Karnataka High Court
Bopanna A E vs C M Anand on 5 February, 2024
1 CRL.A NO.685 OF 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.685 OF 2018
BETWEEN:
BOPANNA A E
S/O ERRAPPA T
AGED ABOUT 33 YEARS,
R/AT NO.248/1, ANUGRAHA
BYRAVESHWARA NAGARA
LEFT SIDE MANGANAHALLI
MAIN ROAD, ULLAL
BENGALURU - 560 056.
......APPELLANT
(BY SRI. DEEPAK J, ADVOCATE)
AND:
C M ANAND
S/O MUDALAGIRIYAPPA
AGED ABOUT 48 YEARS,
R/AT YASHODANAGARA NILAYA
8TH CROSS, SAPTHAGIRI LAYOUT
TUMKUR TOWN
AND ALSO RESIDING AT
M/S GLOBAL MARKETING PVT LTD
GURU SHANTHAPPA COMPLEX
OPPOSITE KRISHNA TALKIES
M.G.ROAD,
TUMKUR TOWN.
RESPONDENT
(BY SRI. NANJUNDASWAMY, ADVOCATE FOR
SRI. UMASHANKAR L, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) OF CR.P.C PRAYING TO SET ASIDE THE IMPUGNED
JUDGMENT AND ORDER OF ACQUITTAL DATED 17.03.2018 IN
2 CRL.A NO.685 OF 2018
C.C.NO.12059/2017 PASSED BY THE XXII ADDL.C.M.M.,
BENGALURU AND ALLOW THIS APPEAL BY PUNISHING THE
RESPONDENT UNDER SECTION 138 OF THE NEGOTIABLE
INSTRUMENTS ACT AND PASS SUCH OTHER ORDERS THAT
THIS HON'BLE COURT DEEMS FIT TO BE GRANT IN THE
CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
17.01.2024, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Being aggrieved by acquittal of respondent/accused
for the offence punishable under Section 138 of
Negotiable Instrument Act, 1881 (for short 'N.I. Act'), the
complainant has filed this appeal under Section 378(4) of
Cr.P.C.
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 he and
accused are known to each other since three years and in
the background of the said acquaintance, in the month of
July 2016 accused approached him for hand loan of
Rs.8,00,000/- to meet his urgent family necessities.
Accordingly, complainant arranged and paid
Rs.8,00,000/- to the accused, which he promised to
repay within four months and also executed a loan
agreement/endorsement. However, after completion of
the stipulated period, when accused failed to repay the
said amount, on being approached by the complainant,
he issued cheque dated 09.02.2017 for a sum of
Rs.8,00,000/-. When presented for encashment, it was
returned dishonoured for "Funds insufficient". Though
complainant sent legal notice and it is served on the
accused, he has failed to pay the amount due under the
cheque and has also not sent any reply and without any
other alternative complaint is filed.
4. After due service of summons, accused
appeared through counsel and contested the matter.
5. He pleaded not guilty and claimed trial.
6. In order to prove the allegations against
accused, complainant has examined himself as PW-1 and
relied upon Ex.P1 to 16.
7. During the course of statement under Section
313 Cr.P.C, accused has denied the incriminating
evidence led by the complainant.
8. In fact he has stepped into the witness box
and given evidence as DW-1. No documents are marked
on behalf of accused.
9. Vide the impugned judgment and order the
trial Court has acquitted the accused, against which the
present appeal is filed by the complainant contending
that it is illegal and improper. The trial Court has not
appreciated the fact that though duly served with notice,
accused has not sent reply. Accused has not disputed the
fact that the subject cheque is drawn by him on his
account maintained with his banker and it bears his
signature. Consequently, the presumption under Sections
118 and 139 of N.I.Act is attracted, placing the burden
on accused to rebut the same. However, accused has
failed to rebut the presumption. In the circumstances,
the trial Court has erred in dismissing the complaint. In
order to prove his financial capacity, complainant has
produced his account statements and also IT Returns and
in the face of it, the impugned judgment and order are
not sustainable and pray to allow the appeal, set aside
and impugned judgment and order, convict the accused
and sentence him in accordance with law.
10. In support of his arguments, learned counsel
for complainant has relied upon the following decisions:
(i) Rajesh Jain Vs. Ajay Singh (Rajesh Jain)1
(ii) P.K.Uthuppu Vs. N.J.Vargheese and Anr.
(P.K.Uthuppu)2
11. On the other hand learned counsel for accused
has supported the impugned judgment and order by
contending that complainant has miserably fail to prove
his financial capacity and in the light of the same, the
acquittal of accused is well founded and pray to dismiss
the appeal.
12. In support of his arguments, learned counsel
for accused has relied upon the following decisions:
(i) Basalingappa Vs. Mudibasappa
(Basalingappa)3
2023 Livelaw (SC) 866: AIR Online 2023 SC 807
Crl.RP.No.1374/2010 (Kerala High Court)
(ii) K.Subramani Vs. Damodara Naidu K
(K.Subramani)4
(iv) Vishal, S/o Srinivas Malpani Vs. Prakash
Kadappa Heggannawar (Vishal)5
(v) Abhay Kumar Jain Vs. Pankar R.Makkanna
(Abhay Kumar Jain)6
13. Heard arguments and perused the record.
14. Having regard to the fact that the cheque
belongs to accused, drawn on his account maintained
with his banker and it bears his signature, presumption
under Sections 118 and 139 of N.I.Act is operating in
favour of the complainant and initial burden is on the
accused to prove that the cheque was not issued towards
repayment of any legally recoverable debt or liability and
on the other hand, establish the circumstances in which it
had reached the hands of complainant. Only after
accused rebutted the said presumption, the burden would
shift on the complainant to prove his case. While accused
is required to rebut the presumption by preponderance of
AIR 2021 SC 1281: AIR 2019 SC 1983
2015(1) SCC 99
2020 (3) KCCR 2373
Crl.A.No.1147/2016 c/w Crl.A.Nos.1148 & 1146/2016
probabilities, complainant is expected to prove his case
beyond reasonable doubt.
15. In Rajesh Jain, relying upon the several
decisions of the Hon'ble Supreme Court including
Rangappa Vs. Sri Mohan (Rangappa)7, Kumar Exports
V/s Sharma Carpets (Kumar Exports)8, Basalingappa
Vs. Mudibasappa (Basalingappa)9, it is held that when
the accused admit that the cheque is drawn on his
account maintained with his banker and it bears his
signature, presumption under Section 139 of N.I. Act
comes into operation, placing the initial burden on the
accused to rebut the same by preponderance of
probabilities and after he succeeds in rebutting the
presumption, the burden would shift on the complainant
to prove his case beyond reasonable doubt.
16. In the present case, complainant has sent
legal notice at Ex.P4 to the accused to his residential
address as well as to his working address. The notice
(2010) 11 SCC 441
(2009) 2 SCC 513
AIR 2021 SC 1281
sent to his residential address is duly served on him as
per the postal acknowledgement at Ex.P4(b). The one
sent to his office address is returned as per Ex.P5 with
endorsement "addressee not claimed, hence returned to
sender". Admittedly, accused has not sent reply to the
legal notice. Of course he has not complied with the said
legal notice also.
17. However, in Tedhi Singh Vs Narayan Das
Mahant (Tedhi Singh)10, the Hon'ble Supreme Court held
that when the accused has failed to send reply to the
legal notice challenging the financial capacity of the
complainant, at first instance, complainant need not
prove his financial capacity. However, if during the
course of trial accused takes up such a defence, then it is
necessary for the complainant to prove his financial
capacity when he allegedly advanced the amount and
that towards repayment of the same, accused has issued
the cheque. In fact, in APS Forex vs Shakti International
Fashion Linkers Pvt. Ltd (APS Forex)11 also, the Hon'ble
2022 SCC OnLine SC 302
(2020) 12 SCC 724
Supreme Court held that whenever accused raises issue
of financial capacity of complainant in support of his
probable defence, despite the presumption in favour of
the complainant regarding legally enforceable debt under
Section 139 of N.I Act, onus shifts again on the
complainant to prove his financial capacity by leading
evidence, more particularly when it is a case of giving
loan by cash and thereafter issue of cheque. In the light
of the ratio in the above decisions, heavy burden is on
the complainant to prove his financial capacity and it is
necessary to examine whether the complainant has
discharged the said burden.
18. During the course of his evidence,
complainant has deposed that since 12 years he is
working as a Engineer in LEO Tech Engineering Pvt. Ltd
as Senior Development Manager and during July 2016,
he was working in HCL Service Centre as Business
Development Manager. The complainant has maintained
accounts in State Bank of India, State Bank of Mysuru,
Kotak Mahindra Bank and ICICI Bank and produced his
account statements at Ex.P11 to 15. Ex.P9, 10 and 16
are the Income Tax Returns filed by him during the year
2013-14, 2011-12, 2017-18.
19. Perusal of Ex.P11 to 15 indicate that despite
maintaining four separate accounts, the complainant is
not having sufficient balance in his accounts to pay huge
loan of Rs.8,00,000/- to the accused. At the relevant
point of time the complainant has not withdrawn the
requisite amount from his accounts to indicate that he
has lent the said amount to the accused. In fact during
his cross-examination, he has admitted that there are no
entries in these account statements to show that
periodically he has withdrawn the substantial amount and
kept it with him to demonstrate that he has paid the
same to the accused. When questioned whether he has
withdrawn amount from his account to pay it to the
accused, complainant has replied that in order to
purchase a site, he was periodically withdrawing the
amount from his account and keeping the same in his
house. As admitted by him, even in the Income Tax
Returns, complainant has not reflected the fact of
advancing hand loan of Rs.8,00,000/- to the accused.
The savings of the previous year are also not shown in
his Income Tax Returns.
20. The accused has taken a defence that he is
not knowing the complainant and on the other hand,
father of complainant was known to him as he is indulged
in getting loans to public from Banks and in that
connection, a blank cheque, a blank stamp paper and
sale deed of his site were taken by him to get loan from
the Bank and utilizing them, he got filed the present
complaint through his son i.e., complainant. This fact
assumes importance as the complainant has relied upon
Ex.P6 dated 18.07.2016 styled as Agreement of loan
(¸Á®zÀ PÀgÁgÀÄ ¥ÀvÀæ/»A§gÀºÀ). According to the complainant
on the date when he allegedly advanced hand loan of
Rs.8,00,000/-, accused has executed this document and
also handed over the original sale deed of his site at
Ex.P7.
21. At the outset, it is relevant to note that in the
complaint, complainant has not stated the date on which
he extended loan of Rs.8,00,000/- to the accused and
has only stated that during July 2016, accused
approached him and accordingly, he paid the amount.
Though in the complaint as well as during the course of
his evidence, complainant has stated that as a security
for the said loan, accused has executed a loan
agreement/endorsement, the date of the said document
is not pleaded and deposed by him. If on the date the
alleged loan was extended, Ex.P6 dated 18.07.2016 has
come into existence, there was no impediment for the
complainant to plead that the loan was extended on
18.07.2016. It creates doubt as to whether as on
18.07.2016, Ex.P6 has come into existence or it is a
document created subsequently. In the complaint as well
as during the course of affidavit evidence of complainant,
the fact of accused having handed over original sale deed
and 11 'E' sketch to him at the time of receiving hand
loan is also not forthcoming. During his cross-
examination, complainant has admitted that in the legal
notice, complaint and in his examination-in-chief, he has
not stated the fact of accused handing over property
documents to him.
22. As rightly observed by the trial Court, in
Ex.P6 the signature of accused is taken at the end of the
stamp paper and the document is typed adjusting to the
said signature. In Ex.P6 also the fact of original sale deed
and 11 'E' sketch at Ex.P7 and 8 being handed over to
the complainant is also not forthcoming. In Ex.P6, though
it was sufficient to state that the complainant may
proceed against the site belonging to accused,
unnecessarily the boundaries of the site are noted, which
appears to fill the space upto the signature of accused.
These aspects also creates doubt as to the veracity of the
claim of the complainant.
23. During his cross-examination, the complainant
has admitted that there is difference in ink so far as
signature of accused and rest of the writing in Ex.P1
Cheque which supports the defence of the accused that it
was given blank.
24. Though during the cross-examination of the
complainant, the accused has come up with the defence
that the blank stamp paper, blank cheque and sale deed
and other documents were handed over to the father of
the complainant, however, during his examination-in-
chief he has deposed that complainant used to get
electronic goods purchased on credit basis and he has
handed over blank cheque and other documents to him.
The accused/respondent is at liberty to take inconsistent
defences. However, it would not enure the benefit of
complainant, unless and until he discharge the burden
placed on him. Since the complainant has failed to prove
his financial capacity, the burden would not shift on the
accused.
25. In P.K.Uttuppu, on facts the Single Bench of
the Kerala High Court held that accused has failed to
rebut the presumption.
26. In K.Subramani, on facts the Hon'ble
Supreme Court held that the trial Court was justified in
acquitting the accused on the ground that complainant
has prove to his financial capacity and the High Court
erred in remanding the case.
27. In Vishal, on facts the Co-ordinate Bench of
this Court held that the accused has rebutted the
statutory presumption and as such entitled for acquittal
and dismissed the appeal.
28. Similarly, in Abhay Kumar Jain, on facts the
Co-ordinate Bench of this Court held that accused has
rebutted the presumption, but complainant has failed to
prove his financial capacity and dismissed the appeal.
29. Thus, taking into consideration oral and
documentary evidence placed on record, the trial Court
has come to a correct conclusion that the accused has
rebutted the presumption under Section 139 of N.I. Act
and on the other hand complainant has failed to prove
that he had the financial capacity to advance hand loan
of Rs.8,00,000/- to the accused and dismissed the
complaint. This Court finds no justifiable grounds to
interfere with the findings of the trial Court. In the result,
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
17.03.2018 in C.C.No.12059/2017 on the
file of XXII ACMM, Bengaluru, is confirmed.
(iii) The Registry is directed to send back trial
Court records along with copy of this
judgment forthwith.
Sd/-
JUDGE
RR
