Sri A V Subramanya S/O A S ... vs Sri S Srinidhi S/O Srinath
2023 Latest Caselaw 1990 Kant

                          1            CRL.A.NO.365/2011



    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 24TH DAY OF MARCH, 2023

                       BEFORE

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

         CRIMINAL APPEAL NO.365 OF 2011

BETWEEN:

SRI A V SUBRAMANYA,
S/O A S VENKATARAMAIAH PANDIT,
AGED ABOUT 50 YEARS,
NO.W-321, 3RD SECTOR,
HMT COLONY, BANGALORE.

PRESENTLY RESIDING AT
NO.341/5, ANJANAPPA MAIN ROAD,
SHARADAMBA NAGAR, JALAHALLI,
BANGALORE - 560 013.
                         ...COMPLAINANT / APPELLANT

(BY SRI. K.R.SRINIVASA, ADVOCATE)

AND:

SRI S SRINIDHI S/O SRINATH,
AGED 28 YEARS,
RESIDING AT NO.22/18,
2ND CROSS, MGK MURTHY LAYOUT,
CHAMARAJPET,
BANGALORE - 560 018.
                            ...ACCUSED / RESPONDENT

(BY SRI. KASHINATH J.D., ADVOCATE)

     THIS APPEAL IS FILED UNDER SECTION 378(4) OF THE
CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE
JUDGMENT     AND    ORDER     DATED    04.01.2011  IN
C.C.NO.14857/2007 PASSED BY THE LEARNED XII ADDL.
CHIEF METROPOLITAN MAGISTRATE, BANGALORE AND
CONVICT THE RESPONDENT BY ALLOWING THE ABOVE
APPEAL, IN THE INTEREST OF JUSTICE AND EQUITY.
                               2               CRL.A.NO.365/2011



     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED    ON    09.03.2023, COMING   ON   FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:


                      JUDGMENT

In this appeal filed under Section 378(4) of Cr.P.C.,

appellant who is complainant has challenged the acquittal

of accused for the offence punishable under Section 138 of

N.I.Act.

2. For the sake of convenience the parties are

referred to by their rank before the trial Court.

3. It is the case of the complainant that he and

accused are known to each other. In the month of

November 2006, accused was in need of money for his

business purpose and approached the complainant.

Complainant advanced a sum of Rs.3,62,000/- to the

accused in the first week of November 2006. Accused

agreed to repay the same within two weeks and issued

cheque bearing No.915595 dated 16.11.2006. When he

failed to keep up the promise, on the repeated request

made by the complainant, accused directed him to present

the cheque for encashment in the last week of March 2007.

3 CRL.A.NO.365/2011

Accordingly, on 26.03.2007, complainant presented the

said cheque for encashment. However, it was returned with

endorsement dated 28.03.2007 as "funds insufficient".

Complainant got issued a legal notice. When accused failed

to pay the amount due under the cheque, he filed the

complaint.

4. After due service of summons, accused

appeared and contested the case. He pleaded not guilty

and claimed trial.

5. At the first instance complainant got himself

examined as PW-1 and got marked Ex.P1 to 9.

6. At the first instance accused failed to cross-

examine PW-1.

7. Vide judgment and order dated 21.01.2007, the

trial Court convicted the accused and sentenced him to pay

fine of Rs.4,00,000/- in default to undergo imprisonment

for six months.

8. Accused challenged the same in

Crl.A.No.1363/2007 before the Fast Track Court.

4 CRL.A.NO.365/2011

9. The Fast Track Court allowed the appeal and

remanded the case for fresh disposal after providing

opportunity to the accused to cross-examine the

complainant as well as to lead evidence.

10. After the remand accused has cross-examined

PW-1. During the course of his statement under Section

313 Cr.P.C, he has denied the incriminating evidence.

11. He has examined himself as DW-1 and two

witnesses as DWs-2 and 3. He has got marked Ex.D1 to 4.

12. Vide the impugned judgment and order, the trial

Court has acquitted the accused.

13. Being aggrieved by the same, complainant is

before this Court.

14. During the course of arguments learned counsel

for complainant submitted that the impugned judgment is

illegal, perverse and liable to be set aside as the same is

passed without application of mind. The learned trial Judge

has not appreciated the evidence in proper perspective and

has passed erroneous order. The learned Magistrate has 5 CRL.A.NO.365/2011

grossly erred in holding that complainant has failed to

prove legally enforceable debt as on the date of the

cheque. He has not at all discussed and considered the

evidence placed on record. He has picked up sentences

here and there without appreciation of the entire evidence

in its right perspective. In the light of presumptions

envisaged under Section 118 and 139 of N.I.Act, the

burden lies on the accused to prove that the cheque was

not drawn towards legally enforceable debt. While accused

has failed to discharge the burden, the learned Magistrate

has erroneously shifted the onus on the complainant.

15. The learned counsel for complainant further

submitted that the accused has taken up a defence that

Sri.Pejawara Swamiji and his associates forcibly took blank

cheques from the accused with the help of goondas and

police and complainant has utilized one such cheque to file

this complaint. However, accused has failed to prove the

said defence. The suggestion to PW-1 that in the cheque in

question i.e Ex.P1, the amount in figure and words and also

the signature of the accused are in the same pen, ink and

handwriting, demonstrate that the cheque in question was 6 CRL.A.NO.365/2011

not a blank cheque and that he has taken up a false

defence. The trial Court has also failed to appreciate that in

between April 2006 to first week of November 2006, the

complainant has withdrawn a total sum of Rs.4,10,000/-

from his account and it prove that at the time of advancing

the loan, complainant was having sufficient funds. The

evidence of DW-2/K.S.Venkatesh maternal uncle of accused

is not relevant to the transaction between the complainant

and accused. The trial Court has given undue significance

to his evidence and also the report of Registrar (Vigilance),

in respect of which an alleged incident which has nothing to

do with the transaction between the complainant and the

accused. In the light of the failure of accused to rebut the

presumption under Section 118 and 139 of N.I.Act, the trial

Court has erred in shifting the onus on the complainant and

acquitting the accused and prays to allow the appeal,

convict the accused and sentence him appropriately.

16. In support of his arguments, learned counsel for

complainant has relied upon the following decisions:

        (i)    Rangappa Vs. Shrimohan1


    (2010) 11 SCC 441
                                7              CRL.A.NO.365/2011



      (ii)    K.N.Beena Vs. Muniyappa and Another2

      (iii)    Mandvi Co-operative Bank Ltd. Vs.
              Nimesh B Thakur3

      (iv)    Hanumantharaju Vs. Shivakumar4

17. On the other hand learned counsel representing

accused supported the impugned judgment and order and

prays to dismiss the appeal.

18. Heard arguments of both sides and perused the

records.

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

that in the first week of November 2006, accused borrowed

a sum of Rs.3,62,000/- from him agreeing to repay the

same within two weeks and at the time of borrowing itself,

he issued a cheque dated 16.11.2006. When he did not

keep up with his promise and on persistent demand by the

complainant, accused directed him to present the cheque in

the last week of April and accordingly, 26.04.2007, when

(2001) 8 SCC 458

(2010) 3 SCC 83

Crl.A.No.356/2018 8 CRL.A.NO.365/2011

the complainant presented the said cheque, it was returned

with endorsement "insufficient funds".

20. Though accused admit that the cheque in

question belongs to him and it is drawn on the account

maintained by him with ICICI Bank, he has taken up a

specific defence that on 23.11.2006, his maternal uncle

K.S.Venkatesh took him to Sri.Pejawara Swamiji with an

assurance that the Swamiji usually help needy. In fact

Swamiji promised to give him financial assistance in a sum

of Rs.12,00,000/- and on 24.11.2006, Rs.12,00,000/- were

drawn from the account of the Swamiji. However, his

assistant though took them to Andhra Bank in order to get

Demand Draft, he vanished away and as such

Rs.12,00,000/- never reached the accused.

21. Accused has also alleged though he, his

maternal uncle and mother brought this fact to the notice

of the Swamiji, but he did not take any action against the

person who took away the money. On the other hand on

the next day i.e., 25.11.2006, Swamiji summoned the

accused and his maternal uncle Venkatesh and illegally

confined them. They were assaulted, tortured by the 9 CRL.A.NO.365/2011

goondas and forcibly from the accused, 20-25 blank

cheques were taken and based on one such cheque, the

complainant has filed the false complaint. In the light of the

specific defence taken by the accused, it is necessary to

examine whether the complainant has proved the

allegations against accused beyond reasonable doubt.

22. It is not in dispute that Ex.P1 Cheque is drawn

on the account maintained by the accused with ICICI Bank

and it bares his signature. This cheque is dated

16.11.2006. It is presented to the Bank on 26.04.2007. It

is returned by the Bank on 28.04.2007 with an

endorsement "insufficient funds". On 26.04.2007, the

complainant has issued legal notice. The notice is returned

on 28.04.2007 with endorsement "information delivered".

In fact accused has sent reply on 19.05.2007 alleging that

the cheque in question was taken from him when it was

blank by the Pejawara Swamiji and the same is utilized by

the complainant to file the complaint. The complaint came

to be filed on 22.05.2007.

23. In the light of these facts all the requisite

formalities under Section 118 are complied with and as 10 CRL.A.NO.365/2011

such the presumption under Section 118 and 139 of the

N.I.Act is attracted. As held by the Hon'ble Supreme Court

in Rangappa's case and K.N.Beena's case, the Court is

required to draw presumption that cheque has been issued

for discharging a debt or liability. Of course the said

presumption is rebuttable. In the light of specific defence

taken by the accused, it is necessary to examine whether

the accused the successfully rebutted the said presumption

so as to place the onus on the complainant to prove his

capacity to lend Rs.3,62,000/- to the accused.

24. As already discussed according to the accused,

on 23.11.2006, he, his maternal uncle K.S.Venkatesh and

mother Rukmini were summoned by Pejawara Swamiji and

he promised financial assistance. On the next day i.e.,

24.11.2006, accused and K.S.Venkatesh again met

Pejawara Swamiji and though he promised to give him

financial assistance of Rs.12,00,000/- and in fact the said

amount was drawn, a subordinate of the Swamiji took away

the said money and the money never reached the accused.

However, on the next day i.e., 25.11.2006 both accused

and K.S.Venkatesh were summoned by the Swamiji and 11 CRL.A.NO.365/2011

they were illegally confined, tortured, abused assaulted and

from the possession of the accused, 20-25 blank cheques

were forcibly taken and Ex.P1 is one such cheque. In order

to prove this accused has given evidence by examining

himself as DW-1, K.S.Venkatesh as DW-2 and Manager of

Central Bank of India as DW-3. Through the testimony of

DW-2, accused has produced copy of the private complaint

in PCR.No.180/2007 (CC.No.14857/2007) filed against

Pejawara Swamiji and 6 others.

25. It is contended by the accused that when

K.S.Venkatesh filed private complaint against Pejawara

Swamiji and 6 others, in order to force him to withdraw the

same he and the mother of accused were illegally confined

by the Swamiji and the police and in this regard, they have

to filed Habeas Corpus W.P. (HC).No.3/2007. In the said

writ petition, the Registrar (Vigilance) was directed to

conduct enquiry as to whether K.S.Venkatesh and

Smt.Rukmini were illegally detained by Pejawara Swamiji

and/or the concerned police. After conducting detailed

enquiry, the then Registrar (Vigilance) submitted report at

Ex.D2 dated 13.04.2007, stating that from 04.01.2007 to 12 CRL.A.NO.365/2011

06.01.2007, the said Venkatesh and Rukmini were not

illegally confined either by the police or by the Pejawara

Swamiji. However, on 07.01.2007, at 10.30 p.m., they

were picked up by the police from the house of their

relative and were illegally confined till 08.01.2007 by the

police. However, this report does not relate to the alleged

incident that took place on 25.11.2006, when the accused

was allegedly detained by the Swamiji and his followers and

he was forced to hand over 20-25 blank cheques. This

report has no connection whatsoever to the alleged incident

dated 25.11.2006. There is no acceptable evidence led by

the accused to establish the said fact.

26. As held by the Hon'ble Supreme Court in

Mandvi Co-operative Bank's case, referred to supra, only

the complainant and his witnesses are permitted to give

evidence on affidavit. Neither the accused nor his witnesses

are at liberty to give evidence on affidavit. They are

required to depose before the Court. Therefore, practically

there is no evidence on record on behalf of the accused so

far as the deposition of DWs-1 and 2 are concerned.

13 CRL.A.NO.365/2011

27. Now coming to the cross-examination of the

complainant who is examined as PW-1 with regard to the

defence taken by the accused. Series of suggestions are

made to PW-1 that accused and his maternal uncle were

detained by the Pejawara Swamiji and they were abused,

assaulted, etc. Of course PW-1 has expresses ignorance to

the said suggestion. Since he is not a party to the said

incident or he was not present, he cannot be expected to

have personal knowledge about the same. However, the

cross-examination of PW-1 assumes significance, wherein a

suggestion is made to him that in Ex.P1 i.e., the cheque the

amount specified in figure, words as well as the signature

of the accused are in one pen, ink and hand writing which

he has admitted.

28. By making such suggestion, the accused has

given a go by to the defence taken by him that Ex.P1 is one

of the blank cheques which was forcibly taken from him at

the behest of Pejawara Swamiji. If Ex.P1 is one such

cheque, then except the signature of the accused, it would

not have contained any other writing in his hand writing.

The very suggestion that the writing specifying the amount 14 CRL.A.NO.365/2011

in figure, words as well as the signature of the accused is in

the same pen, ink and handwriting goes to show that it is

the accused who has specified the amount in both words

and figure and affixing the signature and handed over the

same to the complainant. If it is one of the blank cheques

which was forcibly taken from him by Pejawara Swamiji,

then except his signature, the rest of the writing in the said

cheque would not have been in the handwriting of the

accused. This itself goes to show that the defence taken by

the accused is false and frivolous. At least the accused has

failed to prove that Ex.P1 is one of the blank cheques which

was forcibly taken from him by the Pejawara Swamiji.

29. Thus, from the above discussion, I hold that the

accused has failed to rebut the presumption under Section

118 and 139 of N.I.Act and therefore the onus is not shifted

on the complainant to further prove his capacity to lend

Rs.3,62,000/- to the accused.

30. During the course of his cross-examination,

complainant has deposed that during the first week of

November 2006, he has paid Rs.3,62,000/- to the accused

and about one week prior to the same, he had drawn the 15 CRL.A.NO.365/2011

money from his account at Central Bank of India. The

accused has cross-examined the complainant as to the

source of his income, wherein he has deposed that as an

Insurance agent, he gets commission to the tune of

Rs.30,000-40,000/-p.m. Though accused has cross-

examined the complainant as to the source of income and

from where exactly he got the money to advance to the

accused, not even a single suggestion is made to the

complainant that he had no capacity to lend sum of

Rs.3,62,000/- to the accused. Such being the case, it is not

open to the accused to claim that complainant had no

capacity to lend the money. For this very reason, the

accused cannot take advantage of the evidence of DW-3

and the statement of accounts of the complainant produced

at Ex.D3 and 4. When the accused has failed to rebut the

presumption under Section 118 and 139 of N.I.Act, the

onus is not shifted on the accused and therefore, the trial

Court has erred by holding that the Ex.P1 is one of the

cheques forcibly taken by the Pejawara Swamiji from

accused and that the complainant had no financial capacity

to lend Rs.3,62,000/- to the accused.

16 CRL.A.NO.365/2011

31. In fact as rightly argued by the learned counsel

for the complainant, in between April 2006 to the first week

of November 2006, as per the accounts extract at Ex.D3

and 4, the complainant has withdrawn more than

Rs.4,10,000/-. Moreover, when the accused has failed to

rebut the presumption under Section 118 and 139 of

N.I.Act, it is not necessary for the complainant to prove his

capacity to lend the amount under the cheque. Without

appreciating these aspects, the trial Court has simply

relying upon the report of the Registrar (Vigilance) has

come to a wrong conclusion that the charges against the

accused are not proved. The findings of the trial Court are

contrary to evidence placed on record and as such

perverse.

32. On the other hand through the oral and

documentary evidence placed on record, the complainant

has proved that accused has borrowed a sum of

Rs.3,62,000/- from the complainant and failed to repay the

same and thereby committed the offence punishable under

Section 138 of the N.I.Act.

17 CRL.A.NO.365/2011

33. Thus, from the above discussion, I am of the

considered opinion that complainant has proved the

allegations against accused beyond reasonable doubt. At

the same time, accused has failed to probabilise his

defence. The trial Court has failed to appreciate these

aspects and chosen to acquit the accused. When the

accused has failed to rebut the presumption, there is no

need for the complainant to adduce further evidence to

show that he had the capacity to pay the amount due under

the cheque. Of course by producing the account details of

the complainant, accused himself has placed material on

record to show that complainant had the capacity to

advance such amount. In fact he has made a suggestion to

the complainant that he used to give donations to Pejawara

Matt, which also suggestive of the fact that the complainant

is financially sound. The trial Court has failed to appreciate

these aspects and simply based on the report of the

Registrar (Vigilance) which is not at all relevant to the case

on hand, the trial Court has acquitted the accused. In the

circumstances, the impugned judgment is liable to be set

aside and accused is liable to be punished.

18 CRL.A.NO.365/2011

34. When the Court comes to the conclusion that

the charge leveled against the accused is proved beyond

reasonable doubt for the offence punishable under Section

138 of the N.I.Act and the appeal is allowed by setting

aside the impugned judgment and order of acquittal, the

next question would be to what punishment the accused is

liable.

35. The punishment prescribed for the offence

punishable 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 the

cheque or with both. The amount involved in the cheque in

question is Rs.3,62,000/-. Having regard to the facts and

circumstance of the case, this Court is of the considered

opinion that sentencing accused to pay fine of

Rs.7,00,000/-, in default, 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) Cr.P.C. is allowed.

                                   19                CRL.A.NO.365/2011



    (ii)    The impugned judgment and order dated

04.01.2011 in C.C.No.14857/2007 on the file of XII ACMM, Bengaluru, is set aside.

(iii) Accused is convicted for the offence punishable under Section 138 of the N.I.Act.

(iv) Accused is sentenced to pay fine of Rs.7,00,000/- and in default of paying the fine, accused shall undergo imprisonment for a period of six months.

(v) Out of the fine amount, a sum of Rs.6,50,000/- is ordered to be paid to the complainant by way of compensation. Remaining Rs.50,000/- shall be defrayed towards the litigation expenses.

(vi) Registry is directed to return the trial Court records along with copy of this judgment to the trial Court, forthwith.

Sd/-

JUDGE

RR/CLK