Karnataka High Court

Sri Venkataramaiah vs Sri Puttaswamy on 10 October, 2023

Bench: J.M.Khazi

                          1           CRL.A.NO.128 OF 2012




    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 10TH DAY OF OCTOBER, 2023

                        BEFORE

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

          CRIMINAL APPEAL NO.128 OF 2012

BETWEEN:

SRI VENKATARAMAIAH,
S/O LATE JAVARAIAH,
MAJOR,
RESIDENT OF HOSAKERE,
AMRUTHUR HOBLI,
KUNIGAL TALUK
TUMKUR DISTRICT.

                                           ...APPELLANT
(BY SRI. A.C.BALARAJ, ADVOCATE)

AND:

SRI PUTTASWAMY,
S/O NANJEGOWDA,
MAJOR,
WORKING AT CANARA BANK,
RAJAJINAGAR BRANCH, 3RD BLOCK,
BENGALURU - 560 010.
                                      .....RESPONDENT
(BY SMT.VIDYA S., ADVOCATE)

   THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF CODE OF CRIMINAL PROCEDURE PRAYING TO a) SET
ASIDE THE IMPUGNED JUDGMENT PASSED BY THE LEARNED
SECOND FAST TRACK (ADDITIONAL SESSIONS) JUDGE,
TUMKUR    IN  CRIMINAL   APPEAL    NO.19/2011  DATED
23/08/2011 AND DISMISS THE CRIMINAL APPEAL FILED BY
THE RESPONDENT; b) CONFIRM THE JUDGMENT AND
SENTENCE PASSED BY THE LEARNED ADDITIONAL CIVIL
JUDGE (JR.DN.) & JMFC AT KUNIGAL IN C.C.NO.45/2005
DATED 09.02.2011 AND ALLOW THE ABOVE APPEAL BY
                                  2              CRL.A.NO.128 OF 2012




GRANTING THE RELIEFS AS PRAYED FOR AND ALLOW THE
SAME WITH COSTS, IN THE INTEREST OF JUSTICE AND
EQUITY.

     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED    ON    12.07.2023, COMING   ON   FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:


                         JUDGMENT

This appeal filed under Section 378(4) of Code of

Criminal Procedure (for short, 'Cr.P.C.') is by the

complainant, challenging the impugned judgment and

order dated 23.08.2011 passed by the II Addl.Fast Track

Court, Tumakuru in Crl.A.No.19/2011, whereby the

judgment and order of the trial Court convicting and

sentencing the accused for the offence punishable under

Section 138 of Negotiable Instruments Act, 1881 (for

short, 'N.I.Act') came to be set aside and accused is

acquitted.

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 towards

repayment of hand loan of Rs.50,000/- taken from the 3 CRL.A.NO.128 OF 2012

complainant for his legal necessity and on demand by

him, accused issued cheque bearing No.441464 dated

05.06.2003, drawn on Canara Bank, Amruthur. Accused

assured prompt encashment. However, when

complainant presented it on the same day through the

Bank, it was returned with an endorsement 'cheque

reportedly lost payment stopped'. When it was brought

to the notice of accused, he apologized and requested

him to represent. However on second time also it was

dishonoured for the same reason. Complainant got issued

legal notice dated 02.09.2003 and it is duly served on

him on 05.09.2003. However, accused has neither paid

the amount due nor sent any reply and hence, the

complaint.

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 one witness as PW-2 and got

marked Exs.P1 to 7.

4 CRL.A.NO.128 OF 2012

6. During the course of his statement under

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

evidence.

7. In fact accused has led defence evidence by

examining four witnesses as DWs-1 to 4. No documents

are marked on his behalf.

8. Vide the judgment and order dated

09.02.2011, the trial Court convicted the accused and

sentenced him to pay fine of Rs.55,000/- in default to

undergo simple imprisonment for six months.

9. Accused challenged the same before the Fast

Track Court in Crl.A.No.19.2011. Vide the impugned

judgment and order, it was allowed and accused was

acquitted.

10. Being aggrieved by the same, the complainant

is before this Court contending that the Fast Track Court

has grossly erred in reversing the well reasoned

judgment of the trial Court and acquitting the accused.

No justifiable reasons are assigned for interfering with 5 CRL.A.NO.128 OF 2012

the judgment and order of the trial Court. The Fast Track

Court has not only failed to draw the presumption under

Sections 118 and 139 of the N.I.Act and also wrongly

placed the burden on the complainant. The Fast Track

Court has failed to appreciate the inherent contradictions

in the defence taken by the accused. The Fast Track

Court has also failed to appreciate the fact that as an

employee of the Bank the accused has stopped payment

of the cheque and thereby committed the offence

punishable under Section 138 of N.I.Act and prays to

allow the appeal, set aside the judgment and order and

restore the judgment and order of the trial Court.

11. In support of his argument, learned counsel

for complainant has relied upon the following decisions:

i. Kalamani Tex and another V/s P.Balasubramanian (Kalamani Tex)1

ii. D.K.Chandel V/s WOCKHARDT Limited and another (D.K.Chandel)2

(2021) 5 SCC 283

(2020) 13 SCC 471 6 CRL.A.NO.128 OF 2012

iii. K.S.Ranganatha V/s Vittal Shetty (K.S.Ranganatha)3

iv. APS Forex Services Private Limited V/s Shakti International Fashion Linkers and others (APS Forex)4

v. Triyambak S.Hegde V/s Sripad (Triyambak)5

12. On the other hand, learned counsel appearing

for the accused has supported the impugned judgment

and order contending that on re-appreciation of oral and

documentary evidence, the Fast Track 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, accused is being prosecuted by the

complainant on the allegations that towards repayment

of hand loan of Rs.50,000/-, accused issued the subject

cheque and when presented it is dishonoured on the

2021 SCC OnLine SC 1191

(2020) 12 SCC 724

(2022) 1 SCC 742 7 CRL.A.NO.128 OF 2012

ground that the cheque is reportedly lost and therefore

payment is stopped. Infact, accused who is an employee

of bank has taken up a specific defence that when he was

ill, he had sent DW4-Jagadish with the cheque to the

bank and he lost it and therefore, he instructed the bank

to stop payment. He has disputed that he had any

financial transaction with the complainant and had issued

the subject cheque towards repayment of the said

liability.

15. Having regard to the fact that the cheque in

question is drawn on the account of accused maintained

with his banker and it bears his signature, as held in

Kalamani Tex, D.K.Chandel, K.S.Ranganatha, APS

Forex and Triyambak, presumption u/sec.118 and 139

of N.I.Act is required to be drawn to the effect that it was

issued towards repayment of any legally recoverable debt

or liability and therefore, the burden is on the accused to

rebut the presumption and to prove the circumstances in

which the cheque has reached the hands of complainant.

While disputing the allegations that he has issued the 8 CRL.A.NO.128 OF 2012

subject cheque to the complainant, the accused has also

taken a specific defence disputing the financial capacity

of the complainant. In the light of the same, it is

necessary to examine whether the trial Court was

justified in convicting the accused and the Fast Track

Court is justified in reversing the same.

16. As noted earlier having regard to the fact that

the cheque is drawn on the account of the accused

maintained with his banker and it bears the signature,

presumption is in favour of the complainant. In order to

rebut the presumption, the accused has relied upon the

evidence of DW1 to 4. Their evidence is to the effect that

when accused lodged a complaint with the police alleging

that he has lost the cheque and misusing the same

complainant has filed case against him, complainant was

summoned at the P.S. and he admitted the fact of having

found the cheque, but he refused to return it saying that

already complaint is filed.

17. Infact, complainant is cross-examined at

length on this aspect, wherein he has admitted that after 9 CRL.A.NO.128 OF 2012

he issued notice, accused lodged a complaint stating that

the cheque is lost. When he went to the Police Station,

the police advised him to settle the matter, but he

refused to do so saying that case is pending before the

Court. He has claimed that at the P.S. his signature was

taken to a blank paper, but he do not know how it was

utilized. He has admitted that the cheque was returned

unpaid on the ground that there is stop payment

instructions as the cheque is lost.

18. Through the material placed on record by the

accused, it is proved that the cheque in question was lost

and immediately he gave instructions to stop payment

and in fact the complainant was summoned to the police

station and the concerned police tried to work out a

settlement. By this evidence, the accused has rebutted

the presumption shifting the burden on the complainant

to prove his case.

19. At the outset it is relevant to note that in the

complaint or during the course of his evidence, the

complainant has not pleaded and deposed as to what was 10 CRL.A.NO.128 OF 2012

the transaction between him and the accused. He has not

stated in specific terms as to in what connection cheque

was issued and whether accused borrowed any hand loan

from him. He has simply stated that the cheque in

question is issued towards repayment of amount due to

the complaint to the tune of Rs.50,000/-.

20. Infact, in addition to claiming that the cheque

in question was lost, which he has proved through the

evidence placed on record, the accused has challenged

the financial capacity of complainant and cross-examined

him. In this regard, complainant has stated that he is an

agriculturist and also doing business. However he has

stated that he do not deal specifically in any particular

item. He is unable to state what exactly is his income. He

has admitted that in all 15-20 cheque bounce cases are

pending before the Courts at Kunigal. He has also stated

that he has filed several cases based on mortgage,

charge, purchase and agreement.

21. Infact, at page No.7 of his cross-examination,

the complainant has claimed that when accused 11 CRL.A.NO.128 OF 2012

requested for money, he withdrew it from his account

and paid to him. However the complainant has not

chosen to produce account extract to evidence the said

fact. Infact PW2 who is the Manager of the Canara Bank,

Amruthur Branch has deposed that while giving stop

payment instructions, the accused has issued a letter

stating that the cheque in question was lost by his

brother-in-law and its payment should be stopped. In the

light of testimony of PW2, DWs1 to 4 as well as the

admission given by the complainant i.e. PW1, this Court

is of the considered opinion that after the rebuttal of

presumption by the accused on preponderance of

probabilities, the complainant has failed to discharge the

burden placed on him beyond reasonable doubt.

22. Taking into consideration the oral as well as

documentary evidence placed on record, the Fast Track

Court has come to a correct conclusion that the charge

leveled against the accused is not proved and reverse the

judgment and order of the trial Court and acquitted the

accused. In the light of the same, there are no justifiable 12 CRL.A.NO.128 OF 2012

grounds made out by the complainant to interfere with

the impugned judgment and order. In the result, the

appeal fails and accordingly, the following:

ORDER

Appeal filed by the complainant

u/sec.378(4) Cr.P.C. is dismissed.

The impugned judgment and order of the II

Addl. Fast Track Court, Tumakuru in

Crl.A.No.19/2011 dated 23.08.2011 reversing

the conviction and sentence of accused in

C.C.No.45/2005 dated 09.02.2011 on the file of

Addl.Civil Judge (Jr.Dn.) and J.M.F.C., Kunigal is

hereby confirmed.