Karnataka High Court
P. R. Muralidhara Rao vs Mr. Ramesh Laxman Talwar on 29 November, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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NC: 2023:KHC:43136
CRL.A No. 1325 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO. 1325 OF 2019
BETWEEN:
P. R. MURALIDHARA RAO,
AGED ABOUT 63 YEARS,
SON OF P.S.RAMA RAO,
RESIDING AT NO.13/13-1,
2ND FLOOR, 1ST CROSS,
2ND STAGE, KIRLOSKAR COLONY,
BASAVESHWARANAGAR,
BENGALURU - 560 079.
...APPELLANT
(BY SRI. ARJUN REGO, ADVOCATE)
AND:
MR. RAMESH LAXMAN TALWAR,
AGED ABOUT 34 YEARS,
SON OF LAXMAN TALWAR,
RESIDING AT NO. 13/13-1,
Digitally
2ND FLOOR, 1ST CROSS,
signed by
SOWMYA D 2ND STAGE, KIRLOSKAR COLONY,
BASAVESHWARANAGAR,
Location: BENGALURU - 560 079.
High Court ...RESPONDENT
of Karnataka (BY SRI. VIJAYA KUMAR .G. BAGOJI, ADVOCATE)
THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT DATED 22.05.2019 PASSED BY THE
XIII ADDITIONAL CHIEF METROPOLITAN MAIGSTRATE
BENGALURU IN C.C.NO.15198/2017- ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S.138 OF
N.I.ACT.
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CRL.A No. 1325 of 2019
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is an appeal filed by the complainant/appellant
under Section 378(4) of Cr.P.C. challenging the judgment
of acquittal passed by the XIII Additional Chief
Metropolitan Magistrate, Bangalore, in CC No.15198/2017,
dated 22.05.2019.
2. For the sake of convenience, the parties herein
are referred with the original ranks occupied by them
before the trial Court.
3. The brief factual matrix leading to the case are
as under:
It is the contention of the complainant that accused
is a tenant under complainant's wife Smt. B.P.Nalini in
respect of the property situated in Basaveshwaranagar,
Bangalore since 01.05.2014. Accused maintained good
relationship with the family of the complainant and in
second week of October-2014, out of this friendly
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relationship, he requested the complainant to lend a hand
loan of Rs.3,00,000/- and the complainant on 28.10.2014,
paid the said amount to the accused by way of cash. The
accused has undertaken to repay the said amount within
six months and when the complainant demanded the
same, the accused has issued a cheque dated 25.02.2017,
bearing No.814060 drawn on ICICI Bank towards
discharge of legally enforceable debt. When the said
cheque was presented, it was dishonoured and legal notice
was issued which was not served and hence, he lodged a
complaint under Section 138 of the Negotiable
Instruments Act, 1881 (for short 'N.I. Act') against the
accused.
4. After recording sworn statement, the learned
Magistrate has taken cognizance of the offence. The
summons has been issued to the accused and accused
appeared through his counsel and was enlarged on bail.
The plea under Section 138 of N.I. Act was recorded and
accused denied the same. Then the complainant was got
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examined himself as PW1 and he placed reliance on 6
documents marked at Ex.P1 to Ex.P6. During the cross-
examination of PW1, Ex.D1 was got marked. Then the
statement under Section 313 Cr.P.C. is recorded to enable
the accused to explain the incriminating evidence
appearing against him in the case of the complainant. The
case of the accused is of total denial.
5. After hearing the arguments and after
appreciating the oral and documentary evidence, the
learned Magistrate has acquitted the accused for the
offence punishable under Section 138 of the N.I. Act by
exercising powers under Section 255(1) of Cr.P.C. Against
this judgment of acquittal, the complainant is before this
Court by way of this appeal.
6. Heard the learned counsel for the appellant and
learned counsel for the respondent. Perused the records.
7. The learned counsel for appellant would
contend that the cheque and signature on the cheque has
been admitted and hence, there is a presumption in his
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favour under Section 139 of the N.I. Act. He would also
contend that there is no reply to legal notice and the
presumption is not rebutted and the accused has not
proved the defence set up by him. He would also contend
that the alleged transaction between the accused and
complainant's wife has nothing to do with the present
transaction. Hence, he would contend that the learned
Magistrate has failed to appreciate the oral and
documentary evidence in proper perspective and
erroneously acquitted the accused. As such, he would seek
for allowing the appeal by reversing the judgment of
acquittal.
8. Per contra, the learned counsel for respondent
would support the judgment of acquittal.
9. Having heard the arguments and perusing the
records, there is no serious dispute of the fact that Ex.P1-
cheque belongs to the accused and it bears his signature.
Hence, there is an initial presumption in favour of
complainant under Section 139 of the N.I. Act that the
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cheque was issued towards a legally enforceable debt.
However, it is a rebuttable presumption and the accused is
at liberty to rebut the presumption by leading his own
evidence or by cross-examining the complainant or on the
basis of documents relied by the complainant himself. The
complainant is examined as PW1 and in his examination-
in-chief, he has reiterated the complaint allegations. In his
cross-examination, he claims that he is working in a cloth
shop in Malleshwaram and he is being paid Rs.20,000/-
per month. According to him, accused occupied the
tenament belonging to his wife on 01.05.2014. He did not
disclose what is the rent. However, he admits that his wife
is house-wife and she is taking care of the entire
management of the house. He asserts that till January-
2015 accused used to pay the rent properly and
thereafter, he did not paid the rent.
10. As per the case of the complainant, the accused
occupied one of the tenament belonging to his wife on
01.05.2014 and interestingly, immediately within 4
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months he demanded Rs.3,00,000/- and complainant paid
the same without any security to a tenant who had
entered in his premises just 4 months prior. The cross-
examination of complainant reveals that the accused has
disputed the financial status of complainant also. He
asserts that the accused has agreed to pay interest at the
rate of 12% per annum and he further claims that
Rs.1,40,000/- is withdrawn by him from the Bank and the
balance amount is out of his savings available in the
home. But however, he has not produced any documents
to show that Rs.1,40,000/- is withdrawn from the bank
and this material document is with held by the
complainant. Hence, adverse inference is required to be
drawn against him.
11. Further, the complainant in his cross-
examination, admits that he is not an income tax
assessee. He further asserts that since last 24 years he is
working in a cloth shop and every month he used to save
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Rs.10,000/-. He asserts that on 25.01.2017 accused has
given him a post dated cheque.
12. The complainant in his cross-examination,
asserts that he is managing the affairs of the property of
his wife, including the tenanted properties. He further
admits that he had knowledge regarding notice received
by his wife in 2017, but claims that he has not produced it,
as it is nowhere concerned to this transaction. He further
admits that his wife has given a reply notice, but very
interestingly, he has not produced the reply notice. He
admits that Ex.D1 is notice issued by the accused. Though
learned counsel for complainant has objected for marking
this document, as the witness asserts that he dealing with
all the properties of his wife and when the witness clearly
admits this notice, the same was marked as Ex.D1. On
perusal of Ex.D1, it is evident that in para No.1 itself, the
accused has specifically asserted that the wife of
complainant has entered into an agreement of sale dated
09.02.2015 and received Rs.4,00,000/- in cash and for
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balance Rs.1,00,000/- a cheque bearing No.81406 was
given in the name of husband of Nalini i.e., the present
complainant. The said cheque referred in Ex.D1 is the
cheque in the present case, which is now alleged to have
been pertaining to loan transaction. The complainant
admits Ex.D1 and he asserts that his wife has given a
reply. But interestingly, the said reply is also with held by
the complainant for the best reasons known to him. The
Ex.D1 reply notice was issued on 31.01.2017 prior to
presentation of Ex.P1 and that was received by his wife on
03.02.2017 itself. Instead of giving explanation and
producing the reply notice, the complainant has put
forward a new story regarding the advancement of loan.
13. Admittedly, complainant is not a money lender
and question of he claiming interest at 12% does not arise
at all. When he admits that he received all the rents on
behalf of his wife, but he claims that the amount received
Rs.15,000/- from complainant pertaining to interest
portion cannot be accepted in the absence of any material.
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Admittedly, the accused is a tenant and the transfer of
Rs.15,000/- was by electronic mode. When complainant
asserts that it is interest amount, he is required to prove
that there was an agreement to pay the interest at the
rate of 12%. He is not supposed to charge interest as he is
not holding money-lending license. Further, his financial
capacity is not proved, as he asserts that he has
withdrawn Rs.1,40,000/- from the Bank and balance
amount was adjusted from his savings and he paid
Rs.3,00,000/-. Even he has with held the required notice
issued by his wife. Hence, it is evident that the
complainant has with held material documents and hence,
adverse inference is required to be drawn against him.
Hence, the presumption available in favour of the
complainant stands rebutted as the accused is required to
rebut the presumption on the basis of preponderance of
probability but not as in the case of the complainant by
proving his defence beyond all reasonable doubt. The
complainant is required to prove his case beyond all
reasonable doubt. But when the presumption is rebutted,
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then the complainant is required to prove his case. But no
such evidence is forthcoming.
14. The learned Magistrate has appreciated this oral
and documentary evidence in proper perspective and has
rightly acquitted the accused by proper appreciation of the
evidence. Considering these facts and circumstances, no
grounds are forthcoming for admitting the matter and
hence, the appeal being devoid of any merits does not
survive for consideration. Accordingly, the appeal stands
dismissed.
Sd/-
JUDGE
DS
