Sri K H Vijayakumar vs Sri B Siddesh
2023 Latest Caselaw 5884 Kant

                          1            CRL. A NO.987 OF 2012




   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 23RD DAY OF AUGUST, 2023

                       BEFORE

           THE HON'BLE MS.JUSTICE J.M.KHAZI

         CRIMINAL APPEAL NO.987 OF 2012

BETWEEN:

SRI K H VIJAYAKUMAR
S/O K M HONNAPPA SHETTY,
AGED 62 YEARS, BUSINESSMAN,
ROOPA APARTMENTS,
NEHRU ROAD, SHIMOGA - 577 201.
                                            ...APPELLANT
(BY SMT. ARUNA BHAT, ADVOCATE FOR
    SRI. G LAKSHMEESH RAO, ADVOCATE)


AND:

SRI. B SIDDESH
S/O BORAIAH,
AGED 61 YEARS,
BANANA MANDI,
OPP MUNICIPAL OFFICE,
B H ROAD, SHIMOGA - 577 201.
                                     .....RESPONDENT
(BY SRI. SATEESH CHANDRA K.V, ADVOCATE FOR
    SRI. PANDURANGA NAYAK, ADVOCATE)

    THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE
THE ORDER OF ACQUITTAL DATED 07.07.2012 PASSED BY
THE COURT OF JMFC-II, SHIMOAGA IN C.C.NO.4047/2009
(530/03) AND HEREBY ALLOW THE PRIVATE COMPLAINT
FILED BY THE COMPLAINANT / APPELLANT AND PUNISH THE
RESPONDENT / ACCUSED IN THE INTEREST OF JUSTICE.


     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED    ON    20.06.2023, COMING   ON   FOR
                              2            CRL. A NO.987 OF 2012




PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:

                        JUDGMENT

1. This is the complainant's appeal filed under

Section 378(4) of the Code of Criminal Procedure,

challenging the acquittal of respondent/accused for the

offence punishable under Section 138 of the Negotiable

Instruments Act, 1881 (hereinafter referred to as 'the

N.I.Act').

2. For the sake of convenience, the parties were

referred to by their rank before the Trial Court.

3. It is the case of complainant that he and

accused are known to each other since many years.

During the month of May 2002, accused borrowed a sum

of Rs.3,75,000/- for his urgent business commitments.

He assured to repay the same within eight months. When

he failed to keep up the promise, on repeated request

and demand by the complainant, he issued a cheque

dated 03.05.2003 for Rs.3,75,000/-. However, when

complainant presented it for encashment, it was returned

dishonoured on the ground of account being closed.

3 CRL. A NO.987 OF 2012

Complainant got issued legal notice. Though it is duly

served, accused has not complied with the same. On the

other hand, he got issued an evasive reply. Without any

alternative, the complainant has filed the complaint.

4. After due service of notice, the accused has

appeared through counsel and contested the matter. He

pleaded not guilty and claim the trial.

5. In order to bring home guilt to the accused,

the complainant has examined himself as PW1. He has

relied upon Exs.P1 to P8.

6. During the course of his statement under

Section 313 Cr.P.C., the accused has denied the

incriminating evidence.

7. In support of his case, accused has examined

two witnesses as DW1 and DW3 and examined himself as

DW2. No documents are marked on his behalf.

8. Vide the impugned judgment and order, the

Trial Court acquitted the accused.

4 CRL. A NO.987 OF 2012

9. Being aggrieved by the same, the complainant

is before this Court contending that the impugned

judgment and order of the Trial Court is contrary to the

law, facts and evidence on record. To escape from the

penal liability, accused has taken a false defence and has

failed to prove the same. It is also not appreciated by the

Trial Court. The fact that DW1 and 3 are interested

persons and no reliance could be placed on their

evidence. The Trial Court has also erred in holding that

there is material admission on the part of complainant

regarding the chit fund business run by his wife. In the

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

complainant is not required to produce any documents in

proof of advancing loan to the accused. The Trial Court

has failed to consider this aspect.

10. In support of his arguments, learned counsel

for the complainant has relied upon the decision of the

Hon'ble Supreme Court in GIMPEX Private Limited Vs.

Manoj Goyal1.

    AIR OnLine 2021 SSC 865
                                 5               CRL. A NO.987 OF 2012




    11.    On     the   other       hand,   learned        counsel

representing    the   accused,      supported    the    impugned

judgment and order and prays to dismiss the appeal.

12. Heard arguments of both sides and perused

the record .

13. Thus, it is the specific case of the complainant

that accused borrowed hand loan of Rs.3,75,000/- for his

urgent business commitment and the cheque which he

issued towards repayment of the same was dishonoured

on the ground that the account was closed and after

receipt of legal notice, instead of paying the amount due,

the accused sent an untenable reply and therefore he is

being prosecuted by the complainant.

14. Though, accused admitted that the cheque in

question is drawn on his account and it bears his

signatures, accused has taken up a specific defence that

he never borrowed any loan from the complainant let

alone Rs.3,50,000/-. In reply to the legal notice, he has

taken up a specific defence that complainant was running

a chit fund and accused and others were members and in 6 CRL. A NO.987 OF 2012

connection with the same, he had issued the subject

cheque and miss using the same, the complainant has

chosen to file a false complaint.

15. Since, accused admit that the cheque in

question is drawn on his account, maintained with his

banker and bears his signatures, the presumption is

operating in favour of the complainant that it was issued

towards the payment of any legally recoverable debt or

liability and therefore the burden is on the accused to

prove that, it was not issued towards the payment of any

legally recoverable debt or liability, but on the other hand

establish the circumstances in which it has reached the

hands of complainant. Upon rebutting the said

presumption, the burden would shifted on the

complainant to prove that he had in fact advanced loan

of Rs.3,75,000/- and he had the capacity to pay such

amount to the complainant and that in fact, complainant

had the necessity of borrowing the said amount. Since

the cheque in question came to be dishonoured on the

ground "account closed", the burden is on the

complainant to prove that after issuing the cheque, the 7 CRL. A NO.987 OF 2012

accused got the account closed with an intention to

prevent the complainant from realising the amount due

under the same.

16. During the course of his evidence, the

complainant has reiterated the complaint averments. He

has denied the suggestion that he was running a chit

fund business and complainant and others were its

members and the cheque in question was issued as a

security and misusing the same, he has filed this

complaint. Having sent reply to the legal notice, the

accused at the earliest of available opportunity has set

up a specific defence. In order to rebut the presumption,

the accused has examined DW3-Jagannath Rao. He has

specifically deposed that complainant was running chit

business and it was he who was collecting monthly

contributions from the participants and from every

participant, complainant used to collect signed blank

cheques. DW1-Venkatesha Sanjeeva Baliga has also

deposed that he was also one such participant of the chit

fund run by the complainant and he was collecting blank

cheques from each participants. Of course during the 8 CRL. A NO.987 OF 2012

course of his evidence, the accused has also reiterated

the defence taken by him.

17. Though, the complainant has denied that he

was running a chit fund business, he has admitted that

during 1999-2000, he was the President of the Rotary

Club and in the commemorative Sanjay K offered the

said club. She had run an advertisement by name Roopa

Chit Funds. In this regard, he has volunteered and stated

that the said chit fund was run by his wife. However, the

complainant has not produced any documents to show

that the said business was run by his wife and he has

nothing to do with it. On the other hand, the evidence of

DW1 and 3 corroborate the testimony of the accused that

complainant was running the chit fund business and in

that connection they used to send blank cheques. In fact,

the complainant has filed similar complaints against

others including DW1. Thereby, the accused has rebutted

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

18. Therefore, the burden shifts on the

complainant to prove that in fact he has paid

Rs.3,75,000/- to the accused and the said amount was 9 CRL. A NO.987 OF 2012

borrowed by the accused for his business contingency.

However, the complainant has not lead any evidence to

show that at the relevant point of time he was in

possession of Rs.3,75,000/- and he paid the same to the

accused. In fact, during his cross-examination,

complainant has deposed that the said amount was

borrowed by the accused not only to meet his business

exigency, but also for his medical treatment. However,

he has not placed any material on record to prove the

same, especially that accused was in need of medical

treatment. That could have corroborated his case. In the

absence of such evidence, the complainant has failed to

discharge the burden which has shifted on him. Though

the accused is required to rebut the presumption under

Section 139 of the N.I.Act on preponderance of

probabilities, it is for the complainant to discharge the

burden beyond disable doubt. The complainant has failed

to discharge this burden.

19. More over the complainant has failed to prove

that after issuing the cheque in question, the accused

has intentionally got the account closed so as to see that 10 CRL. A NO.987 OF 2012

the cheque is dishonoured. In fact, the accused has

made an attempt to ascertain, when the account came to

be closed. The manager of the bank has appeared before

the Court and submitted that the Bank is not having the

relevant documents. At least this proves the fact that the

account was not closed subsequent to the date on the

cheque or else they would not have been destroyed. In

the light of these facts and circumstances, the Trial Court

has come to a correct conclusion that complainant has

failed to prove his case.

20. So far as the decision in GIMPEX is

concerned, the Hon'ble Supreme Court held that in

respect of the same transaction, parallel criminal

proceedings cannot be pursued. In that case, the cheque

issued by accused came to be dishonoured. However, the

parties entered into to compromise and cheques issued

pursuant to the compromise are also dishonoured. In

such circumstances, the Hon'ble Supreme Court held that

the complainant cannot prosecute the earlier complaint

also. However, this decision is not applicable to the facts

and circumstances of the present case.

11 CRL. A NO.987 OF 2012

21. Thus, from the above discussion, this Court is

of the considered opinion that no justifiable grounds are

made out to interfere with the impugned judgment and

order and consequently the appeal is also liable to be

dismissed and accordingly I proceed to pass the

following:

ORDER

The appeal filed by the complainant is

dismissed.

The impugned judgment and order of the

Trial Court is confirmed.

Registrar is directed to send back the Trial

Court Records along with copy of this order

fourth with.

Sd/-

JUDGE

RR/KGK