Karnataka High Court
Sri. Lokesh M. V vs Sri. Ramappa on 5 February, 2024
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CRL.A No. 480 of 2018
NC: 2024:KHC:4826
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.480 OF 2018
BETWEEN:
SRI. LOKESH M. V.
S/O LATE VENKATAIAH M K,
AGED ABOUT 46 YEARS
R/AT NO.301, CHENNAGIRI MANSHION
RAJAJINAGARA II STAGE,
WOC ROAD, BENGALURU - 560 010.
OCCUPATION: FILM DISTRIBUTORS,
OFFICE AT: NO.2/1, CHARITRAY CREATIONS
DATA ARCADE, 1ST FLOOR, 2ND MAIN,
GANDHINAGAR, BENGALURU - 560 009.
...APPELLANT
(BY SRI. ANAND R V, ADVOCATE)
AND:
SRI. RAMAPPA
S/O LATE HANUMAPPA,
Digitally signed
by REKHA R AGED ABOUT 56 YEARS
Location: High R/AT "SRI MARIKAMBA NILAYA",
Court of MARUTHI EXTNENSION,
Karnataka
KOLAR ROAD, MALUR - 563 130.
KARNATAKA.
PROPRIETOR OF "SRI MARIKAMBA BRICKS WORKS",
OFFICE AT:
SRI MARIKAMBA FILAMS PRODUCER AND
DISTRIBUTOR
NO.25/11, 5TH MAIN ROAD,
PRAVEEN MANSION,
GANDHINAGAR, BENGALURU - 560 009.
...RESPONDENT
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CRL.A No. 480 of 2018
NC: 2024:KHC:4826
(BY SRI. SHANKAR M NAIK, ADVOCATE)
THIS CRL.A. IS FILED UNDER SECTION 378(4) OF CR.P.C
PRAYING TO a) SET ASIDE THE JUDGMENT AND ORDER DATED
12.02.2018 PASSED IN C.C.NO.9189/2017 ON THE FILE OF
THE XXII A.C.M.M. AT BENGALURU AND CONVICT THE
RESPONDENT FOR THE OFFENCE PUNISHABLE UNDER
SECTION 138 OF N.I.ACT; b) PASS ANY SUCH ORDER /
ORDERS AS THIS HON'BLE COURT DEEMS FIT IN THE FACTS
AND CIRCUMSTANCE OF THE CASE.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal filed under Section 378 (4) Cr.P.C, is by
the complainant, challenging the acquittal of
respondent/accused for the offence punishable under
Section 138 of N.I. Act.
2. For the sake of convenience, the parties are
referred to by their rank before the trial Court.
3. Complainant filed the private complaint under
Section 200 Cr.P.C, against the accused contending that
he and accused are friends since 10 years. During the first
week of July 2015, accused requested for hand loan in a
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sum of Rs.15,00,000 to meet his personal and domestic
problem. Accordingly, on 12.07.2015, complainant
advanced a sum of Rs.15,00,000/- in cash at
complainant's residence. Accused promised to repay the
same within one year.
3.1 After lapse of one year i.e., during June 2016
when complainant requested accused to repay the amount
due, he requested for six months time and issued post
dated 03.12.2016 cheque for Rs.15,00,000/- with an
assurance of prompt payment. However, on 02.01.2017
when complainant presented the cheque for realization, it
was returned unpaid with endorsement "Account closed".
In this regard complainant got issued legal notice to
residence and office address of accused. The one sent to
residential address of accused is served. The one sent to
office address is returned with endorsement "Addressee
left". Correcting the mistake, the complainant has sent a
corrigendum notice dated 01.02.2017 and it is also served
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on the accused. In fact accused has sent an untenable
reply and hence the complaint.
4. After due service of summons, accused
appeared through counsel and contested the case. He
pleaded not guilty and claimed trial.
5. In order to prove the allegations against the
accused, the complainant has examined himself as PW-1
and relied upon Ex.P1 to 11
6. During the course of statement under Section
313 Cr.P.C, accused has denied the incriminating evidence
led on behalf of the complainant.
7. Accused has examined himself as DW-1 and got
marked Ex.D1 to 3.
8. Vide the impugned judgment and order, the
trial Court has acquitted the accused.
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9. Aggrieved by the same, the complainant is
before this Court, contending that the impugned
judgment and order is illegal, improper and perverse and
required to be interfered with. The learned Magistrate has
not appreciated the oral and documentary evidence in
right perspective and fell into error. Reasonable
opportunity was not given to the complainant to cross-
examine DW-1 and also to address arguments.
9.1 In the light of presumption under Section 139
of N.I. Act, initial burden is on the accused to prove the
defence taken by him. However, the trial Court has erred
in not appreciating the fact that accused has failed to
discharge the burden and on the other hand calling upon
complainant to prove his financial capacity and holding
that he has failed to discharge the said burden. Viewed
from any angle, the impugned judgment and order are not
sustainable and pray to allow the appeal, set aside the
impugned judgment and order of the trial Court, convict
and sentence the accused in accordance with law.
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10. On the other hand, the learned counsel for
accused submitted that complainant and son of the
accused entered into a Memorandum of Understanding for
distribution of a Kannada movie by name "Software
Ganda" (¸Á¥sïÖªÉÃgï UÀAqÀ) which was produced by the
accused, B.V.Venkatesh and Sampath and in that
connection accused, B.V. Venkatesh and Sampath issued
three blank cheques and after the said movie failed at the
box office, complainant has filed three separate complaints
against them using the blank cheques. Accused never
borrowed Rs.15,00,000/- from the complainant and he
was not having financial capacity to lend such huge
amount. Appreciating the oral and documentary evidence
placed on record, the trial Court has rightly dismissed the
complaint and sought for dismissal of appeal also.
11. Heard arguments of both sides and perused on
record.
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12. The accused admit that the cheque in question
is drawn on his account maintained with his banker and
bears his signature. However, he has disputed that he
borrowed hand loan of Rs.15,00,000/- from the
complainant and issued the subject cheque to him towards
the repayment of the said debt. Accused has taken up a
specific defence that the subject cheque was issued blank
at the time of entering into a Memorandum of
Understanding between complainant and son of the
accused and misusing the same, this complaint is filed.
The accused has also disputed the financial capacity of
complainant to lend him Rs.15,00,000/-. In fact, in the
reply notice also, at the earliest available opportunity, the
accused has taken up such a contention. At the trial he
has also disputed the financial capacity of complainant to
lend him Rs.15,00,000/-.
13. Having regard to the fact that accused admit
the fact that the cheque in question is drawn on his
account maintained with his banker and bears his
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signature, the presumption under Section 139 of N.I. Act
to the effect that the cheque is issued towards repayment
of any legally recoverable debt or liability is attracted in
favour of the complainant, placing the initial burden on the
accused to prove otherwise and establish the
circumstances in which the cheque has reached the hands
of complainant, after which the burden would shift on the
complainant to prove his case. Of course, it is sufficient for
the accused to probabalise his defence, whereas the
complainant is required to prove his case beyond
reasonable doubt.
14. However, in John K.Abraham Vs. Simon C.
Abraham & Anr (John K.Abraham)1, 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) He had the requisite funds for advancing the
sum of money/loan in question to accused.
(2014) 2 SCC 236
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(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.
15. In Tedhi Singh Vs Narayan Das Mahant (Tedhi
Singh)2, the Hon'ble Supreme Court held that 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
capacity. However, if during the course of trial accused
has taken up such defence, then it is necessary for the
complainant to prove his financial capacity, when he
allegedly advanced the amount and towards repayment of
it, the accused has issued the cheque. In the present case,
though in the reply notice the accused has not challenged
the financial capacity of the complainant, at trial he has
2022 SCC OnLine SC 302
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challenged the same and therefore, it is necessary for the
complainant to prove his financial capacity.
16. In fact, in APS Forex vs Shakti International
Fashion Linkers Pvt. Ltd (APS Forex)3, the Hon'ble
Supreme Court held that when accused rises 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, 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.
17. Keeping the above decisions in mind, it is
necessary to examine whether the complainant has proved
his financial capacity to lend a sum of Rs.15,00,000/- to
the accused. As held in APS Forex, only after complainant
(2020) 12 SCC 724
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discharge the said burden, it would shift on accused to
prove his defence.
18. Accused has cross-examined the complainant
with regard to his financial capacity and in this regard he
has stated that he is into Kannada Movies distribution
since 10 years and also having cable network business.
When questioned how he was able to pay Rs.15,00,000/-
to the accused, complainant has stated that his wife
availed loan in Nagapur Co-operative Society. However,
complainant has not produced any documents to evidence
the said fact. He has denied the suggestion that accused is
having sufficient income of his own and he had no
necessity to borrow Rs.15,00,000/- from the complainant.
Except his self-serving statement, the complainant has not
placed any material on record to prove his financial
capacity.
19. On the other hand during the course of cross-
examination of complainant, the defence has elicited that
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accused, B.V.Venkatesh and Sampath Kumar produced a
Kannada movie by name "Software Ganda" (¸Á¥sïÖªÉÃgï UÀAqÀ)
and he distributed the same and in this regard a
Memorandum of Understanding was entered into between
the complainant and son of accused as per Ex.D1. Though
the complainant has admitted that as against the said
B.V.Venkatesh and Sampath Kumar also he has filed
criminal complaint alleging cheque bounce, he has denied
that at the time of Ex.D1, the accused, B.V.Venkatesh and
Sampath Kumar had issued blank cheques and after the
movie failed at the box office, he has filled the cheques
according to his whims and fancies and filed the
complaint.
20. During the cross-examination of complainant,
the accused has got marked a note book as Ex.D2. With
regard to the contents of the said note book, when
suggested that as per the said entries, he has received
Rs.12,86,000/- from the accused and Rs.14,80,000/- on
behalf of son of the accused, the complainant has not
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denied the said suggestion, but expressed ignorance. For
the said suggestions, his answer ought to have been either
yes or no and he cannot feign ignorance. Of course during
the course of his evidence, the accused has reiterated his
defence. However, complainant has not chosen to cross-
examine him and his cross-examination is taken a -Nil-.
The complainant has also not filed application recall the
accused for cross-examination.
21. Thus, the complainant has failed to prove his
financial capacity to lend Rs.15,00,000/- to the accused on
12.07.2015 and that the cheque was issued towards
repayment of the same. On the other hand the accused
has proved his defence by preponderance of probabilities.
22. Taking into consideration the oral and
documentary evidence placed on record the trial Court has
rightly come to the conclusion that charge levelled against
the accused are not proved beyond reasonable doubt and
acquitted the accused. On re-appreciation of the evidence
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placed on record, this Court does not find any justifiable
grounds to interfere with the finding of trial Court. In the
result, appeal fails and accordingly the following:
ORDER
(i) Appeal filed under Section 378(4) of Cr.P.C.
by the complainant is dismissed.
(ii) The impugned judgment and order dated
12.02.2017 in C.C.No.9189/2017 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
