Karnataka High Court
Sri. Krishna @ M. Suresh vs Sri. Y. Muniswamy on 28 May, 2024
1 CRL.A NO.774 OF 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.774 OF 2018
BETWEEN:
SRI KRISHNA @ M SURESH
S/O MADAIAH B N
AGED ABOUT 38 YEARS,
R/AT NO.28, 2ND 'B' CROSS,
SRINIVASA NAGAR,
KATHRIGUPPA MAIN ROAD,
BENGALURU - 560 085.
......APPELLANT
(BY SRI. C R VENKATARAM, ADVOCATE)
AND:
SRI. Y. MUNISWAMY
S/O YELLAPPA,
R/O CHIKKADASARAHALLI VILLAGE
SARJAPURA HOBLI, ANEKAL TALUK,
BENGALURU - 562 125.
AND ALSO
ING VYSYA BANK,
NOW KOTAK MAHINDRA BANK,
REGIONAL OFFICE, NO.22,
HARA CHAMBERS,
K.H. ROAD (DOUBLE ROAD),
BENGALURU - 560 027.
.....RESPONDENT
(BY SRI. K.NARASIMHAIAH, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) OF CR.P.C PRAYING TO a) SET ASIDE THE JUDGMENT
DATED 14.03.2018 PASSED BY THE XX ADDL. CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY IN
C.C.NO.13840/2015 BY ALLOWING THIS APPEAL; b) CONVICT
2 CRL.A NO.774 OF 2018
AND SENTENCE THE ACCUSED / RESPONDENT FOR THE
AFORESAID OFFENCE PUNISHABLE UNDER SECTION 138 OF
N.I.ACT; c) GRANT SUCH OTHER ORDER OR ORDERS, WHICH
DEEMS FIT IN THE CIRCUMSTANCES OF THE CASE, IN THE
INTEREST OF JUSTICE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
22.03.2024, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This is an appeal filed by the complainant,
challenging the judgment and order passed by the trial
Court, dismissing the complaint filed by him against the
accused for the offence punishable under Section 138 of
Negotiable Instruments Act, 1881 (for short 'N.I. Act').
2. For the sake of convenience, the parties are
referred to by their rank before the trial Court.
3. It is the case of the complainant that he and
accused are friends having known to each other since
long time. During the year 2011, when complainant was
making enquiries to purchase a site measuring 30' x 40'
ft, accused offered to sell his site. However, when
accused was not in a position to give original documents,
complainant shelved the said idea. Later accused offered
to sell him 15 guntas out of 27 guntas of land in
Sy.No.40 of Chikkadasarahalli. After negotiation, they
agreed the rate at Rs.50,000/- per gunta and out of
Rs.7,50,000/- payable by the complainant, he paid
Rs.3,25,000/- by way of advance.
4. However, when complainant enquired with the
revenue authorities, he came to know that the said land
belongs to Government and it cannot be sold. Therefore,
he requested the accused to return the amount received
from him. In this regard accused issued cheque dated
25.03.2015, with an assurance of prompt payment.
However, when complainant presented the cheque for
realisation, it was returned dishonoured with
endorsement "Funds insufficient". Therefore, complainant
got issued legal notice to the accused. Though it is duly
served, the accused has neither chosen to pay the
amount due nor sent any reply. Hence the complaint.
5. Before the trial Court, accused has appeared
through counsel and resisted the case by pleading not
guilty.
6. In order to prove the allegations against the
accused, the complainant has examined himself as PW-1
and relied upon Ex.P1 to 16.
7. During the course of his statement under
Section 313 Cr.P.C, the accused has denied the
incriminating evidence led by the complainant.
8. Accused has not led any defence evidence.
9. Vide the impugned judgment and order the
trial Court dismissed the complaint.
10. Aggrieved by the same complainant has filed
this appeal, contending that the judgment and order are
opposed to law, facts and evidence on record. Through
the oral and documentary evidence placed on record, the
complainant has established the guilt of the accused
within the four corners of the Section 138 of N.I Act.
However, the accused has failed to rebut the
presumption under Section 139 of N.I Act. In the light of
the fact that accused admit his signature and the fact
that the subject cheque is drawn on his account
maintained with his banker, presumption is operating in
favour of the complainant, placing the initial burden on
the accused. Even the telephonic conversation between
complainant and accused prove that accused is liable to
pay Rs.3,25,000/- to the complainant. Viewed from any
angle, the impugned judgment and order are not
sustainable and pray to allow the appeal, convict the
accused and sentence him in accordance with law.
11. In support of his arguments, learned counsel
for complainant has relied upon the following decisions:
(i) Rajesh Jain Vs. Ajay Singh (Rajesh Jain)1
(ii) P.Rasiya Vs. Abdul Nazer and Anr. (P.Rasiya)2
(iii) G.Ramesh and Anr. Vs. B.P.Umashankar
(G.Ramesh)3
12. On the other hand learned counsel for accused
supported the impugned judgment and order and sought
(2023) 10 SCC 148:AIR 2023 SC 5018
2022 SCC Online SC 1131: AIR Online 2022 SCC 1373
Crl.A.No.1193/2013 Dt: 09.02.2024
for dismissal of the appeal. He would submit that
admittedly, there is no agreement between the
complainant and accused for alleged sale of the land.
The complainant has failed to prove his financial capacity
to pay a sum of Rs.3,25,000/- to the accused. Misusing
the cheque given by the accused by way of security, he
has filed the complaint to make unlawful gain.
Appreciating the evidence on record, the trial Court has
rightly dismissed the complaint and pray to dismiss the
appeal also.
13. Heard elaborate arguments of both sides and
perused the record.
14. Having regard to the fact that the cheque in
question belongs to accused, drawn on his account
maintained with his banker and it bears his signature,
presumption under Section 139 of N.I. Act is operating in
favour of the complainant, placing the initial burden on
the accused to prove that the cheque was not issued
towards 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. In the
present case, the accused has not sent reply to the legal
notice disputing the financial capacity of the complainant
to pay him with Rs.3,25,000/-. However during the trial
he has challenged his financial capacity.
15. In John K.Abraham Vs. Simon C. Abraham &
Anr (John K.Abraham)4, 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.
(2014) 2 SCC 236
16. In Tedhi Singh Vs Narayan Das Mahant (Tedhi
Singh)5, the Hon'ble Supreme Court held that in case
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, at the trial if the
financial capacity of complainant is challenged, then it is
for the complainant to prove the same.
17. In APS Forex vs Shakti International Fashion
Linkers Pvt. Ltd (APS Forex)6, 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.
2022 SCC OnLine SC 302
(2020) 12 SCC 724
18. In Vijay Vs. Laxman and Anr (Vijay)7,
K.Subramani Vs. K.Damadara Naidu (K.Subramani)8 and
K.Prakashan Vs. P.K.Surenderan (K.Prakashan)9, also
the Hon'ble Supreme Court held that the presumption
under Section 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.
19. Keeping the ratio in the above decisions in
mind, it is necessary to examine whether the complainant
was having financial capacity to advance Rs.3,25,000/- to
the accused, only after which the burden shifts on the
accused to rebut the presumption arising out of Section
139 of N.I Act.
20. During the course of his evidence, it is elicited
through the complainant that he and accused were
working as security guard under the same agency. The
complainant has stated that he was getting salary of
(2013) 3 SCC 86
(2015) 1 SCC 99
(2008) 1 SCC 258
Rs.8,000/- per month and when suggested that the entire
salary was utilised for maintenance of his family, the
complainant has stated that he was able to save
Rs.2,000/- per month. However, the complainant has not
produced any document to show that during 2014 he was
in possession of Rs.3,25,000/- and paid the same to the
accused.
20.1 It is pertinent to note that in the complaint,
the complainant has pleaded as though he has paid the
entire sum of Rs.3,25,000/- in one lump sum. However,
during the course of evidence, he has produced Ex.P15
stated to be notebook maintained by him in which
accused has acknowledged of having received the money
from him. Of course, the accused has denied the said fact.
Admittedly, the cmplainant has not examined this
document through handwriting expert to establish that
through the same the cccused has acknowledged receipt
of Rs.3,25,000/- from him.
20.2 Even otherwise, the content of exhibit Ex.P15
indicate that it is a notebook maintained by the
complainant, making entry stating that he has paid
several sums to the accused. In fact, in some of the
entries, there is a reference to the receiver having agreed
to pay interest at various rates. If this fact is considered,
then it is a case of giving hand loan and not the case of
accused agreeing to sell the property, etc. The entries in
Ex.P15 is not acknowledged by the accused and therefore
no evidentiary value could be attached to it.
21. The complainant has also relied upon alleged
telephone conversation between him and the accused and
that he has recorded the same into a compact disc as per
Ex.P16, and in the said conversation, the accused has
admitted of having received Rs.3,25,000/-. However, the
complainant has not produced the certificate as required
under Section 65-B of the Evidence Act and therefore, it
cannot be looked into. Moreover, for want of necessary
instrument, the Court is not a position to run the CD and
hear the contents. In the absence of certificate under
Section 65-B of Evidence Act, Ex.P16 cannot be accepted
as evidence.
22. Thus, the complainant has failed to prove his
financial capacity and therefore the burden has not shifted
on the accused to rebut the presumption arising under
Section 139 of N.I Act. Considering the oral and
documentary evidence placed on record, the trial Court
has come to a correct conclusion that allegations against
accused are not proved and acquitted him. On re-
appreciation of the entire material placed on record, this
Court is of the considered opinion that this is not a fit
case to interfere with the well reasoned judgment of the
trial Court. In the facts and circumstances, the decision
relied upon by the complainant are not applicable to the
case on hand. In the result, the 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
14.03.2018 in C.C.No.13840/2015 on the
file of XX ACMM, Bengaluru is hereby
confirmed.
(iii) The Registry is directed to send back the
trial Court records along with copy of this
judgment forthwith.
Sd/-
JUDGE
RR
