Karnataka High Court
Sri. Jithendra Kumar N M vs Sri. T Gururaj on 27 May, 2024
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO.2158/2018
BETWEEN:
SRI. JITHENDRA KUMAR N.M,
S/O. NAMTHI MADHAVARAO,
AGED ABOUT 45 YEARS,
RESIDING AT SY.NO.12/1,58/59,
VASISTA RESIDENCY, NO.5,
3RD FLOOR, 1ST CROSS,
UTTARAHALLI MAIN ROAD,
BENGALURU-560 061.
...APPELLANT
(BY SRI. KUMAR .S.J AND SRI. S. RAJASHEKAR, ADVOCATES)
AND
SRI. T. GURURAJ,
S/O. TANDONI RAO,
AGED ABOUT 42 YEARS,
RESIDING AT NO.337,
10TH MAIN ROAD,
SRINIVASANAGAR,
BENGALURU-560 050.
AND ALSO WORKING AT:-
YOKAGAWA INDIA PVT. LTD.,
NO.96, ELECTRONIC CITY COMPLEX,
HOSUR ROAD,
BENGALURU-560 100
...RESPONDENT
(BY SRI. S. VISWESWARAIAH, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED
30.08.2018 PASSED BY THE XVI A.C.M.M., BENGALURU IN
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C.C.NO.21873/2016, ACQUITING THE RESPONDENT/ACCUSED OF
THE OFFENCE P/U/S 138 OF N.I. ACT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 23.04.2024, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the complainant under Section
378(4) of Cr.P.C. challenging the judgment of acquittal
dated 30.08.2018 passed by the XVI Additional Chief
Metropolitan Magistrate, Bengaluru ('trial Court' for short)
in CC No.21873/2016, whereby the learned Magistrate has
acquitted the accused/respondent herein of the offence
punishable under Section 138 of the Negotiable
Instruments Act, 1881 (for short, N.I. Act').
2. For the sake of convenience, the parties herein
are referred with the original ranks occupied by them
before the trial Court.
3. The brief factual matrix leading to this case are
that, complainant-Sri.Jithendra Kumar N.M. and accused-
Sri. T. Gururaj are relatives and well-acquainted to each
other. It is alleged that in view their long standing
relationship and well-acquaintance, the accused
approached the complainant seeking hand loan of Rs.5.00
Lakhs in October 2013 for family necessity and to
purchase a site promising to repay the same within 4 to 6
months. Therefore, it is alleged that the complainant has
advanced loan of Rs.5.00 Lakhs in cash. But, accused
failed to repay the said loan within the time as assured. It
is alleged that, when the complainant has persistently
demanded for repayment of the loan amount, on
01.11.2014 the accused has issued a cheque for Rs.5.00
Lakhs dated 15.11.2014 bearing No.213940 drawn on
State Bank of Mysuru, Electronic City Branch, Bengaluru,
for Rs.5.00 Lakhs. When the said cheque was presented
to the Bank, it was bounced for Insufficient Funds. Hence,
the complainant has lodged a complaint against the
accused for the offence under Section 138 of the N.I Act,
before the trial Court.
4. The learned Magistrate after recording sworn
statement has taken cognizance of the offence and issued
process against the accused. The accused appeared
through his counsel and was enlarged on bail. The plea
recorded under Section 138 of the N.I. Act was denied by
the accused.
5. The complainant was examined as PW.1 and he
placed reliance on 08 documents marked at Exs. C1 to C8.
During cross-examination of PW.1/complainant, Exs. D1
and D2 were got marked by way of confrontation. Then
the statement of accused under Section 313 of Cr.P.C. was
recorded and the accused denied the incriminating
evidence appearing against him. The learned Magistrate
after hearing the arguments and after appreciating the
oral and documentary evidence has acquitted the accused
of the offence punishable under Section 138 of the N.I.
Act. Being aggrieved by this judgment of acquittal, the
complainant is before this Court by way of this appeal.
6. Heard the arguments advanced by the learned
counsels appearing for the appellant/complainant and the
respondent/ accused. Perused the records.
7. Learned counsel for the appellant/complainant
would contend that, in the reply notice itself, the accused
has admitted the receipt of Rs.5.00 lakhs as hand loan and
cheque as well as signature have been admitted and as
such the presumption is in favour of the complainant
under Section 139 of the N.I. Act. Hence, the learned
counsel would contend that the said presumption is not
rebutted and the learned Magistrate on irrelevant
considerations has acquitted the accused and hence, he
would seek for allowing the appeal by convicting the
accused for the offence under Section 138 of the N.I. Act.
8. Per contra, the learned counsel for the
respondent/accused would submit that, though the said
transaction regarding availment of loan was admitted, the
same was already repaid and the blank cheques were
obtained at the time of advancement of loan, which is
evident from the admissions given by the complainant and
hence, the presumption in favour of the complainant
stands rebutted. As such, the learned counsel would
contend that the learned Magistrate has appreciated all
these aspects in proper perspective and rightly acquitted
the accused of the offence punishable under Section 138
of the N.I. Act, and as such the said impugned judgment
does not suffer from any perversity or illegality and it does
not call for any interference by this Court. Hence, he
would seek for dismissal of the appeal.
9. Having heard the arguments and on perusing
the records, now the following point would arise for my
consideration:-
"Whether the impugned judgment of
acquittal passed by the learned Magistrate is
arbitrary, erroneous and perverse so as to call
for any interference by this Court?"
10. It is the specific case of the complainant that
the accused has availed loan of Rs.5.00 Lakhs in the
month of October 2013 for his family necessity and
towards discharge of the said legally enforceable debt, the
said cheque under Ex.C1 came to be issued.
Ex.C1/Cheque belongs to the accused and it bears his
signature are undisputed facts. Since the cheque and
signature have been admitted, the initial presumption
under Section 139 of the N.I. Act that the cheque was
issued towards legally enforceable debt is in favour of the
complainant. Apart from that, under Section 118 of the
N.I. Act also, the presumption regarding the transaction is
being undertaken for a consideration and hence, it is for
the accused to rebut the said presumption.
11. The complainant is examined as PW.1 and he
has reiterated the complaint allegations. No doubt, the
complainant was cross-examined at length, wherein his
financial status was challenged and the assertion
regarding issuance of cheque, obtaining cheque etc., as
security were elicited, but these aspects become
irrelevant in view of reply notice given on behalf of the
accused by his counsel. The reply notice issued by the
counsel for accused is marked at Ex.C8 and in Para No.2
of the reply notice, there is a specific admission that the
accused is a relative of complainant and accused has
borrowed hand loan of Rs.5.00 Lakhs in the month of
October, 2013 for his family necessity and it is asserted
that at that time, 05 blank cheques and 04 Promissory
Notes were collected by the complainant.
12. Much arguments were advanced regarding
Exs.D1 & D2 and cross-examination was on Exs.D1 & D2.
But, when in the reply notice itself the accused has
admitted about he borrowing of Rs.5.00 Lakhs in the
month of October, 2013 and issuance of Blank Cheques,
the burden is on the accused to prove that he has already
repaid the borrowed loan amount, as now he is asserting
that the issuance of cheque was not towards the legally
enforceable debt. But, the accused has not entered into
the witness box and his statement recorded under Section
313 of Cr.P.C. is also silent in this regard. When the
accused in his reply notice admitted the transaction of
availment of loan and when he admits that the cheque
belongs to him and it bears his signature, now the
question of accused disputing the transaction does not
arise at all. The non-production of Promissory Notes or
Pro-notes etc., have no relevancy in this regard. Much
cross-examination was made regarding submission of IT
Returns and non-disclosure of the statement of account
etc. But, as observed above, when in the reply notice itself
this fact is admitted by the accused, question of
complainant proving this fact once again does not arise at
all, and it is for the accused to rebut the presumption, but
he has not taken any pain to substantiate his claim
regarding repayment.
13. The learned Magistrate is carried away with the
cross-examination pertaining to other criminal cases
lodged against the wife of the accused. But, the learned
Magistrate has completely ignored the admission of the
transaction in the reply notice itself. When in the reply
notice the transaction itself is admitted, calling upon the
complainant to prove the transaction again does not arise
at all. The entire approach of the learned Magistrate in
this regard is arbitrary and erroneous and as such, the
impugned judgment of acquittal calls for interference by
this Court.
14. Further, records disclose that the cheque was
issued in the month of October, 2013. Admittedly, the
complainant is not a money lender. Further, his conduct is
also not befitting to the relationship between the parties
since he has also misused the other cheques and filed
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complaint against the wife of the accused for Rs.10.00
Lakhs as admitted in the cross-examination. Hence, since
the accused has committed an offence under Section 138
of the N.I. Act, he is required to be punished in this
regard. But, as regards the sentence portion is concerned,
the conduct of the complainant also needs to be
considered.
15. The offence under Section 138 of the N.I. Act is
punishable with fine which may extend to double the
cheque amount or with imprisonment for two years or
both. In the instant case, the cheque amount is Rs.5.00
Lakhs. But, as observed above, the conduct of the
complainant in prosecuting the wife of the accused in
respect of cheque for Rs.10.00 Lakhs is also questionable.
Under these circumstances, in my considered opinion, it is
just and proper to impose fine of Rs.6.00 Lakhs to the
accused, which would serve the purpose. The impugned
judgment of acquittal is perverse and arbitrary and hence,
it calls for interference by this Court. Accordingly, the
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point under consideration is answered in the affirmative
and accordingly, I proceed to pass the following:-
ORDER
i) The appeal stands allowed.
ii) The impugned judgment of acquittal dated
30.08.2018 passed by the XVI Additional Chief
Metropolitan Magistrate, Bengaluru, in CC
No.21873/2016, is hereby set aside.
iii) The accused is convicted for the offence punishable
under Section 138 of the N.I. Act and he is
sentenced to pay fine of Rs.6.00 Lakhs (Rupees Six
Lakhs only), in default, he shall undergo S.I for a
period of six months.
iv) Out of fine amount of Rs.6.00 Lakhs, Rs.5,50,000/-
shall be paid to the complainant by way of
compensation and Rs.50,000/- shall be credited to
the State towards expenses incurred by the State.
Sd/-
JUDGE
KGR*
