Karnataka High Court
Sri. D Somashekar vs Sri. S Giriraj on 18 December, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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CRL.A No. 26 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO. 26 OF 2018
BETWEEN:
SRI. D. SOMASHEKAR,
S/O D DODDANARASIAH,
AGED ABOUT 37 YEARS,
R/AT NO.U 19, "BELLI BEDAGU" NILAYA,
10TH MAIN, PALACE GUTTAHALLI,
BANGALORE-560 003.
...APPELLANT
(BY SRI. C.M. DESAI, ADVOCATE)
AND:
SRI. S. GIRIRAJ
S/O SUBBANNA .V.N,
AGED ABOUT 52 YEARS,
R/AT FLAT NO.301, 4TH FLOOR,
CREATIVE SURAJ, 5TH CROSS,
5TH MAIN, OPP:SRIRAMA TEMPLE,
C.P BLOCK, GANGANAGARA EXTN.
Digitally BANGALORE-560 032.
signed by ...RESPONDENT
SOWMYA D
(BY SRI. K. NIRANJAN AND
Location: SRI. NAMADEVA PADIYAR .U, ADVOCATES)
High Court
of THIS CRL.A. IS FILED U/S 378(4) CR.P.C PRAYING TO
Karnataka SET ASIDE THE JUDGMENT DATED 02.11.2017 PASSED BY THE
XIX ADDL.C.M.M., BANGALORE IN C.C.NO.13831/2016 -
ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
P/U/S 138 ON N.I ACT.
THIS APPEAL COMING ON FOR FURTHER HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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CRL.A No. 26 of 2018
JUDGMENT
This appeal is filed by the appellant/
complainant under Section 378(4) of Code of Criminal
Procedure, 1973 (for short 'Cr.P.C.'), challenging the
judgment of acquittal passed by XIX Additional Chief
Metropolitan Magistrate, Bengaluru City, in CC.
No.13831/2016, dated 02.11.2017.
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 are
that complainant and accused are acquainted with each
other since long time. It is further asserted that out of this
acquaintance, the complainant was approached by the
accused for financial assistance in the month of October-
2015 demanding hand loan of Rs.2,75,000/-. It is further
asserted that, with great difficulty, the complainant
adjusted the funds and gave a short term hand loan of
Rs.2,75,000/- to the accused. The accused had agreed to
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repay the loan amount within three months, but he did not
repay the same. Subsequently, by the intervention of
friends, the matter was settled and accused has issued a
cheque bearing No.111597, dated 08.03.2016, for a sum
of Rs.2,75,000/- drawn on Axis Bank, R.T.Nagar Branch,
Bengaluru. When the said cheque was presented for
encashment by the complainant, it was returned with an
endorsement as "funds insufficient". Thereafter, the
complainant has got issued a legal notice to the accused
and in spite of service of legal notice, the accused failed to
make repayment of the cheque amount. Hence, the
complainant has lodged a complaint under Section 200 of
Cr.P.C. before the learned Magistrate alleging that the
accused has committed an offence punishable under
Section 138 of the Negotiable Instruments Act, 1881 (for
short 'N.I. Act').
4. After recording the sworn statement, the
learned Magistrate has taken cognizance of the offence
and issued process against the accused. The accused
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appeared through his counsel and was enlarged on bail.
The plea under Section 138 of the N.I. Act was framed and
accused denied the same. Thereafter, the complainant was
got examined himself as PW1 and placed reliance on four
documents marked at Ex.P1 to Ex.P4. After conclusion of
evidence of the complainant, the statement of accused
under Section 313 Cr.P.C was recorded and the case of the
accused is of total denial. He got himself examined as
DW1 and placed reliance on two documents marked at
Ex.D1 and Ex.D2.
5. After hearing the arguments and after
appreciating the oral and documentary evidence, the
learned Magistrate acquitted the accused for the offence
punishable under Section 138 of the N.I. Act by exercising
his powers under Section 255(1) of Cr.P.C. Being
aggrieved by this judgment of acquittal, the complainant is
before this Court by way of this appeal.
6. Heard the arguments advanced by the learned
counsel for the appellant. In spite of granting sufficient
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opportunities, the learned counsel for the respondent did
not appear before the Court so as to advance the
arguments on behalf of respondent. Perused the records.
Since the transaction is a private transaction between the
parties, there is no need for appointing Amicus Curiae for
respondent.
7. The learned counsel for appellant would
contend that the accused has approached for
advancement of loan of Rs.2,75,000/- and complainant
with much difficulty arranged the said amount and handed
over the same and accused assured repayment of the
same within three months. But when he failed to do so
and by intervention of the elders, he issued a cheque
dated 08.03.2016. It is further asserted that the
complainant thereafter when presented the said cheque, it
was bounced and legal notice was issued, which is served
and the trial Court only on the ground that there is no
document of proof of loan and considering the defence
held that rebuttal has been done, acquitted the accused.
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He would contend that the cheque and signature have
been admitted and there is initial presumption under
Section 139 of N.I.Act in favour of the complainant
regarding issuance of cheque towards legally enforceable
debt. He would also assert that no documents have been
produced to prove that cheque was issued to one R.
Chandrashekar as asserted by the accused and regarding
chit fund transaction no documents are forthcoming and
mere filing of a criminal case by R. Chandrashekar against
the accused does not establish the defence of the accused.
Hence, it is submitted that the learned Magistrate has
committed an error in acquitting the accused on
assumptions and presumptions. Hence, he would seek for
allowing the appeal by setting aside the impugned
judgment of acquittal and sought for convicting the
accused.
8. After having heard the arguments and perusing
the records, now the following point would arise for my
consideration:
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"Whether the judgment of acquittal passed by
the trial Court is perverse and arbitrary so as to
call for any interference by this Court."
9. It is the specific contention of the accused that
complainant has approached him in October-2015 for
advancement of loan and trusting the accused, he with
great difficulty adjusted the funds and handed over the
loan of Rs.2,75,000/- to the complainant. Interestingly, in
the complaint, the complainant has nowhere pleaded
regarding reply notice issued by the accused. All along,
complainant asserted that the amount was demanded in
the month of October-2015. Interestingly, the complainant
nowhere asserted as to when the loan of Rs.2,75,000/-
was advanced to the accused. This material pleading is
completely silent in the complaint. It is hard to accept the
contention of the complainant that he is unable to recollect
the date or even the month of advancement of loan.
10. Further, though the financial status of the
complainant is not challenged, but interestingly, the
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complainant in his complaint at para No.3 itself specifically
asserted that with much difficulty, he adjusted the loan
amount Rs.2,75,000/- and paid it to the complainant. This
assertion establish that the complainant was not having
sufficient means to advance such a huge amount.
11. The complainant was examined himself as PW1
and in his examination-in-chief, he has reiterated
complaint allegations. In his examination-in-chief also he
simply asserted that with great difficulty, he had adjusted
the funds and gave a short term hand loan of
Rs.2,75,000/- to the accused and demand was made in
the month of October-2015. But even in examination-in-
chief, there is no assertion as to when exactly the loan
was advanced.
12. It is the specific defence of the accused that he
has availed a small loan of Rs.1,00,000/- from one
R. Chandrashekar and Rs.10,000/- was already paid and
he was due to pay Rs.90,000/- to R. Chandrashekar. It is
his further defence that at the time of availment of
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Rs.1,00,000/- loan from R. Chandrashekar, he has issued
two blank cheques and one of the cheque is misused by
the complainant and the complaint is got filed through
present complainant by R. Chandrashekar and he himself
has lodged another complaint and in this regard he placed
reliance on Ex.D1 a legal notice issued by
R. Chandrashekar.
13. All along, it is argued that no documents have
been produced by the accused regarding chit fund
transaction, as asserted. But the complainant in his cross-
examination admitted that he knew one Chandru who is
doing chit fund transaction and he is member of the said
chit fund. He has further asserted in his cross-examination
that he has advanced loan of Rs.2,75,000/-, which is
received from bidding the chit with said Chandru and on
the same day of receiving amount, the said amount was
handed over to the accused. He claims that he is well
conversant with accused since number of years and simply
asserts that accused is running a club in R.T.Nagar. But
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complainant claims that he did not visit the said club and
even does not know the name of the said club. He further
admits that Chandru is also known to the accused. He
pleads ignorance regarding said Chandru alias
R. Chandrashekar filing a complaint against the present
accused and he denied the suggestion that the cheque
given to the R. Chandrashekar was misused by him. As
observed above, the evidence of complainant itself
discloses that he do not know the date or month of
advancement of loan. His own assertions made in the
complaint disclose that he has no financial capacity to
advance such a huge loan and he advanced the loan by
using the bid amount with one R. Chandrashekar, but that
was not pleaded in the complaint. Even otherwise he has
not produced any documents for having received the bid
amount from Chandru and said Chandru was also not
examined by the complainant.
14. The accused was also examined himself as DW1
and in his examination-in-chief, he has taken the defence
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regarding handing over the two cheques as a security for a
loan amount availed from R. Chandrashekar and one of
the cheque is being misused and in respect of another
cheuqe Chandru filing a complaint against him. No doubt,
he admits that Ex.P1 cheque belongs to his account and it
bears his signature, but he very specifically asserts that he
had handed over the said cheque to R. Chandrashekar.
Though initial presumption is under Section 139 of the N.I.
Act is in favour of complainant, however, in view of the
own pleadings made by the complainant that with much
difficulty, he could able to adjust the amount and handed
over amount to the complainant, establish that he had no
financial capacity. In such event the complainant ought to
have produced material documents to show either his
financial capacity or that he received the bid amount and
he was the highest bidder by examining R. Chandrashekar
alias Chandru. But that was also not done. Even he does
not know when the loan was advanced. Ex.D1 discloses
that R. Chandrashekar had already issued statutory notice
to accused. It is admitted fact that R. Chandrashekar is
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running a chit fund transaction. Considering these aspects,
the entire case of the complainant creates serious doubt
and the complainant has failed to prove that the cheque
was issued towards legally enforceable debt. Considering
the cross-examination and inconsistent defence, non
pleading date of advancement of the loan etc., it is evident
that the presumption available in favour of complainant
stands rebutted.
15. The learned counsel for appellant has placed
reliance on a decision reported in AIR 2021 SC 2814
[APS Forex Services Pvt. Ltd. v. Shakti International
Fashion Linkers and Ors.]. But in the said case no
evidence was not lead by the accused regarding
repayment of the entire amount and hence, it is held that
presumption is not rebutted. But in the instant case,
cross-examination of complainant itself establishes that he
was involved in a chit transaction conducted by R.
Chandrashekar and the specific defence of the accused is
that he availed loan of Rs.1,00,000/- from R.
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Chandrashekar and already repaid Rs.10,000/- and two
cheques were given as a security. Considering the conduct
of the complainant, defence of the accused is more
probable and principles of above case are of no availment
to accused.
16. The learned counsel for appellant has
also placed reliance on decision reported in
AIR OnLine 2021 SC 82 [M/s. Kalamani Tex and Anr.
vs. P.Balasubramanian]. The facts and circumstances of
the said case are entirely different and though the
signature has been admitted, but the presumption in the
instant case was rebutted and the reported case was the
case of over extension of credit facility, which was not
established. Hence, the facts and circumstances of the
said case would not come to the aid of the appellant in any
way.
17. He has further placed reliance on a decision
reported in AIR 2019 SC 1876 [Rohitbhai Jivanlal
Patel v. State of Gujarat and Anr.] and argued that the
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rule of presumption is in favour of complainant and onus is
on the accused to establish the probable defence so as to
rebut the said presumption. There is no dispute regarding
the said proposition of law but in the instant case, the
evidence of complainant, pleadings made in the complaint,
cross-examination of complainant and evidence of accused
establish that the presumption available in favour of
complainant is already rebutted and hence, the benefit of
presumption under Section 139 of the N.I. Act is not
available in favour of the complainant. As such
complainant is required to prove a transaction
independently, but he has failed to do so.
18. He has also placed reliance on decision reported
in 2019 (2) KAR L.R 717 (SC) [Uttam Ram v.
Devinder Singh Hudan and Another]. It is again in
respect of Section 118(a), 138 and 139 N.I. Act as well as
statutory presumption and rebuttal. There is no dispute
regarding the proposition of law laid down in the above
said case. But in the instant case, the evidence on record
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clearly establishes that presumption was already rebutted
by the accused and hence, the said principles cannot be
made applicable to the facts and circumstances of the case
in hand.
19. He has also placed reliance on a decision
reported in 2015 (3) AKR 147 [T. Vasanthakumar v
Vijayakumari] and decision reported in ILR 2019 KAR
493 [Sri Yogesh Poojary vs. Sri. K. Shankara Bhat].
Again, it is in respect of drawing presumption under
Section 139 of the N.I. Act, which is mandatory. But as
observed above, the said presumption is statutory
presumption and it is not a conclusive presumption. It is a
rebutabble presumption and accused is required to rebut
the presumption on the basis of preponderance of
probability, but not as in case of the complainant
regarding proof beyond all reasonable doubt. In the
instant case the evidence on record and the pleadings
made by the complainant establish that the accused has
rebutted the presumption available in favour of
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complainant under Section 139 of the N.I. Act. Even the
complainant does not know when exactly he advanced the
loan including the month. Hence, once the presumption
stands rebutted, the burden again shifts on the
complainant to prove the transaction but in the instant
case, no such evidence is placed by the complainant
regarding passing of the consideration. Hence, the
principles of the above said case cannot be made
applicable to case in hand.
20. Considering the admissions given by the
complainant, the defence raised by the accused is more
probable. The learned Magistrate appreciated all these
facts and circumstances in proper perspective and has
rightly acquitted the accused. No illegality or perversity is
found in the judgment of acquittal so as to call for
interference by this Court. Hence, the appeal being devoid
of any merits, does not survive for consideration.
Accordingly, the point under consideration is answered in
the negative and as such, I proceed to pass the following:
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ORDER
(i) The appeal stands dismissed.
Sd/-
JUDGE
DS
