got examined himself as PW.1

and he also examined three witnesses as PWs. 2 to 4, and in

support of his contention, he has also placed 10 documents as

Ex.P1 to Ex.P10. Then the statement of accused under

Section 313 Cr.P.C., was recorded and the case of accused

was of total denial. The accused has got examined himself as

DW.1 and one witness was examined as DW.2. The accused

has also placed reliance on 18 documents marked at Exs. D1

to D18.

5. After hearing the learned counsels appearing for

the parties on both sides, the learned Magistrate came to a

conclusion that the complainant has failed to prove that the

alleged cheques came to be issued in discharge of a legally

enforceable debt and as such, the complainant has failed to

prove that the accused has committed the offence punishable

under Section 138 of the N.I. Act. Therefore, the Trial Court

by the impugned judgment 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 under Section 378(4) of Cr.P.C.

6. Heard the arguments advanced by the learned

counsel for the appellant/complainant and perused the

records.

7. The main contention of the learned counsel for the

appellant is that, when the signature on the cheques came to

be admitted, the trial Court is not justified in acquitting the

accused. He would also contend that the trial Court without

appreciating the evidence properly, has wrongly came to the

conclusion that, the complainant had no financial capacity to

advance such a huge loan amount. He would further contend

that, when the trial Court came to the conclusion that the

complaint is not maintainable, as in the legal notice seven

days period is given, instead of giving 15 days, and in such a

case it should not have proceeded to dispose of the matter on

merits. He would further submit that, though in the legal

notice seven days period is given, but the complaint was filed

as per the statutory requirement, as notice was served on

23.12.2003 and the complaint came to be filed on

16.01.2004. He would also contend that the evidence of

PWs.2 to 4 is not properly appreciated and as such, he would

seek for allowing the appeal so as to convict the accused by

setting aside the impugned judgment.

8. Having heard the arguments and on perusing the

records, it is important to note here that, in the entire

complaint, the complainant has not at all specifically asserted

about the specific date of advancement of the hand loan. It is

important to note here that the loan is alleged to have been

advanced in the 2nd week of January 2002, that too to the

tune of Rs.4.00 Lkahs. Rs.4.00 Lakhs is a huge amount in

2002 and it is hard to accept the version of the complainant

that he advanced such a huge amount without any security

and without charging any interest. Further, he has not

specifically stated the date of advancement of the alleged loan

amount. Apart from that, in the complaint also there is no

specific assertion as to when exactly, the cheques were

handed over to the complainant. However, according to the

complaint, on the same date of advancement of loan amount,

two post-dated cheques as per Exs.P1 & P2 were handed-over

to complainant, which were for Rs.2.00 Lakhs each. If at all

on the same day, both cheques viz., Exs. P1 & P2 were

handed-over, there is no explanation as to why the accused

has issued two cheques rather than a single cheque, when the

alleged loan transaction is for Rs.4.00 Lakhs.

9. Further, the complainant in his complaint has no

where pleaded as to his avocation. He simply asserted that he

was carrying on business for his livelihood in his complaint and

also in his examination-in-chief. But, during cross-

examination, it is elicited that, he is only running a Dry Clean

Shop. Apart from that, in the cross-examination at Page

No.15, PW.1-complainant has claimed that the Cheques were

issued as security for the loan transaction. It is not his case

that the said cheques were issued towards repayment. Even

PW.1 in his cross-examination pleaded ignorance as to who

had accompanied the accused, when the accused has

approached him demanding the hand-loan. He admitted in his

cross-examination that, he is not an income-tax payee. Even

in the legal notice issued to the accused by the complainant,

there is no reference regarding the details of the cheques. It

is also important to consider the cross-examination of PW.1

dated 03.09.2011 at Page No.13, wherein he claimed that, he

had kept Rs.4.00 Lakhs in his house. But, however, he claims

that Rs.1.00 Lakh was saved from his business and Rs.3.00

Lakhs was in respect of the sale proceeds of the site sold by

him. Hence, at the out-set, the complainant has not produced

any material to show that, he had the financial capacity and

the cross-examination of PW.1 clearly disclose that, his

financial capacity is exposed by the accused. He has not

produced any documents to show his income. Further, he

claims that, he secured Rs.3.00 Lakhs by sale of his Plot. But,

no documents have been produced to substantiate this

contention also.

10. Apart from the above, it is also important to note

here that the accused had filed a suit against the present

complainant in O.S. No.173/1996 along with his mother and

brother seeking partition and separate possession on the

ground that the present complainant had purchased the

property belonging to Defendant No.1, who is the brother of

the present accused. The said suit was filed in the 1996 and

was decreed in favour of the accused on 03.12.2004, which is

evident from Ex.D4. In the said suit, it is clearly held that the

sale deed executed by the brother of the accused in favour of

the complainant is not binding, by declaring the share of the

accused as 1/3rd. When such a civil suit is being prosecuted

from 1996 only, it is hard to accept the contention of the

complainant that he had advanced Rs.4.00 Lakhs without

security to the accused in 2004. Further, he has also admitted

that, he has preferred a Regular First Appeal against the said

judgment and decree and the said appeal came to be

dismissed. This fact is also evident from Ex.D15. His cross-

examination further reveals that, he had sold the property

purchased from the brother of accused subsequently during

pendency of the appeal itself. That clearly discloses the

intention of the complainant. When the civil dispute between

the accused and the complainant was pending, question of the

complainant advancing loan does not arise at all. Apart from

that, in the complaint itself no specific date of advancement of

loan was given and it is evident that all along that there was a

civil dispute between the parties. Further, the financial status

of the complainant is also not established. Further, the

accused has exposed the complainant in respect of his

financial capacity. Though the complainant has claimed that

he has accumulated the amount of Rs.3.00 Lakhs by way of

sale of site, but, no material is produced to substantiate this

contention.

11. The evidence of PWs. 2 to 4 does not assist the

complainant in any way in proving his financial status. Hence,

on perusal of the entire records, it is evident that the

complainant has not approached the Court with clean hands.

He has not referred the date of payment of loan and no

reasons are given for charging no interest to such a huge

amount, that too during pendency of the civil litigation

between the parties. Further, there is no explanation from the

complainant as to why he has issued two cheques on the

same day for Rs.2.00 Lakhs each, instead of one cheque. On

the contrary, EXs.D1 and D2 clearly establish that, in the year

1995 itself, the accused has reported that the cheque book

was lost and serial number of cheques at Ex.P2 and P3 are

part of the said cheque book and this is again supported by

the evidence of DW.2. Hence, the accused by leading cogent

evidence has rebutted the presumption in favour of the

complainant available under Section 139 of N.I. Act.

12. Further, in the decision reported in Basalingappa

Vs. Mudibasappa [(2019) 5 SCC 418], the Hon'ble Apex

Court has clearly held that the prosecution is bound to

establish its case beyond all reasonable doubt, but, the

accused is required to rebut the presumption only on the basis

of preponderance of probabilities. In the instant case, the

cross-examination of PW.1 and the evidence DWs. 1 & 2 and

also the documents clearly establish that the accused has

rebutted the presumption. Further, in the above referred

decision itself, the Hon'ble Apex Court has clearly held that,

when the accused disputes the financial capacity of the

complainant to pay such a huge loan amount and leads

evidence, the burden would be on the complainant to establish

his financial capacity/status. Admittedly in the instant case,

the complainant has failed to establish his financial status. In

such circumstances, the principles enunciated in the above

cited decision are squarely applicable to the facts and

circumstances of the case in hand. The complainant has failed

to prove that the alleged chqeues were issued in respect of a

legally enforceable debt and that he has advanced the hand

loan of Rs.4.00 Lakhs to the accused.

13. The trial Court has appreciated the oral and

documentary evidence in a proper perspective and arrived at a

just decision. In such circumstances, the judgment of

acquittal does not call for any interference by this Court. As

such, the appeal is devoid of any merits and needs to be

rejected. Accordingly, I proceed to pass the following:-

ORDER

The appeal is dismissed. The impugned judgment of acquittal dated 10.08.2012 passed by the XIX Additional Chief Metropolitan Magistrate, Bengaluru City, in C.C. No.1356/2004, by acquitting the accused of the offence punishable under Section 138 of the N.I. Act, is hereby confirmed.

SD/-

JUDGE

KGR*