Karnataka High Court
Sri Mothi Reddy vs Sri Dilip on 8 December, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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NC: 2023:KHC:44678
CRL.A No. 256 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO. 256 OF 2018
BETWEEN:
SRI. MOTHI REDDY,
SON OF M. BHASKAR REDDY,
AGED ABOUT 28 YEARS,
RESIDING AT NO. 3,
1ST MAIN ROAD,
S.G. PALYA, KORAMANGALA,
BENGALURU - 560 029.
...APPELLANT
(BY SRI. RAGHU BABU .N, ADVOCATE)
AND:
SRI. DILIP,
SON OF SHIVALINAGA NAIDU,
AGED ABOUT 30 YEARS,
RESIDING AT NO 93,
Digitally 10TH CROSS, NEAR APR KALYANA MANTAP,
signed by HONGASANDRA, BEGUR MAIN ROAD,
SOWMYA D BENGALURU - 560 068
Location: ...RESPONDENT
High Court (BY SRI. A.N. RAGHAVENDRA, ADVOCATE)
of
Karnataka THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO
SET ASIDE THE IMPUGNED JUDGMENT AND ORDER DATED
16.12.2017 PASSED BY THE XIX ADDL.C.M.M., BENGALURU IN
C.C.NO.2967/2016 - ACQUITTING THE RESPONDENT/ACCUSED
FOR THE OFFENCE P/U/S 138 OF N.I. ACT.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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CRL.A No. 256 of 2018
JUDGMENT
This appeal is filed by the appellant / complainant
challenging the judgment of acquittal passed by XIX
Additional Chief Metropolitan Magistrate, Bangalore in
C.C.No2967/2016 dated 16.12.2017.
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 that the complainant and accused are friends and
out of this acquaintance, accused approached the
complainant in the month of December 2014 for a hand
loan of Rs.5 Lakhs to meet his family financial
commitments agreeing to repay the same in due course
by paying interest at the rate of 10% per annum.
Accordingly, the complainant had advanced a sum of
Rs.5 Lakhs by way of cash and accused issued two post
dated cheques for Rs.2,50,000/- dated 10.8.2015 and
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12.08.2015 respectively and when the said cheques
were presented, they were bounced for 'insufficient of
funds'. Hence, the complainant issued a legal notice to
the accused but the accused did not respond to the
legal notice by paying the cheque amount and hence, a
complaint came to be lodged.
4. The learned Magistrate after recording the
sworn statement taken cognizance of the offence and
issued process against the accused. The accused
appeared through his counsel and was enlarged on bail.
The plea under Section 138 of N.I.Act is framed and
same is denied by the accused.
5. The complainant was got examined himself as
PW1 and placed reliance on 6 documents marked at
Ex.P1 to Ex.P6. After conclusion of the evidence of the
complainant, the statement of accused under Section
313 of Cr.P.C was recorded to enable the accused to
explain the incriminating evidence appearing against
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him in the case of the complainant. The case of the
accused is of total denial and he did not choose to lead
any oral or documentary evidence in support of his
defence.
6. The learned Magistrate after appreciating the
oral and documentary evidence, acquitted the accused
for the offence punishable under Section 138 of N.I.Act
by exercising the powers under Section 255 (1) of
Cr.P.C. Being aggrieved by the 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 / complainant. The
learned counsel for the respondent did not appear
before the court so as to advance the arguments.
Perused the records.
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8. The learned counsel for the appellant would
contend that the cheque and the signature on the
cheque are admitted and as such, there is presumption
under Section 139 of N.I.Act in favour of the
complainant to the effect that cheque was issued
towards legally enforceable liability and same is not
rebutted by the accused. It is also asserted that though
the accused has set up a defence, he has not proved his
defence and the presumption stands as it is and hence,
the learned Magistrate has committed an error in
acquitting the accused. Hence, he would seek for
allowing the appeal by convicting the complainant.
9. Having heard the arguments and 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?
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10. It is the specific contention of the
complainant is that in the month of December, 2014
accused has approached and requested him to lend a
sum of Rs.5 Lakhs to meet his family committments
with an assurance of repayment of the same in due
course with interest at the rate of 10% and towards
discharge of the said liability, it is alleged that the
cheques Ex.P1 and Ex.P2 came to be issued. The
cheques Ex.P1 and Ex.P2 are dated 10.08.2015 and
12.08.2015 respectively. There is no dispute of the fact
that the cheques belong to the account of the accused
and they bear his signatures. Hence, initial presumption
under Section 139 of N.I.Act, that the cheque was
issued towards legally enforceable liability is in favour of
the complainant. However, it is a rebuttal presumption
and accused can rebut the said presumption by
highlighting the lacuna in the pleading, by way of cross-
examination or leading evidence in this regard.
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11. On perusal of the complaint, it is evident that
the complainant has no where asserted as to when the
loan was advanced. Though it is argued that the loan
was advanced in the month of December, 2014, on
perusal of the recitals of the complaint in para 3, it is
evident that demand was made in the month of
December 2014, but when it was paid is completely
silent. It is hard to accept the contention of the
complainant that he is unable to recollect the date of
advancement of the loan when he is advancing huge
amount of Rs.5 Lakhs.
12. Apart from that the accused has also
disputed the financial status of the complainant. In view
of that fact, complainant is also required to prove his
financial status. The complainant, who is examined as
PW1 in his cross-examination admitted that in the
complaint he did not refer as to how he managed the
amount of Rs.5 Lakhs. In the cross-examination for the
first time he asserts that the amount was an
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agricultural income and he lent it to the accused. The
complainant has not produced any scrap of paper to
show that he is possessing any agricultural lands. He
admits that he is in possession of the documents, but
no such documents were produced. Further, he admits
that he is not an income tax assesse. He further admits
that he had no impediment to make payment by way of
cheque or a Demand Draft. A suggestion was made to
PW1 that when the complainant visited the house of the
accused, he committed theft of the cheques and the said
fact is denied. No doubt, the accused has not led any
cogent evidence regarding theft of the cheques from his
house and he has not intimated the same to the banker
and did not lodge any complaint in this regard.
However, when the financial status of the complainant
is at stake, complainant is required to prove his status.
13. In the cross-examination, PW1 further admits
that he has no documents to show that he was
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possessing hard cash of Rs.5 Lakhs in his possession.
Though he asserts that he is financially sound, he has
not produced his bank statement to show his financial
capacity or documents to show that he is possessing the
agricultural lands, which would yield sufficient income.
In the absence of any material documents in this
regard, it is evident that complainant has failed to
substantiate his financial status to advance huge loan
of Rs.5 Lakhs. When the complainant has failed to
substantiate his financial status, the presumption
available in favour of the complainant regarding
issuance of cheque towards legally enforceable liability
automatically stands rebutted. In view of this, the
complainant is required to prove his status, but he has
not produced any evidence in this regard. Hence, at no
stretch of imagination, it can be said that the cheque
was issued towards legally enforceable debt.
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14. The accused has got examined himself as
DW1 and he has all along asserted that he used to avail
loan of Rs.1,000/- and Rs.2,000/- from the complainant
regularly, but he has never availed loan of Rs.5 Lakhs.
In the cross-examination of DW1, a suggestion was
made that the amount of Rs.5 Lakhs was received by
accused for construction of the house, but that was not
the pleading made in the complaint. Looking to these
facts and circumstances, the defence raised by the
accused appears to be more probable and complainant
is required to prove his case beyond all reasonable
doubt, but accused is required to rebut the presumption
on the basis of preponderance of probability. In the
instant case, accused has rebutted the presumption by
exposing the financial status of the complainant.
15. The learned Magistrate has considered all
these aspects and has rightly acquitted the accused /
respondent herein. No perversity or illegality is found in
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the judgment of acquittal. Further, the conclusion
arrived at by the learned Magistrate is also possible
conclusion in view of lacunas in the pleadings. In the
absence of material documents, the said conclusion of
the learned Magistrate cannot be disturbed in this
appeal. As such, the point under consideration is
answered in the negative and accordingly, I proceed to
pass the following:
ORDER
(i) The appeal stands dismissed.
Sd/-
JUDGE
SS
