Karnataka High Court

Sri S Ramachandra Reddy vs Sri Asadulla on 2 August, 2024

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                                                             NC: 2024:KHC:30704
                                                        CRL.A No. 468 of 2012




                       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 2ND DAY OF AUGUST, 2024

                                              BEFORE
                               THE HON'BLE MRS JUSTICE M G UMA

                                CRIMINAL APPEAL NO. 468 OF 2012

                   BETWEEN:
                   SRI. S. RAMACHANDRA REDDY
                   S/O. CHIKKA SUBBANNA
                   AGED ABOUT 55 YEARS
                   RESIDING AT NO.387/4
                   9TH MAIN, VIJAYANAGAR
                   BANGALORE - 40
                                                                    ...APPELLANT
Digitally signed
by NANDINI B G     (BY SRI. PARAMESH KUMAR H.K., ADVOCATE)
Location: high
court of
karnataka          AND:
                   SRI ASADULLA
                   S/O. GUL AHMED
                   AGED ABOUT 40 YEARS
                   RESIDING AT NO.3
                   NEW NO. 64, 9TH CROSS
                   JUMMA MASJID ROAD
                   (OPH ROAD) SHIVAJINAGAR
                   BANGALORE.
                   WORKING AT:
                   MOTOR INDUSTRIES COMPANY
                   LIMITED, (MICO), NOW CALLED
                   AS BOSCH, EMPLOYEE NO.4482
                   DEPARTMENT NO.7180
                   AUDUGODI, HOSUR ROAD
                   BANGALORE - 560 030.
                                                                  ...RESPONDENT
                   (BY SRI. SIJI MALAYIL, ADVOCATE)

                         THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
                   CR.P.C PRAYING TO SET ASIDE THE ORDER DATED: 27.2.12 PASSED
                   BY THE XIX ADDL.C.M.M., BANGALORE IN C.C.NO.15606/07 -
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                                                 NC: 2024:KHC:30704
                                              CRL.A No. 468 of 2012




ACQUITTING THE RESPONDENT/ACCUSED FOR                 THE   OFFENCE
PUNISHABLE UNDER SECTION 138 OF N.I. ACT.

      THIS CRIMINAL APPEAL, COMING ON FOR FINAL HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM:     HON'BLE MRS JUSTICE M G UMA

                       ORAL JUDGMENT

The complainant in CC No.15606 of 2007 on the file of

the learned XIX Additional Chief Metropolitan Magistrate,

Bengaluru, is impugning the judgment dated 27.02.2012

acquitting the accused for the offence punishable under Section

138 of the Negotiable Instruments Act (for short 'the NI Act').

2. For the sake of convenience, the parties shall be

referred to as per their rank and status before the Trial Court.

3. Brief facts of the case are that, it is the contention

of the complainant before the Trial Court that he was having

acquaintance with the accused since several years and the

accused had requested for lending the amount. The

complainant had lent Rs.2,00,000/- during April 2004 and

Rs.3,00,000/- during September 2004 and thereby, he has lent

in all Rs.5,00,000/-. Towards repayment of loan, the accused

had issued the cheques as per Exs.P1 and 2 for Rs.2,50,000/-

each on 15.11.2006. Those cheques were presented for

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encashment. Both were dishonored as there was insufficient

funds. Legal notice was issued which was served on the

accused. But the accused has neither replied nor complied with

the demands made therein, thereby he has committed the

offence punishable under Section 138 of NI Act. Accordingly,

the complainant requested the Trial Court to initiate action

against the accused.

4. The complainant examined himself as PW1 and got

marked the documents Exs.P1 to P13 in support of his

contention. The accused denied all the incriminating materials

available on record in his statement recorded under Section

313 of Cr.P.C and examined himself as DW1. He got marked

Exs.D1 to D4 in support of his defence. The Trial Court has

taken into consideration all these materials on record and came

to the conclusion that the complainant is not successful in

proving the guilt of the accused beyond reasonable doubt.

Accordingly, passed the impugned judgment acquitting the

accused.

5. Heard Sri H K Paramesh Kumar, learned counsel for

the appellant and Sri Siji Malayil, learned counsel for the

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respondent. Perused the materials including the Trial Court

records.

6. Learned counsel for the appellant - complainant

contended that the appellant had served in the Institution and

had taken VRS during 2001. At that point of time, he had

Rs.3,00,000/- and it was with him. The remaining

Rs.2,00,000/- was obtained by him from his friend and gave

Rs.5,00,000/- to the accused. The accused had admitted that

Exs.P1 and 2 are the cheques belonging to him and he also

admitted his signatures found therein. Under such

circumstances, presumption under Section 139 of NI Act arises

and the burden lies on the accused to rebut the same. The

accused has not rebutted the said presumption and therefore,

he is liable for conviction. The Trial Court has not taken into

consideration any of these facts and circumstances and

acquitted the accused without any basis.

7. Learned counsel placed reliance on the decision of

the Hon'ble Apex Court in the case of M/s Kalamani Tex and

another Vs P Balasubramanian , in support of his contention

(2021) 5 SCC 283

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that once the signature on the cheque is admitted, presumption

under Sections 118 and 139 of NI Act would operate and on the

failure of the accused to rebut the presumption, the accused is

liable for conviction. Accordingly, he prays for allowing the

appeal.

8. Per contra, learned counsel for the respondent

opposing the appeal submitted that the accused and the

complainant are strangers. The accused is working in MICO

industry with one Shantappa, who is the brother-in-law of the

complainant and the accused in fact had borrowed the amount

from Shantappa and had issued 6 cheques with his signature in

favour of the said Shantappa. Even after repayment of the

loan amount, the said Shantappa has misused the cheques.

Therefore, the accused had issued legal notice as per Ex.D1 to

Shantappa, calling upon him to return all the cheques. It is

only thereafter the complainant managed to get two cheques

from Shantappa who is his brother-in-law and fill it up his name

and misused the cheques.

9. Learned counsel submitted that PW1 categorically

stated that he had taken VRS during 2001 and had kept

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Rs.3,00,000/- in the bank. No bank statement is produced to

show that he was having the said amount with him. Therefore,

the financial capacity of the complainant is not proved. When

the complainant has not discharged his initial burden, the

accused is entitled for acquittal. The Trial Court has rightly

considered the materials on record and acquitted the accused.

There are no reasons to interfere with the same. Accordingly,

he prays for dismissal of the appeal.

10. In view of the rival contentions urged by learned

counsel for both the parties, the point that would arise for my

consideration is:

"Whether the appellant has made out any grounds to allow the appeal and to convict the accused for the offence punishable under Section 138 of NI Act?"

My answer to the above point is in the 'Negative' for the

following:

REASONS

11. It is the contention of the complainant that he had

lent Rs.2,00,000/- and Rs.3,00,000/- during April and

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September, 2004 respectively. The accused issued Exs.P1 and

2 on 15.11.2006 for Rs.2,50,000/- each towards legally

recoverable debt. The cheques were dishonored. In spite of

service of notice, there was no reply nor there was compliance

with the demand made and thereby, the accused has

committed the offence as stated above.

12. To prove the contention, the complainant examined

himself as PW1. During cross examination, he categorically

stated that he took VRS during 2001 and got Rs.3,00,000/-

which was kept by him in his bank account. The said amount

was given to the accused. It is his further contention that he

had obtained hand loan of Rs.2,00,000/- from his friend and

given it to the accused. No scrap of paper is produced to

substantiate the said contention. Moreover, when the

complainant is not having sufficient cash with him, there was

no necessity for him to obtain loan from his friend and give it to

the accused.

13. To a pointed query, learned counsel for the

appellant submits that the loan that was obtained from his

friend is already returned to him by cash. There are no

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documents to substantiate the said fact as well. Hence, the

said contention is hard to believe.

14. The next contention is with regard to the contention

taken by the complainant that he had Rs.3,00,000/- with him

when he took VRS during 2001 and he had kept in his bank

account and the same was given to the accused. When the

complainant has withdrawn the amount and paid to the

accused, he could have produced either pass book or the bank

statement. No such steps are taken by the complainant for the

reasons best known to him.

15. It is the defence taken by the accused while

deposing before the Trial Court when he was examined himself

as DW1 that, Shantappa, is the brother-in-law of the

complainant and he had issued legal notice as per Ex.D1 to the

said Shantappa for misusing the cheques given to him. Ex.D1

is dated 27.10.2006. It is pertinent to note that the cheques -

Exs.P1 and 2 are dated 15.11.2006. It is immediately after

issuance of Exs.P1 and 2, the said Shantappa said to have been

issued reply to the accused as per Ex.D3 on 19.01.2007 i.e.,

just prior to filing of the present complaint. Even though there

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is no reference to the cheques Exs.P1 and 2 in Ex.D1, the

admission of PW1 that the said Shanthappa is his brother-in-

law to whom Ex.D1 is addressed assumes importance. By

placing these materials on record, the accused is successful in

rebutting the presumption under Sections 118 and 139 of NI

Act. The reverse burden lies on the complainant to prove his

contention regarding his financial status and lending of the

amount to the accused. But the complainant is not successful

in proving the same.

16. Learned counsel for the appellant places reliance on

the decision in M/s Kalamani Tex (supra). On facts of the

case, the complainant was the proprietor of a garment

company and was engaged with the accused in the business

arrangement to jointly export garments to France. In the

course of business, accused No.2 had issued the cheque on

behalf of accused No.1 and the same came to be dishonored on

presentation. When accused No.2 took the defence that

consideration had never passed on to him and probabalised

such defence, he is not liable for conviction. The Hon'ble Apex

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Court by referring to the decision in Rohitbhai Jivanlal Patel

Vs State of Gujarat2 held as under:

"In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act, the trial court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the trial court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case could not have been raised for want of evidence regarding the source of funds for advancing loan to the appellant-accused....."

(Emphasis supplied)

17. The Hon'ble Apex Court also referred to its earlier

decision in Bir Singh Vs Mukesh Kumar3, wherein, it is held

(2019) 18 SCC 106

(2019) 4 SCC 197

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that even a blank cheque leaf, voluntarily signed and handed

over by the accused, which is towards some payment, would

attract presumption under Section 139 of NI Act, in the

absence of any cogent evidence to show that the cheque was

not issued in discharge of legal debt.