Abdul Hafiz S/O Mohammed Gouse vs B. Jeelan S/O B Sollaha Sab
2022 Latest Caselaw 4234 Kant

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          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

      DATED THIS THE 11th DAY OF MARCH 2022

                        BEFORE

THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

          CRIMINAL APPEAL No.100196/2015

Between

Sri. Abdul Hafiz,
S/o Mohammed Gouse,
Aged about 55 years, Muslim,
Tailor, C/o Mehtab Tailors,
Kullayappa Building, Patel Nagar,
Hospete, Hosapete Taluk,
Ballari District.                           ...Appellant

(By Sri. Manjunatha G.Patil, Advocate)

And

B. Jeelan, S/o B.Sollaha Sab,
Aged: 45 years, Bakery Businessman,
Masjid Complex, Main Road,
Beside Government Hospital,
Chitwadigi, Hosapete,
Hosapete Taluk, Ballari District.        ...Respondent

(By Sri. M.Amaregouda, Advocate)

      This criminal appeal is filed under Section 378(4)
of the Code of Criminal Procedure, 1973, seeking to call
for lower court records in C.C. No.2221/2012 dated
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10.08.2015 on the file of the Hon'ble Additional Civil
Judge & JMFC at Hosapete in Ballari District and to set
aside the judgment passed in C.C.No.2221/2012 dated
10.08.2015 on the file of Hon'ble Additional Civil Judge
& JMFC at Hosapete in Ballari District and convict the
accused/respondent under Section 138 of N.I. Act.

      This criminal appeal coming on for Admission this
day, the Court delivered the following:


                       JUDGMENT

This appeal is filed against the judgment dated

10.08.2015 passed by the Additional Civil Judge & JMFC,

Hosapete, in C.C. No.2221/2012 dismissing the private

complaint filed by the appellant against the respondent

for the offence punishable under Section 138 of the

Negotiable Instruments Act, 1881 (for short, 'the Act').

2. The appellant had filed a complaint against

the respondent for the offence punishable under Section

138 of the Act alleging that the cheque issued by the

respondent for a sum of Rs.8,00,000/- was dishonoured

when the same was presented for realisation. The Trial

Court, after taking cognizance, issued notice to the

respondent. The Respondent though admitted that the

cheque belongs to him, however, denied the signature

as well as the contents of the cheque. The Trial Court

dismissed the complaint stating that the complainant

has not placed any material as to his known source of

income for having lent a sum of Rs.8,00,000/- to the

respondent. It was further held that the respondent

having denied the signature on the cheque, the

complainant has not chosen to seek opinion of the

expert for substantiating his claim that the cheque bears

the signature of the accused- respondent herein. Taking

exception to the same, this appeal is filed.

3. The learned counsel for the appellant

submits that the income tax returns for the relevant

period establishes that the complainant had sufficient

income and the amount was lent to the respondent-

accused for the purpose starting a Bakery. He further

submits that the respondent-accused having admitted

that the cheque belongs to him, the burden was upon

the respondent-accused to prove that the signature on

the cheque was forged.

4. On the other hand, the learned counsel

appearing for the respondent-accused submits that the

complainant having failed to prove that the cheque was

issued towards legally recoverable debt and also that

the complainant having not proved that the signature on

the cheque bears the signature of the respondent-

accused, the Trial Court has rightly dismissed the

complaint.

5. I have considered the submissions made by

the learned counsel for the parties.

6. The respondent-accused having admitted

that the cheque belongs to him, the initial burden to

prove that the cheque does not bear his signature was

on the respondent-accused. However, the Trial Court

has erroneously shifted the burden on the complainant

and the same is impermissible.

7. The respondent-accused having admitted

that cheque belongs to him, it is presumed that the

cheque was issued towards legally recoverable debt and

the burden was upon the respondent-accused, by

leading rebuttal evidence, to prove that the cheque was

not issued towards legally recoverable debt and also

that the cheque does not bear his signature or it is

forged.

8. The complainant has filed an application

before this Court for production of income-tax returns

for the relevant period to substantiate his claim that he

had sufficient income to lend the money to the

respondent-accused. However, the validity of the said

documents requires to be considered by the Trial Court

by permitting the parties to lead evidence and this Court

cannot consider the same in this appeal . Hence, I am of

the view that the impugned order passed by the Trial

Court requires to be interfered with. Accordingly, I pass

the following:

ORDER

The appeal is allowed. The impugned judgment

dated 10.08.2015 passed by the Additional civil Judge

and JMFC, Hosapete, in C.C. No.2221/2012 is set aside

and the matter is remitted to the Trial Court for

consideration of the complaint afresh from the stage of

examination-in-chief of the complainant.

The learned Magistrate is requested to dispose of

the matter within three months from the date of receipt

of certified copy of this order.

The complainant is at liberty to produce additional

documents, if any, before the Trial Court.

In view of disposal of the appeal, I.A. No.1/2020 is

also dismissed as not surviving for consideration.

Sd/-

JUDGE Kms