Karnataka High Court
Sri. C. Anoop @ Anu vs Sri. Krishnappa on 2 January, 2024
1 CRL.RP NO.518 OF 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL REVISION PETITION NO.518 OF 2019
BETWEEN:
SRI. C. ANOOP @ ANU
S/O LATE CHANNAPPA,
AGED ABOUT 55 YEARS
R/AT NO.181, GROUND FLOOR,
4TH CROSS, KAVERINAGAR,
BSK 2ND STAGE,
BENGALURU - 560 070
...PETITIONER
(BY SRI. K K VASANTH, ADVOCATE)
AND:
SRI. KRISHNAPPA
S/O NARASIMHAIAH,
AGED ABOUT 44 YEARS
R/AT NO.160, 3RD CROSS,
NAGARABAVI,
BENGALURU - 560 075
.....RESPONDENT
(BY SRI. N. UDAYA KUMAR, ADVOCATE)
THIS CRL.RP IS FILED UNDER SECTION 397(1) R/W 401
OF CR.P.C PRAYING TO a) SET ASIDE THE JUDGMENT DATED
14.03.2019 PASSED IN CRIMINAL APPEAL NO.1485/2017 BY
THE LVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU (CCH-57) IN DISMISSING THE SAME AND THE
JUDGMENT AND SENTENCE AWARDED IN C.C.NO.22772/2016
DATED 20.09.2017 PASSED BY THE XXII ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY; b)
CONSEQUENT UPON THE SAME DISMISS C.C.NO.22772/2016
FILED BY THE RESPONDENT HEREIN AGAINST THE
PETITIONER HEREIN, ACQUITTING THE PETITIONER; c) PASS
2 CRL.RP NO.518 OF 2019
SUCH OTHER ORDERS AS THIS HON'BLE COURT DEEMS FIT
TO PASS TO MEET THE ENDS OF JUSTICE.
THIS CRL.RP HAVING BEEN HEARD AND RESERVED ON
06.11.2023, COMING ON FOR PRONOUNCEMENT OF ORDER
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition filed under section 397(1) r/w 401
Cr.P.C is by the accused, challenging his conviction and
sentence for the offence punishable and Section 138 of
the N.I Act imposed by the trial Court, which came to be
confirmed by the Sessions Court by dismissing the
appeal filed by him.
2. For the sake of convenience, the parties are
referred to by their rank before they trial Court.
3. Complainant filed a private complaint against
the accused alleging that he and accused are known to
each other since several years. Accused approached the
complainant for financial assistance as he was facing
financial difficulties. In this regard complainant paid
Rs.3.5 lakhs to the accused by way of hand loan in the
second week of January 2016 by cash. Accused promised
to repay the same within six months. However, accused
failed to keep up the said promise and after repeated
request and demand, he issued a cheque dated
14.07.2016 for a sum of Rs.3.5 lakhs with an assurance
that it will be honoured on presentation. However, on
16.07.2016, when complainant presented the cheque for
realization, it was dishonoured for want of sufficient
funds. When complainant brought this fact to the notice
of accused, he did not care to pay the amount due.
Hence, complainant got issued a legal notice dated
12.08.2016. Accused has sent an evasive reply and
without any alternative, complainant has filed the
complaint.
4. After due service of summons, accused
appeared and contested the matter. He pleaded not
guilty and claimed the trial.
5. In support of his case, complainant got
himself examined as PW-1 and relied upon Ex.P1 to 6.
6. During the course of his statement under
Section 313 of Cr.P.C, the accused has denied the
incriminating evidence led by the complainant.
7. Accused has examined himself as DW-1 and
relied upon Ex.D1 and 2.
8. Vide the impugned judgment and order the
trial Court convicted the accused and sentenced him to
pay fine Rs.3,50,000/- in default to undergo simple
imprisonment for three months.
9. Aggrieved by the same, the accused filed
appeal before the Sessions Court. However, vide the
impugned judgment and order the Sessions Court
dismissed the appeal and thereby confirmed the order of
the trial Court.
10. Being aggrieved by the same, the accused is
before the Court contending that the impugned
judgments and orders suffers from arbitrariness besides
being perverse. In his reply notice, the accused has
clearly stated that he never borrowed any loan from the
complainant and on the other hand while borrowing loan
of Rs.1,05,000/- from one Rajeev Reddy, he had issued
blank cheque and though the accused repaid the said
amount, the cheque was not returned and misusing the
same, the complaint is filed. The accused has disputed
the financial capacity of the complainant. However,
complainant has failed to prove that immediately prior to
the alleged advancing of loan to the accused, he was
having financial capacity to lend the said money. Only on
the basis of the presumption under Section 139 of the
N.I. Act, the Courts below have accepted the case of the
complainant. Despite the presumption under Sections
118 and 139 of N.I Act, having regard to the fact that
complainant has failed to prove his financial capacity, the
complaint is liable to be dismissed and prays to allow the
petition, set aside the impugned judgments and orders of
both Courts and acquit the accused.
11. On the other hand, learned counsel for
complainant supported the impugned judgments and
orders and pray to dismiss the petition.
12. Heard arguments of both sides and perused
the record.
13. Thus, it is the definite case of the complainant
that, owing to his acquaintance with the accused and at
his request he lent a sum of Rs.3.5 lakhs by way of hand
loan to him and towards repayment of the same,
accused issued the subject cheque and on presentation it
was dishonoured for want of sufficient funds and after
issuing legal notice he has filed the complaint.
14. Accused has not only disputed the transaction
in question, he has also denied acquaintance with the
complainant. By sending reply to the legal notice, the
accused has also disputed the financial capacity of
complainant to lend huge sum of Rs.3.5 lakhs. Accused
has alleged that he had borrowed a sum of Rs.1,05,000/-
from one Rajeev Reddy and at that time a cheque was
issued to him and despite repayment of the loan he did
not return the cheque and misusing the same, the
present complaint is filed.
15. Having regard to the fact that the accused has
disputed his acquaintance with the complainant and also
the transaction as well as the financial capacity of
complainant to advance huge sum of Rs.3.5 lakhs, as
held by the Hon'ble Supreme Court in APS Forex vs
Shakti International Fashion Linkers Pvt. Ltd (APS
Forex)1, whenever accused rises issue of financial
capacity of complainant, in support of his probable
defence, despite 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 of the Hon'ble Supreme Court, burden is on
the complainant to prove his financial capacity.
Therefore, it is necessary to examine whether the
complainant has discharged the said burden.
16. To prove his financial capacity, the
complainant has taken up a plea that at the relevant
(2020) 12 SCC 724
point of time, as per Ex.P-6 a tempo traveller bearing
registration number KA-41-911 belonging to his wife was
sold to one Prabhakar for Rs.4,80,000/-. On the overleaf
of the said document, an endorsement is made that out
of the sale consideration, a sum of Rs.75,000/- is
received and balance would be paid in 15 days. During
his cross examination complainant, who is who is
examined as PW-1 has deposed that when the receipt
was signed, no sum was received and he has
volunteered that 21 days time was sought to pay the
sale consideration. He has stated that the consideration
of said tempo was paid through cheque and he has
credited cheque to his account and he has no
impediment to produce the document to evidence to said
fact.
17. However, complainant has not chosen to
produce his account extract to show that immediately
prior to the lending of Rs.3.5 lakhs to the accused he
was in receipt of Rs.4,80,000/- towards sale
consideration of the tempo. He has also not chosen to
examine the purchaser Prabhakar. When questioned
whether he is ready to examine the said Prabhakar, the
complainant has replied that Prabhakar is not ready to
come and give evidence.
18. The accused has also disputed that
complainant was owning the said vehicle. At least the
complainant would have produced Registration certificate
of the said vehicle to prove that his wife was owning the
said vehicle and after transfer it is standing in the name
of purchaser. Though the complainant has claimed that
the amount of Rs.3.5 lakhs paid to the accused was
withdrawn from his account, standing in Corporation
Bank and there is no difficulty for him to produce the
same. However, the complainant has not produced his
account extract to evidence the said fact. It would have
been sufficient for the complainant to produce the said
account extract to establish Rs.3.5 lakhs paid to the
accused was withdrawn by him from his account. Thus,
the complainant has failed to prove his financial capacity,
despite making a vain attempt to prove that a vehicle
was sold for Rs.4,80,000/- and out of the said amount,
he lent Rs.3.5 lakhs to the complainant.
19. In the complaint, the complainant has
specifically pleaded that the sale of tempo was made on
18.05.2015 and the loan was advanced during January
2016 and the accused has issued the cheque on
14.07.2016. However, during his cross-examination, the
complainant has stated that accused gave him cheque
during January 2016. This also creates doubt as to the
veracity of complainant's case. Anyhow, having failed to
prove his financial capacity, the complainant has failed to
discharge the burden placed on him beyond reasonable
doubt.
20. The trial Court as well as the Session Court
have failed to examine the oral and document evidence
placed on record in proper perspective. They have
swayed away by the fact that presumption under
Sections 118 and 139 of N.I. Act is operating in favour of
the complainant. But both Courts have failed to examine
whether the complainant has proved his financial
capacity or not, and thereby fell into error.
Consequently, the impugned order has caused gross
miscarriage of justice, manifest illegality and suffers from
perversity calling for interference by this Court under
exercise of revision jurisdiction.
21. In the result, the impugned judgments and
orders of trial Court as well as the Sessions Court are
liable to be set aside and the accused is entitled for
acquittal and accordingly the following:
ORDER
(i) Petition filed by the petitioner under
section 397 r/w 401 Cr.P.C is allowed.
(ii) The impugned judgment and order dated
20.09.2017 in C.C.No.22772/2016 on the
file of XXII ACMM, Bengaluru and judgment
and order dated 14.03.2019 in Crl.A.No.
1485/2017 on the file of LVI Addl.City Civil
& Sessions Judge, Bengaluru are set aside.
(iii) Consequently, the accused is acquitted for
the offence punishable under Section 138
of N.I Act. His bail bond stand discharged.
(iv) The Registry is directed to send back trial
Court as well as Sessions Court records
along with copy of this judgment forthwith.
Sd/-
JUDGE
RR
