Sri M R Nagaraja vs Smt Famida Unniza
2022 Latest Caselaw 4217 Kant

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 11TH DAY OF MARCH, 2022

                         BEFORE

       THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

               CRIMINAL APPEAL NO.833/2011
BETWEEN:

SRI.M.R.NAGARAJA,
S/O SRI.RANGAPPA
AGED ABOUT 47 YEARS,
R/O RAGHAVENDRA COLONY,
MADHUGIRI, TUMKUR DISTRICT.
                                              ...APPELLANT
(BY SRI.R.B.SADASHIVAPPA, ADV.)

AND:

SMT.FAMIDA UNNIZA,
W/O SRI SHABBIR AHAMED,
64 YEARS, RETD. TEACHER,
RESIDING NEAR AGRL. OFFICE,
1ST FLOCK, MADHUGIRI TOWN,
TUMKUR DISTRICT.
                                             ...RESPONDENT
(BY SRI.G.S.VENKAT SUBBA RAO, ADV.)

      THIS APPEAL IS FILED UNDER SECTION 378(4) OF
CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT DATED
22/23.11.2010 PASSED BY THE FAST TRACK COURT-V AT
MADHUGIRI IN CRL.A.NO.45/2010 AND BE PLEASED TO
CONFIRM THE JUDGMENT OF THE TRIAL COURT DATED
27.04.2010 IN C.C.NO.226/2007 PASSED BY THE ADDL. CIVIL
JUDGE, (JR.DN.) & JMFC, AT MADHUGIRI.

     THIS APPEAL HAIVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 28.02.2022 COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY THROUGH VIDEO CONFERENCE AT
DHARWAD, THE COURT MADE THE FOLLOWING:
                               2




                          JUDGMENT

The complainant/appellant herein has filed this

appeal under Section 378(4) of Cr.P.C. challenging the

judgment of acquittal passed by the Fast Track Court-V,

Madhugiri in Crl.A.No.45/2010 and sought confirmation of

the judgment of the trial court dated 27.04.2010 in

C.C.No.226/2007 passed by the Additional Civil Judge

(Jr.Dn.) & JMFC, Madhugiri.

2. For the sake of convenience, parties herein

shall be referred with the original ranks occupied by them

before the trial court.

3. The brief factual matrix leading the case are as

under:

That the accused is acquainted with the complainant

and she had borrowed a sum of Rs.45,000/- from the

complainant on 20.12.2006 for her legal necessity and

family benefits with a promise to repay the said amount

within 15-20 days. When the complainant has demanded

repayment of the same, she has issued a cheque dated

19.01.2007 for Rs.45,000/- towards discharge of the debt.

When the complainant presented the said cheque, the

same was returned with an endorsement as 'funds

insufficient'. Thereafter, complainant has got issued a legal

notice on 23.01.2007 which was served on the accused on

01.02.2007, but the accused has not paid the cheque

amount. Hence, he has filed a complaint against the

accused.

4. The learned Magistrate has taken cognizance

of the offence and recorded the sworn statement of the

complainant. On verification of the records, he found that

there is sufficient material evidence as against the

accused/respondent herein and issued process against the

accused. The accused has appeared through her counsel

and was enlarged on bail.

        5.     The    accusation       under     Section   138     of

Negotiable     Instruments     Act     was     framed   against   the

accused and accused pleaded not guilty. The complainant

was got examined himself as P.W.1 and he placed reliance

on 7 documents as Exs.P1 to P7. After conclusion of the

evidence of the complainant, the statement of the accused

under Section 313 of Cr.P.C. is recorded to enable the

accused to explain the incriminating evidence appearing

against her in the case of the prosecution. The case of the

accused is of total denial and further, she got examined

herself as D.W.1 and three relatives were examined as

D.Ws.2, 4 and 5 and one independent witness was

examined as D.W.3, who has turned hostile. The accused

has also placed reliance on 7 documents, which were

marked as Exs.D1 to D7.

6. After having heard the arguments and after

perusing the oral and documentary evidence, the learned

Magistrate has found that complainant has proved the guilt

of the accused for the offence punishable under Section

138 of N.I.Act and convicted her to undergo simple

imprisonment for a period of three months with fine of

RS.5,000/- and also directed to pay compensation of

Rs.50,000/- to the complainant under Section 357 of

Cr.P.C.

7. Being aggrieved by this judgment of

conviction, the accused has filed Crl.A.No.45/2010 before

the Fast Track Court-V, Madhugiri and the learned

Sessions Judge has set aside the judgment of conviction

passed by the trial court and acquitted the accused for the

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

8. Being aggrieved by the judgment of acquittal

by the first appellate court, the complainant has

approached this court by way of this appeal.

9. Heard the arguments advanced by the learned

counsel for the appellant/complainant and learned counsel

for the respondent/accused. Perused the records.

10. Learned counsel for the appellant would

contend that the judgment of the first appellate court is

erroneous and unsustainable. He would further contend

that the trial court has not properly appreciated the

evidence available on record. He would also contend that

cheque belongs to the accused and it bears the signature

of the accused are undisputed facts. Hence, the trial court

has rightly drawn the presumption in favour of the

complainant, but the first appellate court has taken an

inconsistent and contrary stand, which is an erroneous

observation. He would further contend that first appellate

court was wrong in observing that there is no legally

recoverable debt and it has failed to note that transaction

between Chayadevi and accused as contended by the

accused was not established and the presumption was not

rebutted. Hence, he would seek for setting aside the

impugned judgment of the first appellate court passed in

Crl.A.No.45/2010 and prayed for restoration of the

judgment of conviction passed by the trial court in

C.C.No.226/2007.

11. Per contra, learned counsel for the

respondent/accused would contend that accused was not

at all acquainted with the complainant and there was no

need for the accused to avail loan from the complainant.

He would also contend that there was certain transaction

between one Chayadevi-D.W.3 and the accused and the

said cheque was issued to Chayadevi and taking advantage

of this aspect, the complainant in collusion with Chayadevi

has misused the cheque given to Chayadevi and filed this

false complaint. He would also contend that, accused is not

required to prove her defence beyond all reasonable doubt

as that of the complainant and she is only required to

prove her defence on the basis of preponderance of

probabilities. Hence, he would contend that, on

appreciation of evidence, the defence of the accused is

more probable and the complainant has also not

established his financial status and as such, the

presumption stands rebutted. Hence, he would contend

that the first appellate court is justified in acquitting the

accused by setting aside the judgment of conviction

passed by the trial court. Hence, he sought for dismissal of

the appeal.

12. Having heard the arguments and perusing the

records, it is important to note here that the complainant

has come up with a specific case that, on 20.12.2006 he

had advanced loan of Rs.45,000/- to the accused for her

legal necessity and in discharge of the said debt, the

accused had issued the cheque under Ex.P1 for repayment.

There is no serious dispute of the fact that cheque Ex.P1

dated 19.01.2007 is standing in the name of the

complainant. He is the holder of the cheque in due course

and signature on the said cheque is also not in dispute.

Hence, in the normal course, the presumption is in favour

of the complainant in regard to issuance of cheque towards

legally enforceable debt. But the cross-examination of the

complainant discloses that he was working in the post

office and working as a bus agent. Though he claims that

he was possessing lands, no documents have been

produced. He admits that his monthly salary is Rs.3,500/-

and he claimed that he paid Rs.45,000/- at a stretch. The

complainant has not produced any document in the form of

bank statement to show that he was having hard cash of

Rs.45,000/- as on the date when the loan is said to have

been advanced. The complainant could have produced the

documents in this regard. Though he claims that he is

working as a bus agent and possessing lands, no

documents are forthcoming in this regard.

13. Further, in the complaint, the complainant has

simply pleaded that on 20.12.2006 accused has borrowed

a sum of Rs.45,000/- for her legal necessity and family

benefit. What was the need of the accused was not

disclosed in the complaint, but in the evidence, the

complainant has tried to make out a case that loan was

availed in order to meet the medical expenses of the

daughter of the accused. But the said fact is neither

referred in the complaint nor in the legal notice. Though

the complainant has denied the suggestion that it is not

referred, but the documents disclose that he has not

pleaded this aspect.

14. Apart from that, Ex.P1 is not an account payee

cheque. In the normal course, though complainant has

presented the cheque through his banker, he ought to

have signed it on the backside of the cheque for having

presented it through his banker. Since it is not a crossed

cheque, in normal course, the presenter would sign on the

backside of the cheque. On perusal of Ex.P1, no such

signature is found. Ex.P3 is the legal notice and Ex.P7 is

the reply given by the accused. The accused has asserted

her defence in her reply notice itself. Apart from that,

accused was got herself examined as D.W.1 and she has

reiterated her assertion. A simple elicitation is made in the

cross-examination that she suffered a decree for

Rs.20,000/- against somebody else. Merely on the ground

that she has suffered a decree, there cannot be any

presumption regarding the fact that she has availed loan

from the complainant.

15. Interestingly, when P.W.1 was cross-

examined, a suggestion was made that accused in the

presence of the complainant has issued a cheque for

RS.45,000/- to Chayadevi and the complainant has not

denied this aspect, but simply answered that he do not

know this aspect.

16. Further, the complainant all along asserted

that, from 2002 to 2006 he was assisting the accused in

her banking transactions. Admittedly, the accused was

working in a school and complainant was working in the

post office. In that event, question of he leaving his job

and assisting the accused in withdrawal of the amount and

other aspects does not arise at all. His contention is that

accused was running short of time and hence, she used to

issue the cheque to him to withdraw the amount, but when

the complainant himself was an employee in the post

office, how he got time to spare for the accused is not at

all forthcoming. Further, what was the interest of the

complainant to leave his job and to assist the accused in

getting the amount withdrawn from her bank account is

not at all forthcoming. Hence, it is evident that

complainant has not approached this court with clean

hands.

17. The evidence on record does establish that the

complainant was not having any financial capacity to

advance loan of Rs.45,000/- to the accused. In this

context, learned counsel for the respondent/accused has

placed reliance on a decision of the Hon'ble Apex Court in

the case of John K.Abraham Vs Simon C.Abraham and

Another reported in (2014) 2 SCC 236, wherein certain

guidelines have been laid down for drawing presumption

under Section 118 r/w Section 139 of N.I.Act, which reads

as under:

"Debt Financial and Monetary Laws -

Negotiable Instruments Act, 1881 - Ss.118, 139 and 138 - Dishonour of cheque - Drawing presumption under S.118 r/w S.139 - Prerequisites for, when cheque is for repayment of a loan/advanced money - Proof required on the part of complainant - Held, in order to draw presumption under S.118 r/w S.139, burden lies on complainant to show: (i) that he had the requisite funds for advancing the sum of money/loan in question to accused, (ii) that the issuance of cheque by accused in support of repayment of money advanced was true, and (iii) that the accused was bound to make payment as had been agreed while issuing cheque in favour of complainant - In the present case, complainant not

aware of the date when substantial amount of Rs.1,50,000 was advanced by him to appellant- accused - Respondent complainant failed to produce relevant documents in support of the alleged source for advancing money to accused - Complainant also not aware as to when and where the transaction took place for which the cheque in question was issued to him by accused - Complainant also not sure as to who wrote the cheque and making contradictory statement in this regard - In view of said serious defects/lacunae in evidence of complainant, judgment of High Court resersing acquittal of accused by trial court, held, was perverse and could not be sustained

- Acquittal restored."

18. In the instant case, admittedly, no evidence is

led by the complainant to show that he had requisite funds

for advancing the loan to the tune of Rs.45,000/- to the

accused. Further, in the instant case, the complainant also

ignorant as to who wrote the contents of the cheque and

as such, the principles enunciated in the said decision, the

presumption under Section 118 r/w Section 139 of N.I.Act

cannot be drawn. Even if there is a presumption, it stands

rebutted in view of the defence set up by the accused and

the cross-examination of the complainant. In this context

itself, he has further placed reliance on the decisions of

this court in the case of Branch Manager, PCA & RD

Bank Ltd. Vs Suresh Das s/o D.Ganapati Das reported

in 2018 SCC OnLine Kar 492; in the case of Lakshmi

Subramanya Vs B.V.Nagesh reported in KCCR-2013-3-

1940 and in the case of Sridhar Narayan Vs Karnataka

Bank Limited reported in AIR (KAR)-2009-0-954. The

principles enunciated in the said decisions are directly

applicable to the case in hand. The complainant was

working in the post office and he had not disclosed his

source of income. He has not led any evidence to show

that he had requisite funds at the time of advancement of

loan. Looking to these facts and circumstances, the

presumption is not available in favour of the complainant.

19. Further, the learned counsel for

complainant/appellant would contend that D.W.3 who is

examined on behalf of the accused has infact supported

the claim of the complainant. But the said contention hold

no water as D.W.3 though did not support the claim of the

respondent/accused, her original sale deed was produced

by the accused and she simply asserts that she had lost it.

No steps were taken in this regard and that clearly

discloses that she is colluding with the complainant.

Looking to these facts and circumstances, the first

appellate court has rightly exercised the discretion and

acquitted the accused considering the fact that

presumption in favour of the complainant is not available.

Apart from that, it is to be noted here that accused is

required to rebut the presumption only on the basis of

preponderance of probabilities and she is not required to

prove her defence beyond all reasonable doubt.

20. If the accused creates any dent in the case of

the complainant that is suffice and again the burden shifts

on the complainant to substantiate his contention. In the

instant case, the accused has created sufficient dent in the

case of the complainant and the complainant has failed to

lead any evidence to substantiate his financial capacity to

advance the loan. Under these circumstances, the defence

set up by the accused is more probable. The first appellate

court has rightly acquitted the accused by allowing the

appeal by setting aside the order of conviction passed by

the trial court. Hence, the judgment of acquittal passed by

the first appellate court does not call for any interference

by this court. Hence, appeal fails and accordingly, I

proceed to pass the following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

MBS/-