M Padmaraj vs Sri K V Ramamurthy
2023 Latest Caselaw 3793 Kant

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   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 28TH DAY OF JUNE, 2023

                       BEFORE

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

         CRIMINAL APPEAL NO.917 OF 2012

BETWEEN:

M PADMARAJ
S/O MANJAIAH GOWDA
AGED ABOUT 45 YEARS,
R/O KARKAMUDI,
NAGODI POST,
HOSANAGARA TALUK - 577 418
                                        ...APPELLANT
(BY SMT. YOGITHA MUDAKANNAVAR, ADVOCATE FOR
    SRI. KRISHNAMURTHY M R, ADVOCATE)

AND:

SRI K V RAMAMURTHY
S/O K VENKATA RAO,
AGED ABOUT 60 YEARS,
R/O KUNDAGAL,
NAGARA POST,
HOSANAGARA TALUK - 577 418
                                      .....RESPONDENT

(BY SRI. S GANGADHARA AITHAL, ADVOCATE)

    THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE
THE JUDGMENT PASSED BY THE LEARNED SESSIONS JUDGE I
FAST TRACK COURT, SHIMOGA IN CRL.A NO.132/2011
DATED 18/06/2012 AND CONFIRM THE ORDER OF
CONVICTION AND SENTENCE PASSED BY THE CIVIL JUDGE &
JMFC., HOSANAGAR IN C.C. NO.114/2007 DATED 29/08/2011
IN THE INTEREST OF JUSTICE.
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     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED    ON    07.06.2023, COMING   ON   FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:

                       JUDGMENT

This appeal is by the complainant challenging the

acquittal of accused for the offence punishable under

Section 138 of the N.I. Act by the Sessions Court, by

reversing the conviction and sentence imposed by the trial

Court.

2. For the sake of convenience, the parties are

referred to by the rank before the trial Court.

3. It is the case of the complainant that accused

borrowed loan of Rs.75,000/- from the complainant,

agreeing to repay the same with interest within three

months. However, despite repeated requests it was not

repaid the loan. Ultimately, accused issued a cheque dated

12.09.2006. When complainant presented the same

through his banker, it returned dishonored, on the ground

of "Insufficiency of Funds" on 15.09.2006. Complainant got

issued a legal notice dated 20.09.2006. Though it is duly

served on the accused, he has neither paid the amount due

under the cheque nor sent any reply. Without any

alternative, the complainant has filed the complaint.

4. Accused appeared before the trial Court and

contested the case. He Pleaded not guilty to the charges

leveled against him and claimed trial.

5. In support of his case, complainant got himself

examined as PW1 and relied upon Ex. P1 to 6.

6. During the course of his statement under

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

evidence.

7. In fact, accused has also stepped into the

witness box by examining himself as DW-1. He has relied

upon Ex.D1.

8. Accepting the case of the complainant, the trial

Court convicted the accused and sentenced him to pay fine

of Rs.1,05,000/- and in default of payment of the fine

amount, sentenced him to undergo imprisonment for four

months.

9. Accused challenged his conviction and sentence

in Crl.A.No.132/2011. Vide the impugned judgment and

order, the Sessions Court allowed the appeal and acquitted

him.

10. Being aggrieved by the impugned judgment and

order, complainant is before this Court, contending that the

Sessions Court has committed error in holding that in the

complaint, complainant has not stated the date on which

accused borrowed the loan. The non mentioning of the date

is not fatal to the case of the complainant, as the same is

not a mandatory requirement under the provisions of

N.I.Act. The Sessions Court has also erred in holding that

complainant has not proved the source of income through

which he was able to advance Rs.75,000/- to the accused.

The Sessions Court failed to appreciate the fact that the

accused has failed to rebut the presumption under Sections

118 and 139 of N.I.Act.

10.1 The Sessions Court has also erred, in holding

that the non-marking of complaint is fatal to complainant's

case. In the light of the presumption under the provisions

of Section 139 of the N.I.Act, burden is on the accused to

prove the circumstances in which the cheque went into the

hands of the complainant, which he has failed to discharge.

In the circumstances, the Sessions Court has erred in

upsetting the well reasoned judgment of the trial Court and

prays to allow the appeal, set aside the order of the

Sessions Court and restore the order of the trial Court.

11. On the other hand, the learned counsel

representing the complainant supported the impugned

judgment and order of the Sessions Court and submitted

that in the light of the rebuttal evidence adduced by the

accused, the Sessions Court is justified in reversing the

judgment and order of the trial Court and prays to dismiss

the appeal.

12. In support of his arguments, the learned

counsel representing the accused has relied upon the

following decisions:

(i) Vijay Vs. Laxman and Anr. (Vijay)1

(ii) M/s Kumar Exports Vs. M/s Sharma Carpets (M/s Kumar Exports)2

(2013) 3 SCC 86

AIR 2009 SC 1518

(iii) Sayeeda Iqbal Vakil Vs. Javed Abdul Latif Shaikh (Sayeeda)3

13. Heard arguments and perused the record.

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

that accused borrowed a sum of Rs.75,000/- and towards

repayment of it, he has issued the subject cheque. Accused

admits that the cheque in question belongs to him, drawn

on his account maintained with his banker. However, he

has taken up a specific plea that he had borrowed loan of

Rs.25,000/- from Rameswara Finance run by complainant

and his other relatives and had issued a blank cheque by

way of security. The said Finance was closed. Complainant

who is one of the partner got the said cheque and based on

it he has chosen to file this complaint to make wrongful

gain. Though the complainant has admitted that he was

one of the partner of said Finance and now it is defunct, he

has denied that accused had given a blank cheque and

making use of the same, he has filed a false complaint.

15. In the light of the fact that the accused admit

that the cheque in question belongs to him, drawn on his

2009 (1) Crimes(HC) 194

account and it bears his signature, presumption under

Section 118 and 139 of the N.I.Act is operating in favour of

the complainant. Therefore, burden is on the accused to

prove that the cheque was not issued to the complainant

towards the discharge of any debt or liability and on the

other hand, the circumstances in which he stated to have

issued the cheque.

16. Though, the legal notice is duly served on the

accused, he has not chosen to send any reply. In this

regard he has stated that after due service of notice, he

approached the partners of the Rameshwara Finance and

questioned them as to why they have filed the false

complaint. During his cross-examination, complainant has

admitted that he was one of the partners of the then

Rameswaram Finance. However, he has expressed

ignorance to the suggestion that the other partners are his

relatives and that accused had borrowed loan of

Rs.25,000/- and a blank cheque was taken from him by

way of security. Being a partner, it would be reasonable to

expect that complainant knows who are all the other

partners, especially when the other partners are stated to

be his relatives and also the fact whether accused had

borrowed a loan from it.

17. For reasons best known to him complainant has

not chosen to agree with the said suggestion. In order to

prove that accused had borrowed loan from Rameshwara

Finance, he has produced a notice issued to him on behalf

of the said Finance at Ex.D1, stating that he had borrowed

loan of Rs.25,000/- on 23.12.1999 and has become

defaulter. He was called upon to pay the amount due as on

23.12.1999. This document supports the defence of the

accused that he was a borrower from the said Finance of

which complainant is one of the partner. In fact, to prove

that at the time of advancing loan to him, apart from

getting his signatures to the relevant documents, a blank

cheque was also taken, the accused has filed application to

summon one of the official of the said Finance to produce

the documents. The trial Court has allowed the said

application.

18. In fact one D.P. Krishnamurthy of the said

Finance was present before the trial Court and gave a

requisition that the documents are not available. Even

where the Finance has become defunct, the documents are

required to be maintained or at least surrendered to the

concerned authority. The witness has no explanation as to

what exactly happened to the said document. Therefore, an

adverse inference is required to be drawn against the

accused that despite having the documents, intentionally

they are not produced it or that if documents are produced

they are going to be against the case set up by the

complainant or supporting the defence of the accused.

19. In fact accused has chosen to cross examine the

complainant with regard to holding of Annual General

Meetings, submitting of report containing the details of the

borrowers etc. Though the complainant has admitted of

holding the Annual General Meeting, he has expressed

ignorance with regard to the other aspects. In the light of

the material placed on record, especially the defence of the

accused the presumption under section 139 of the N.I.Act is

reverted by the accused.

20. The accused has also challenged the financial

capacity of the complainant, having advanced Rs.75,000/-

to the accused. In this regard, the complainant has stated

that at the relevant point of time he had sold Arecanut to

one Eshwarappa of Tumari village. Except his self-serving

statement, the complainant has not produced any evidence

to that effect. In fact, it is evident during the cross-

examination of the complainant that apart from the present

case, he has filed two more complaints, of which one is

with regard to Rs.90,000/- loan and the other in respect of

loan in a sum of Rs.15,000/-. This piece of evidence elicited

through the cross-examination of complainant indicate and

support the contention of the accused by preponderance of

probabilities.

21. The possibility of complainant laying his hands

on the blank cheques which were given as security for the

loan taken from the Finance in his capacity as one of the

partner of the said Finance. At the most the complainant

would have examined the said Tumari Eshwarappa to show

that he had purchased Arecanut worth Rs.90,000/- from

complainant and out of the sale proceeds he had advanced

Rs.75,000/- to the complainant. However, the complainant

has not chosen to examine him and thereby failed to prove

that he had financial capacity to advance loan of

Rs.75,000/- to the accused. Moreover, the complainant

has not proved for what purpose accused was in need of a

sum of Rs.75,000/-. It is not the case of the complainant

that he and accused were known to each other since long

time. This aspect assumes importance in view of the fact

that according to the complainant he is not a money lender

who would have usually involved in money lending

business.

22. So far as the decisions relied upon by the

accused are concerned. In Vijay and Sayeeda cases, on

facts, the Co-ordinate Bench of this Court as well as

Bombay High Court held that in the absence of exact date

of lending the money, the complainant therein failed to

prove the case. Though in the present case also the

complainant has not indicated the date of advancing the

money, the same is not relevant. In Kumar Exports, the

Hon'ble Supreme Court held that the accused is not

required to prove his defence beyond reasonable doubt. It

is sufficient for the accused to establish his case on

preponderance of probabilities.

23. The trial Court failed to take into consideration

these aspects and proceeded to hold the accused guilty of

the offences alleged. It has wrongly placed burden on the

accused to prove that the contents of the cheque are not in

his handwriting. It was for the complainant to prove that

the contents of the cheque are also in the handwriting of

the accused. Consequently, the trial Court erred in holding

that the accused is liable to pay the amount due under the

cheque.

24. On the other hand, the Sessions Court in appeal

filed by the accused by appreciating the oral and

documentary evidence in right perspective has chosen to

acquit the accused. The judgment and order of the Sessions

Court is based on proper appreciation of the oral and

documentary evidence placed on record and in the light of

the specific defence taken by the accused. This Court find

no justification to interfere with well reasoned judgment of

the Sessions Court. In the result, the appeal fails and

accordingly, I proceed to pass the following:

ORDER

(i) The appeal filed by the complainant is

dismissed.

(ii) The impugned judgment and order dated

18.06.2012 in Crl.A.No.132/2011 passed by

the Sessions Judge, I FTC, Shivamogga is

confirmed.

(iii) The Registry is directed to send back the trial

court records along with copy of this order

forthwith.

Sd/-

JUDGE

RR