Karnataka High Court
Mr Srinivas V vs Mr H L Lakshmikantha on 4 December, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL No.70/2018
BETWEEN:
MR. SRINIVAS .V,
S/O VENKATASWAMAPPA,
AGED ABOUT 37 YEARS,
R/AT.NO.32/B, 2ND MAIN,
NGOS COLONY,
VRUSHUBAVATHINGAR,
KAMAKSHIPALYA,
BENGALURU-560 079.
....APPELLANT
(BY SRI. R.B. SADASIVAPPA, ADVOCATE)
AND:
MR. H.L. LAKSHMIKANTHA,
S/O H.S. LAKSHMAIAH,
AGED ABOUT 48 YEARS,
R/AT.NO.32, 2ND CROSS,
RAJAJINAGAR HOUSING SOCIETY LAYOUT,
ANNAPOORNESHWARINAGARA,
NAGARABAVI,
BENGALURU-560 091.
ALSO AT:
NO.31/2, 2ND MAIN,
NGOS COLONY, NEAR JAGATHGURU SCHOOL,
VRUSHUBAVATHINAGAR,
KAMAKSHIPALYA,
BENGLURU-560 079.
.... RESPONDENT
(BY SRI. N.R. NAIK, ADVOCATE)
2
THIS APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C.
PRAYING TO SET ASIDE THE JUDGMENT DATED: 10.11.2017
PASSED BY THE XXII A.C.M.M., BENGALURU IN
C.C.NO.2334/2017-ACQUITTING THE RESPONDENT/ACCUSED
FOR THE OFFENCE P/U/S 138 OF N.I ACT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 23.11.2023, COMING ON FOR 'PRONOUNCEMENT
OF JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This revision is filed by the appellant/complainant
under Section 378(4) of Code of Criminal Procedure, 1973
(hereinafter referred to as 'Cr.P.C' for short) challenging the
judgment of acquittal passed by the XXII Additional Chief
Metropolitan Magistrate, Bangalore, in C.C.No.2334/2017,
dated 10.11.2017.
2. For the sake of convenience, the parties herein
are referred as per the ranks occupied by them before the
trial Court.
3. The brief fractual matrix leading to the case are
that the complainant and accused are friends and in the
third week of July-2014, the accused approached and
narrated the complainant that he and his friend
S.B.Honnappa formed the residential layout in Anekal and
insisted the complainant for purchasing the site for a sum of
Rs.13,20,000/-. It is alleged that complainant with an
intention of purchasing the site, paid Rs.11,50,000/- in four
installments and said S.B.Honnappa on 07/08/2014 had
executed an agreement of sale in his favour and thereafter,
agreement for an extension of time came to be executed.
However, neither the S.B.Honnappa nor the accused have
executed any agreement and hence, complainant has
lodged a complaint before the jurisdictional police, wherein
accused has undertaken to execute the Sale Deed or return
the amount along with S.B.Honnappa, but did not do so and
later on he has issued three cheques for Rs.4,00,000/- each
towards discharge of the said amount along with interest.
The said cheques were presented and were returned as
'payment stopped by the drawer' and a legal notice came to
be issued but it was returned as door locked. Hence,
complainant has lodged a complaint under Section 200 of
Cr.P.C. alleging that accused has committed an offence
under Section 138 of the Negotiable Instruments Act, 1881
(for short 'N.I. Act').
4. The learned Magistrate has taken cognizance of
the offence and issued a process against the accused.
Accused has appeared through his counsel and was
enlarged on bail. The plea under Section 138 of the N.I. Act
is framed against the accused and same is read over and
explained to the accused. He pleaded not guilty.
5. The complainant was got examined himself as
PW1 and placed reliance on 17 documents marked at Ex.P1
to Ex.P17. Then the statement of accused under Section
313 Cr.P.C. is recorded to enable the accused to explain the
incriminating evidence appearing against him in the case of
the complainant. The case of accused is of total denial and
he was also got examined himself as DW1 and placed
reliance on Ex.D1.
6. The learned Magistrate after appreciating the
oral and documentary evidence acquitted the
accused/respondent herein for the offence punishable under
Section 138 of the N.I. Act. Being aggrieved by this
judgment of acquittal, the complainant is before this Court
by way of this appeal.
7. Heard the arguments advanced by the learned
counsel for the appellant and learned counsel for
respondent. Perused the records.
8. The contention of the learned counsel for
appellant is that the cheques belong to the accused and the
signature of the accused are undisputed and defence of
accused regarding obtaining the cheques by force is not
established. Hence, he would contend that initial
presumption under Section 139 of the N.I. Act is in favour
of the complainant and the same has not been rebutted and
hence, he would contend that the learned Magistrate has
failed to appreciate this oral and documentary evidence in
proper perspective and sought for allowing the appeal by
convicting the accused. Hence, this appeal.
9. Per contra, the learned counsel for respondent
would support the judgment of acquittal passed by the
learned Magistrate. He would contend that the evidence
clearly discloses that the allegations were regarding
financial transaction between complainant and accused but
records disclose that no such transaction has taken place
and cheques were obtained by force and a complaint was
also lodged in this regard and the undertaking given by the
complainant clearly establishes this aspect. He would
contend that the presumption can be drawn only in the case
of legally enforceable debt, but in the instant case, no such
evidence is forthcoming and hence, he would seek for
dismissal of the appeal.
10. Having heard the arguments and after
appreciating the oral and documentary evidence, now the
following point would arise for my consideration:
"Whether the judgment of acquittal passed
by the trial Court is perverse and arbitrary so as
to call for any interference by this Court."
11. It is the specific contention of the complainant
that he has entered into an agreement of sale as per Ex.P1
at the instance of the accused and he paid amount of
Rs.11,50,000/- to the accused under Ex.P1. But on perusal
of Ex.P1, it is evident that it is an agreement of sale entered
between Rajarajeshwari Land Developers and Builders
through its partner Honnappa and complainant. Accused is
not a signatory to this agreement, but he is only shown to
be a witness. Merely witnessing this document does not
amount that accused is liable to pay the amount which is
paid to Rajarajeshwari Land Developers and Builders.
12. Ex.P2 is the agreement pertaining to extension of
time, but it is again executed by Honnappa and accused is
only a witness. Merely because accused has endorsed as a
witness, no legal liability can be fastened on the accused. In
agreement Ex.P1 or Ex.P2, there is no condition that the
accused has undertaken to reimburse the sale price in case
sale deed is not executed.
13. Ex.P4 to Ex.P6 are the disputed cheques. There
is no serious dispute of the fact that the cheques belong to
the accused and they bear their signature. As such, the
learned counsel for appellant would contend that initial
presumption is in favour of the complainant under Section
139 of the N.I. Act. No doubt, under Section 139, initial
presumption is in favour of the complainant regarding the
issuance of cheque in favour of complainant towards a
legally dischargeable debt. On this point, learned counsel
for appellant has placed reliance on decision of the Apex
Court in 2019 (3) KCCR 2126 (SC) [ANSS RAJASHEKAR vs
AUGUSTUS JEBA ANANTH]. In the said decision, the Hon'ble
Apex Court has dealt regarding the provisions of Sections
138 and 139 and presumption, but it is clearly observed
that the said presumption is a rebuttable presumption and it
is not a conclusive presumption. He has further placed
reliance on a decision reported in AIR 2019 SC 1983
[BASALINGAPPA v. MUDIBASAPPA]. There also the Hon'ble Apex
Court has dealt regarding rule of presumption and in view of
the admission of signature on the cheque presumption shall
be raised that the cheque was issued in discharge of debt or
liability. Absolutely, there is no dispute regarding the said
proposition of law laid down by the Apex Court. But it is not
a conclusive presumption and the presumption, available is
a statutory presumption which is rebuttable one.
14. The accused is at liberty to rebut the
presumption by leading any evidence, or cross examining
the complainant or by relying on the evidence or documents
relied by the complainant himself. In this regard, the
decision of the Apex Court reported in 2023 Livelaw (SC) 46
[RAJARAM S/O SRIRAMULU NAIDU VS. MARUTHUCHALAM] is
relevant. The Hon'ble Apex Court in the said decision had an
occasion to consider the standard of proof for rebutting the
presumption and it is observed that the presumption is
required to be rebutted on the basis of preponderance of
probabilities. In the said decision, the Hon'ble Apex Court
has observed as under:
"Negotiable Instruments Act, 1881; Section 139 - The
standard of proof for rebutting the presumption is that of
preponderance of probabilities - once the execution of
cheque is admitted, Section 139 of the N.I. Act mandates
a presumption that the cheque was for the discharge of
any debt or other liability - The presumption under
Section 139 is a rebuttable presumption and the onus is
on the accused to raise the probable defence. The
standard of proof for rebutting the presumption is that of
preponderance of probabilities - 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. Referred to Baslingappa v.Mudibasappa
(2019) 5 SCC 418 (Para 12-20)"
15. Further, the Apex Court has clearly held that
adjudication in civil matters is based on preponderance of
probabilities, where the adjudication in criminal cases is
based on the principle that the accused is presumed to be
innocent and guilt of the accused should be proved to the
hilt and the proof should be beyond all reasonable doubt.
16. The above said decision clarifies that the rebuttal
can be done by the accused even on the basis of material
submitted by the complainant himself. In the instant case,
the complainant relied on Ex.P1, but on perusal of Ex.P1, it
is evident that agreement of sale was executed by
Rajeshwari Land Developers and Builders by its partner
S.B.Honnappa in favour of complainant. Under the said
agreement, amount is said to have been received by
Honnappa. The accused was only a witness and no joint
liability was fastened on the accused. Same is position with
Ex.P2. But quite contrary to the same, the complainant in
his evidence all along asserted that he paid the amount to
accused. Ex.P1 clearly establishes that amount was paid to
one Honnappa. No steps were taken against the said
Honnappa. When the oral evidence is in contradiction with
the recitals of the documentary evidence, as in the present
case as per Ex.P1, then the Rule under Section 91 of
Evidence Act mandates that the documentary evidence shall
prevail. Ex.P1 is undisputed document and under Ex.P1, the
amount was paid to Honnappa. Further, there is no
evidence to prove that accused is a partner of
Rajarajeshwari Land Developers and Builders. Under such
circumstances, under what capacity the amount is sought
from accused is not at all forthcoming.
17. It is much argued by the learned counsel for
appellant that since cheques have been admitted, the
presumption needs to be drawn against the accused under
Section 139. Though the presumption is initially available,
but under Ex.P1, the recitals clearly disclose that payment
was made to Honnappa and hence, the accused has
established through the document of complainant itself that
the amount was paid to Honnappa and not to him and as
such, there is no legally enforceable debt as alleged by the
complainant.
18. Further, records clearly disclose that both the
parties have approached the Police and certain
endorsements were taken by the Police. The records also
disclose that accused has also lodged a complaint against
complainant regarding forcibly taking cheques from him and
complainant giving an undertaking of returning the cheques
provided his amount is being paid. Though, no much
importance can be given to these documents, as they are
said to have been executed by Police, but the basic rule is
that the complainant must prove that there existed legally
enforceable debt, but Ex.P1 itself clearly establishes that
there is no legally enforceable debt. No amount was paid by
complainant to the accused. Hence, the principles
enunciated in the decisions referred above relied by the
learned counsel appellant will not come to his aid though
the presumption is in his favour. But in view of the decision
reported in Rajaram's case referred above, presumption
stands rebutted in view of the written agreement of sale
Ex.P1.
19. Further, the Hon'ble Apex Court in Rajaram's
case itself has observed that unless the High Court found
that the appreciation of the evidence is perverse, it could
not have interfered with the finding of acquittal recorded by
the trial Court. In the instant case also the evidence on
record does not substantiate the claim of the complainant
so as to establish that the appreciation of the evidence is
perverse.
20. Further, as per the decision relied by the
appellant himself in Basalingappa's case when the
complainant has not satisfactorily explained contradiction of
the complaint and in his evidence, question of drawing
presumption in his favour does not arise at all. The learned
counsel for appellant has also placed reliance on decision
reported in 2023(3) KLR 560 (SC) [RAJESH JAIN VS. AJAY
SINGH]. But it is again drawing presumption and rebuttal of
presumption and once accused discharge his onus of
rebutting the presumption, then question of conviction does
not arise at all. It is observed in the said decision that if the
Court finds that the essential burden placed on accused has
been discharged, the complainant would be expected to
prove the said fact independently without taking aid of the
presumption but no such evidence is forthcoming in the
instant case on behalf of the complainant. Hence, the
principles enunciated in the above cited decision would not
come to the aid of the appellant/complainant, but it will
assist the accused. Considering these facts and
circumstances, it is evident that the learned Magistrate has
appreciated the oral and documentary evidence in proper
perspective and has rightly acquitted the accused. No
perversity is found in the judgment so as to call for
interference by this Court. As such, the appeal being devoid
of any merits, does not survive for consideration.
Accordingly, I answer the point under consideration in the
negative and proceed to pass the following:
ORDER
(i) The appeal stands dismissed.
Sd/-
JUDGE
DS
