Karnataka High Court
Sri P Shivaprakash vs Sri Siqbathulla Sheriff on 7 February, 2024
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CRL.A.No.695 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL No.695 OF 2014 (A)
BETWEEN:
SRI. P.SHIVAPRAKASH
S/O. A.R.PARAMSHWARAPPA,
AGE 41 YEARS, AGRICULTURIST,
R/O 'PRAKASH NILAYA',
NEAR TEMPO STAND, N.T.ROAD,
SHIMOGA-577 201.
...APPELLANT
(BY SRI. NAGESH M.V. PATIL, ADVOCATE FOR
SRI. PRASAD B.S., ADVOCATE)
AND:
SRI. SIQBATHULLA SHERIFF
S/O. N.ABDUL RAHIM
AGE 44 YEARS,
PROPRIETOR: INDIAN MOTOR DRIVING SCHOOL,
AND ALSO AGRICULTURIST,
N.T.ROAD, SHIMOGA-577 201
...RESPONDENT
(BY SRI. P.N.HARISH, ADVOCATE)
THIS APPEAL FILED UNDER SECTION 378(4) OF CR.P.C,
PRAYING TO SET ASIDE THE ORDER DATED: 26.6.14 PASSED BY
THE JMFC-II, SHIVAMOGGA IN C.C.NO.4268/2009- ACQUITTING
THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 138 OF N.I. ACT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
30.01.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
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CRL.A.No.695 of 2014
JUDGMENT
Appellant/complainant feeling aggrieved by judgment of
Trial Court on the file of JMFC II, Shivamogga in
C.C.No.4268/2009, dated 26.06.2014 preferred this
appeal.
2. Parties to the appeal are referred with their
ranks as assigned in the Trial Court for the sake of
convenience.
3. Heard the arguments of both sides.
4. After hearing arguments of both sides and on
perusal of Trial Court records, so also the impugned
judgment under appeal, the following points arise for
consideration:
1) Whether the impugned judgment under
appeal is perverse, capricious and legally
not sustainable?
2) Whether interference of this Court is
required?
5. On careful perusal of oral and documentary
evidence placed on record, it would go to show that
complainant and accused are well known to each other.
Out of such acquaintance accused has borrowed a sum of
Rs.9,00,000/- on 08.02.2009 in cash to meet his
urgencies of driving school and so also to purchase
agricultural property for developments, agreeing to repay
the same within five months with interest of 18% per
annum. Accused has failed to keep up his promise and
complainant has demanded his money back. Accused in
order to discharge the said legally enforceable debt issued
cheque bearing No.992587 dated 03.08.2009 drawn on
Karnataka Bank Ltd., APMC yard, Shivamogga for
Rs.9,00,000/- in favour of complainant. Complainant
presented the said cheque for encashment through his
banker Axis bank Shivamogga on 03.08.2009, the same
was dishonoured as "Funds Insufficient" vide bank
endorsement Ex.P.2. Complainant issued demand notice
dated 16.10.2009 Ex.P.3 through RPAD and under
certificate of posting, UCP receipt is produced at Ex.P.4
and RPAD receipt Ex.P.5. The demand notice is duly
served to accused vide acknowledgement card Ex.P.6.
Accused has issued reply to the demand notice Ex.P.7
dated 28.10.2009. Accused has denied his liability to pay
the amount covered under the cheque Ex.P.1. On demand
promissory note and consideration receipt is produced at
Exs.P.17 and 18. If the aforementioned documents are
perused and appreciated with the evidence of PW.1, then
it would go to show that complainant has complied
necessary legal requirement in terms of Section 138 (a) to
(c) of Negotiable Instruments Act, 1881(hereinafter fore
brevity referred to as "N.I.Act"). Complainant has filed
complainant on 16.11.2009 within one month from the
date of accrual of cause of action in terms of Section
142(1)(b) of N.I.Act. Therefore, statutory presumption
available in terms of Section 118 and 139 of N.I.Act will
have to be drawn.
6. In this context of the matter, it is useful to refer
the judgment of Hon'ble Apex Court in APS Forex
Services Pvt. Ltd. Vs. Shakti International Fashion
Linkers and others reported in AIR 2020 SC 945,
wherein it has been observed and held that once the
issuance of cheque with signature on cheque is admitted,
there is always a presumption in favour of complainant
that there exist legally enforceable debt or liability. Plea
by accused that cheque was given by view of security and
same has been misused by complainant is not tenable.
7. It is also profitable to refer another judgment
of Hon'ble Apex Court in P. Rasiya vs. Abdul Nazer and
another reported in 2022 SCC OnLine SC 1131,
wherein it has been observed and held that:-
" Once the initial burden is discharged by the
complainant that the cheque was issued by the
accused and signature of accused on the cheque is
not disputed, then in that case, the onus will shift
upon the accused to prove the contrary that the
cheque was not for discharge of any debt or other
liability. The presumption under Section 139 of N.I.
Act is statutory presumption and thereafter, once it
is presumed that the cheque is issued in whole or in
part of any debt or other liability which is in favour
of the complainant/holder of the cheque, in that
case it is for the accused to prove the contrary."
In view of the principles enunciated in the aforementioned
two judgments of Hon'ble Apex Court, it is evident that
when once issuance of cheque with signature of accused
on the account maintained by him is admitted or proved
then statutory presumption in terms of Section 118 and
139 of N.I. Act will have to be drawn.
8. Now, it is up to the accused to prove by way of
rebuttal evidence to displace statutory presumption
available in favour of complainant. It is the specific
defence of accused in the reply notice Ex.P.7 that he had
taken loan of Rs.1,00,000/- from complainant on
13.11.2007. While advancing the said loan complainant
insisted to give blank signed cheque and blank signed
promissory note. Learned counsel for complainant has
given blank signed cheque bearing No.992587 drawn on
Karnataka Bank Ltd., APMC yard, Shivamogga dated
19.11.2011 and promissory note. Accused has repaid the
entire loan amount with interest on 01.06.2009. However,
complainant did not return his blank signed cheque and
blank signed promissory note and kept on postponing the
return of said document on one or other pretext. Accused
informed complainant that he will take appropriate legal
action for return of blank signed cheque and on demand
promissory note. Complainant by misusing the said cheque
has filed this false case.
9. DW.1 has deposed to the effect that he has
availed loan of Rs.1,00,000/- from complainant on
13.11.2007 agreeing to pay interest at 15% and to repay
the same within one month. At the time of taking said loan
at the instance of complainant, accused has given blank
signed cheque and blank signed promissory note. Accused
has repaid the entire loan amount of Rs.1,00,000/- with
interest on 01.06.2009 amounting to Rs.1,20,000/- by
way of cheque drawn on Karnataka Bank Ltd., APMC yard,
Shivamogga which is evidenced from bank statement
Ex.D.1.
10. Accused on the first available opportunity while
giving reply Ex.P.7 to the demand notice issued by
complainant has taken aforementioned defence regarding
misuse of cheque. PW.1 during cross-examination admits
that accused had taken loan of Rs.1,00,000/- on
13.11.2007 and he further admits that accused has repaid
Rs.1,20,000/- including interest on 01.06.2009. The
present loan transaction related to Rs.9,00,000/- was on
08.02.2009 which would be during the subsistent of earlier
loan transaction of accused with complainant, since the
accused has admittedly repaid the entire amount with
interest on 01.06.2009.
11. PW.1 during cross-examination has admitted
that accused earlier had taken loan on 2-3 occasions and
he has repaid the said amount. It means that other than
the present transaction claimed by complainant, there was
no any transaction between complainant and accused and
accused has repaid the earlier loan to complainant.
However, PW.1 again claims that the payment of
Rs.1,20,000/- loan is related to earlier transaction. The
said explanation stands contrary to the own admission of
PW.1 that accused had taken loan of Rs.1,00,000/- on
13.11.2007 and repaid the entire loan amount with
interest amounting to Rs.1,20,000/- on 01.06.2009. There
was no any other transaction between complainant and
accused. Therefore, the said explanation of complainant
that the payment of Rs.1,20,000/- is related to earlier
transaction cannot be legally sustained.
12. The transaction involved in the present case is
dated 08.02.2009. The evidence of DW.1 is to the effect
that he has issued blank signed cheque and blank signed
promissory note as security for the loan availed by him on
13.09.2007. The said amount was repaid on 01.06.2009.
When the said facts also can be borne out from records,
there was no reason or occasion for accused to issue
another cheque for alleged repayment of loan of
Rs.9,00,000/-. This inference has to be drawn in view of
the admission of PW.1 himself that accused has repaid the
entire loan amount prior to lending the amount involved in
this case and there was no occasion for accused to issue
cheque for Rs.1,20,000/- on 01.06.2009.
13. Complainant has claimed that he has withdrawn
the money from over draft account during one month prior
to giving loan to accused and his father has given
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Rs.4,00,000/- and thus complainant has given loan of
Rs.9,00,000/- to accused covered under the cheque
Ex.P.1. Complainant also states that he has maintained
books of accounts regarding lending loan to accused.
However, complainant has not produced any documents
related to books of accounts to show that accused has
availed loan of Rs.9,00,000/-, further complainant has also
not produced any documents to show that he has
withdrawn the money from his over draft account and
collected cash of Rs.4,00,000/- from his father, so as to
generate the fund of Rs.9,00,000/- to be given as loan to
accused. Complainant himself was indebted to the bank
and therefore there is reasonable doubt of advancing huge
sum of Rs.9,00,000/- as a loan to accused and much less
the same has not been supported by any other evidence
on record that he possesses cash of Rs.9,00,000/- as on
the date of giving loan to accused.
14. Looking to the aforementioned admissions of
PW.1 and the evidence of DW.1 coupled with bank
statement of accused Ex.D.1, it would go to show that
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accused has probabilised his defence. The accused was not
expected to prove the defence beyond reasonable doubt.
If the accused could able to produce some material
evidence which would create reasonable doubt regarding
the claim of complainant, then it would be sufficient
evidence to rebut the presumption available in favour of
complainant. In the present case, in view of the above
referred admissions of PW.1 and the circumstances
brought on record by accused the presumption available in
favour of complainant stood rebutted.
15. The Trial Court has rightly appreciated the oral
and documentary evidence placed on record and was
justified in holding that accused has probabilised his
defence and has successfully rebutted the statutory
presumption available in favour of complainant. The said
findings recorded by Trial Court is based on material
evidence placed on record and the same does not call for
interference by this Court. Consequently, proceed to pass
the following:
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ORDER
Appeal filed by appellant/complainant is hereby
dismissed as devoid of merits.
Registry to send back the records to Trial Court with
a copy of this order.
Sd/-
JUDGE
GSR
