Karnataka High Court
Mr T M Alex vs Mrs V Kalavathi on 21 February, 2024
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CRL.A No. 1710 of 2018
NC: 2024:KHC:7299
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MS JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.1710 OF 2018
BETWEEN:
MR. T M ALEX
S/O MR.T M MATHEW,
AGED ABOUT 48 YEARS,
RESIDING AT NO.48, 13TH MAIN,
5TH CROSS, OPPOSITE ST. ANNS SCHOOL,
AKSHYANAGAR,
BENGALURU - 560 076.
...APPELLANT
(BY SRI. FEROZE NIZAM A, ADVOCATE)
AND:
MRS. V KALAVATHI
W/O N NAGARAJU,
AGED ABOUT 36 YEARS,
RESIDING AT NO.25,
MARUTHI NILAYA,
Digitally signed 19TH D CROSS, 7TH MAIN,
by REKHA R
Location: High NEAR ALLIANCE BUSINESS ACADEMY,
Court of N.S PALYA, BTM 2ND STAGE,
Karnataka
BENGALURU - 560 076
...RESPONDENT
(BY SRI. SHREYAS B S, ADVOCATE)
THIS CRL.A IS FILED UNDER SECTION 378(4) OF CR.P.C
PRAYING TO SET ASIDE THE ORDER OF ACQUITTAL IN
JUDGMENT DATED 23.08.2018 PASSED BY THE XVI A.C.M.M.,
BENGALURU IN C.C.NO.12953/2014 AND TO GRANT SUCH
OTHER RELIEF OR RELIEFS AS THIS HON'BLE COURT MAY
DEEM FIT TO GRANT IN THE INTEREST OF JUSTICE.
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CRL.A No. 1710 of 2018
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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the complainant challenging the
acquittal of respondent/accused for the offence punishable
under Section 138 of Negotiable Instruments Act, 1881
(hereinafter referred to as "N.I.Act" for short) by the trial
Court
2. For the sake of convenience, parties are
referred to by their rank before the trial Court.
3. Complainant filed the complaint under Section
200 of Cr.P.C against accused alleging that accused is
known to the complainant since several years. Accused
along with her husband approached the complainant for
hand loan in a sum of Rs.4,70,000/- with a promise to
repay the same within three months. Accordingly, in the
month of June 2013, accused advanced loan of
Rs.4,70,000/-. However, accused went on delaying the
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repayment and ultimately issued cheque dated 21.12.2013
for Rs.4,70,000/- with an assurance of prompt payment.
When complainant presented the cheque for encashment,
it was returned dishonoured on the ground of insufficient
funds. Complainant got legal notice calling upon the
accused to pay the amount due with accrued interest.
Neither the acknowledgement nor the unserved postal
envelope are returned. Accused has not complied with the
legal notice and hence the complaint.
4. After due service of summons, accused
appeared and contested the case by pleading not guilty.
5. In order to prove the allegations against the
accused, complainant examined himself as PW-1 and
relied upon Ex.P1 to 26.
6. During the course of his statement under
Section 313 of Cr.P.C, accused has denied the
incriminating evidence lead by the complainant.
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7. Accused has stepped into the witness box and
examined herself as DW-1. No documents are marked
on behalf of accused.
8. Vide the impugned judgment and order, the
trial Court has acquitted the accused.
9. Aggrieved by the same, complainant is before
this Court, contending that the trial Court has erred in
acquitting the accused, though complainant has proved all
the essential ingredients. It has not properly framed the
points for consideration. The findings of the trial Court are
perverse, calling for interference by this Court and pray to
allow the appeal, convict the accused and sentence her
appropriately.
10. On the other learned counsel for
respondent/accused supported the impugned judgment
and order and submitted that accused had issued a blank
signed cheque to the complainant with regard to a chit
transaction and misusing the same, complainant has filed
complaint. At the trial accused has also challenged the
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financial capacity of complainant which he has failed to
prove and therefore rightly the trial Court has dismissed
the complaint and sought for dismissal of the appeal also.
11. In support of his arguments, the learned
counsel for respondent/accused has relied upon the
following decision:
(i) K.Subramani Vs. Damodara Naidu K
(K.Subramani)1
12. Heard arguments and perused the record.
13. In this case the acknowledgement is not
returned. Similarly, the postal envelope is also not
returned. But accused has not disputed that legal notice is
served on her, though she has not sent reply to the same.
Having regard to the fact that accused admit that the
cheque belong to her and bears her signature,
presumption under Section 139 of the N.I.Act is attracted,
placing the initial burden on the accused to rebut the
presumption that the cheque was not issued towards
2015(1) SCC 99
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repayment of any debt or liability and on the other hand to
establish the circumstances in which the cheque has
reached the hands of the complainant.
14. However, in John K.Abraham Vs. Simon C.
Abraham & Anr (John K.Abraham)2, 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. As held by the Hon'ble Supreme Court in Tedhi
Singh Vs Narayan Das Mahant (Tedhi Singh)3, where the
accused has failed to send reply to the legal notice,
challenging the financial capacity of the complainant, at
(2014) 2 SCC 236
2022 SCC OnLine SC 302
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the first instance, complainant need not prove his financial
capacity. However, at the trial if the financial capacity of
complainant is challenged, then it is for the complainant to
prove the same.
16. In APS Forex vs Shakti International Fashion
Linkers Pvt. Ltd (APS Forex)4, the Hon'ble Supreme Court
held that when accused raises 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 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
17. In Vijay Vs. Laxman and Anr (Vijay)5,
K.Subramani referred to supra and K.Prakashan Vs.
P.K.Surenderan (K.Prakashan)6, also the Hon'ble
Supreme Court held that the presumption under Section
(2020) 12 SCC 724
(2013) 3 SCC 86
(2008) 1 SCC 258
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139 of N.I. Act, is a rebuttable presumption and when
accused rebut the same by preponderance of probabilities,
it is for the complainant to prove his case beyond
reasonable doubt including the financial capacity.
18. In the light of ratio in the above decisions of the
Hon'ble Supreme Court, it is necessary to examine
whether complainant has proved his financial capacity,
after which the burden would shift on the accused to prove
her defence.
19. To show that he had the requisite finance to
lend Rs.4,70,000/- complainant has deposed that he is
doing business i.e., he is a partner in Carbide Cutting
Tools Manufacturing Company and gets share in the profit.
However, complainant has not produced any document to
prove the said fact including the proportionate profit
received by him. He has also deposed that he is also
working in Shark Goods Services situated at Hebbadogi
and produced vouchers for having received payments
varying from Rs.8,000 - Rs.15,000/- p.m. However, as
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admitted by him these payments are for the year 2015-16
and they have no relevance to the complaint period.
20. The complainant has also deposed that he is
doing money lending business and produced the money
lending license at Ex.P6. This is valid from 18.03.2013 to
31.03.2017. However, the complainant has not produced
the accounts maintained by him to show the exact income
derived from the money lending business. Ex.P8 to 11 are
the Income Tax returns for the year 2012-13 to 2016-17.
As admitted by him, he has not produced the Income Tax
returns for the year 2010-11 and 2011-12. As per Ex.P8
during 2012-13, he had income of Rs.1,90,000/- and as
per Ex.P11, only during 2015-16, he has declared
Rs.7,70,000/- as the loan granted to the accused which is
subsequent to the filing of the complaint.
21. The complainant has also relied upon Ex.P12
certified copy of sale deed dated 30.11.2011, by which he
has sold certain immovable property for a sum of
Rs.4,50,000/- and claimed that he utilized the said
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amount to extend hand loan to the accused. According to
the complainant, the loan transaction between him and
accused is during the month of June 2013. He has not
produced any document to show where he had kept the
said amount of Rs.4,50,000/- and whether it was still
available with him during June 2013, especially when he
claim that he is also doing money lending business. This
fact assumes importance as during the course of his cross-
examination the complainant has stated that he has also
given hand loan to the husband of accused and filed
complaint against him also.
22. While it is the definite case of the complainant
that he lent Rs.4,70,000/- to the accused, during his
cross-examination he has stated that he extended hand
loan of Rs.3,00,000/- to the accused for repair of her
house. Again in his cross-examination dated 17.02.2016,
the complainant has stated that once he paid
Rs.4,50,000/-, at another occasion Rs.45,000/- and third
time Rs.20,000/- which comes to Rs.5,15,000/-. It is not
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the case of the complainant that he gave hand loan to the
accused in instalments.
23. After one sentence, the complainant has
deposed that on 01.06.2013, while giving loan of
Rs.3,00,000/- and on 03.06.2013, while giving hand loan
of Rs.4,05,000/- he has taken demand promissory note
from the accused. Complainant has produced a demand
promissory note dated 03.06.2013 at Ex.P6 for a sum of
Rs.4,05,000/-. However, there is no whisper in the
complaint about the accused having executed demand
promissory note while borrowing hand loan from the
complainant. During the cross-examination of complainant
it is elicited that he has also filed criminal complaint
against the husband of accused in C.C.No.12955/2014 and
together from both cases his claim is Rs.7,70,000/-.
Perusal of the testimony of complainant indicate that he is
not very sure as to what exactly is the loan given by him
to the accused.
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24. On the other hand, during the course of her
evidence, the accused has deposed that she had issued a
blank cheque to the complainant while successfully bidding
chit for Rs.3,00,000/- and at that time by mistake she had
also given a blank cheque belonging to her husband and
misusing both of them, complainant has filed complaints
against her and her husband. During her cross-
examination, she has denied that she borrowed hand loan
of Rs.4,70,000/- and issued the subject cheque towards
repayment of the same.
25. Appreciating the oral and documentary
evidence placed on record in right perspective, the trial
Court has come to a conclusion that the complainant has
failed to prove his financial capacity and dismissed the
complaint. After re-appreciation of the same, this Court
finds no justifiable grounds to interfere with the
conclusions arrived at by the trial Court. In the result, the
appeal fails and accordingly, the following:
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ORDER
i) Appeal filed by the complainant under
Section 378(4) is dismissed.
ii) The impugned judgment and order dated
23.08.2018 in C.C.No.12953/2014 on the
file of XVI Additional Chief Metropolitan
Magistrate, Bengaluru City is confirmed.
iii) The Registry is directed to send back the
trial Court records along with copy of this
judgment forthwith.
Sd/-
JUDGE
RR
