Karnataka High Court
K Muniswamappa vs Smt Mangamma on 19 December, 2023
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CRL.A No. 736 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S RACHAIAH
CRIMINAL APPEAL NO. 736 OF 2012 (A)
BETWEEN:
K MUNISWAMAPPA,
S/O LATE KAKAPPA,
AGED ABOUT 40 YEARS,
R/AT THATTANAHALLI VILLAGE,
KASABA HOBLI,
ANEKAL TALUK,
BANGALORE DISTRICT.
...APPELLANT
(BY SRI NITHIN GOWDA K.C. FOR
SRI P. PRASANNA KUMAR, ADVOCATES)
AND:
SMT. MANGAMMA,
W/O CHIKKANNAIAH,
AGED ABOUT 47 YEARS,
R/AT JANATHA COLONY,
KARPUR VILLAGE,
KASABA HOBLI,ANEKAL TALUK,
BANGALORE DISTRICT.
...RESPONDENT
(BY SRI K.S. MANJUNATH, ADVOCATE)
THIS CRL.A IS FILED U/S. 378(4) OF CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED
20.06.2012 PASSED BY THE PRL. CIVIL JUDGE & JMFC, ANEKAL IN
C.C.NO.1127/2010 ACQUITTING THE RESPONDENT / ACCUSED FOR
THE OFFENCE P/U/S 138 OF N.I. ACT.
THIS CRIMINAL APPEAL HAVING BEEN HEARD THROUGH
PHYSICAL HEARING / VIDEO CONFERENCING HEARING AND
RESERVED ON 29.09.2023 BEFORE THE PRINCIPAL BENCH AT
BENGALURU BENCH, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, BEFORE THE DHARWAD BENCH, THROUGH VIDEO
CONFERENCING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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CRL.A No. 736 of 2012
JUDGMENT
1. This appeal is filed by the appellant being aggrieved by
the judgment and order of acquittal dated 20.06.2012 in
C.C No.1127/2010 on the file of Principal Civil Judge and
JMFC, Anekal wherein, the Trial Court acquitted the
accused/respondent for the offence punishable under
Section 138 of the Negotiable Instruments Act (for short
'N.I. Act').
2. The rank of the parties in the Trial Court henceforth will
be considered accordingly for convenience.
Brief facts of the case:
3. It is the case of the complainant that the complainant and
the accused are well known to each other. The accused
was in need of money to clear hand loan and also for his
family necessities. Hence, he has approached the
complainant to borrow a sum of Rs.2,00,000/- and
promised to return the said amount within three months.
The accused had borrowed the said amount and issued
post dated cheque dated 04.08.2010. When the cheque
was presented for encashment it was dishonoured with a
shara as 'funds insufficient'. The memo dated
04.08.2010 was issued on the same day. A legal notice
came to be issued on 07.08.2010 calling upon the
accused to pay the said amount. However, even after
receipt of the said legal notice, the accused has neither
paid the amount nor replied to the notice. Therefore, it is
constrained the complainant to file a complaint before the
jurisdictional Magistrate.
4. To prove the case of the complainant, the complainant
examined himself as PW.1 and got marked Exs.P1 to P6
and also got examined PW.2-Bank Manager. On the
other hand, the accused herself examined as DW.1 and
got marked Exs.D1 and D6 and he also got examined one
more witness as DW.2. The Trial Court after appreciating
the oral and documentary evidence on record recorded
the acquittal for the reason that the complainant has to
prove his case beyond reasonable doubt.
5. It is the submission of the learned counsel for the
appellant / complainant that the Trial Court has
committed error in recording the acquittal on the ground
that the complainant has to prove the case beyond all
reasonable doubt. Even the accused has not rebutted the
presumption which is perverse, illegal and the same is
liable to be set aside.
6. It is further submitted that the accused has admitted the
signature and issuance of the cheque, moreover, the
accused has not replied even though the notice having
been received. Therefore, the Trial Court ought to have
raised the presumption based on the admission of the
accused. However, the Trial Court failed to raise
presumption, as a result of which, the impugned
judgment is passed which is required to be set aside.
Making such submission, the learned counsel for the
appellant prays to allow the appeal.
7. Per contra, the learned counsel for the respondent
justified the impugned judgment and order of acquittal
passed by the Trial Court and submitted that the accused
is not known to the complainant. The complainant is a
friend of Sri.Muniraju who is acquainted with the accused.
The said Sri.Muniraju was entrusted the work of
constructing house of the accused and had obtained
Rs.15,00,000/- from the accused to construct the house.
The amount was not sufficient to complete the
construction work, hence, she has decided to borrow loan
from the bank and the said Sri.Muniraju had assured the
accused that he would arrange the loan and took the
accused to the bank and opened the account and
obtained the cheque book and also instructed the accused
that he needed a signed blank cheque for the purpose of
transaction.
8. It is further submitted that the said Sri.Muniraju after
having obtained the signed blank cheque, misused it and
handed over to the complainant and the complainant has
presented the said cheque for encashment even though
the accused has not made any transaction with the
complainant. It is further submitted that the Trial Court
rightly appreciated both oral and documentary evidence
on record and recorded the acquittal which is appropriate
and interference with the said findings may not be
necessary. Making such submission, the learned counsel
for the respondent prays to reject the appeal.
9. Having heard the learned counsel for the respective
parties and also perused the findings of the Trial Court in
recording the acquittal, now, it is relevant to take note of
the legal proposition in respect of appeal against
acquittal. Generally, the Appellate Court has jurisdiction
to re-appreciate both the facts and law. However, there
is an exception to the appeal against the acquittal.
10. In a case where the appeal is filed against the acquittal,
the Appellate Court has to interfere only where it notices
that the findings recorded by the Trial Court appeared to
be perverse and illegal. Having regard to the proposition
of law stated supra, now it is relevant to refer to the
judgment of the Hon'ble Supreme Court for better
understanding the proposition of law in the case of
Negotiable Instruments Act.
11. Now, it is relevant to refer to the judgment of the Hon'ble
Supreme Court in the case of BASALINGAPPA v.
MUDIBASAPPA1, paragraph No.25 reads thus:
"25. We having noticed the ratio laid down by
this Court in the above cases on Sections 118(a) and
139, we now summarise the principles enumerated by
this Court in following manner:
25.1. Once the execution of cheque is admitted
Section 139 of the Act mandates a presumption that
the cheque was for the discharge of any debt or other
liability.
25.2. The presumption under Section 139 is a
rebuttable presumption and the onus is on the
(2019) 5 SCC 418
accused to raise the probable defence. The standard
of proof a for rebutting the presumption is that of
preponderance of probabilities.
25.3. To rebut the presumption, it is open for the
accused to rely on evidence led by him or the accused
can also rely on the materials submitted by the
complainant in order to raise a probable defence.
Inference of preponderance of probabilities can be
drawn not only from the materials brought on record
by the parties but also by reference to the
circumstances upon which they rely.
25.4. That it is not necessary for the accused to
come in the witness box in support of his defence,
Section 139 imposed an evidentiary burden and not a
persuasive burden.
25.5. It is not necessary for the accused to come
in the witness box to support his defence."
12. On careful reading of the above dictum of the Hon'ble
Supreme Court, it makes it clear that presumption under
Section 139 of the N.I. Act is rebuttable in nature.
However, the very denial regarding existence of debt
shall not serve any purpose. The accused has to raise
probable defence which creates doubt with regard to
existence of debt or liability to rebut the presumption.
13. In the present case, the complainant has stated that he
has lent amount of Rs.2,00,000/- to the accused. The
accused has borrowed the said amount for the purpose of
construction of her house. Further, it is stated that to
clear the said debt, the accused had issued a cheque to
the complainant. When it was presented for encashment,
the cheque came to be dishonoured with a shara as
'funds insufficient'.
14. It is settled principle of law that initially the accused has
to lead his evidence to rebut the presumption. In the
present case, the accused has contended that she was
constructing the house. The work of construction was
entrusted to Sri.Muniraju. She was in need of money and
informed the same to Sri.Muniraju. The said Sri.Muniraju
took her to the bank and opened the account and
obtained cheque book. After having obtained the cheque
book, she was instructed to hand over the signed blank
cheque for the purpose of transaction.
15. The accused said to have issued a signed blank cheque to
Sri.Muniraju and it has been misused by the said
Sri.Muniraju and handed over the cheque to the
complainant and the complainant presented it for
encashment. The accused has denied the transaction
with the complainant.
16. It is also well settled principle of law that mere denial of
the transaction is not sufficient to rebut the presumption.
Even though the accused has stated in her evidence that
Sri.Muniraju is the root cause for the complaint, she has
not examined him to substantiate her contention.
Moreover, the said contention cannot be accepted as it
contains no basis. When the accused failed to rebut the
presumption by leading the cogent evidence, the
presumption prevails over it. Therefore, the findings of
the Trial Court in recording the acquittal appears to be
vague and perverse and therefore, the said acquittal
cannot be sustainable.
17. In the light of the observations made above, I proceed to
pass the following:-
ORDER
(i) The Criminal Appeal is allowed.
(ii) The judgment and order of acquittal dated
20.06.2012 passed in C.C No.1127/2010 on the
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file of the Principal Civil Judge and JMFC, Anekal
is set aside.
(iii) The respondent / accused is convicted for the
offence under Section 138 of N.I. Act and he is
sentenced to pay a fine of Rs.2,50,000/-
(Rupees Two lakhs fifty thousand only), in
default of payment of fine, he shall undergo
simple imprisonment for six months.
(iv) On deposit of fine amount, it is ordered that
amount of Rs.2,40,000/- (Rupees Two lakhs
forty thousand only) to be payable to the
complainant/appellant as compensation in terms
of Section 357-A of the Code of Criminal
Procedure and the balance of Rs.10,000/-
(Rupees Ten thousand only) to be adjusted to
the exchequer of the State.
(v) The Registry is directed to send the record along
with the copy of the judgment to the Trial Court
forthwith.
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(vi) The Trial Court is directed to secure the presence
of the accused for execution of sentence
imposed by this Court in accordance with law.
Sd/-
JUDGE
UN
