Karnataka High Court
Sri. Dhananjaya. B. S vs Sri. N. T. Murali on 9 February, 2024
1 CRL.A NO.453 OF 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.453 OF 2018
BETWEEN:
SRI. DHANANJAYA. B. S.
S/O LATE SHIVANNA,
MAJOR,
R/AT BAGINAGERE VILLAGE,
THIPPASANDRA HOBLI,
MAGADI TALUK,
RAMANAGARA DISTRICT - 571 511
......APPELLANT
(BY SMT. JAYALAKSHMI K B, ADVOCATE)
AND:
SRI. N. T. MURALI
S/O B.THIMMAIAH,
AGED ABOUT 49 YEARS
R/O K.H.B. COLONY,
KUNIGAL TOWN,
WORKING AS A PHYSICIAN
GOVT HOSPITAL, BELLAVI,
TUMAKURU DISTRICT - 572 117
.....RESPONDENT
(BY SRI. SAGAR B.B, ADVOCATE FOR
SRI. DODDAMANI SATEESH M, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT
AND ORDER OF ACQUITTAL DATED 19.12.2017 PASSED IN
C.C.NO.683/2016 ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE, JMFC, KUNIGAL, PENDING DISPOSAL OF THIS APPEAL
AND GRANT SUCH OTHER AND FURTHER RELIEFS AS THIS
HON'BLE COURT DEEMS FIT AND PROPER UNDER THE
CIRCUMSTANCES OF THIS CASE, IN THE INTEREST OF
JUSTICE AND EQUITY.
2 CRL.A NO.453 OF 2018
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
25.01.2024, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is by the complainant challenging
acquittal of respondent/accused for the offence
punishable under Section 138 of N.I. Act by the trial
Court.
2. For the sake of convenience, parties are
referred to by their rank before the trial Court.
3. It is the case of complainant that he and
accused are friends and very well known to each other.
During June 2015, accused approached him for a hand
loan of Rs.6 lakhs for his legal necessity i.e to discharge
the hand loan incurred by him. Accordingly, complainant
paid Rs.6 lakhs to the accused on 05.06.2015 in the
presence of witnesses at Kunigal. Accused promised to
repay the same within three months. When component
approached him after three months, accused sought
further time and issued cheque dated 14.09.2015. On
14.09.2015, when complainant presented the said
cheque for realization, it was returned dishonoured with
an endorsement "Funds insufficient". When complainant
brought this fact to the notice of accused, he misbehaved
with the complainant and also gave evasive reply.
Without any alternative, complainant got issued a legal
Notice. Accused has sent an evasive reply and hence the
complaint.
4. After service of summons accused appeared
through counsel and contested the matter. He pleaded
not guilty and claimed trial.
5. In order to prove the allegations against the
accused, complainant examined himself as PW-1 and got
marked Ex.P1 to 7.
6. During the course of his statement under
Section 313 Cr.P.C accused denied the incriminating
evidence led by the complainant.
7. Accused has not led any defence evidence.
8. Vide the impugned judgment and order, the
trial Court acquitted the accused.
9. Aggrieved by the same, complainant has filed
this appeal, contending that the impugned judgment and
order is contrary to the evidence placed on record. The
trial Court has failed to appreciate evidence of PW-1. The
findings of trial Court are based on presumptions and
assumptions. It ought to have held that the subject
cheque was issued towards repayment of any legally
recoverable debt or liability. The findings of the trial
Court that cheque issued by accused was towards
security is without any basis.
9.1 The trial Court is also not justified in holding
that there is no evidence of cash transaction between
complainant and accused. The trial Court has also erred
in holding that the cheque was issued in favour of
Meerashankar and it is being misused by the
complainant. 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,
convict the accused and sentence him appropriately.
10. On the other hand, learned counsel appearing
for accused supported the impugned judgment and order
and sought for dismissal of the appeal.
11. Heard arguments of both sides and perused
the record.
12. Accused admit that the subject cheque is
drawn on his account, maintained with his banker and it
bears his signature. Therefore, the presumption under
Sections 118 and 139 of N.I Act comes into operation,
placing the initial burden on the accused to prove that it
is not issued towards repayment of any Legally
recoverable debt or liability and establish the
circumstances in which the cheque has reached the
hands of complainant. If the accused succeeded in
rebutting the presumption, then the burden would shift
on the complainant to prove his case. While it is
sufficient for the accused to probabalise his defence, the
complainant is required to prove his case beyond
resemble doubt.
13. It is relevant to note that though the accused
has sent reply to the legal notice issued on behalf of
complainant, except denying the allegations made in the
notice, the accused has not come up with any concrete
defence. Only at the trial, the accused has come up with
a case that 10 blank cheques i.e., the subject cheque
along with six other belonging to him, and three cheques
belonging to his wife were taken by one Meerashankar,
in connection with chit fund transaction and utilising one
such cheque, he has got filed this complaint through the
complainant to make unlawful gain. The accused has also
challenged financial capacity of complainant to lend him
loan of Rs.6 lakhs.
14. However, in John K Abraham referred to
supra, 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) She had the requisite funds for advancing
the sum of money/loan in question to
accused.
(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)1, 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.
2022 SCC OnLine SC 302
16. In fact, in APS Forex vs Shakti International
Fashion Linkers Pvt. Ltd (APS Forex)2, the Hon'ble
Supreme Court held that when accused rises issue of
financial capacity of complainant in support of his
probable defence, despite presumption 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. In the light of ratio in the above decisions,
now the initial burden is on the complainant to prove his
financial capacity, only after which the accused is to be
called upon to prove his defence.
18. In the present case, though the complainant
has produced the reply notice received from the accused,
he has not got it marked. The learned counsel
representing the accused has also failed to confront the
same to the complainant and mark it. However, it is part
(2020) 12 SCC 724
of the record. Anyhow fact remains that except denial,
the accused has not come up with any defence in the
reply notice. However, during trial he has challenged the
financial capacity of complainant. In the complaint itself,
the complainant has stated that he had kept the amount
in question which is his hard earned money and he gave
it to the accused. During his cross-examination, the
complainant has deposed that he paid the amount in
question out of his self earning. He has admitted that he
has not produced any documents to prove his income.
Thus, the complainant has failed to prove his financial
capacity to lend Rs.6 lakhs to the accused.
19. At the outset it is relevant to note that
complainant has not affixed his signature on the back of
the cheque. In fact, there is also no endorsement on the
cheque by the bank. Ex.P2 is the memo issued by the
bank while returning the cheque. It is addressed to one
Bhawar Lal Chadha, and the said name is struck off. The
name of complainant is inserted not in the space meant
for addressing the person to whom the cheque is issued,
but at a different place. Though this fact is clearly visible,
during his cross-examination the accused instead of
coming up with an explanation has denied the suggestion
made to that effect.
20. However, during his cross-examination,
complainant has admitted that on that day one
Meerashankar has accompanied him to the Court. When
questioned whether the said Meerashankar was having
any work in the Court, complainant has expressed
ignorance. He has denied the suggestion that the subject
cheque and six other belonging to the accused and three
cheques belonging to the wife of accused were taken by
the said Meerashankar during chit fund transaction and
utilising the subject cheque, he has got filed this
complaint.
21. It is also relevant to note that the contents of
subject cheque are typed. In the complaint, the
complainant has not stated that the contents of the
subject cheque are typed. Though this fact is obvious,
complainant has denied suggestions to that effect. In the
complaint, the complainant has claimed that the loan
was paid to the accused in the presence of witnesses, but
their names are not disclosed. Complainant has also not
chosen to examine any of them in support of his case.
During his cross-examination, the complainant has stated
that accused gave the cheque on the day when he paid
the amount and that in the cheque the date noted is
05.06.2015. However, in the complaint as well as during
the course of his affidavit evidence, complainant has
claimed that after three months of extending hand loan,
when he requested the accused for repayment, he issued
the subject cheque on 14.09.2015, which is the date of
the cheque.
22. As rightly observed by the trial Court, though
the complainant has filed application to recall himself for
further evidence and the said application is allowed, he
has not led any further evidence to prove his financial
capacity. In the complaint, the complainant has given his
address as resident of Magadi. When suggested that he
is a permanent resident of Magadi, complainant has
replied that he is a permanent resident of Kunigal. The
examination of his oral evidence indicate that the
complainant himself is not sure about the pleadings put
forth in the complaint and it creates doubt whether really
the loan transaction has taken place between him and
the accused or in order to oblige the said Meerashankar,
the complainant has lent his name and filed the
complaint.
23. After appreciation of oral and documentary
evidence placed on record in the right perspective, the
trial Court has come to a correct conclusion that
allegations against accused are not proved by the
complainant including his financial capacity. On the other
hand, by preponderance of probabilities, the accused has
proved that in collusion with Meerashankar, the
complainant has filed the complaint. After re-appreciation
of oral and documentary evidence placed on record, this
Court is of the considered opinion that there are no
justifiable grounds to interfere with the well reasoned
judgment 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
19.12.2017 in C.C.No.683/2016 on the file
of Prl.Civil Judge and JMFC, Kunigal is
confirmed.
(iii) The Registry is directed to send back the
trial Court records along with copy of the
Judgment forthwith.
Sd/-
JUDGE
RR
