Sri. N. Subramani vs Sri. K. Kadirivelu
2023 Latest Caselaw 2010 Kant

                           1

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 27TH DAY OF MARCH 2023

                       BEFORE

   THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

                CRL.A.No.833/2015
                       C/W
        CRL.R.P. Nos.529/2016 & 530/2016

IN CRL.A.No.833/2015:
BETWEEN:

SRI N. SUBRAMANI
S/O LATE NACHIMUTHU
AGED ABOUT 55 YEARS
RESIDING AT NO.8
VIJAYA BANK COLONY
REVENUE LAND
BANGALORE - 560 078.                  ...APPELLANT

(BY SRI M.R. NANJUNDA GOWDA, ADV.)

AND:

SRI K. KADIRIVELU
S/O LATE KANNAYAN
AGED ABOUT 43 YEARS
NO.9, REVENUE ROAD
VYSYA BANK COLONY
J P NAGAR 1ST PHASE
BANGALORE - 560 078.                  ...RESPONDENT

(BY SRI A.N. RADHA KRISHNA, ADV.)

      THIS CRIMINAL APPEAL IS FILED U/S. 378(4) CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT ORDER DATED
12.06.2015 PASSED BY THE XXIII A.C.M.M, BANGALORE CITY
IN C.C.NO.34280/2010 - ACQUITTING THE RESPONDENT/
ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT.
                             2

IN CRL.R.P.No.529/2016:
BETWEEN:

K. KADRIVEL
S/O KANNAIAHAN
AGED ABOUT 38 YEARS
R/AT NO.9, VYSYA BANK COLONY
REVENUE LAND, 5TH CROSS
J.P.NAGAR, 1ST PHASE
BANGALORE - 560 078.                   ...PETITIONER

(BY SRI A.N. RADHA KRISHNA, ADV.)

AND:

V. ANJANAPPA
S/O LATE VENKATAPPA
AGED ABOUT 48 YEARS
R/AT MAHESHWARINAGAR
AREHALLI, UTTARAHALLI HOBLI
BANGALORE - 560 061.                   ...RESPONDENT

(BY SRI SRIDHARA K, ADV.)

      THIS CRL.R.P. IS FILED U/S. 397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND CONVICTION
AND SENTENCE PASSED BY THE XIII A.C.M.M., BANGALORE
IN C.C.NO.26829/2011 DATED 12.08.2014 AND CONFIRMED
IN CRL.A.NO.997/2014 ON THE FILE OF THE LXVI ADDL. CITY
CIVIL AND S.J., BANGALORE DATED 22.03.2016 AND ACQUIT
THE PETITIONER/ACCUSED.

IN CRL.R.P.No.530/2016:

BETWEEN:

K. KADRIVEL
S/O KANNAIAHAN
AGED ABOUT 38 YEARS
R/AT NO.9, VYSYA BANK COLONY
REVENUE LAND, 5TH CROSS
J.P.NAGAR, 1ST PHASE
BANGALORE - 560 078.                   ...PETITIONER

(BY SRI A.N.RADHA KRISHNA, ADV.)
                              3

AND:

M. MOHAN
S/O LATE MARIYAPPA
AGED ABOUT 57 YEARS
R/AT NO. 2485/A, 14TH MAIN
KUMARASWAMY LAYOUT
2ND STAGE, BANGALORE - 560 061.           ...RESPONDENT

(BY SRI M.R. NANJUNDA GOWDA, ADV.)

      THIS CRL.R.P. IS FILED U/S. 397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND CONVICTION
AND SENTENCE PASSED BY THE XIII A.C.M.M., BANGALORE
IN C.C.NO.39042/2010 DATED 12.06.2015 AND CONFIRMED
IN CRL.A.NO.913/2015, DATED 30.03.2016K, PASSED BY THE
LEARNED LXVI ADDL. CITY CIVIL AND S.J., BENGALURU AND
ACQUIT THE PETR./ACCUSED.

     THESE APPEAL AND PETITIONS HAVING BEEN HEARD
AND RESEVED, COMING ON FOR PRONOUNCEMENT THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                     JUDGMENT

1. In the above captioned criminal appeal and criminal

revision petitions, the accused is common and he had

filed IA-2/2019 in Crl.A.No.833/2015 to club these

matters for the purpose of analogous hearing on the

ground that the cheques in question involved in these

three cases and some other cheques were all stolen by

the appellant - Sri N.Subramani who got it presented for

realization through others. The said application was

allowed by this Court on 27.10.2022. Pursuant to the

said order, as directed by Hon'ble The Chief Justice on

24.01.2023, the above captioned criminal appeal and

revisions petitions were listed before this Court for

hearing.

2. Heard the learned Counsel for the parties.

3. Crl.A.No.833/2015 arises out of the judgment and

order of acquittal dated 12.06.2015 passed by the XXIII

Addl. Chief Metropolitan Magistrate, Bengaluru, in

C.C.No.34280/2010, wherein the respondent has been

acquitted for the offence under Section 138 of the

Negotiable Instruments Act, 1881 (for short, 'the Act').

4. Crl.R.P.No.529/2016 arises out of the judgment

and order of conviction and sentence dated 12.08.2014

passed by the XIII Addl. Chief Metropolitan Magistrate,

Bengaluru, in C.C.No.26829/2011, which was confirmed

by the LXVI Addl. City Civil & Sessions Judge, Bengaluru,

in Crl.A.No.997/2014 on 22.03.2016.

5. Crl.R.P.No.530/2016 arises out of the judgment

and order of conviction and sentence dated 12.06.2015

passed by the XXIII Addl. Chief Metropolitan Magistrate,

Bengaluru, in C.C.No.39042/2010, which was confirmed

by the LXVI Addl. City Civil & Sessions Judge, Bengaluru,

in Crl.A.No.913/2015 on 30.03.2016.

6. Facts leading to filing of these three cases narrated

briefly are, the appellant - Subramani had filed private

complaint under Section 200 Cr.PC against the

respondent - Kadirivelu for the offence punishable under

Section 138 of the Act, contending that the respondent

had borrowed a sum of Rs.6 lakhs from him in cash in

the month of January 2010 and towards repayment of

the said amount, he had issued a cheque bearing

No.398454 dated 15.04.2010 drawn on Canara Bank,

Sarakki Layout Branch, Bengaluru, in his favour. The said

cheque on presentation for realization was dishonoured

by the drawee bank with the banker's endorsement

'funds insufficient' and "the drawer's signature

incomplete". After receipt of the said banker's memo, on

04.05.2010, the appellant got issued a legal notice to the

respondent, for which the respondent had given a

detailed reply stating that he had not borrowed any

amount from the appellant as contended by him in the

legal notice and it was also stated that the appellant had

no financial capacity to lend an amount of Rs.6 lakhs to

the respondent. It was further contended that in addition

to the cheque in question, three other cheques bearing

Nos.730839, 730842 & 730845 drawn on ICICI Bank,

Jayanagar Branch, Bengaluru, were stolen from the

custody of the respondent by the appellant, and

therefore, request was made to return all the cheques so

stolen by the appellant. After receipt of the said reply,

the appellant had filed the private complaint against the

respondent for the offence under Section 138 of the Act

which was subsequently numbered as

C.C.No.34280/2010 on the file of the XXIII Addl. Chief

Metropolitan Magistrate, Bengaluru.

7. Cheque bearing No.730844 dated 29.09.2014 for a

sum of Rs.4,70,000/- drawn on ICICI Bank, Jayanagar

Branch, Bengaluru, was presented for realization by one

V.Anjanappa, and cheque bearing No.730839 dated

28.05.2010 for a sum of Rs.2 lakhs was presented for

realization by one M.Mohan and both the cheques were

returned with banker's endorsement 'account closed'.

After compliance of the statutory requirements, the

aforesaid V.Anjanappa and M.Mohan had filed two

separate complaints against Kadirivelu for the offence

punishable under Section 138 of the Act contending that

accused-Kadirielu had borrowed the amounts covered

under the cheques from them in cash and the cheques in

question were issued to them towards repayment of the

amount borrowed and inspite of service of legal notices

pursuant to the dishonour of the aforesaid two cheques,

the amounts covered under the said cheques were not

repaid by the drawee, and therefore, they were

constrained to file the complaints against him for the

offence under Section 138 of the Act.

8. After the Trial Court took cognizance of the

offences alleged in the complaint, two separate cases

were registered against the accused-Kadirivelu on the

complaints of V.Anjanappa and M.Mohan in

C.C.Nos.26829/2011 & 39042/2010, respectively. In the

said two cases, accused-Kadirivelu was convicted for the

offence under Section 138 of the Act and the judgment

and order of conviction and sentence passed by the Trial

Court was upheld by the Appellate Court in

Crl.A.Nos.997/2014 & 913/2015, respectively. As against

the said judgments and orders of conviction, the

accused-Kadirivelu has preferred criminal revision

petition nos.529/2016 & 530/2016, respectively.

9. Learned Counsel for the appellant submits that the

signature found in the cheque and the contents of the

cheque have not been seriously disputed by the accused,

and therefore, the complainant need not prove the

source of his income. He submits that there is sufficient

material on record to show that the appellant was

financially sound. Even the accused has admitted that the

appellant owns property from which he had rental

income. He submits that the defence of the accused is

inconsistent. The accused has not proved his defence

that the cheque in question was stolen by the appellant.

The accused has also taken a defence that the cheque in

question was given by him to the appellant under an

earlier transaction. The Trial Court without appreciating

all these aspects of the matter, has erred in acquitting

the accused. In support of his arguments, he has placed

reliance on the judgments in the case of

T.VASANTHAKUMAR VS VIJAYAKUMARI - 2015 AIR SCW

3040, and ROHITBHAI JIVANLAL PATEL VS STATE OF

GUJARAT - 2019 CRL.L.J. 2400. He submits that in the

connected revision petitions, there is a concurrent finding

recorded by the courts below against the accused and a

similar defence taken by the accused in the said

proceedings has been disbelieved.

10. Learned Counsel appearing for the complainant in

Crl.R.P.No.529/2016 submits that the cheque in question

bearing No.730844 was not the one amongst the

cheques which were allegedly was stolen by Subramani -

appellant in Crl.A.No.833/2015. He submits that the

transaction between the complainant and the accused in

this case is totally independent. On the basis of the oral

and documentary evidence produced by the complainant,

the courts below have convicted the accused for the

offence under Section 138 of the Act. The defence put

forward by the accused is held to be not probable by both

the courts below, and therefore, there is no illegality or

infirmity in the impugned judgment and order of

conviction and sentence passed by the courts below.

11. Per contra, learned Counsel appearing for the

accused in all these three matters submits that the

accused has taken a specific defence at the inception

itself that the cheque in question in respect of which

Subramani had got issued a legal notice, was stolen

along with three other cheques of ICICI Bank. It is his

specific defence that the said stolen cheques were got

presented through various other persons known to

Subramani and complaints were filed in their names

against the accused. He submits that in the reply notice

issued to Subramani, cheque Nos.730839, 730842 &

730845 were wrongly mentioned instead of cheque

Nos.730839, 730844 & 730845, but all the cheques

stolen are of the same series. He submits that the

accused had produced sufficient material before the

courts below to show that the complainant - Subramani

and his son Karthik were involved in filing similar false

cases even against other persons, wherein the amounts

covered are huge and all payments are made only in

cash. In none of the proceedings, the complainant, his

son or other persons who have filed complaints at the

instance of Subramani have established the transaction

and in all the cases, the alleged transaction is only by

cash. He submits that in one of the cases, the

complainant had admitted that he had filed the said case

at the instance of Subramani and his son Karthik. The

Trial Court after appreciating all these aspects of the

matter, has rightly acquitted the accused in

C.C.No.34280/2010. However, in C.C.Nos.26829/2011 &

39042/2010, the Trial Court as well as the Appellate

Court have erred in appreciating the evidence on record

and have erroneously convicted the accused. In support

of his arguments, he has placed reliance on the

judgments in the case of BASALINGAPPA VS

MUDIBASAPPA - (2019)5 SCC 418, M/S. KUMAR

EXPORTS VS M/S. SHARMA CARPETS - AIR 2009 SC

1518, T.B.VENKATESH VS M.NARAYANA SWAMY - 2012

Cr.R.179 (Kant.), RAGHURAM V.SHETTY VS K.KOCHU

SHETTY - 2013(3) KCCR 1980. He submits that in

respect of the cheque bearing No.730845 drawn on ICICI

Bank one Smt. Madamma had filed a private complaint at

the instance of Subramani, which was subsequently

registered as C.C.No.50425/2010 for the offence

punishable under Section 138 of the Act. Later on, there

was some dispute between the aforesaid Madamma and

Subramani, and therefore, in Crl.R.P.No.243/2019 which

arose from C.C.No.50425/2010, the accused and the

aforesaid Madamma had reported settlement before this

Court and in view of the said settlement, the accused

was acquitted.

12. The only question that arises for consideration in

these three cases would be,

"whether the presumption that arises against the accused under Section 139 of the Act in these cases was successfully rebutted by him by raising/putting forward a probable defence?"

13. Before analyzing the oral and documentary

evidence available on record and the findings recorded by

the courts below, it would be necessary to note the

sequences in which these three criminal cases were

initiated before the Trial Court.

• C.C.No.34280/2010 was registered before the

XXIII Additional Chief Metropolitan Magistrate,

Bengaluru, on the complaint filed by N.Subramani.

In this case, legal notice was got issued by the

complainant - Subramani on 04.05.2010 as per

Ex.P-3. Reply to the said notice was issued as per

Ex.P-7 on 07.05.2010, wherein a categorical

defence was taken by the accused that the cheque

involved in the said case as well as three other

cheques drawn on ICICI Bank were stolen by

Subramani and misused by him through others.

The private complaint was filed before the Trial

Court under Section 200 Cr.PC on 27.05.2010. The

transaction alleged in this case was by way of cash.

• C.C.No.39042/2010 was registered on the basis of

the private complaint filed by M.Mohan and the

legal notice in this case was got issued by the

complainant on 07.06.2010. The private complaint

was filed before the XXIII Addl. Chief Metropolitan

Magistrate on 28.06.2010. Even in this case, the

alleged transaction was by cash. Similar defence

was taken by the accused even in this case.

• C.C.No.26829/2011 was registered on the basis of

the private complaint filed by V.Anjanappa. In the

said case, the legal notice was issued on

18.11.2010. The private complaint was filed on

24.12.2010 before the Court of XIII Addl. Chief

Metropolitan Magistrate, Bengaluru. Even in this

case, the alleged transaction was by cash and the

accused had taken a similar defence.

14. From the reading of the aforesaid sequence of

events, it is clear that even before the filing of private

complaints in C.C.Nos.39042/2010 & 26829/2011, the

accused had taken a defence that Subramani had stolen

the cheques which were involved in all these cases.

15. Re: Crl.A.No.833/2015:- The complainant -

Subramani has filed the private complaint in this case

alleging that he had paid an amount of Rs.6 lakhs in cash

to the accused in the month of January 2010 and towards

repayment of the said amount, cheque bearing

No.398454 dated 15.04.2010 drawn on Canara Bank,

Sarakki Layout Branch, Bengaluru, was issued to him by

the accused. In the reply to the legal notice issued in this

case, the accused had taken a specific defence that he

had not borrowed the amount of Rs.6 lakhs as alleged in

the notice from the complainant and he also had stated

that the cheque in question along with three other

cheques drawn on ICICI Bank were stolen by

complainant - Subramani and misused by him.

16. The complainant had examined himself as PW-1

before the Trial Court and had produced 10 documents as

Exs.P-1 to P-10. Ex.P-1 is the original cheque and Ex.P-3

is the copy of the legal notice and Ex.P-7 is the copy of

the reply notice. He also had produced the deposition of

the accused in C.C.No.39042/2010 and

C.C.No.50425/2010 to show that the accused was

prosecuted in similar offence. The complainant who has

deposed before the Court that he had paid the amount of

Rs.6 lakhs in cash to the accused from the amount that

he had received by mortgaging his property in favour of

one Smt. Jayashree, had failed to produce any document

supporting the alleged mortgage. He also had not

examined the aforesaid Jayashree to prove the said

transaction. The complainant had also stated that he had

sold his site bearing No.45 for a sum of Rs.5 lakhs, but

no document was produced regarding sale of site No.45.

17. In support of his defence, the accused had

examined himself as DW-1 and had got marked 15

documents as Exs.D-1 to D-15. Ex.D-1 is the copy of the

private complaint filed by Subramani against one

Gunashekara and the alleged transaction in the said

complaint for a sum of Rs.2,50,000/- was in cash. Ex.D-2

is the copy of the private complaint filed by Subramani

against one Kalimulla and the alleged transaction in the

said case for a sum of Rs.15 lakhs was also in cash.

Ex.D-3 is the private complaint filed by Karthik S/o

Subramani against one Shekar and the alleged

transaction for a sum of Rs.3 lakhs was also in cash.

Ex.D-4 is the copy of the private complaint by Karthik

S/o Subramani against Kalimulla and the alleged

transaction in the case was Rs.25 lakhs which was also in

cash. Ex.D-6 is the copy of the private complaint filed by

Madamma against the accused Kadirielu and the alleged

transaction in the said case was for Rs.3 lakhs which is

also by way of cash and the cheque which was the

subject matter of the said case was one of the cheques

which was allegedly stolen by Subramani. Ex.D-10 is the

certified copy of the judgment in C.C.No.23042/2011

which was filed by one A.Gandhi against D.Shekar for the

offence under Section 138 of the Act and in paragraph 17

of the said judgment, it is recorded that the complainant

in the said case had admitted that he had filed the

complaint on the instructions of Subramani and Karthik.

Ex.D-11 is the certified copy of the private complaint in

C.C.No.26829/2011 filed by V.Anjanappa and the alleged

transaction in this case is for a sum of Rs.4,70,000/- and

even the same is in cash.

18. The only presumption that arises under Section 139

of the Act is that the cheque issued by the drawee in

favour of the holder of the cheque in for discharge of any

debt or other liability, but it does not pre-suppose about

the existence of legally recoverable debt. The Hon'ble

Supreme Court in the case of JOHN K.JOHN VS TOM

VARGHESE - (2007)12 SCC 714, at paragraph 11, has

observed as under:

"11. Presumption raised in terms of Section 139 of the Act is rebuttable. If, upon

analysis of the evidence brought on record by the parties, in a fact situation obtaining in the instant case, a finding of fact has been arrived at by the High Court that the cheques had not been issued by the respondent in discharge of any debt, in our opinion, the view of the High Court cannot be said to be perverse warranting interference by us in exercise of out discretionary jurisdiction under Article 136 of the Constitution."

19. In the case of M.S.NARAYANA MENON VS STATE

OF KERALA - (2006)6 SCC 39, the Hon'ble Supreme

Court at paragraphs 32 to 36 has observed as under:

"32. The standard of proof evidently is pre-ponderance of probabilities. Inference of pre-ponderance of probabilities can be drawn not only from the materials on records but also by reference to the circumstances upon which he relies.

33. Presumption drawn under a statute has only an evidentiary value. Presumptions are raised in terms of the Evidence Act. Presumption drawn in respect of one fact may be an evidence even for the purpose of drawing presumption under another.

34. The Second Respondent herein was a member of a Stock Exchange. The transactions in relation to the Stock Exchange are regulated

by the statutes and statutory rules. If in terms of the provisions of a statute, a member of a Stock Exchange is required to maintain books of accounts in a particular manner, he would be required to do so, as non-compliance of the mandatory provisions of the Rules may entail punishment. It is not in dispute that transactions comprising purchases and sales of shares by investors is a matter of confidence. Both parties would have to rely upon one another. For the said purpose, the courts of law may also take judicial notice of the practice prevailing in such business. The learned Appellate Judge rightly did so.

35. The definite case of the second Respondent was that the cheque dated 17.8.1992 was issued by the Appellant in discharge of his debt. The said liability by way of debt arose in terms of the transactions. For proving the said transactions, the Second Respondent filed books of accounts. The books of accounts maintained by the Second Respondent were found to be not reflecting the correct state of affairs. A discrepancy of more than Rs. 14,00,000/- was found.

36. It was for the Appellant only to discharge initial onus of proof. He was not necessarily required to disprove the prosecution case. ..."

20. The Hon'ble Supreme Court in Basalingappa's case

supra, at paragraph 25 has observed as under:

"25. We having noticed the ratio laid down by this Court in the above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:

25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.

25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.

25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.

25.4. That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an

evidentiary burden and not a persuasive burden.

25.5. It is not necessary for the accused to come in the witness box to support his defence.

21. In M/s. Kumar Exports' case supra, the Hon'ble

Supreme Court at paragraph 11 has observed as under:

11. The use of the phrase "until the contrary is proved" in Section 118 of the Act and use of the words "unless the contrary is proved" in Section 139 of the Act read with definitions of "may presume" and "shall presume" as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed.

To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial

evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act. The accused has also an option to prove the non- existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue."

22. In T.B.Venkatesh's case supra, a coordinate bench

of this Court in paragraph 10 has observed as under:

"10. ..... Under Section 139 of the Act, the Court has to presume that the holder of the cheque has received the cheque for discharge of debt or liability due to him by the drawer. Of course, it is a rebutable presumption. It is now fairly settled by catena of decisions that

standard of proving the defence is preponderance of probabilities and not proof beyond reasonable doubt. It is sufficient if the accused probabalises his defence theory. In order to rebut the presumption under SEction139 of the Act the accused will have to establish that there was no debt in existence or that the cheque was not issued for discharge of any debt or liability. It is fairly well settled that in order to prove Ms defence and rebut the presumption under Section 139 of the Act the accused is not required to lead positive evidence either by examining himself or by examining witnesses. In order to rebut the said presumption it is open to the accused to rely on the very evidence placed by the complainant any by pointing-out the circumstances brought-

out on record in the evidence of the complainant itself the accused could establish that the presumption under Section 139 of the Act has been rebutted. In that event, the burden shifts on to the complainant to prove the existence of debt and that the cheque was issued for discharge of such debt......"

23. In the present case, the alleged transaction for a

sum of Rs.6 lakhs is by way of cash. Though the

complainant has deposed before the Trial Court that the

said amount was paid by him out of the mortgage money

received from one Jayashree and also from the sale of

site No.45 belonging to him, he has not proved the said

transactions. In addition to the same vide Exhibit D-

series, the accused has produced the copies of various

complaints filed by Subramani, his son and others. All

these complaints are filed between 2009 to 2011 and in

two of the said complaints, the transaction is for Rs.15

lakhs and Rs.25 lakhs. Even in the other complaints also,

the transaction is in lakhs. All the transactions are only

by cash. The accused has taken a defence at the

inception in his reply notice that the cheque involved in

this appeal as well as other three cheques drawn on

ICICI Bank were stolen by Subramani. In respect of the

other three cheques, the complaints were subsequently

filed in the name of Madamma, Mohan and Anjanappa. In

one of the case filed by one Sri A.Gandhi, he has

admitted that the complaint was filed by him at the

instance of Subramani and his son Karthik.

24. In a case under Section 138 of the Act, the accused

is required to prove the defence by meeting the standard

of preponderance of probabilities and for this purpose he

can also rely upon the evidence of the complainant. From

the appreciation of the documents at Exhibit D-series,

the defence of the accused appears to be probable. The

Trial Court, therefore, has recorded a finding that the

presumption that arises against the accused was

successfully rebutted by him and the complainant had

failed to prove the alleged transaction. The coordinate

bench of this Court in Raghuram V.Shetty's case supra,

has held that in a case where the accused has taken a

defence that the cheques belonging to him were misused

by the complainant and has probablized such a defence

by producing sufficient evidence before the Trial Court,

the judgment of acquittal passed in such a case is not

liable to be interfered with. It is trite law that in an

appeal against the judgment of acquittal, if two views are

possible, the view that favours the accused has to be

accepted and followed by the Appellate Court.

25. The order of acquittal passed by the court below is

well reasoned and sound, and in my considered view,

having regard to the oral and documentary evidence

available on record, the Trial Court was fully justified in

holding that the accused had proved that his defence was

probable. Under the circumstances, I am of the view that

the judgment of acquittal passed by the Trial Court does

not call for any interference.

26. Re: Crl.R.P.Nos.529/2016 & 530/2016:- These two

revision petitions arise out of the judgment and order of

conviction passed in C.C.Nos.26829/2011 & 39042/2010.

The complainants in these two cases are V.Anjanappa

and M.Mohan, respectively. The accused had taken a

specific defence in the complaint filed by Subramani

which was first amongst the three cases herein that the

cheques which were subject matter of these complaints

were stolen by Subramani. The accused has examined

himself in both these cases as DW-1 and has taken the

very same defence which he had taken in

C.C.No.34280/2010 filed by Subramani. Even in these

cases, he has exhibited documents to prove that various

complaints were filed by Subramani and also by others at

his instance and in all these cases, the transaction was in

cash. However, the courts below only on the ground that

the accused had not disputed the signature found in the

cheque, on the basis of the presumption under Sections

139 & 118 of the Act have convicted the accused for the

offence under Section 138 of the Act. The oral and

documentary evidence available in Crl.A.No.833/2015

has been analyzed by this Court in detail and a finding is

recorded that the defence taken by the accused has been

proved to be probable by him by producing Exhibit D-

series documents. The said finding recorded in

Crl.A.No.833/2015 would also be applicable to these two

revision petitions as the accused had taken a defence in

Crl.A.No.833/2015 that the cheque involved in the said

case as well as the cheques involved in these cases were

stolen by Subramani.

27. In view of the finding recorded by this Court in

Crl.A.No.833/2015, I am of the considered view that the

judgment and order of conviction and sentence passed

by the courts below in these two revision petitions cannot

be sustained. The question for consideration in these

three cases is, therefore, answered in the affirmative in

favour of the accused. Accordingly, the following order:

(a) Crl.A.No.833/2015 is dismissed.

(b) Crl.R.P.No.529/2016 is allowed. The judgment and order of conviction and sentence dated 12.08.2014 in C.C.No.26829/2011 passed by the XIII Addl. Chief Metropolitan Magistrate, Bengaluru, and the judgment and order dated 22.03.2016 passed by the LXVI Addl. City Civil & Sessions Judge, Bengaluru, in Crl.A.No.997/2014, are set aside. The petitioner is acquitted of the offence under Section 138 of the Act.

(c) Crl.R.P.No.530/2016 is allowed. The judgment and order of conviction and sentence dated 12.06.2015 in C.C.No.39042/2010 passed by the XIII Addl. Chief Metropolitan Magistrate, Bengaluru, and the judgment and order dated 30.03.2016 passed by the LXVI Addl. City Civil & Sessions Judge, Bengaluru, in Crl.A.No.913/2015, are set aside. The petitioner is acquitted of the offence under Section 138 of the Act.

(d) The amount in deposit, if any, in C.C.No.26829/2011 on the file of the XIII Addl. Chief Metropolitan Magistrate, Bengaluru, and in C.C.No.39042/2010 on the file of XIII Addl. Chief Metropolitan Magistrate, Bengaluru, is permitted to be withdrawn by the petitioner in Crl.RP.Nos.529/2016 & 530/2016.

SD/-

JUDGE

KK