Karnataka High Court
Smt Geetha vs C. G. Anand on 8 April, 2024
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CRL.A No. 1173 of 2015
NC: 2024:KHC:14436
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MS JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.1173 OF 2015
BETWEEN:
SMT. GEETHA
W/O NAGARAJ,
AGED ABOUT 44 YEARS,
COFFEE PLANTER,
C/O RIYAZ AHAMED,
NEAR TAVAREKERE,
BELUR ROAD,
CHIKAMAGALUR CITY - 577 101.
...APPELLANT
(BY SRI. R B DESHPANDE, ADVOCATE)
AND:
C.G.ANAND
S/O GOPAL GOWDA,
AGED ABOUT 47 YEARS,
R/O MOORMANEHALLI ROAD,
Digitally
signed by CHIKAMAGALUR CITY,
REKHA R WORKING ADDRESS B.C.M. HOSTEL,
Location: High BANAKAL AT AND POST,
Court of MUDIGERE TALUKA,
Karnataka
CHIKAMAGALUR DISTRICT - 577 132.
...RESPONDENT
(BY SRI. V.D.RAVIRAJ, ADVOCATE)
THIS CRL.A IS FILED UNDER SECTION 378(4) OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
ACQUITTAL DATED 30.07.2015 PASSED BY THE II ADDL. CIVIL
JUDGE AND JMFC AT CHIKKAMAGALURU IN C.C.NO.655/2013
AND CONVICT THE RESPONDENT FOR AN OFFENCE
PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE
INSTRUMENTS ACT, IN THE INTEREST OF JUSTICE.
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CRL.A No. 1173 of 2015
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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal filed under Section 378(4) of Cr.P.C,
complainant has challenged the acquittal of
respondent/accused for the offence punishable under
Section 138 of Negotiable Instruments Act (for short 'N.I.
Act').
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 she knows
the accused. With that acquaintance, accused borrowed a
sum of Rs.6 lakhs from the complainant by way of hand
loan to meet the expenses of construction of house.
Towards repayment of the same, he issued cheque dated
10.01.2013 for Rs.6 lakhs drawn on his account with an
assurance that, it will be honoured on presentation.
Accordingly, complainant presented the cheque through
her banker. However, it was returned dishonoured with
endorsement "Funds insufficient". Complainant got issued
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legal notice to the accused to both his residential and
working address. It is duly served. However, accused has
neither paid the amount due nor sent any reply. Without
any alternative complaint is filed.
4. After due service of summons, accused
appeared before the trial Court and contested the case by
pleading not guilty.
5. In order to prove the allegations against the
accused, complainant got herself examined as PW-1 and
relied upon Ex.P1 to 7.
6. During the course of his statement under
Section 313 Cr.P.C, the accused has denied the
incriminating evidence led by the complainant.
7. Accused has examined himself as DW-1 and
relied upon Ex.D1.
8. Vide the impugned judgment and order the trial
Court has dismissed the complaint.
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9. Being aggrieved by the same, complainant is
before this Court, contending that the impugned judgment
and order is illegal, invalid, erroneous and contrary to the
law and evidence on record. The trial Court has committed
serious error in not appreciating the evidence placed on
record in proper perspective. There is no application of
mind to the provisions of Section 138 of N.I Act, especially
when the accused has not specifically denied the
transaction. When the accused has failed to rebut the
presumption, the trial Court has committed grave error in
dismissing the complaint and pray to allow the appeal,
convict the accused and sentence him in accordance with
law.
10. On the other hand, learned counsel for
respondent has supported the impugned judgment and
order and sought for dismissal of the appeal.
11. In support of his arguments, learned counsel for
accused has relied upon the following decisions:
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(i) Basalingappa Vs. Mudibasappa
(Basalingappa)1
(ii) Basappa Vs. A.Annapurna (Basappa)2
(iii) C.Anoop Vs. Krishnappa (Anoop)3
12. Heard arguments and perused the record.
13. Thus, it is the definite case of complainant that
accused borrowed hand loan of Rs.6 lakhs and issued the
subject cheque towards repayment of the same. However,
when presented it came to be dishonoured for want of
sufficient funds. Despite due service of notice, accused has
not chosen to either pay the amount due under the
cheque or send any reply.
14. Accused has denied the entire case put forth by
the complainant, including the averments that he is known
to the complainant and with that acquaintance borrowed
hand loan of Rs.6 lakhs for putting up construction of
house. Despite service of notice, the accused has not sent
(2019) 5 SCC 418
Crl.A.No.100248/2015 Dt: 30.05.2023
Crl.RP.No.518/2019 Dt: 02.01.2024
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any reply. Consequently, he has failed to put forth his
defence at the earliest available opportunity. However, at
the trial, he has set up a defence that, his wife had
borrowed hand loan of Rs.50,000/- from the complainant
and at that time she had given blank signed cheque
belonging to the accused and though the said loan was
repaid, utilising the said cheque, complainant has filed this
unrighteous complaint. At the trial, the accused has also
disputed the financial capacity of complainant to lend him
hand loan of Rs.6 lakhs.
15. Having regard to the fact that the cheque in
question belongs to accused, drawn on his account
maintained with his banker and it bears his signature,
presumption under Section 139 of the N.I Act is operating
in favour of the complainant, placing the initial burden on
the accused to prove that the cheque was not issued
towards repayment of any debt or other liability and on
the other hand to establish the circumstances in which the
cheque has reached the hands of the complainant.
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16. In John K.Abraham Vs. Simon C. Abraham &
Anr (John K.Abraham)4, the Hon'ble Supreme Court held
that in order to draw presumption under Sections 118 and
139 of N.I Act, the burden lies on the complainant to show
that:
(i) She had the requisite funds for advancing the
sum of money/loan in question to accused.
(ii) The issuance of cheque by accused in support
of repayment of money advanced was true
and
(iii) The accused was bound to make payment as
had been agreed while issuing cheque in
favour of the complainant.
17. As held by the Hon'ble Supreme Court in Tedhi
Singh Vs Narayan Das Mahant (Tedhi Singh)5, where the
accused has failed to send reply to the legal notice,
challenging the financial capacity of the complainant, at the
first instance, complainant need not prove his financial
(2014) 2 SCC 236
2022 SCC OnLine SC 302
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capacity. However, at the trial if the financial capacity of
complainant is challenged, then it is for the complainant to
prove the same. As noted earlier in the present case though
the accused has sent reply, therein he has not challenged
the financial capacity of complainant, but at trial he has
challenged their financial capacity.
18. In APS Forex vs Shakti International Fashion
Linkers Pvt. Ltd (APS Forex)6, the Hon'ble Supreme Court
held that when accused raises issue of financial capacity of
complainant, in support of his probable defence, despite
presumption operating in favour of complainant regarding
legally enforceable debt under Section 139 of N.I. Act, onus
shifts again on the complainant to prove her financial
capacity by leading evidence, more particularly when it is a
case of giving loan by cash and thereafter issue of cheque.
19. In Vijay Vs. Laxman and Anr (Vijay)7,
K.Subramani Vs. K.Damadara Naidu (K.Subramani)8 and
(2020) 12 SCC 724
(2013) 3 SCC 86
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K.Prakashan Vs. P.K.Surenderan (K.Prakashan)9, also the
Hon'ble Supreme Court held that the presumption under
Section 139 of N.I. Act, is a rebuttable presumption and
when accused rebut the same by preponderance of
probabilities, it is for the complainant to prove his case
beyond reasonable doubt including his financial capacity.
20. In Basalingappa referred to supra also, it was
held that the presumption under Section 139 of N.I. Act is
rebuttable presumption and it is sufficient for the accused to
prove the same by preponderance of probabilities. It was
also held that when accused dispute the financial capacity of
complainant, the burden would be on the complainant to
establish the same and on her failure the complaint would
fail.
21. Keeping in mind the ratio in the above decisions
of the Hon'ble Supreme Court and having regard to the
fact that accused has challenged the financial capacity of
complainant, at the outset it is necessary to examine
(2015) 1 SCC 99
(2008) 1 SCC 258
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whether the complainant has proved her financial
capacity, after which it would be necessary for the accused
to prove his defence.
22. During her cross-examination complainant has
stated that she is a home maker not having any avocation
or income of her own. Though she has stated that her
husband is doing Timber business, having 4 acres of land
at Mallenahalli and 18 acres of land at Kalavase, belonging
to the joint family, no documents are produced to
evidence the said fact. Her cross-examination reveal that
she and her family members are living in a rented house
on monthly rent of Rs.5,000/-. PW-1 has also stated that
she is having savings account in Federal Bank and Canara
Bank and at the relevant point of time she was having
more than Rs.1,00,000/- in her Federal Bank account and
there is no impediment to produce the account extract to
the Court. However, the same is not produced. Again at
para-4 of her cross-examination, PW-1 has stated that the
cash which was given to the accused was available in her
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house and it was given to her by her brother-in-law out of
sale proceeds of coffee. When suggested that the coffee
sale would be held in the end of December, PW-1 has
stated that it was the produce of previous year.
Admittedly, complainant has not produced any documents
to show that the produce of previous year was kept in
consignment and also it was sold immediately prior to the
alleged lending of Rs.6 lakhs and complainant was in
possession of the same. Thus, the complainant has failed
to prove her financial capacity to lend Rs.6 lakhs to the
accused.
23. In the complaint the complainant has not stated
the date on which the hand loan was advanced to the
accused. It is only stated that towards repayment of the
said amount, accused issued cheque dated 10.01.2013.
However, during her cross-examination complainant has
stated that accused requested hand loan in the month of
November 2013 and she paid the amount on 15.12.2013.
As noted earlier, the subject cheque i.e., Ex.P1 is dated
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10.01.2013 which creates doubt as to whether Ex.P1
cheque was issued towards alleged transaction or it was
already available with the complainant.
24. This fact assumes importance as the accused
has taken up a specific defence that complainant,
Smt.Kalavathi - the wife of accused and other women
were running chit fund and at that time complainant had
taken a blank cheque belonging to the accused and though
the wife of accused has paid the amount due under the
chit transaction, the subject cheque belonging to the
accused remained with the complainant and misusing the
same, she has filed the complaint. Ex.D1 is the pass book
of account maintained by Smt.Kalavathi in Syndicate
Bank. It shows withdrawal of Rs.20,000/- on 27.08.2012
and Rs.45,000/- on 25.09.2012 by Smt.Geetha H.K i.e.,
the complainant. This supports the defence of the accused
that there were some chit transaction between his wife
Smt.Kalavathi and complainant Smt.Geetha H.K.
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25. The contents of Ex.P1 cheque also supports the
defence of the accused that except his signature, the rest
of the contents are not in his handwriting. From the
manner in which the accused has affixed his signature in
Kannada, indicates that except the signature, rest of the
contents are not in his handwriting. In fact the remaining
writing in the cheque tally with the handwriting/signature
of the complainant.
26. Thus, when the complainant has failed to prove
her financial capacity, as held in APS Forex, the burden
would not shift on the accused to rebut the presumption.
Despite the same, through his oral and documentary
evidence placed on record and in the light of cross-
examination of PW-1, the accused has probabilised his
defence. Considering the oral and documentary evidence
placed on record, the trial Court has come to a correct
conclusion that allegations against accused are not proved
and acquitted him. After re-appreciation of the entire
material placed on record, this Court is of the considered
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opinion that it is not a fit case to interfere with the
impugned judgment and order passed by the trial Court.
In the result, the appeal fails and accordingly the
following:
ORDER
(i) Appeal filed by the complainant under
Section 378(4) of Cr.P.C is dismissed.
(ii) The impugned judgment and order dated
30.07.2015 in C.C.No.655/2013 on the
file of II Addl.Civil Judge and JMFC,
Chikkamagalur, is hereby confirmed.
(iii) The Registry is directed to send back the
trial Court records along with copy of this
judgment forthwith.
Sd/-
JUDGE
RR
