Karnataka High Court

S Raghu vs Smt. Vanaja on 30 July, 2024

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                                                          NC: 2024:KHC:30254
                                                       CRL.A No. 202 of 2013




                    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 30TH DAY OF JULY, 2024

                                          BEFORE
                             THE HON'BLE MRS JUSTICE M G UMA
                           CRIMINAL APPEAL NO. 202 OF 2013 (A)
                BETWEEN:
                S. RAGHU
                S/O LATE T.V. SUBBARAO
                AGED ABOUT 59 YEARS
                NO.24/1, GOWRI SHANKAR NILAYA
                3RD CROSS, R. KRISHNAPPA LAYOUT
                BHUVANESHWARINAGAR
                SULTANPALYA MAIN ROAD
                R.T. NAGAR POST
                BANGALORE - 560 032.
                                                                 ...APPELLANT
Digitally
signed by       (BY SRI. R. KUMAR, ADVOCATE)
NANDINI B G
                AND:
Location:
high court of   SMT. VANAJA
karnataka
                W/O B. RAJANNA
                AGED ABOUT 37 YEARS
                NO.7, 2ND STREET, I CROSS
                LINGAPPA BLOCK
                H.D DEVEGOWDA ROAD
                THIMMAIAH GARDEN
                R.T. NAGAR POST, BANGALORE - 32
                                                               ...RESPONDENT
                (BY SRI. SHAHNAWAZ MAMADAPUR, ADVOCATE(VC))


                      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
                CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:21.1.13 PASSED
                BY THE XII ACMM, BANGALORE IN C.C.NO.10772/2009 -
                ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
                PUNISHABLE UNDER SECTION 138 OF N.I. ACT.

                      THIS CRIMINAL APPEAL, COMING ON FOR FINAL HEARING,
                THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
                CORAM:   HON'BLE MRS JUSTICE M G UMA
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                                              NC: 2024:KHC:30254
                                           CRL.A No. 202 of 2013




                          ORAL JUDGMENT

The complainant in CC No.10772 of 2009 on the file of

the learned XII Additional Chief Metropolitan Magistrate,

Bengaluru, is impugning the judgment dated 21.01.2013

acquitting the accused for the offence punishable under Section

138 of the Negotiable Instruments Act (for short 'NI Act').

2. For the sake of convenience, the parties shall be

referred to as per their rank and status before the Trial Court.

3. Heard Sri R Kumar, learned counsel for the

appellant and Sri Shahnawaz Mamadapur, learned counsel for

the respondent. Perused the materials including the Trial Court

records.

4. Learned counsel for the appellant - complainant

submitted that the complainant had lent an amount of

Rs.1,50,000/- to the accused during 2006. Towards repayment

of the said amount, the cheque - Ex.P1 was issued by the

accused on 19.05.2008. When the cheque was presented for

encashment, same was dishonored as there is no such account.

Legal notice was issued to the accused as per Ex.P3. The same

was served on the accused as per the postal acknowledgement

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Ex.P3(a). The accused has issued reply as per Ex.D2

contending that the account in question was closed during

December, 2000 and all the remaining cheque leaves were

already returned to the Bank and therefore, there is no

question of issuing the cheque in question during 2008 or the

accused repaying the cheque amount to the complainant.

5. Learned counsel submitted that the complainant

examined himself as PW1 and spoken about his contention.

During cross examination, it is elicited from PW1 that he was

doing electrical contract business and was earning Rs.25,000/-

per annum. Nothing has been elicited from the complainant to

deny his financial capacity to lend an amount of Rs.1,50,000/-.

6. Learned counsel further submitted that during cross

examination, it is suggested that the complainant has taken

away the cheque leaf in question, but the same was denied by

PW1. Admittedly, no complaint was filed for loss of cheque and

it is not stated as to when cheque leaf was stolen by the

complainant. Moreover, this defence was not taken while

issuing Ex.D2. DW1 has stated that the complainant was also

working as a photographer. The accused has not denied the

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financial capacity of the complainant. Therefore, it is clear that

the accused has taken the defence about the complainant

stealing the cheque - Ex.P1 only during trial and not while

issuing Ex.D2. Hence, it is an after thought.

7. Learned counsel submitted that even though the

defence that the complainant was not having financial capacity

to lend the hand loan was taken, the same is not probablised.

On the other hand, the financial capacity of the complainant

was substantiated and the signature on the cheque in question

is admitted by the accused. Therefore, the presumption under

Section 139 of NI Act arises and the accused is liable for

conviction. Learned counsel submitted that the Trial Court

ignoring all these facts and circumstances and also position of

law passed the impugned judgment acquitting of the accused.

The same calls for interference by this Court. Accordingly, he

prays for allowing the appeal.

8. Per contra, learned counsel for the respondent

opposing the appeal submitted that admittedly, the account in

question was closed during December, 2000 and according to

the complainant, he has lent hand loan during 2006. Nothing

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has been placed before the Court to probablise the same. It is

the contention of the complainant that the cheque in question

was issued on 19.05.2008 i.e., 8 years after the closure of bank

account which is most improbable to be accepted.

9. Learned counsel submitted that during cross

examination of PW1, he has stated that his income during 2006

was only Rs.25,000/- per annum. Under such circumstances,

the complainant lending huge amount of Rs.1,50,000/- to the

accused is most improbable. The complainant admits that he

used to assist the accused in her milk vending business, which

is also improbable. He states that the complainant has stolen

the cheque without notice of the accused. When the

complainant has not proved lending of the amount and also

issuance of cheque towards discharge of legally recoverable

debt, the presumption under Section 139 of NI Act cannot be

raised. The Trial Court was right in holding that the

complainant has not proved the guilt of the accused for the

offence punishable under Section 138 of NI Act. There are no

reasons to interfere with the impugned judgment of acquittal.

Accordingly, he prays for dismissal of the appeal.

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10. In view of the rival contentions urged by learned

counsel for both the parties, the point that would arise for my

consideration is:

"Whether the appellant has made out any grounds for allowing the appeal and to convict the accused for the offence punishable under Section 138 of NI Act?"

My answer to the above point is in the 'Affirmative' for

the following:

REASONS

11. It is the contention of the complainant that he was

having acquaintance with the accused since several years,

which is not in dispute. It is the further contention of the

complainant that during 2006, he had lent an amount of

Rs.1,50,000/- to the accused, which is denied by him. It is the

further contention of the complainant that on 19.05.2008, the

accused had issued the cheque as per Ex.P1 towards discharge

of legally recoverable debt. This fact is also denied by the

accused. However, the cheque in question and the signature

found therein are not denied by the accused. When the cheque

- Ex.P1 was presented for encashment, the same was

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dishonored as per endorsement Ex.P2 stating that the account

is closed.

12. Now it is the contention of the complainant that the

accused knowing fully well about the closure of account had

issued the cheque with an intention to cheat the complainant

and has committed the offence punishable under Section 138 of

NI Act. However, it is the contention of the accused that the

cheque in question was stolen by the complainant and

presented the same for encashment about 8 years after closure

of the account.

13. Even though it is contended by the accused that the

complainant was not having financial capacity to lend

Rs.1,50,000/-, the complainant who is examined as PW1 has

stated that he was doing electrical contract business. During

cross examination, it is elicited from the witness that he was

having income of Rs.25,000/- per annum during 2006. There is

no further cross examination to deny the financial capacity of

the complainant.

14. It is pertinent to note that after receipt of legal

notice issued by the complainant as per Ex.P3, the accused has

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issued reply as per Ex.D2. It is only at that point of time, the

accused has taken a defence in Ex.D2 that the account in

question was closed in December 2000 and the cheques leaves

in question were already returned to the Bank. But however,

during cross examination, an attempt was made to contend

that the cheque leaf in question was stolen by the complainant

and presented for encashment. Conspicuously, the said

defence was never taken while issuing Ex.D2. Hence, the

defence taken by the accused prima facie cannot be accepted.

It is pertinent to note that the cheque leaf and the signature on

the cheque - Ex.P1 are admitted. The presumption under

Section 139 of NI Act arise in favour of the complainant when

the accused has failed to probabalise his defence. Even after

looking to the evidence and the documents produced before the

Court, it cannot be said that the accused has probabalised his

defence.

15. In this regard, learned counsel for the complainant

has placed reliance on the decision of the Hon'ble Apex Court in

M/s Kalamani Tex and another Vs P Balasubramanian ,

(2021) 5 SCC 283

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wherein, the Hon'ble Apex Court referred to its various

decisions and held in paragraphs 15 and 17 as under:

"15. No doubt, and as correctly argued by Senior Counsel for the appellants, the presumptions raised under Sections 118 and Section 139 are rebuttable in nature. As held in M.S. Narayana Menon v. State of Kerala, which was relied upon in Basalingappa, a probable defence needs to be raised, which must meet the standard of "preponderance of probability", and not mere possibility. These principles were also affirmed in Kumar Exports, wherein it was further held that a bare denial of passing of consideration would not aid the case of accused.

17. Even if we take the arguments raised by the appellants at face value that only a blank cheque and signed blank stamp papers were given to the respondent, yet the statutory presumption cannot be obliterated. It is useful to cite Bir Singh v. Mukesh Kumar, where this court held that:

"36. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent

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evidence to show that the cheque was not issued in discharge of a debt."

(emphasis supplied)

16. In view of the above, position of law is very well

settled and the burden is on the accused to rebut the

presumption under Section 139 of NI Act. Even though the

standard of proof required to rebut the presumption is only a

preponderance of probabilities, the accused is not successful in

probablising his defence. Under such circumstances, is to be

held that the complainant is successful in proving the guilt of

the accused beyond reasonable doubt and therefore the

accused is liable for conviction.

17. I have gone through the impugned judgment of

acquittal passed by the Trial Court. It has not taken into

consideration all these facts and circumstances and also the

position of law while acquitting the accused. Therefore, I am of

the opinion that the impugned judgment of acquittal passed by

the Trial Court is required to be set aside. Accordingly, I answer

the above point in the affirmative.

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ORDER REGARDING SENTENCE

Dated: 31.07.2024

Heard learned counsel appearing for the complainant and

the learned counsel appearing for the accused. The accused is

also physically present before the Court.

Learned counsel appearing for the accused submits that

the accused is a lady aged about 48 years without any

independent income. Hence, prays for maximum leniency in

awarding sentence. Learned counsel has placed reliance on the

decision of the Hon'ble Apex Court in the case of Damodar

S.Prabhu v. Sayed Babalak H.2, wherein, it is held that "the

complainant's interest lies primarily in recovering the money

rather than seeing the drawer of the cheque in jail". Hence, he

prays for imposition of reasonable fine without imposing

sentence to undergo any imprisonment.

Per contra, learned counsel appearing for the appellant

submitted that the complainant is also an aged person without

any avocation or income at present. He was made to suffer for

16 long years for having accepted the cheque issued by the

(2010) 5 SCC 663

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respondent and therefore prays that maximum sentence to be

imposed.

Considering the contentions of learned counsel for both

the parties and in the light of the facts and circumstances, I am

of the opinion that imposition of sentence to undergo

imprisonment to the respondent may work out very harsh as

she is a lady aged 48 years and therefore only fine could be

imposed with default sentence of imprisonment.

Hence, I proceed to pass the following:

ORDER

(i) The Criminal Appeal is allowed.

(ii) The judgment dated 21.01.2013 passed in CC

No.10772 of 2009 on the file of the learned XII Additional Chief

Metropolitan Magistrate, Bengaluru is hereby set aside.

(iii) Consequently, the accused is convicted for the

offence punishable under Section 138 of NI Act and she is

sentenced to pay a fine amount of Rs.2,25,000/- (Rupees Two

Lakhs Twenty Five Thousand only) to the complainant within