Karnataka High Court
Sri Lokesh H vs Smt Shyamala Ravi on 28 November, 2023
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CRL.A No. 129 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S RACHAIAH
CRIMINAL APPEAL NO. 129 OF 2013 (A)
BETWEEN:
SRI LOKESH H.,
S/O SRI HANUMANTHARAYAPPA,
AGED ABOUT 33 YEARS,
C/O R PRASANNA KUMAR,
R/AT NO.56,
DATTATREYA NAGAR,
HOSAKEREHALLI,
BANASHANKARI 3RD STAGE,
BANGALORE - 560 085.
...APPELLANT
(BY SRI. GOPAL SINGH, ADVOCATE)
AND:
SMT. SHYAMALA RAVI,
W/O LATE RAVI,
AGED ABOUT 49 YEARS,
R/AT NO.46, 2ND CROSS,
3RD MAIN ROAD,
CHANNAMMANAKERE ACHUKATTU,
BANASHANKARI 3RD STAGE,
BANGALORE - 560 085.
...RESPONDENT
(BY SRI. S N RAMA PRASAD, ADVOCATE)
THIS CRL.A FILED U/S.378(4) OF CR.P.C PRAYING TO CALL
FOR THE ENTIRE RECORDS IN C.C.NO.23180/2008, ON THE FILE OF
THE XIII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,
BANGALORE AND SET ASIDE THE JUDGMENT AND ORDER OF
ACQUITTAL DATED: 02.01.2013, AS PER ANNEXURE-A AND ETC.,
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT BEFORE THE PRINCIPAL BENCH AT BENGALURU ON
31.08.2023, COMING ON FOR PRONOUNCEMENT OF JUDGMENT,
BEFORE DHARWAD BENCH, THROUGH VIDEO CONFERENCING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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CRL.A No. 129 of 2013
JUDGMENT
1. This appeal is filed by the complainant/appellant
being aggrieved by the judgment of acquittal dated
02.01.2013 in C.C.No.23180/2008 on the file of the XIII Addl.
Chief Metropolitan Magistrate at Bengaluru, wherein the Trial
Court acquitted the accused for the offence under Section 138
of the Negotiable Instruments Act, 1881 (for short, 'N.I. Act').
2. The rank of the parties in the Trial Court henceforth
will be considered accordingly for convenience.
Brief facts of the case
3. It is the case of the complainant that, he and the
accused were known to each other for several years. Due to
said acquaintance, the accused said to have approached the
complainant for financial assistance. It is stated in the
complaint that the accused has borrowed a sum of
Rs.4,50,000/- as hand loan for her domestic purpose and also
assured that the said amount would be repaid within a month.
The said amount was paid on 02.11.2007. After one month,
the complainant has demanded to repay the amount, then the
accused had issued 2 post dated cheques by mentioning the
different dates. When those cheques were presented for
encashment, they came to be dishonoured on 29.07.2008 for
insufficient funds. A legal notice was issued on 12.08.2008.
Inspite of legal notice having been received, the accused has
neither replied nor repaid the cheque amount within the
stipulated period. Therefore, the complainant has filed a
complaint before the Jurisdictional Magistrate.
4. To prove the case, the complainant examined
himself as PW1 and got marked 12 documents Exs.P1 to P12.
On the other hand, the accused examined herself as DW1 and
also got examined DW2. However, no documents have been
marked. The Trial Court after appreciating the oral and
documentary evidence on record, opined that the complainant
had failed to prove the legally enforceable debt or liability and
recorded the acquittal.
5. Heard Sri Gopal Singh, learned counsel for the
appellant and Sri S.N.Rama Prasad, learned counsel for the
respondent. Perused the record.
6. It is the submission of the learned counsel for the
appellant/complainant that the judgment of acquittal passed
by the Trial Court is inappropriate, illegal and perverse.
Therefore, the same is liable to be set aside.
7. It is further submitted that the cheques and the
signatures have been admitted by the accused. Once the
signature and the issuance of the cheque are admitted, the
complainant will be protected by the presumption which is
provided under Section 139 of N.I Act. The said presumption
is rebuttable in nature. The initial burden lies on the accused
to rebut the presumption. However, the Trial Court
misconstrued that the initial burden lies on the complainant to
prove the case beyond all reasonable doubt and recorded the
acquittal which is against to the settled principles of law.
Therefore, the judgment of acquittal passed by the Trial Court
is required to be set aside. Making such submission, the
learned counsel for the appellant prays to allow the appeal.
8. Per contra, the learned counsel for the respondent/
accused vehemently justified the judgment and order of
acquittal and submitted that the defence taken by the accused
was considered by the Trial Court and recorded the acquittal
which is appropriate and relevant. It is further submitted that
the accused has not received the notice regarding dishonour of
cheque and the complainant has failed to prove his financial
capacity to lend the amount as mentioned in the cheque. In
fact, the complainant in his evidence has stated that he was
working at a Government factory and was drawing salary of
Rs.5,000/- per month. Further, the complainant has admitted
in the cross-examination that, except the salary from the
Government factory, he had no other source of income. Even
though the complainant stated that the source of income has
been generated by selling of the site, the said contention has
not been accepted by the Trial Court and recorded the
acquittal, which is appropriate and the same is not required to
be interfered.
9. The learned counsel for the accused further
submitted that the complainant has failed to prove the case
beyond all reasonable doubt regarding the monetary
transaction and the Trial Court has rightly accepted the
contention of the accused and recorded the acquittal. Making
such submission, the learned counsel for the respondent prays
to dismiss the appeal.
10. Having heard the learned counsel for the respective
parties and also perused the findings of the Trial Court, it is
appropriate to have a cursory look upon the proposition of law
in respect of N.I. Act. It is settled principle of law that the
complainant is protected under Section 139 of N.I. Act. Initially
he need not prove his case beyond reasonable doubt. The
presumption mandated under the above said provision indeed
it includes the existence of legally enforceable debt or liability.
Bare denial of passing of consideration and existence of debt is
not enough to rebut the presumption. To disprove the
presumption, 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
its non-existence was so probable that a prudent man would
under the circumstances of the case, act upon the plea that it
did not exist. In other words, the initial burden lies on the
accused to rebut the presumption.
11. On considering the proposition of law mentioned
above, now it is relevant to advert the evidence of the
accused. Admittedly, the accused was working as an
employee at BSNL, Channammanakere Branch, Bengaluru.
She denied the loan transaction with the complainant.
However, she has admitted the cheques and the signatures. It
is also admitted in the cross-examination that she has not
taken any action against the complainant for having misused
the cheques. Even though the accused got examined DW2
who is her daughter, nothing has been elicited to discredit the
loan transaction. On reading of the evidence of DW1 and her
contention in respect of loan transaction, it will not inspire the
confidence of the Court to believe her version. Except bare
denial of loan transaction, nothing has been produced to
substantiate that the cheque was issued other than the legally
enforceable debt or liability.
12. It is well settled principle of law that mere denial of
the loan transaction is not sufficient to rebut the presumption.
My view has been fortified by the Hon'ble Supreme Court in
the case of Kishan Rao V/s Shankargouda1 Paragraph
No.20 reads thus:
20. This Court held that the accused may
adduce evidence to rebut the presumption, but
mere denial regarding existence of debt shall not
serve any purpose. The following was held in para
20: (Sharma Carpets case [Kumar
Exports v. Sharma Carpets, (2009) 2 SCC 513 :
(2009) 1 SCC (Civ) 629 : (2009) 1 SCC (Cri) 823] ,
SCC p. 520)
(2018) 8 SCC 165
"20. ... 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. ..."
13. On careful reading of the dictum of the Hon'ble
Supreme Court, it makes it clear that mere denial of the
transaction is not sufficient to rebut the presumption.
Considering the dictum of the Hon'ble Supreme Court and also
evidence of DW1 and DW2, it may be inferred that the Trial
Court has committed an error in appreciating the facts and law
and recorded the acquittal, which is perverse, illegal and the
same is liable to be set aside.
14. If the accused has failed to rebut the presumption,
the burden never shifts to the complainant to prove the
transaction. In view of the said fact, it may be inferred that
the complainant has proved the case that he is entitled to
receive the amount as stated in the cheque. Therefore, I am
of the considered opinion that the criminal appeal deserves to
be allowed.
15. In the light of the observation made above, I
proceed to pass the following:
ORDER
(i) The Criminal Appeal is allowed.
(ii) The judgment and order of acquittal
dated 02.01.2013 in C.C.No.23180/2008
on the file of the XIII Addl. Chief
Metropolitan Magistrate at Bengaluru is
set aside.
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(iii) The respondent/accused is convicted for
the offence under Section 138 of N.I.
Act and she is sentenced to pay a fine of
Rs.5,00,000/- (Rupees Five Lakh only),
in default of payment of fine, the
accused shall undergo simple
imprisonment for a period of 06 months.
(iv) On deposit of the fine amount, the Trial
Court is directed to pay compensation to
the complainant a sum of Rs.4,90,000/-
(Rupees Four Lakhs Ninety Thousand
only) in terms of Section 357-A of Code
of Criminal Procedure and the remaining
balance has to be adjusted to the
exchequer of the State.
(v) The Registry is directed to send the
records along with the copy of this
judgment to the Trial Court for
execution of sentence.
(vi) The Trial Court is directed to secure the
presence of the accused after the appeal
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period is got over, in accordance with
law.
Sd/-
JUDGE
CLK/Bss
