Smt K G Nirmalamma vs Sri B L Shivakumar
2023 Latest Caselaw 434 Kant

   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 6TH DAY OF JANUARY, 2023

                       BEFORE

           THE HON'BLE MS.JUSTICE J.M.KHAZI

         CRIMINAL APPEAL NO.1170 OF 2013

BETWEEN:

SMT K G NIRMALAMMA
DEAD BY HER LR:
SMT. SHOBHA K.G.,
D/O LATE GURULINGAPPA
AGED ABOUT 59 YEARS
RESIDING AT NEAR H K R CIRCLE
NITTUVALLI NEW EXTENSION
SAHAKARANAGARA POST
DAVANAGERE
                           ... COMPLAINANT / APPELLANT

(BY SRI. NARAPPA K N, ADVOCATE)

AND:

SRI B L SHIVAKUMAR
S/O SRI RAJAGOPALA
AGED ABOUT 50 YEARS
CANARA BANK
BASAVAPATNA
CHANNAGIRI TALUK
DAVANAGERE DISTRICT
                             ...ACCUSED / RESPONDENT

(BY SRI. K.NAGALINGAPPA, ADVOCATE)

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378
(4) OF CODE OF CRIMINAL PROCEDURE PRAYING TO a)
GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND
ORDER OF ACQUITTAL DATED 25.09.2013 PASSED BY THE
SENIOR CIVIL JUDGE AND C.J.M, DAVANAGERE IN
C.C.NO.366/2012 ACQUITTING THE ACCUSED-RESPONDENT
FOR THE OFFENCES PUNISHABLE UNDER SECTION 138 OF
                               2               Crl.A.No.1170/2013
                                                      .1170/2013


THE N.I.ACT; b) SET ASIDE THE AFORESAID JUDGMENT AND
ORDER OF ACQUITTAL DATED 25.09.2013 PASSED BY THE
SENIOR CIVIL JUDGE AND C.J.M, DAVANAGERE IN
C.C.NO.366/2012 ACQUITTING THE ACCUSED-RESPONDENT
FOR THE OFFENCES PUNISHABLE UNDER SECTION 138 OF
THE N.I.ACT; c) CONVICT THE ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 138 OF THE N.I.ACT AND
AWARD THE COMPENSATION BY ACTING UNDER SECTION
357 OF CR.P.C; d) PASS ANY OTHER ORDER OR DIRECTIONS
AS THIS HON'BLE COURT DEEMS FIT TO PASS IN THE
INTEREST OF JUSTICE AND EQUITY.

     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED    ON    17.11.2022, COMING   ON   FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:


                      JUDGMENT

Being aggrieved by the dismissal of the complaint

filed by her, complainant has come up with this appeal

under Section 378(4) of Cr.P.C.

2. For the sake of convenience the parties are

referred to by their rank before the trial Court.

3. It is the definite case of the complainant that

she and accused are known to each other. During the

month of September, 2008, accused requested loan of

Rs.2,00,000/- to meet his house hold expenses. On the

same evening, she advanced Rs.2,00,000/- to the accused,

which he promised to pay within three months and issued a

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post dated cheque mentioning the date as 01.12.2008.

Since accused failed to repay the loan as promised, she

presented the cheque on 01.12.2008. However, it was

returned dishonoured on 02.12.2008 with an endorsement

- "insufficient funds".

3.1. After dishonouring of the cheque, complainant

met the accused and apprised him of the same. Since he

failed to repay the loan, without any alternative, after

issuing legal notice and after receipt of evasive reply, she

filed the complaint.

4. After due service of summons, accused has

appeared through counsel and contested the matter.

5. He has pleaded not guilty and claimed trial.

6. In support of her case, complainant examined

herself as PW-1 and got marked Exs.P-1 to P-4.

7. During the course of his statement under

Section 313 of Cr.P.C, accused has denied the incriminating

evidence.

8. He has examined himself as DW-1. However, no

documents are marked on behalf of the accused.

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9. Vide the impugned judgment and order, the trial

Court though held that accused has failed prove his

defence, dismissed the complaint on the ground that there

is inconsistency between the evidence of the complainant

and her pleadings.

10. Aggrieved by the same, complainant is before

this Court.

11. During the course of arguments, learned

counsel for the complainant submitted that while examining

the evidence of the complainant, the trial Court has failed

to take into consideration the age of the complainant, her

educational qualification and her capacity to remember the

dates and month while giving the evidence. He would

submit that though the trial Court has rightly rejected the

defence of the accused and thereby holding that the

accused has failed to rebut the presumption under Section

139 of the N.I. Act, it has erred in dismissing the complaint

on trivial ground. The trial Court has also failed to take into

consideration the fact that while complainant is a 7th pass

and a woman, accused is a Bank employee and as admitted

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by him, he is aware of the consequences of issuing blank

cheque and prays to allow the appeal.

12. In support of his arguments, learned counsel for

complainant has relied upon the following decisions:

1) APS Forex Services Private Limited Vs. Shakthi International Fashion Linkers and others1 (APS Forex's case)

2) Kishan Rao Vs. Shankargouda2 (Kishan Rao's case)

3) Shree Daneshwari Traders Vs. Sanjay Jain & Anr.3 (Danshewari Traders's case)

13. On the other hand, learned counsel representing

the accused supported the impugned judgment and order

and prays to dismiss the appeal.

14. In support of his arguments, he has relied upon

the following decisions:

1) John K.Abraham Vs. Simon C. Abraham & Anr.4 (John K.Abraham's case)

AIR 2021 SCC 2814

(2018) 8 SCC 165

AIR 2019 SC 4003

2014 Cri.L.J.2304

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2) John K.John Vs. Tom Varghese & Anr5 (John's case)

3) Basalingappa Vs. Mudibasappa 6 (Basalingappa's case)

15. Heard arguments and perused the records.

16. Thus, it is the definite case of the complainant

that in the first week of September, 2008, accused

requested for loan of Rs.2,00,000/- and on the same

evening, she paid the said amount. He had promised to

repay the loan within three months and on the same day,

he issued a post dated cheque i.e., dated 01.12.2008.

When accused failed to fulfill his promise, she presented

the cheque on 01.12.2008 and it was returned

dishonoured. It is relevant to note that accused has taken

up a specific defence that he has borrowed a sum of

Rs.30,000/- from complainant's one of the son, who is no

more and at that time, he had issued a blank cheque and

after the death of her son, misusing the said cheque, she

has filed a false complaint.

AIR 2008 SC 278

AIR 2019 SC 1983

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17. It is relevant to note that though the accused

has sent reply to the legal notice issued by the

complainant, he has not chosen to specifically state the

defence taken by him before the trial Court. Except denying

the fact of borrowing the loan and issuing the cheque, he

has not come up with any explanation as to how a cheque

duly signed by him and drawn on his account has come into

the hands of the complainant. This goes to show that for

the sake of defence, before the Court he has taken such a

defence without any substance in it. Though the trial Court

has rightly rejected the defence taken by the accused, it

has chosen to dismiss the complaint mainly on the ground

that there is inconsistency between the evidence of

complainant and the pleadings put forth by her and also

her examination-in-chief.

18. At the outset, it is relevant to note that as

deposed by the complainant during her cross examination,

she has passed 7th standard and though she is able to read

and write in Kannada and English, her knowledge of English

is very limited. During her cross examination, she has

deposed that accused requested her to pay loan on

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31.08.2008 and after three days, i.e., during the first week

of July, she paid him the amount. Examination of her

evidence goes to show that being only a 7th pass, she has

no sense of the names of the months and the sequence in

which they come. She is unable to state that which month

would come after August and stated that after three days

i.e., in the first week of July, she paid the amount to the

accused. The testimony of complainant is required to be

appreciated by taking into consideration her educational

qualification and also the fact whether the accused was able

to prove his defence and rebut the presumption under

Sections 118 and 139 of the N.I. Act.

19. It is not disputed that the Ex.P-1 Cheque

belongs to the accused and bears his signature. When

once, it is established that the cheque drawn on the

account of the accused bearing his signature is with the

complainant, the presumption under Sections 118 and 139

of the N.I.Act is attracted. As held in Rangappa Vs. S.

Mohan's 7 case, the presumption under Section 139 of N.I.

Act includes a presumption that there exist a legally

(2010)11 SCC 441

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recoverable debt or liability. Of course such presumption is

rebuttable. Therefore, before proceeding further, it is

necessary to presume that the cheque in question was

issued by the accused towards repayment of a legally

recoverable debt or liability and therefore, the burden is on

the accused to rebut the said presumption and prove the

circumstances in which he came to issue it.

20. Therefore, it is necessary to examine whether

the accused has rebutted the presumption. The accused

has taken up a defence that he has borrowed a sum of

Rs.30,000/- from the son of the complainant, who is no

more and at that time, he had issued a blank cheque and

even though he had repaid the said amount, the late son of

the complainant went on postponing returning of cheque

and in the meanwhile, he expired. However, at the earliest

available opportunity, accused has not chosen to disclose

this defence. Though he has sent reply to the legal notice,

he has not chosen to state his defence. Moreover, being an

employee of Bank, he is aware of the consequences of

issuing a blank cheque. He has no explanation as to why he

issued a blank cheque. Anyhow the accused has failed to

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prove that he had borrowed a sum of Rs.30,000/- from the

late son of the complainant and at that time, he had issued

the blank cheque. Consequently, he has failed to rebut the

presumption under Section 139 of the N.I. Act. Therefore,

no occasion had arisen for the complainant to prove the

circumstances in which she advanced the loan of

Rs.2,00,000/- and to prove her financial capacity.

21. Though rightly held that accused had failed to

rebut the presumption, the trial Court has erred that

complainant has failed to prove her case. When the basic

presumption available under Section 139 of N.I. Act is not

rebutted, the burden would not shift on the complainant to

prove the other ingredients. In fact in Krishna Rao's case

referred to supra relied upon by the complainant, the

Hon'ble Supreme Court held that when the accused has

failed to rebut the presumption, the High Court erred in

interfering with in exercise of revisional jurisdiction and

setting aside the conviction.

22. Similarly, in M/s. Sri Dhaneshwari Traders'

case referred to supra, the Hon'ble Supreme Court held

that the accused has failed to rebut the presumption under

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Section 139 of the N.I. Act and as such, the defence taken

by him is improbable.

23. In APS Forex's case referred to supra, the

Hon'ble Supreme Court has accepted the defence of the

accused that the cheques were issued by way of security.

Thus, the decisions relied upon by the complainant are

applicable to the case on hand.

24. So far as the decisions relied upon by the

respondent are concerned, based on appreciation of the

facts and circumstances therein, the Hon'ble Supreme

Court has rejected the contention of the complainant.

However, in the present case, the complainant has proved

beyond reasonable doubt that the cheque in question was

issued towards repayment of legally recoverable debt or

liability and accused has failed to rebut the same.

Therefore, these decisions are not applicable to the case on

hand.

25. When once it is held that complainant has

proved the allegations against the accused, the next

question would be to what punishment accused is liable.

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26. The punishment prescribed for the offence

under Section 138 of the N.I.Act is imprisonment for a term

which may extend to two years or with fine which may

extend to twice the amount of cheque or with both. As

evident from Ex.P-1, the amount involved is Rs.2,00,000/-.

By taking a false defence, the accused has driven the

complainant to indulge in litigation in all these 13 years.

Having regard to these aspects, I am of the considered

opinion that sentencing accused to pay fine in a sum of

Rs.4,00,000/- which is double the amount of cheque, in

default of paying the fine sentencing him to undergo

imprisonment for a period of six months would meet the

ends of justice and accordingly, I proceed to pass the

following:

ORDER

(i) Appeal filed by the complainant under

Section 378(4) of Cr.P.C is allowed. The

impugned judgment and order dated

25.09.2013 in C.C.No.366/2012 on the file

of Senior Civil Judge and C.J.M.,

Davanagere, is set aside.

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(ii) Accused is convicted for the offence

punishable under Section 138 of the

N.I.Act.

(iii) Accused is sentenced to pay fine in a sum

of Rs.4,00,000/-, in default of payment of

fine, accused is sentenced to undergo

imprisonment for a period of six months.

(iv) Out of the fine amount a sum of

Rs.3,50,000/- is ordered to be paid to the

complainant by way of compensation.

Remaining Rs.50,000/- shall be defrayed

towards the litigation expenses.

(v) Registry is directed to return the trial Court

records along with copy of this judgment.

Sd/-

JUDGE

MDS