Karnataka High Court
Smt Usha N vs Mr K B Chetan on 1 April, 2024
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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CRL.A No. 405 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO.405 OF 2020 (A)
BETWEEN:
SMT USHA N
W/O LATE S BABU,
AGED ABOUT 55 YEARS,
R/O FLAT-G, GROUND FLOOR,
NO.-40/41, SAI ABODE, 2ND MAIN ROAD,
BRINDAVAN EXTENSION,
ARAKERE, MICRO LAYOUT,
BANNERGHATTA ROAD,
BENGALURU-560076
...APPELLANT
(BY SRI HALLI SHANTAPPA BASAPPA, ADVOCATE)
AND:
Digitally MR K B CHETAN
signed by S/O BADARINATHA,
SOWMYA AGED ABOUT 40 YEARS,
D R/O SRI LAKSHIMI VENKATESHWARA JEWELS,
Location: DE ROYAL, NO.1503/27,
High SRI SAI PLAZA, 40TH CROSS,
Court of JAYANAGAR, 9TH BLOCK -560041.
Karnataka LAST BUS STOP, BENGALURU
...RESPONDENT
(BY SRI KEMPARAJU, ADVOCATE)
THIS CRL.A IS FILED UNDER SECTION 378(4) CR.P.C
PRAYING TO SET ASIDE THE ORDER OF ACQUITTAL DATED
07.02.2020, PASSED BY THE XXII ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE AT BENGALURU IN
C.C.NO.8638/2018- ACQUITTING THE RESPONDENT/
ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT.
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CRL.A No. 405 of 2020
THIS APPEAL, COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the complainant under
Section 378(4) of Cr.P.C., challenging the judgment of
acquittal dated 07.02.2020 passed by the XXII
Additional Chief Metropolitan Magistrate, Bengaluru, in
CC No.8638/2018, whereby the learned Magistrate has
acquitted the accused/respondent herein of the offence
punishable under Section 138 of Negotiable Instruments
Act, 1881 ('N.I. Act' for short).
2. The brief factual matrix leading to the case
are as under:-
The accused was doing jewelry business in the
name and style of Sri. Lakshmi Venkateshwara Jewels
and the complainant is the regular customer. It is
alleged that the complainant has sold some gold jewels
to the accused and the accused retained Rs.5,00,000/-
in the sale amount with a request to the complainant to
invest the same in gold chit, which is repayable with
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interest at 2% p.a., and the complainant has accepted
the said proposal. It is alleged that the accused in spite
of lapse of several months, neither paid the said amount
nor interest there on as assured. Thereafter, on
demand for repayment of the said amount by the
complainant, the accused issued a cheque under Ex.P1
dated 06.12.2017 for a sum of Rs.5,00,000/-. When
the said cheque was presented by the complainant
through her banker, it came to be dishonoured for the
reason of Insufficient Funds. Then a statutory notice
was issued by the complainant and in spite of service of
notice, the accused has not repaid the said cheque
amount. Hence, the complainant has lodged a
complaint.
3. The learned Magistrate after recording the
sworn statement, has taken cognizance of the offence
under Section 138 of the N.I. Act and issued process
against the accused. The accused appeared through his
counsel and was enlarged on bail. The plea of accused
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under Section 138 of N.I. Act was recorded and the
accused pleaded not guilty.
4. The complainant got examined herself as
PW.1 and placed reliance on Exs.P1 to P8. Then the
statement of accused under Section 313 of Cr.P.C. was
recorded and the case of accused is of total denial. The
accused got examined himself as DW.1 and placed
reliance on Exs.D1 and D2.
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 N.I. Act. Being
aggrieved by this judgment of acquittal, the
complainant is before this Court by way of this appeal.
6. Heard the arguments advanced by the
learned counsel for the appellant and the learned
counsel for the respondent. Perused the records.
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7. The contention of the learned counsel for the
appellant is that, the transaction is of the year 2012 and
the cheque-Ex.P1 was issued in 2017 and there is no
defence regarding time barred debt. He would also
assert that the cheque and signature have been
admitted and accused is taking inconsistent defences in
his evidence, which he has failed to prove and hence,
the presumption available in favour of the complainant
is not rebutted. As such, he would contend that the
Court below has erred in acquitting the accused.
8. Per contra, learned counsel for the
respondent/accused would submit that, as per the case
of the complainant, the transaction is of the year 2012,
but the cheque was issued in the year 2017 and hence
the claim is clearly barred by law of limitation. Hence,
he would contend that, it is not a legally enforceable
debt so as to attract the provisions of Section 138 of the
N.I.Act. Further, he would contend that, by cross-
examining PW.1, he has exposed the case of the
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complainant and the complainant was not aware of the
transaction and though the documents disclose that
they are pertaining to 2012, in the evidence she claims
that the golden ornaments were sold in 2014, which is
inconsistent stand and she further admits that the
cheque was issued to her husband in 2014 itself.
Hence, he would contend that the complainant has not
approached the Court with clean hands and sought for
dismissal of the appeal.
10. Having heard the arguments and after re-
appreciating the and documentary evidence, now the
following point would arise for my consideration:-
Whether the judgment of acquittal passed
by the trial Court is perverse, erroneous and
arbitrary so as to call for any interference by
this Court?
11. It is the specific case of the complainant that,
she sold Jewelry to the accused, who was running a
jewelry business and he retained Rs.5,00,000/- of sale
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proceeds under the pretext of investing it in gold chit by
assuring payment of interest at 2% p.a. on the said
amount. But the accused did not pay either interest or
returned the said amount, and on demand for
repayment, he issued a cheque dated 06.12.2017 for
Rs.5,00,000/-. The complainant has placed reliance on
Ex. P1 to P8. On perusal of Exs.P5 to P8, it is evident
that these transactions were of 2012. The learned
counsel for the appellant/complainant also admits the
fact that the transaction has taken place in 2012. But,
however as per the case of the complainant, the cheque
was issued in 2017. If this version is taken into
consideration, then the claim is clearly barred by law of
limitation.
12. Further, the complainant in her cross-
examination asserts that the gold was sold in 2014 and
a blank cheque was handed over by the accused to her
husband in 2014 itself. She claims that, she does not
remember the date of handing over the cheque. This
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admission of PW.1 is completely contrary to the
pleadings made in the complaint. The documents
disclose that the transaction has taken place in 2012.
But, PW.1 claims that the golden ornaments were sold in
2014. However, she did not disclose the specific date
and she further asserts that the blank cheque was
handed over by the accused to the husband of the
complainant and she was not present at that time and
as such, it is evident that, the complainant does not
have any personal knowledge of the transaction, which
has taken place between her deceased husband and the
accused. Even if it is taken into consideration that the
transaction has taken place in the year 2014 and the
cheque was issued in the year 2017, then unless the
complainant specifies the date of transaction, it is to be
presumed that the transaction is barred by law of
limitation.
13. The admitted principle of law is that, the
acknowledgement of time barred debt does not revive
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the limitation period and it does not create any legal
liability. Learned counsel for the appellant has placed
reliance on a decision reported 2021(6) SCC 413 (S.
Natarajan Vs. Sama Darman and Another). But, it
is pertaining to the proceedings under Section 482 of
Cr.P.C. regarding quashing of the proceedings on the
ground of limitation. The Apex Court in the said case
has observed that, the limitation issue is a mixed
question of law and fact, and it can not be dealt
straightway in 482 Cr.P.C proceedings and that can be
considered in a full fledged trial. But, in the instant
case, full fledged trial is over and documents relied by
the appellant/complainant discloses that the transaction
is of the year 2012 and even the arguments were also
advanced to that effect alone. Hence, the principles
enunciated in the above cited decision will not come to
the aid of the appellant in any way, but they would
assist respondent.
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14. Learned counsel for the appellant has further
placed reliance on an unreported decision of the Apex
Court in the case of Rajesh Jain Vs. Ajay Singh in
Special Leave Petition (Crl.) No.12802/2022 and
argued that the ingredients of Section 138 of N.I. Act
are required to be considered. In the offence under the
provision of Section 138 of N.I. Act, the ingredients of
Section 138 of N.I. Act, plays a vital role. On perusal of
ingredients of Section 138 of the N.I. Act, it is evident
that the cheque should have been issued towards
liability or part of any debt or other liability which is
legally enforceable. There is no dispute regarding
preposition of law laid down in the above cited decision.
In the instant case, the complainant is required to prove
that the cheque was issued towards the legally
enforceable liability. But, the records disclose that the
transaction itself was time barred and for recovery of
the amount, the limitation is for a period of three years
and if the transaction is of the year 2012, then the
cheque should have been issued in 2015 itself.
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15. No doubt, the cheque and signature on the
cheque have been admitted by the accused and there is
a presumption in favour of the complainant under
Section 139 of the N.I. Act. This is a statutory
presumption, but it is a rebuttable presumption and the
law mandates drawing of presumption. However, at the
same time, it is required to note here that the accused
need not to rebut the presumption on the basis of the
standard proof as in the case of complainant. But, he is
required to rebut the presumption on the basis of
preponderance of probability. If the accused is able to
create a dent in the case of the complainant, it is suffice
to hold that the presumption stands rebutted. No
doubt, the accused has taken a defence regarding
issuance of the said cheque as security to a third
person, which he has failed to prove. But however, by
cross-examining PW.1, he has exposed her and brought
on record that the transaction is of the year 2012 and
the cheque was issued in 2014 to her husband, and she
was not present when the transaction was taken over
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between her husband and accused. Hence, it is evident
that the accused has rebutted the presumption available
in favour of the complainant under Section 139 of the
N.I. Act. Under such circumstances, the burden again
shifts on the complainant to prove her case beyond all
reasonable doubt. But, the complainant has failed to
substantiate her complaint allegations.
16. The learned Magistrate has appreciated the
oral and documentary evidence in proper perspective
and has rightly acquitted the accused. No illegality or
perversity is found in the impugned judgment of
acquittal passed by the learned Magistrate so as to call
for any interference by this Court. No grounds are
forthcoming for admitting the matter. Hence, the point
under consideration is answered in negative and appeal
being devoid of any merits, does not survive for
consideration. Accordingly, I proceed to pass the
following:
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ORDER
The appeal stands dismissed.
The impugned judgment of acquittal dated
07.02.2020 passed by the XXII Additional Chief
Metropolitan Magistrate, Bengaluru, in CC
No.8638/2018, for the offence under Section
138 of the N.I. Act, hereby stands confirmed.
Sd/-
JUDGE
KGR
