Karnataka High Court

Sri C K Ravi Kumar vs Sri G S Venkatesh on 6 October, 2023

Bench: J.M.Khazi

                             1        CRL.A.NO.1040/2016



    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 6TH DAY OF OCTOBER, 2023

                       BEFORE

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

         CRIMINAL APPEAL NO. 1040 OF 2016

BETWEEN:

SRI. C.K. RAVI KUMAR,
S/O. SRI. C. KALE GOWDA,
AGED ABOUT 42 YEARS,
R/AT NO.305, 4TH CROSS,
KUVEMPU NAGAR,
MANDYA - 571401.

                                          ...APPELLANT
(BY SRI. HARIPRASAD M.B., ADVOCATE)

AND:

SRI. G.S. VENKATESH,
S/O. SHIVANE GOWDA,
AGED ABOUT 58 YEARS,
JUNIOR FIELD OFFICER
PLD BANK,
R/O 17TH CROSS, V.V. NAGAR
KALLAHALLI,
MANDYA - 571401.
                                      .....RESPONDENT

(BY SRI. M.G.RAVISHA, ADVOCATE)

   THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE
THE IMPUGNED ORDER OF ACQUITTAL DATED 7.5.2016
PASSED BY THE JUDICIAL MAGISTRATE FIRST CLASS,
MANDYA IN CC NO.1087/13. CONVICT THE RESPONDENT-
ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION
138 OF THE NEGOTIABLE INSTRUMENTS ACT.
                               2             CRL.A.NO.1040/2016



     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED    ON    10.07.2023, COMING   ON   FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:

                      JUDGMENT

This appeal is by the complainant filed under

Section 378(4) of Cr.P.C, challenging the judgment and

order dated 07.05.2016 passed by the trial Court in

C.C.No.1087/2013, whereby the complaint filed by the

complainant under Section 200 Cr.P.C for the offence

punishable under Section 138 of N.I.Act came to be

dismissed.

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 since long time. For his

legal necessity viz., to discharge hand loan and for

household requirements, on 14.02.2010, accused

borrowed a sum of Rs.1,50,000/- with a promise to repay

the same within three months. On the same day, he

issued a cheque dated 14.05.2010 for Rs.1,50,000/-

3 CRL.A.NO.1040/2016

drawn on MDCC Bank, Mandya Branch by way of security

and directed the complainant to present it on or after

14.05.2010 and realize the amount. Accordingly, after

informing the accused, complainant present the cheque

on 14.05.2010, for realization. However, it was

dishonoured on the ground "Funds insufficient".

Complainant got issued a legal notice dated 31.05.2010.

The same is served through his mother

Smt.Shanthamma on 02.06.2010. Despite the same, the

accused has neither paid the amount due nor sent any

reply. Without any alternative, the complaint is filed.

4. After due service of notice, accused has

appeared before the trial Court and contested the matter.

He pleaded not guilty and claimed trial.

5. In support of his case, complainant examined

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

6. During the course of his statement under

Section 313 Cr.P.C, accused has denied the incriminating

evidence.

4 CRL.A.NO.1040/2016

7. In fact accused has entered into the witness

box and examined himself as DW-1. He has got marked

Ex.D1.

8. Vide the judgment and order dated

07.05.2016, the trial Court acquitted the accused.

9. Being aggrieved by the same, the complainant

is before this Court contending that the impugned

judgment and order is erroneous and unsustainable both

in law and on facts and liable to be set aside. The trial

Court failed to appreciate the fact that the cheque in

question was issued by the accused and on presentation

it is dishonoured and as such the presumption under

Sections 118 and 139 of N.I.Act is attracted and

therefore the burden is on the accused to rebut the

same. The trial Court has erred in placing reliance on

Ex.D1, which is a self-serving statement and has no

connection whatsoever to the transaction between the

parties.

5 CRL.A.NO.1040/2016

10. Having regard to the fact that the accused is

being prosecuted for criminal offence, the trial Court has

failed to note that it is not case of fixing liability for

payment of money as in civil case. Since the accused has

contended that he borrowed the money for and on behalf

of his friend, it was incumbent upon him to prove the

said fact and trial Court has failed to appreciate this

aspect. The trial Court has also erred in not considering

the decision of the Hon'ble Supreme Court in

Vasanthkumar vs. Vijayakumari (Vasanthkumar)

reported in 2015 (4) KCCR 281 (SC). Viewed from any

angle the impugned judgment and order is not

sustainable and prays to allow the appeal, set aside the

impugned judgment and order of trial Court, convict the

accused and sentence him accordingly.

11. In support of his argument, learned counsel

for complainant has relied upon the following decisions:

(1) T.Vasanthkumar Vs. Vijayakumari (T.Vasanthkumar)1

(2) D.K.Chandel Vs Wockhardt Ltd and Anr.

             (D.K.Chandel)2

    Crl.A.No.728/2015
                                 6           CRL.A.NO.1040/2016

12. On the other hand, learned counsel appearing

for the accused has supported the impugned judgment

and order contending that on appreciation of oral and

documentary evidence, the trial Court has come to a

correct conclusion in acquitting the accused and prays to

dismiss the appeal.

13. Heard elaborate arguments of both sides and

perused the record.

14. Thus, it is the definite case of complainant

that accused borrowed a sum of Rs.1,50,000/- on

14.02.2010 with a promise to repay the same within

three months and on the same day issued a post dated

14.05.2010, cheque for Rs.1,50,000/- by way of security,

and when he failed to keep up with the promise and on

the insistence of complainant, he directed complainant to

present the cheque and realize the amount. However,

when presented for realisation, it was dishonoured for

want of sufficient funds and after issuing legal notice,

and receiving evasive reply complaint is filed.



    (2020) 13 SCC 471
                              7            CRL.A.NO.1040/2016

15. Though accused admitted that the subject

cheque is issued by him drawn on his account maintained

with his banker and it bears the signature, he has taken

up a specific defence that the loan was borrowed for his

friend and the cheque was issued by way of security. In

fact, the said loan was repaid. However, complainant

failed to return the cheque and has filed this complaint.

16. Having regard to the fact that the cheque in

question is drawn by the accused on his account

maintained with his banker and it bears his signature, as

held in T. Vasanthkumar and D.K Chandel, the Court

is required to draw presumption under Sections 118 and

139 of N.I.Act that the cheque is issued towards the

payment of any legally recoverable debt or liability and

the burden is on the accused to rebut the presumption.

Of course it is sufficient for the accused to rebut the

presumption by preponderance of probabilities. If the

accused succeeds in rebutting the presumption, the

burden shifts on the complainant to prove his case. Of 8 CRL.A.NO.1040/2016

course, the complainant is required to discharge the

burden beyond reasonable doubt.

17. It is relevant to note that by sending reply to

the legal notice, the accused at the earliest available

opportunity has spelt out his defence and denied that he

borrowed hand loan of Rs.1,50,000/- from the

complainant and that he was only a surety for the loan

borrowed by his friend B.R.Manju. During his cross-

examination, the complainant has admitted that Ex.D1 is

the small notebook given by him to the accused and in

the said notebook, he has noted the receipt of a total

sum of Rs.1,20,000/-. Though the complainant has

claimed that the entry in Ex.D1 relates to some other

transaction, he has not explained as to what was the said

transaction.

18. Through the cross-examination of PW-1, the

accused has elicited that the complainant has filed

several cheque bounce cases, which goes to show that he

is habitually involved in lending money. Though the

complainant has deposed that he submitted income tax 9 CRL.A.NO.1040/2016

returns, but as admitted by him in these returns, he has

not disclose the fact of he having lent Rs.1,50,000/- to

the accused and also the amount received as per Ex.D1.

The entries made in Ex.D1 supports the defence of the

accused that the loan in question was borrowed by his

friend and the cheque was issued by way of security and

despite the payment of the amount, the complainant has

chosen to file the complaint by utilising the said cheque.

19. During the course of his evidence, the accused

has reiterated the defence taken by him. Despite lengthy

cross-examination, the complainant has failed to dislodge

his evidence. Thus, the accused has rebutted the

presumption under Sections 118 and 139 of the N.I.Act

and proved that the cheque was not issued towards the

payment of any legally recoverable, debt or liability.

20. Hence, the burden is shifted on the

complainant to prove that in fact, he had lent

Rs.1,50,000/- to the accused and the cheque was issued

towards the payment of the same. As noted earlier, the

complainant has failed to place any material on record to 10 CRL.A.NO.1040/2016

show that at the relevant point of time, he was having

cash and a sum of Rs.1,50,000/- and paid the same to

the accused. This was necessary as the accused has

challenged the financial capacity of complainant to lend

the said sum.

21. In this regard complainant has deposed that

he had some amount and he took balance amount from

his friend and gave it to the accused. However, he is not

very specific about the exact sum which he had and what

is the amount taken from his friend and who the said

friend was and he could have examined the said person.

As admitted by him, in his income tax returns, he has not

disclosed the fact of having borrowed certain sum from

his friend to pay to the accused. He has admitted that he

has constructed house about two years back, after which

the income tax authorities issued notice to him and in the

reply to the said notice, he has given details of the loans

due to him. Admittedly, the said document is also not

produced which would have thrown light on the

transaction relating to the present complaint.

                                11                  CRL.A.NO.1040/2016



     22.     In the   light   of    the   cross-examination of

complainant, the accused has not only rebutted the

presumption, but also demonstrated that the case put

forth by the complainant is false. Appreciating the oral

and documentary evidence placed on record, the trial

Court has come to a correct conclusion that the charges

leveled against accused or not proved beyond reasonable

doubt and acquitted him. In T.Vasanthkumar and

D.K.Chandel, on facts, the Hon'ble Supreme Court

accepted the case of the complainant. However the said

decisions are not applicable to the facts and

circumstances of the present case. On re-appreciation of

the oral and documentary evidence placed on record, this

Court is of the considered opinion that the impugned

judgment and order does not call for interference by this

Court. In the result the appeal fails and accordingly the

following:

ORDER

(i) Appeal filed by the complainant is

dismissed.

                              12          CRL.A.NO.1040/2016



    (ii)    The impugned judgment and order of the

            trial Court is confirmed.