Mrs C Lilly Jaya Rani vs Sri S Armuga Nainar
2022 Latest Caselaw 3769 Kant

                                     Crl.A.No.1216/2017
                             1



   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 5TH DAY OF MARCH 2022

                         BEFORE

       THE HON'BLE MRS JUSTICE K.S.MUDAGAL

         CRIMINAL APPEAL No.1216/2017

BETWEEN:

MRS.C.LILLY JAYA RANI
AGED ABOUT 38 YEARS
W/O. JOHN PETER
R/AT NO.964, 2ND STAGE
RAJENDRA NAGAR
VIVEKANAGAR POST
BENGALURU- 560 047                         ...APPELLANT

(BY SRI JOHN.C., ADVOCATE)

AND:

SRI S.ARMUGA NAINAR
AGED ABOUT 42 YEARS
S/O.T.SUBBAIAH
R/AT NO.247, 1ST FLOOR
EJIPURA MAIN ROAD
BENGALURU- 560 047                       ...RESPONDENT

(BY SRI BENOY JOSEPH, ADVOCATE)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED
02.05.2017    PASSED    BY    XIX   ADDITIONAL    CHIEF
METROPOLITAN      MAGISTRATE,    BENGALURU    CITY   IN
C.C.NO.5548/2015.

     THIS CRIMINAL APPEAL COMING ON FOR DICTATION
THIS DAY, THE COURT THROUGH VIDEO CONFERENCE
DELIVERED THE FOLLOWING:
                                          Crl.A.No.1216/2017
                             2



                   JUDGMENT

& ORDER ON I.A.No.5/2020 & I.A.No.4/2022

Aggrieved by the order of acquittal passed in favour

of the respondent, the complainant in C.C.No.5548/2015

on the file of XIX Additional Chief Metropolitan Magistrate,

Bengaluru has preferred the above appeal.

2. The appellant was the complainant and the

respondent was the accused before the trial Court. For

the purpose of convenience, the parties will be referred to

henceforth according to their ranks before the trial Court.

3. The complainant presented the cheque Ex.P1

dated 30.12.2013 drawn on the account of the accused in

Central Bank of India, Koramangala Branch, Bengaluru for

a sum of Rs.10,00,000/-, for realization. The same was

returned with banker's endorsement Ex.P2 on the ground

of "insufficient funds". She got issued statutory notice as

per Ex.P3 dated 10.04.2014 claiming that the accused

issued the said cheque as consideration for purchasing

her site without making arrangements for funds. She

further alleged in the notice that by such of his acts, he Crl.A.No.1216/2017

has committed the offence of cheating. She called upon

him to pay the cheque amount within fifteen days or else

to face the prosecution.

4. The said notice was served on the accused as

per postal acknowledgement Exs.P6 and P7. The accused

issued reply as per Ex.P8 dated 21.04.2014 admitting

agreement of sale between him and the complainant. He

claimed that in good faith he paid Rs.2,00,000/- as

advance and the cheque Ex.P1 as security for payment of

balance sale consideration. He alleged that the

complainant executed General Power of Attorney in his

favour authorizing him to get the sale deed executed in

his name in respect of the said site, but she failed to

produce the required documents for registration of the

sale deed. He admitted that he got sale deed registered in

his name in respect of the said site, but later he came to

know that the complainant was not the owner of the

property, therefore he is not liable to pay the cheque

amount.

5. Since the cheque amount was not paid, the

complainant filed PCR No.9137/2014 before XIII Crl.A.No.1216/2017

Additional Chief Metropolitan Magistrate, Bengaluru

seeking prosecution of the accused for the offence

punishable under Section 138 of the Negotiable

Instruments Act, 1881 ('the Act' for short). On his

appearance, the accused disputed accusation, therefore

the trial was conducted. The complainant got herself

examined as PW.1 and got marked Exs.P1 to P9. After his

examination under Section 313 of Cr.P.C., the accused

did not lead defence evidence.

6. The trial Court on hearing the parties, by the

impugned judgment acquitted the accused on the ground

that the complainant has not produced any material to

show that the cheque was issued in relation to sale

transaction. Aggrieved by said order, the above appeal is

preferred before this Court.

7. The complainant filed I.A.No.5/2020 under

Section 391 of Cr.P.C. to produce the following

documents:

(i) Copy of GPA executed to appellant dated 11.10.2010

(ii) Copy of the affidavit/Declaration made to appellant dated 11.10.2010 Crl.A.No.1216/2017

(iii) Copy of sale agreement executed to appellant dated 11.10.2010

(iv) Copy of sale agreement executed by appellant to accused dated 30.11.2013

(v) Copy of GPA executed by appellant to accused dated 14.12.2013

(vi) Copy of registered sale deed dated 07.01.2014

(vii) Copy of EC dated 19.03.2014

(viii) Copy of paper publication dated 10.03.2015

(ix) Copy of letter written by the accused to cancel the sale deed dated 31.03.2014

(x) Copy of the registered sale deed dated 18.07.2017

(xi) Copy of the encumbrance certificate till day

8. The complainant in her affidavit claims that

the trial Court acquitted the accused on the ground that

the documents relating to sale agreement, General Power

of Attorney and sale deed were not produced. She claims

that she could not produce those documents despite due

diligence, they are necessary for the purpose of

adjudication of the case.

Crl.A.No.1216/2017

9. Counsel for the accused also filed

I.A.No.4/2022 seeking leave to produce the following

documents:

(i) Certified copy of absolute sale deed dated 03.09.2004

(ii) Certified copy of E.C. dated from 01.04.2004 to 13.02.2022 till date

(iii) Certified copy of O.S.No.924/2017 in the Court of Senior Civil Judge & JMFC, Anekal

(iv) Certified copy of Misc.No.1/2020 in the Court of Senior Civil Judge & JMFC, Anekal

10. The accused submits that production of said

documents is necessary to show that the complainant

herself had no valid title to the said property and thereby

to demonstrate that there was no legally recoverable

debt.

Submissions of Sri John.C., learned Counsel for the complainant:

11. The accused admitted his signatures on the

cheque and that the cheque was drawn on his account,

therefore the presumption under Sections 118 and 139 of

the Act to the effect that the cheque was issued for

consideration and for discharge of legally recoverable

debt arises. The trial Court failed to raise such Crl.A.No.1216/2017

presumption. The burden reverses to the complainant

only on rebuttal of the said presumption. Though the

accused disputed the title of the complainant, the records

produced before this Court go to show that he himself got

registered the sale deed and thereafter he has sold the

same property under the registered sale deed dated

18.07.2017 to one Shekar.N. Therefore the accused is

estopped from claiming that the complainant had no title.

Site sold by her vendor K.Nagaraju to one P.Rajendran

was different one and not the site sold by the complainant

to the accused. To prove all those points and for effective

adjudication, additional evidence is necessary.

12. In support of his submission, he relies on the

following judgments:

1. APS Forex Services Pvt. Ltd. v. Shakti International Fashion Linkers1

2. Basalingappa vs. Mudibasappa2

3. K.C.Periyasamy v. S.Anandan3

Submissions of Sri Benoy Joseph, learned Counsel for the accused:

13. The accused is liable to be prosecuted under

Section 138 of the Act only if there is legally enforceable

AIR 2021 SC 2814

(2019)5 SCC 418

Crl.A.No.683/2016 DD 31.01.2017 Crl.A.No.1216/2017

debt. The complainant has not produced any documents

to show that she was absolute owner of the property

allegedly sold to the accused. She cheated the accused

receiving Rs.2,00,000/- in cash and misused the cheque

representing that she is owner of the property. Therefore

the trial Court has rightly acquitted the accused. The

documents produced under I.A.No.4/2022 show that the

property was already sold by the complainant's vendor to

one P.Rajendran. The sale deed dated 18.07.2017 was

not executed by the accused. To demonstrate that the

complainant was not owner of the property sold to the

accused and that there was no legally recoverable debt,

the documents produced under I.A.No.4/2022 are

necessary and therefore on receiving the documents, the

appeal shall be dismissed.

14. Having regard to the submissions on both

side and the material on record, the questions that arise

for consideration is:

(i) Whether the impugned order of acquittal is sustainable in law?

(ii) Whether I.A.No.5/2020 deserves to be allowed?

Crl.A.No.1216/2017

(iii) Whether I.A.No.4/2022 deserves to be allowed?

Analysis on Point Nos.1 to 3:

15. I.A.No.5/2020 and I.A.No.4/2022 being

applications for adducing additional evidence, the same

require to be considered along with the main matter.

Section 391 of Cr.P.C empowers the Appellate Court to

receive additional evidence while dealing with the appeal

if such evidence is found necessary.

16. Before considering the contentious questions

of fact, it is necessary to examine the legal principles on

the proof of the offence under Section 138 of the Act.

Though the appellant relied on host of judgments in that

regard, the ratio of all those judgments is as follows:

(i) Once the accused admits his signature on the

cheque and that the cheque pertains to his account, as

per Section 118 of the Act initially the Court shall

presume that the complainant has received the cheque

for consideration. Further as per Section 139 of the Act

initially the Court shall presume that the cheque was Crl.A.No.1216/2017

issued for discharge of any debt or other liability. The said

initial presumption is mandatory.

(ii) The aforesaid presumptions are rebuttable.

The burden lies on the accused to rebut the said

presumption.

(iii) The burden on the accused to rebut the

presumption is not as strict as on the complainant. But at

the same time, mere denial or explanation is not

sufficient. The defence raised by way of rebuttal evidence

must be probable and acceptable by a man of ordinary

prudence.

(iv) The accused has to probabalise such defence

by leading his evidence. In exceptional cases he can

rebut such presumption by the evidence of complainant

himself without leading his own evidence.

(v) Once the presumption is rebutted the burden

reverses to the complainant to prove the fact that the

cheque was issued for discharge of legally recoverable

debt or liability.

(vi) Whenever the accused questions the

financial capacity of the complainant, on rebutting the Crl.A.No.1216/2017

presumption under Section 139 of the N.I. Act, the

burden shifts to the complainant to prove his financial

capacity. At that stage the complainant is required to lead

the evidence to prove his financial capacity, more

particularly when it is a case of giving loan by cash and

thereafter issuance of a cheque.

17. In the light of the aforesaid legal propositions,

it has to be examined whether the accused rebutted the

presumption and the complainant discharged the reverse

burden.

18. In this case, the accused did not dispute his

signature on the cheque and that the cheque was issued

on his account. As against that he himself in his reply

notice Ex.P8 specifically contended that there was

agreement of sale between him and the complainant. He

contended that the sale deed was registered on the

complainant furnishing the required documents and as

advance amount he paid Rs.2,00,000/- and the cheque

Ex.P1 was issued as security to furnish the documents in

transactions.

Crl.A.No.1216/2017

19. Under the circumstances as held by the

Hon'ble Supreme Court in the judgments in APS Forex

Services Pvt. Ltd. and Basalingappa's cases referred to

supra the presumption does arise to the effect that

consideration was passed under the cheque and the

cheque was issued towards discharge of liability. The

accused had burden to rebut the said presumption. To

probabilize his defence, the accused did not enter the

witness box. He relied on the evidence of PW.1 to rebut

the said presumption.

20. The Hon'ble Supreme Court in para 11 of the

judgment in M/s.Kumar Exports vs. M/s Sharma

Carpets4 held that in such cases the accused has two

options. He can either show that consideration and debt

did not exist or that under the particular circumstances of

the case the non-existence of consideration and debt is so

probable that a prudent man ought to suppose that no

consideration and debt existed.

21. It was further held that bare denial of passing

of the consideration and existence of debt, apparently

AIR 2009 SC 1518 Crl.A.No.1216/2017

would not serve the purpose of the accused. Something

which is probable has to be brought on record for getting

the burden of proof shifted to the complainant. To

disprove the presumptions, the accused should bring on

record such facts and circumstances, upon consideration

of which, the court may either believe that the

consideration and debt did not exist or their

non-existence was so probable that a prudent man would

believe in existence of such debt or liability.

22. It was held that the accused also has an

option to prove non-existence of consideration, debt or

liability by letting in evidence or in some clear and

exceptional cases, from the case set out by the

complainant himself. Therefore relying on the evidence of

the complainant to rebut the presumption is only in

exceptional case. Otherwise the accused is required to

enter the witness box to rebut the presumption.

23. In the case on hand, the accused suggested

to PW.1 that she did not deliver the required documents

to him and she did not possess such documents. For that

PW.1 said that the accused himself took the documents Crl.A.No.1216/2017

and Rs.10,000/- saying that there are some defects in the

documents and he would get them rectified, but he did

not return the documents.

24. Having said that, the complainant had no title

to the property and that her vendor K.Nagaraju had sold

the property to one P.Rajendran in the year 2004 itself,

the accused did not examine said P.Rajendran before the

trial Court. According to the complainant, the property

sold under the said sale deed dated 03.09.2004 by

K.Nagaraju to P.Rajendran is different from the one sold

by her to the accused. Though the accused claims that he

realized that the complainant had no title, he himself

executed the registered sale deed dated 07.01.2014 in

respect of Site No.18 in his own favour as her power of

attorney. It is true that consideration shown in the said

sale deed is Rs.5,40,000/-.

25. The documents produced along with

I.A.No.5/2020 to show that on the basis of sale deed

dated 07.01.2014 the accused under the registered sale

deed dated 18.07.2017 has further sold the said property

to one Shekar.N. The consideration shown in the said Crl.A.No.1216/2017

document is Rs.5,32,000/-. An attempt was made before

this Court to contend that he is not the executant of sale

deed dated 18.07.2017 and taking his signatures, the

said document is concocted.

26. The trial Court did not have the benefit of the

aforesaid documents. In the light of the aforesaid

documents, it is found necessary that further evidence is

required to be adduced by both the parties in support of

the documents produced under the above applications.

Based on such evidence, the trial Court can come to the

conclusion whether statutory presumption is rebutted and

whether the complainant discharges reverse burden.

Therefore I.A.No.5/2020 and I.A.No.4/2022 are required

to be allowed and the matter requires to be remanded to

the trial Court for fresh disposal on recording the

evidence of the parties with reference to the documents

produced under I.A.No.5/2020 and I.A.No.4/2022.

Therefore, the following:

ORDER

The appeal, I.A.No.5/2020 and I.A.No.4/2022 are

hereby allowed.

Crl.A.No.1216/2017

The impugned order of acquittal is hereby set aside

and the matter is remanded to the trial Court for fresh

consideration. The trial Court shall record the evidence of

the complainant with reference to the documents

produced under I.A.No.5/2020 and the accused with

reference to the documents produced under

I.A.No.4/2022.

As the original proceedings were of the year 2015,

both parties shall appear before the trial Court on

21.03.2022 without any further notice and cooperate for

disposal of the matter. The trial Court shall give

reasonable opportunity to both the parties. The aforesaid

exercise shall be done by the trial Court to dispose of the

matter as expeditiously as possible at any rate within six

months from the date of receipt of copy of this order.

If the parties fail to appear before the trial Court,

the trial Court is at liberty to secure their presence by

taking coercive steps.

Sd/-

JUDGE KSR