Karnataka High Court
B N Narayan Rao vs D Rajkumar on 5 December, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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NC: 2023:KHC:43991
CRL.A No. 189 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO. 189 OF 2018
BETWEEN:
B.N. NARAYAN RAO,
S/O LATE BAPU RAO,
AGED ABOUT 65 YEARS,
OCC:RETIRED GOVERNMENT EMPLOYEE,
R/AT NO.489, 11TH CROSS, 5TH MAIN,
II STAGE, WEST OF CHORD ROAD,
BANGALORE-560 086.
...APPELLANT
(BY SRI. C.H. JADHAV, SR. COUNSEL FOR
SMT. RASHMI JADHAV, ADVOCATE)
AND:
D. RAJKUMAR,
S/O LATE DURVASA NAIDU,
AGE :MAJOR,
Digitally R/AT NO.31/B, 6TH CROSS, II MAIN,
signed by ROAD,BAPUJINAGAR, MYSORE ROAD,
SOWMYA D BIKKODU HOBLI,
Location: BANGALORE-560 026.
High Court ...RESPONDENT
of Karnataka (BY SRI. B.N. MANJUNATH, ADVOCATE)
THIS CRL.A IS FILED U/S.378(4) CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT DATED 08.02.2017 PASSED BY THE XV
A.C.M.M., BANGALORE IN C.C.NO.8272/2016 - ACQUITTING
THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF
N.I.ACT.
THIS APPEAL COMING ON FOR FURNTER HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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CRL.A No. 189 of 2018
JUDGMENT
This appeal is filed by the complainant under Section
378(4) of Code of Criminal Procedure (hereinafter referred
to as 'Cr.P.C' for short) challenging the judgment of
acquittal passed by XV Additional Chief Metropolitan
Magistrate, Bengaluru in C.C.No.8272/2016 dated
08.02.2017.
2. For the sake of convenience, the parties herein
are referred with original ranks occupied by them before
the trial Court.
3. The brief factual matrix leading to the case are
as under:
The complainant and accused are acquainted with
each other since last 15 years. It is asserted that accused
is liable to pay a sum of Rs.4,50,000/- by the end of March
2007. After repeated requests and reminders accused has
issued cheques for Rs.2 Lakhs and Rs.2.50 Lakhs dated
10.06.2007 and 10.07.2007 respectively and when the
said cheques were presented for encashment, they were
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returned for 'insufficient of funds'. Thereafter, the
complainant issued a legal notice but the accused did not
pay the cheque amount and hence, a complaint came to
be lodged before the learned Magistrate.
4. The learned Magistrate after recording the
sworn statement and after appreciating the documentary
evidence has taken cognizance of the offence and issued
process against the accused. The accused has appeared
through his counsel and was enlarged on bail.
5. The plea under Section 138 of Negotiable
Instruments Act, 1881 (hereinafter referred to as 'the
N.I.Act' for short) is framed and accused denied the same.
The complainant was got examined himself as PW1 and he
placed reliance on 10 documents marked at Ex.P1 to
Ex.P10. After conclusion of the evidence of the
complainant, the statement of accused under Section 313
of 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.
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6. After hearing the arguments and after
appreciating the oral and documentary evidence, the
learned Magistrate by exercising the powers under Section
255(1) of Cr.P.C acquitted the accused for the offence
under Section 138 of N.I.Act. Being aggrieved by this
judgment of acquittal, the complainant is before this court
by way of this appeal.
7. Heard the learned Senior counsel for the
appellant. The learned counsel for the respondent did not
appear before the court. Perused the records.
8. The learned Senior counsel for the accused
would contend that the accused has issued two disputed
cheques towards due amount of Rs.4,50,000/- and when
legal notice came to be issued, there is no reply to the
legal notice. He would also contend that issue of cheque
and signature are undisputed and there is no rebuttal of
presumption available in favour of the accused. Hence, he
would contend that the learned Magistrate has committed
an error in acquitting the accused and as such, he would
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seek for allowing the appeal and convicting the respondent
/accused.
9. Having heard the arguments and after perusing
the records, now the following point would arise for my
consideration:
(i) Whether the judgment of acquittal
passed by the trial court is perverse,
arbitrary and erroneous so as to call
for any interference by this court?
10. The specific contention of the complainant in
the complaint is that the accused is well conversant with
the family of the complainant since, last 15 years and he
used to borrow money from the complainant now and
then. It is asserted that accused became due to the
complainant in a sum of Rs.4,50,000/- by the end of
March 2007. This is the specific pleading made in the
complaint. The complainant has no where pleaded as to
how this amount of Rs.4,50,000/- was arrived and when
the transactions have been taken place and how much
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amount was paid on which date. The entire pleading in this
regard is completely silent. The evidence and complaint
pleadings lack material aspects in this regard.
11. The complainant was examined as PW1 and in
his examination-in-chief; he has again reiterated the same
fact as asserted in the complaint. In his evidence also, he
has no where asserted when and in how many
installments the amount was lent to the accused.
12. The cross-examination of complainant discloses
that he is a retired ACP and he has served in Vijaynagar
Police Station. Though he is a high rank police officer, and
when he claims that he got acquainted with the accused
while working as police officer, he pleads ignorance
regarding the profession of the accused. This is an
unbecoming of a police officer and this assertion on the
part of the complainant is against the profession, in which
he had served. The complainant in his further cross-
examination admitted that in 1998, accused has availed
Rs.50,000/- loan from him and he asserts that he used to
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return the same and again used to avail loan from him. He
simply asserts that regularly the accused used to take loan
and due was Rs.4,50,000/-. According to the
complainant, apart from this transaction, 6 to 7 times, the
accused has availed the loan. Then the complainant is
required to explain on which dates and to what extent the
accused has availed the loan.
13. Further, on perusal of Ex.P1 and Ex.P2, it is
evident that said cheques were issued on behalf of
R.K.Plantations. It is not the case of the complainant that
he had any dealings with R.K.Plantations. He has also
admitted that in 1998 he has paid Rs.1,36,000/- by way of
a cheque. He also admits that he is an income tax
assessee and he has not shown this in his income tax
returns. When complainant is a retired police officer and
an income tax assessee, he should know that he is
required to report the payment in his income tax returns,
but he has not taken any steps in this regard. How he
calculated this Rs.4,50,000/- is not known to himself and
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if the transaction of 1998 is included or not is also not
forthcoming. If the transaction of 1998 is included in this
transaction, then the debt becomes barred by law of
limitation.
14. The conduct of the complainant in withholding
the material information and admitting the transaction of
1998, clearly discloses that the accused has rebutted the
presumption under Section 139 of N.I.Act in favour of the
complainant.
15. The learned Senior counsel appearing for the
appellant placed reliance on a decision in 'RAJESH JAIN
VS. AJAY SINGH', (2023) 10 SCC 148 but the said
principles does not come to the aid of the appellant /
complainant in any way as in the said decision how the
rebuttal and standard of proof was to be considered and
rest of the things were pertaining to that particular facts
and circumstances of the case in hand. The Hon'ble Apex
court in the said reported decision has considered the
standard of proof required for rebuttal of presumption.
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Admittedly, the standard of proof for complainant is
beyond all reasonable doubt, but the accused can rebut
the presumption on the basis of preponderance of
probabilities by creating a dent in the case of the
complainant. Further, the Hon'ble Apex Court in the
decision in RAJA RAM S/O SRIRAMULU NAIDU (SINCE
DECEASED) THROUGH LRS VS. MARUTHACHALAM
(SINCE DECEASED) THROUGH LRS', 2023 LIVE LAW
(SC) 46, has clearly observed that the presumption can
be rebutted on the basis of cross-examination or pleadings
made by the complainant or by the documents relied by
the complainant himself.
16. In the instant case, the pleadings in the
complaint itself are so vague that it cannot be presumed
that the entire Rs.4,50,000/- is a legally enforceable debt
as the date of advancement of loan in installments was not
at all referred and it is time barred debt. Though the
accused has not led any evidence or replied to the legal
notice, but in view of the decision referred to in RAJA
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RAM'S case (supra) the accused was able to rebut the
presumption by pointing the vague pleadings made in the
complaint and by way of cross-examination pertaining to
earlier debt itself. Further the complainant being a retired
senior police officer is unable to know the date of
advancement of loan and he is not certain as to when
exactly the loan was advanced and whether the loan was
within the stipulated period or otherwise. In view of these
facts and circumstances, the principles enunciated in
RAJESH JAIN'S case referred supra relied upon by the
learned senior counsel for the appellant cannot be made
applicable to the facts of the case in hand as it will not
come to the aid of the appellant in any way.
17. The learned Magistrate has considered all these
facts and circumstances in its proper perspective and has
rightly acquitted the accused. Further, the appellate court
should be slow enough to interfere with the judgment of
acquittal. Further, it is well settled law that when two
conclusions are possible, the conclusion in favour of the
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accused shall prevail and the same shall not be disturbed
by the appellate court. Looking to the pleadings and
evidence of the complainant, the conclusion arrived by the
learned Magistrate is also possible and as such, the
question of disturbing the said conclusion does not arise at
all. Hence, the judgment of acquittal passed by the
learned Magistrate cannot be said to be arbitrary,
erroneous or perverse so as to call for any interference by
this court. As such, the point under consideration is
answered in the negative and accordingly, I proceed to
pass the following:
O R DE R
(i) The appeal stands dismissed.
Sd/-
JUDGE
SS
