Karnataka High Court

Smt. G.V. Shashikala vs Sri. Giriyappa on 2 November, 2023

Bench: S Rachaiah

                             -1-
                                       CRL.A No. 648 of 2017



    IN THE HIGH COURT OF KARNATAKA AT BENGALURU
       DATED THIS THE 2ND DAY OF NOVEMBER, 2023
                           BEFORE
           THE HON'BLE MR JUSTICE S RACHAIAH
           CRIMINAL APPEAL NO. 648 OF 2017 (A)
BETWEEN:
   SMT G V SHASHIKALA
   AGED 56 YEARS
   DAUGHTER OF LATE VENKATARAMAIAH
   NO.67, FIRST 'A' CROSS
   NEW BANK COLONY
   KOANAKUNTE
   BANGALORE - 560 062.
                                                  ...APPELLANT

(BY SRI. M K VENKATRAMANA, ADVOCATE)

AND:
   SRI. GIRIYAPPA
   AGED 51 YEARS
   SON OF THIMMAIAH
   NO.99, CHANDRAPPA CIRCLE
   CHUNCHANKUPPE POST
   THAVAREKERE HOBLI
   BANAGLORE SOUTH TALUK
   BANGALORE - 562 130.
                                                ...RESPONDENT

(BY SRI. C N NAGANNA, ADVOCATE)


      THIS CRL.A FILED U/S.378(1) AND (3) OF CR.P.C PRAYING TO
SET ASIDE JUDGMENT AND ORDER DATED 03-02-2017 PASSED IN
CRL.A.NO.1248/2016 ON THE FILE OF THE LXVII ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BANGALORE CITY AND THEREBY
CONFIRMING THE JUDGMENT DATED 16-09-2016 PASSED IN
C.C.NO.5623/2015 BY THE 22ND ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE, BANGALORE AND ETC.,


      THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED
ON 17.08.2023, COMING ON FOR PRONOUNCEMENT OF JUDGMENT,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
                                 -2-
                                            CRL.A No. 648 of 2017



                           JUDGMENT

1. This appeal is filed by the appellant / complainant

being aggrieved by the judgment and order of acquittal dated

03.02.2017 in Crl.A.No.1248/2016 on the file of LXVII

Additional City Civil and Sessions Judge at Bengaluru.

2. The rank of the parties in the Trial Court henceforth

will be considered accordingly for convenience.

Brief facts of the case are as under:-

3. The accused was introduced to the complainant

through her brother Sri G.V.Jagadish and one of her family

members namely Sri.Seetharam. It is stated that, the accused

had borrowed Rs.2,50,000/- from the complainant and agreed

to repay the said amount within one month and issued a

cheque dated 10.06.2013 as a security. When the stipulated

time was over, the complainant informed the accused and

demanded the amount. However, the accused instructed the

complainant to present the said cheque for encashment in the

third week of August, 2013. Considering the request, the

cheque was presented on 22.08.2013. However, the said

cheque was dishonoured with a shara as 'Funds insufficient'.

Immediately, the fact was made known to the accused. Again

CRL.A No. 648 of 2017

the accused requested the complainant to present it again.

Accordingly, the cheque was presented on 06.09.2013.

However, the said cheque was dishonoured with the same

shara as it was received earlier. A notice was issued to the

accused on 17.09.2013. Notice was served to the accused on

17.10.2013. Thereafter, the accused requested the complainant

and issued fresh cheque dated 21.09.2013 for the said amount.

Again, the second cheque was presented for encashment on

the same day, however, it was also dishonoured with a shara

'funds insufficient' and the complainant has received Bank

Memo on 23.09.2013. Hence, notice was issued on 05.10.2013

and it was served on 17.10.2013. In spite of receipt of legal

notice, the accused did not reply or comply the notice. Hence,

complaint has been lodged before the jurisdictional Magistrate

for the offence under Section 138 of the Negotiable

Instruments Act (for short 'N.I. Act'). The jurisdictional

Magistrate took cognizance of the offence and proceeded with

the case.

4. To prove the case of the complainant, the

complainant examined himself as PW.1 and got marked 8

documents as Exs.P1 to P8. On the other hand, the respondent

examined himself as DW.1 and got marked 12 documents as

CRL.A No. 648 of 2017

Ex.D1 to D12. The Trial Court after considering oral and

documentary evidence on record, recorded the conviction.

However, in the appeal, the judgment of conviction was set

aside.

5. Heard Sri.M.K.Venkatramana, learned counsel for

the appellant and Sri.C.N.Naganna, learned counsel for

respondent.

6. It is submission of learned counsel for the appellant

that the findings of the Appellate Court in recording the

acquittal is against the evidence and law, therefore, the same is

liable to be set aside.

7. It is further submitted that the findings of the

Appellate Court in recording the acquittal are not acceptable for

the reason that, the issuance of the cheque and signature both

have been admitted by the accused. The accused has not led

any rebuttable evidence to rebut the presumption. The

contention of the accused is that, he was working as Secretary

at Mantapa Gram Panchayath, Anekal Taluk and his wife was

running business in the name and style as M/s Shambhavi

Home Products. In addition to the work as a Secretary, he

CRL.A No. 648 of 2017

stated to have running Diary Farm and also having 15 acres of

land at Gubbi Taluk. The Trial Court after considering the

evidence of DW.1 and opined that even though, the accused is

having sufficient means, the issuance of the cheque to the

complainant other than the legally enforceable debt or liability

has not been proved. However, the Appellate Court failed to

take note of the same and recorded the acquittal which is

erroneous and perverse and therefore, the same is liable to be

set aside.

8. It is further submitted that the Trial Court has failed

to raise a presumption which is envisaged under Section 139 of

the N.I. Act. Once the cheque and the signature have been

admitted, the Trial Court should have raised the presumption

that the cheques have been issued for the legally recoverable

debt or liability. The said aspect is absent in the findings

recorded by the Trial Court. Hence, the learned counsel prays

this Court to interfere in this matter and also prays to allow this

appeal.

9. Per contra, learned counsel for the respondent

vehemently contended and justified the judgment and order of

acquittal passed by the Appellate Court and submitted that the

CRL.A No. 648 of 2017

contention of the accused is that he had issued cheques to his

friend Sri.Seetharam and the cheques which were issued to

Sri.Seetharam have been misused by the complainant. It is

further submitted that the complainant is a stranger to the

accused and no transaction had taken place between the

complainant and the accused. It is further submitted that the

Trial Court after appreciating the oral and documentary

evidence on record rightly recorded the acquittal which requires

no interference. Having submitted thus, the learned counsel

for the respondent prays to dismiss the appeal.

10. Having heard learned counsel for the respective

parties and also perused the findings of the Appellate Court,

now, it is relevant to refer to the judgment of the Hon'ble

Supreme Court in the case of BASALINGAPPA v.

MUDIBASAPPA1, para No.25 reads thus:

"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

(2019) 5 SCC 418

CRL.A No. 648 of 2017

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 a 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."

11. On careful reading of the dictum of Hon'ble

Supreme Court, the initial burden to rebut the presumption lies

on the accused. Therefore, now it is relevant to refer to the

evidence of DW.1. DW.1 contended in his evidence that there

CRL.A No. 648 of 2017

was no occasion for him to borrow loan from anybody and he

had sufficient means not only from his employment, but also

from other various sources. In his cross-examination, he has

denied that notice was received by him. Even though, the

accused has contended that the cheques which are in dispute

were given to Sri.Seetharam, who is his friend, the cheques

were given to said Sri.Seetharam as a security in respect of

Milk Diary transaction, the same have been given to the

present complainant and presented the complaint through the

complainant. The said contention cannot be accepted for the

reason that the accused neither produced any document to

show that the cheques were issued to Sri.Seetharam nor got

examined the said Sri.Seetharam to substantiate his

contention. Mere denial of the transaction and mere stating

that cheques were issued to some other person and those

cheques have been misused by the complainant cannot be

accepted as true and such contention is unsustainable.

12. To rebut the presumption, there must be some

cogent evidence which required to be produced either oral or

documentary. In the absence of cogent evidence, it cannot be

construed that presumption has been rebutted. Unless the

presumption envisaged under Section 139 of N.I Act is rebutted

CRL.A No. 648 of 2017

and burden shifted on the complainant to prove his case, it

cannot be said that the presumption stood rebutted.

13. Now it is relevant to refer to the cross-examination

of PW.1. In her cross-examination, PW.1 has stated that, she

was a housewife and she knew the accused since three years.

Since both the complainant and the accused known to each

other, taking advantage of the said acquaintance, the accused

requested her to pay loan of Rs.2,50,000/-. As per the request

of the accused, the complainant lent the said loan. She further

stated in her cross-examination that she had amount of

Rs.1,00,000/- as her savings and also borrowed Rs.1,50,000/-

from her husband who was retired from the service of the State

Government. On perusal of the evidence of PW.1, it appears

that PW.1 has proved the lending capacity and also proved that

the cheques in question had been issued for the legally

enforceable debt or liability. Therefore, it can be said that the

Appellate Court failed to take note of this aspect and also failed

to raise the presumption properly, resulted in passing the

impugned judgment and order which is unsustainable and the

same is liable to be set aside. On perusal of the findings of the

Trial Court it appears that there is no error committed by the

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CRL.A No. 648 of 2017

Trial Court in recording the conviction. Hence, the same is

required to be confirmed.

14. In the light of the observations made above, I

proceed to pass the following:-

ORDER

(i) The criminal appeal is allowed.

(ii) The judgment and order dated 03.02.2017

passed in Crl.A.No.1248/2016 by the LXVII

Additional City Civil and Sessions Judge at

Bengaluru is set aside.

(iii) The judgment and order dated 16.09.2016

passed in CC No.5623/2015 by the XXII

Additional Chief Metropolitan Magistrate,

Bengaluru City is confirmed.