Karnataka High Court
Sri Ramesh T vs Sri Andro Joseph on 20 November, 2024
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NC: 2024:KHC:47107
CRL.A No. 1951 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL APPEAL NO. 1951 OF 2023 (A)
BETWEEN:
SRI. RAMESH T.
S/O THIMMAPPA T.H.
AGED ABOUT 62 YEARS,
PROPRIETOR R AND V ASSOCIATES,
R/AT 1ST CROSS, MARATA GALLI,
OLD TOWN, BHADRAVATHI,
SHIMOGGA DISTRICT - 577 245
...APPELLANT
Digitally
signed by (BY SRI. RAVINDRANATH .K., ADVOCATE)
NANDINI B G
Location: high
court of AND:
karnataka
SRI. ANDRO JOSEPH
S/O STEVEN SUNDAR RAJ,
AGED ABOUT 59 YEARS,
R/AT NEAR GOVT. HOSPITAL,
ASHWATH NAGARA, AJ ALEMANE,
HOSAMANE, BHADRAVATHI - 577 245
...RESPONDENT
THIS CRL.A IS FILED U/S 378 CR.PC PRAYING TO SETTING
ASIDE THE JUDGMENT DATED 18.08.2023 PASSED IN
C.C.NO.12/2022 BY THE II ADDITIONAL CIVIL JUDGE AND JMFC AT
BHADRAVATHI.
THIS CRL.A, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE M G UMA
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NC: 2024:KHC:47107
CRL.A No. 1951 of 2023
ORAL JUDGMENT
The appellant is before this Court impugning the
judgment dated 18.08.2023 passed in CC No. 12/2022 on the
file of the learned II Additional Civil Judge and JMFC at
Bhadravathi, acquitting the accused for the offence punishable
under Section 138 of Negotiable Instruments Act, 1881 (for
short 'the 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. Brief facts of the case are that, the complainant has
filed the private complaint in PCR No.482/2021 against the
accused alleging commission of the offence punishable under
Section 138 of the NI Act. It is the contention of the
complainant that he was knowing the accused since several
years and lent an amount of Rs.14,63,070/- on 04.01.2021 to
meet his domestic and business requirements. The accused had
issued post dated cheque bearing No.163714 drawn on Canara
Bank for the said amount which is dated 07.11.2021. When the
cheque was presented for encashment, the same was
dishonored as there was insufficient funds. Even though, legal
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notice was issued and served on the accused, he has not repaid
the cheque amount nor issued any reply notice. Thereby the
accused has committed the offence punishable under Section
138 of the NI Act. Accordingly, he requested the Trial Court to
take cognizance of the offence and to initiate legal action.
4. The Trial Court took cognizance of the offence and
registered CC No.12/2019. The accused has appeared before
the Trial Court and pleaded not guilty. The complainant
examined himself as PW1 got marked Exs.P1 to 11 in support
of his contention. The accused has denied all the incriminating
materials available on record but has not led any evidence in
support of his defence. The Trial Court after taking into
consideration all these materials on record, passed the
impugned judgment acquitting the accused holding that the
complainant is not successful in proving the guilt of the accused
beyond reasonable doubt. Impugning the said judgment, the
complainant is before this Court.
5. Heard Sri. Ravindranatha K., learned counsel for
the appellant on admission. Perused the materials including the
Trial Court records.
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6. Learned counsel for the appellant submits that since
the accused was very well known to the complainant, he had
lent Rs.14,63,070/- on 04.01.2021, a post dated cheque as per
Ex.P1 was issued by the accused towards discharge of debt.
The same was dishonored as there was insufficient fund. The
accused has not issued any reply notice even after service of
notice. The accused has not stepped into the witness box to
depose about his defence. Under such circumstances, the
contention taken by the complainant which is spoken to by
examining himself as PW1 is to be believed. The Trial Court
committed an error in acquitting the accused. Hence, he prays
for allowing the appeal.
7. In view of the contentions urged by learned counsel
for the appellant and on going through the materials on record,
the point that would arise for my consideration is:
"Whether the impugned judgment of acquittal
passed by the Trial Court suffers from perversity or
illegality and calls for interference by this Court?"
My answer to the above point is in the 'negative' for the
following:
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REASONS
8. It is the contention of the complainant that he had
lent an amount of Rs.14,63,070/- on 04.01.2021 and the
accused had issued the post dated cheque on the very same
day, which was dated 07.11.2021. When the cheque was
presented for encashment, it was dishonoured as there was
insufficient fund. Inspite of issuance of legal notice, the accused
had neither repaid the cheque amount nor replied to the notice
and thereby he has committed the offence under Section 138 of
NI Act.
9. To prove his contention the complainant examined
himself as PW1. The tenor of cross examination of PW1
discloses that the accused has taken a defence that he had
borrowed an amount of only Rs.5,000/- from the complainant
and had issued the blank cheque with his signature as security.
The complainant has misused the same and presented for
Rs.14,63,070/- which is an imaginary figure. Thus it is clear
that the accused has admitted issuance of cheque with his
signature. But has taken a defence that he had availed loan of
Rs.5,000/- and had issued the blank cheque. Once the accused
admits issuance of cheque with his signature, the presumption
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under Section 139 of NI Act would arise and the burden shifts
on the accused. It is settled preposition of law that the accused
in order to probabalise his defence and to rebut the
presumption, need not have to produce any material nor it is
required for the accused to into the witness box to depose
about the defence. If during cross examination of PW1, the
accused elicits the answers which could make the Court to
disbelieve the version of the complaint, then it could be said
that the accused is successful in rebutting the presumption by
probabalising his defence. In the present case the accused has
taken a possible defence and thus rebutted the legal
presumption. Once the accused rebutting the presumption
under section 139 NI Act, the burden again shift on the
complaint to prove his contention regarding lending and
existence of legally recoverable debt.
10. PW1 is cross examined by the accused at length.
During cross examination, witness states that he had not
obtained any document for lending the amount. On the other
hand, he lent the loan in cash. Strangely, even though the
complainant is a income tax assesse, he has not declared this
loan of Rs.14,63,070/-. Moreover, there is no explanation as to
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why he had lent the odd figure Rs.14,63,070/- to the accused.
Even though the complainant has produced the income tax
return as per Exs.P6 and 7, admittedly, he has not declared
lending of amount in favour of the accused. The complainant
has produced Ex.P.8 the statement of account issued by Canara
Bank pertaining to M/s R and V Associates Joint holder Ramesh
T i.e., the complainant. As per this statement, on 04.01.2021
i.e., on the date of loan according to the complainant the
amount that was available in the account was only negative
balance in the account and there was withdrawal of
Rs.3,86,906/-. It is stated that the complainant is having over
draft facility in the Bank. Ex.P9 is a similar statement of
account issued by Canara Bank. According to which, on
04.01.2021, the balance available in the account was
Rs.16,505/-, as Rs.15,000/- was deposited on the same day.
Therefore, neither Ex.P.8 or 9 would substantiate the
contention of the complainant that he had sufficient account at
his disposal.
11. Moreover, when the accused specifically denied
availing of such huge amount of Rs.14,63,070/-, the
complainant has not explained as to why he has lent such odd
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amount to the accused and why there was no document
evidencing lending and why he being businessman lent the
amount in cash which was never disclosed in the income tax
returns. From all these materials, it could be safely concluded
that even though the accused is successful in rebutting the
legal presumption by raising a probable defence, the
complainant has failed to prove lending of amount and
therefore, he failed to prove the guilt of the accused beyond
reasonable doubt and therefore, the accused is entitled for
acquittal.
12. I have gone through the impugned judgment of the
acquittal passed by the Trial Court. The Trial Court has taken
into consideration all these facts and circumstances and also
the position of law and has rightly acquitted the accused. I do
not find any illegality or perversity in the impugned judgment
of acquittal.
11. Accordingly, I answer the above point in the
negative and proceed to pass the following:
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ORDER
The appeal is dismissed.
Sd/-
(M G UMA)
JUDGE
BH
