Karnataka High Court
Sri Kiran Kumar V vs Sri Mariswamy on 2 August, 2024
-1-
NC: 2024:KHC:30565
CRL.A No. 1036 of 2020
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. 1036 OF 2020
BETWEEN:
SRI KIRAN KUMAR V
S/O VEERANNA
AGED ABOUT 33 YEARS
RESIDING AT NO 106
80 FEET ROD
BS K 3RD STAGE, HOSAKERE HALLI CROSS
BENGALURU - 560085
...APPELLANT
(BY SRI. GAGANDEEP E, ADVOCATE)
AND:
Digitally
signed by SRI MARISWAMY
ANAND N
Location: S/O DODDAPPAIAH@ LATE PUTTAMADEGOWDA
HIGH
COURT OF AGED ABOUT 68 YEARS
KARNATAKA LALITH MAHAL PALACE HOTEL
KITCHEN SECTION
LALITHA MAHAL NAGAR
MYSURU - 570028
PRESENTLY RESIDING AT
SRI MARSWAMY
S/O DODDAPAIAH
@ LATE PUTTAMADEGOWDA
-2-
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CRL.A No. 1036 of 2020
RESIDING AT NO 483 ALANAHALLI LAYOUT
MYSURU - 570028
...RESPONDENT
(BY SRI. MAHADEVA R K., ADVOCATE)
THIS CRL.A IS FILED U/S.378(4) CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT DATED 07.10.2020 PASSED BY
THE XVIII ADDL.C.M.M., BENGALURU IN
C.C.NO.21999/2017 - ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF
N.I. ACT.
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE M G UMA
ORAL JUDGMENT
The appellant being the complainant in
C.C.No.21999/2017 on the file of the learned XVIII
Additional Chief Metropolitan Magistrate, Bengaluru, is
impugning the judgment dated 07.10.2020, acquitting the
respondent/accused for the offence punishable under
Section 138 of the Negotiable Instruments Act, 1881 [for
short, 'the N.I. Act'].
2. Heard Sri. Gagandeep E, learned counsel for the
appellant and Sri. Mahadeva R.K., learned counsel for the
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respondent. Perused the materials on record including the Trial
Court records.
3. Learned counsel for the appellant contended
that the appellant being the complainant filed the private
complaint alleging commission of the offence by the
respondent under Section 138 of the N.I. Act. It is the
specific contention of the complainant that he had lent a
sum of Rs.6,00,000/- to the accused during January 2017.
When the accused was asked to repay the said amount, he
had issued the cheque and on presentation, the same was
dis-honoured due to "Insufficient funds" in the account of
the accused. The legal notice was served on him as per
Ex. P5. In spite of that, there is no reply. The complainant
has produced the Bank Statements as per Exs. P6 and P7.
He has also substantiated his contention stating that he is
a Serial Artist and produced Exs. P8 to P10 in support of
the same to prove the financial capacity of the
complainant.
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4. Learned counsel for the appellant submitted
that the accused has admitted that the cheque - Ex.P1
belongs to him and he has also admitted his signature
found therein. Thus, the presumption under Section 139 of
the N.I. Act will arise. The accused has not rebutted the
said presumption and therefore, he is liable for conviction.
The trial Court has not taken into consideration the oral
and documentary evidence placed before it and has
committed an error in acquitting the accused. Therefore,
he prays for allowing the appeal.
5. Per contra, learned counsel for the respondent
opposing the appeal, submitted that it is the specific
contention of the complainant as per the private complaint
that he had obtained loan of Rs.6,00,000/- from the
Indian Overseas Bank and kept it with him and the said
amount was paid to the accused during the month of
January 2017, but during cross examination, he has stated
that he had not borrowed any amount from the Indian
Overseas Bank or any other bank, but his wife had availed
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loan and the said amount was paid to the accused. The
complainant has produced Exs. P6 and P7 to substantiate
his contention. If these contentions are taken into
consideration, the case of the complainant that either
himself or his wife having availed loan during 2016-17 is
not probabilized. At no point of time, the complainant or
his wife have dealt with lakhs of rupees as per the
statements. Therefore, the complainant has not
probabilized his contention regarding lending of the
amount.
6. Learned counsel submitted that the accused has
taken a specific defence that the blank cheque as per
Ex.P1 was issued in favour of the father-in-law of the
complainant, who was running the chit business. The said
cheque was misused by the complainant by filling it up.
The accused has stepped into the witness box and
deposed as DW.1, but nothing has been elicited during the
cross examination. Under such circumstances, the trial
Court was right in acquitting the accused. There are no
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reasons to interfere with the same. Accordingly, he prays
for dismissal of the appeal.
7. 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 impugned judgment of
acquittal suffers from perversity or illegality and
calls for interference by this Court?"
My answer to the above point is in the 'negative' for the
following:
REASONS
8. It is the specific contention of the complainant
that he was well acquainted with the accused, and the
accused had requested for hand loan from the
complainant. The complainant specifically states that he
had obtained the loan from Indian Overseas Bank and the
said amount was kept in his house for purchase of a site at
Bengaluru. Since the accused requested for hand loan, the
amount which was with the complainant was paid to the
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accused. But during his cross examination, he has deposed
that the said amount of Rs.6,00,000/- was not withdrawn
from his bank account, but it was his savings. He further
states that it was not he but it was his wife, who had
obtained loan from Indian Overseas Bank. But Exs. P6 and
P7 - the Bank Statements do not support his contention
that either himself or his wife have obtained loan from the
Indian Overseas Bank. The Bank Statement produced as
per Exs. P6 and P7 disclose petty transactions in the
account of the complainant and his wife. However during
2016, the complainant has made certain transactions, but
nothing is brought on record to substantiate that the
complainant had either obtained loan in his name or in the
name of his wife or that they were having such amount
from out of their savings. Under such circumstances, I am
of the opinion that the complainant has not proved the
source of income for lending the amount.
9. The contention of learned counsel for the
complainant that the presumption under Section 139 of
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the N.I. Act comes in his favour, cannot be accepted as
the complainant has not probabilized his contention
regarding lending of the amount. When during cross
examination of the complainant, the accused elicited
serious contradictions which is sufficient to rebut the initial
presumption under Section 139 of the N.I. Act. When the
complainant could not place any materials regarding his
financial condition to lend such a huge amount to the
accused, I am of the opinion that the complainant is not
successful in discharging his burden to prove lending of
the said amount and issuance of cheque towards discharge
of the legally recoverable debt. Under such circumstances,
the accused is not liable for conviction.
10. I have gone through the impugned judgment of
acquittal passed by the Trial Court. It has taken into
consideration all the oral and documentary evidence
placed on record and arrived at a right conclusion. I do not
find any illegality or perversity in the judgment of the Trial
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Court. Hence, I do not find any compelling reason to entertain
the appeal.
11. Accordingly, I answer the above point in the
negative and proceed to pass the following:
ORDER
The appeal is dismissed.
Sd/-
(M G UMA)
JUDGE
RB
