Karnataka High Court
Sri Adinarayanaswamy J vs Smt Dhanalakshmi M on 24 October, 2024
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CRL.A No. 1831 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL APPEAL NO. 1831 OF 2019
BETWEEN:
SRI ADINARAYANASWAMY J
S/O RAJENDRAIAH
AGED ABOUT 38 YEARS
NO 2/3 GROUND FLOOR
1ST D MAIN ROAD, 5TH BLOCK
7TH CROSS, 3RD PHASE
BSK 3RD STAGE, KAMAKYA LAYOUT
BANGALORE - 560 085 ...APPELLANT
(BY SRI. VENKATESHA T S., ADV.)
AND:
SMT DHANALAKSHMI M
W/O SHIVANNA @ SHIVAIAH
AGED ABOUT 38 YEARS
NO 1/20 6TH CROSS
RANGAPPA ROAD
KAMAKYA LAYOUT
BANASHANKARI 3RD STAGE
BANGALORE - 560 085 ...RESPONDENT
Digitally signed by
PRAJWAL A
(BY SRI.V.B.SHIVAKUMAR, ADV.)
Location: HIGH
COURT OF
KARNATAKA THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF
CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT OF ACQUITTAL
DATED 16.08.2019 PASSED BY THE XVI ADDL.C.M.M., BENGALURU
IN C.C.NO.14829/2017 AND ORDER AN ACTION UNDER SECTION
390 OF CR.P.C. AGAINST THE RESPONDENT - ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 138 OF N.I. ACT.
THIS 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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CRL.A No. 1831 of 2019
ORAL JUDGMENT
The appellant being the complainant is impugning the
judgment dated 16th August 2019 passed in
C.C.No.14829/2017 on the file of XVI Additional C.M.M.,
Bengaluru City, acquitting the respondent/accused for the
offence punishable under Section 138 of the Negotiable
Instruments Act, 1881 ('the Act' for short).
2. For the sake of convenience, the parties shall
be referred to as per their status before the Tribunal.
3. Brief facts of the case are that, the complainant
has filed the private complaint in P.C.R.No.5316/2017
against the accused alleging commission of offence
punishable under Section 138 of the Act. It is the
contention of the complainant that accused was known to
him through her husband Shivanna @ Shivaiah and the
accused approached the complainant requesting for hand-
loan of Rs.3,50,000/-. Accordingly, complainant lent an
amount of Rs.3,50,000/-. Towards discharge of said loan
amount, the accused issued a cheque bearing No.465059
dated 17.02.2017. When the cheque was presented for
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encashment, same was dishonoured as payment was
stopped by drawer. Legal notice was issued to the
accused notifying dishonour of the cheque and calling
upon her to pay the cheque amount. After receipt of the
notice, accused had given a reply, but not paid the cheque
amount. Thereby the accused has committed an offence
punishable under Section 138 of the Act. Hence,
complainant requested the Trial Court to take action
against the accused and to direct the accused to pay
compensation to the complainant.
4. The Trial Court took cognizance of the offence
and registered the case in C.C.No.14829/2017. The
accused had appeared before the Trial Court and pleaded
not guilty for the offence under Section 138 of the Act.
He claimed to be tried. The complainant examined himself
as PW-1 and got marked Exs.C1 to C13 in support of his
contentions. The accused had denied all the incriminating
material available on record in his statement recorded
under Section 313 of Cr.P.C. She examined herself as
DW-1 and got marked Exs.D1 to D12 in support of her
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contentions. The Trial Court after taking into
consideration all these materials came to the conclusion
that the accused is successful in rebutting the presumption
under Section 139 of the Act, but the complainant has
failed to discharge his burden regarding lending of the
amount and therefore, passed the impugned judgment
acquitting the accused. Being aggrieved by the same,
complainant is before this Court.
5. Heard Sri.T.S.Venkatesha, learned counsel for
the complainant and Sri.V.B.Shivakumar, learned counsel
for the accused.
6. Learned counsel for the complainant submitted
that the accused was working as a nurse in a Government
Hospital and she was doing other business as well.
Initially, when reply notice as per Exhibit-P6 was issued,
she categorically denied issuance of the cheque and also
contended that the signature found on Exhibit-P1 is forged
by the complainant. But when she was cross-examined
before the Trial Court, she categorically admitted her
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signature found on Exhibit-P1. When issuance of the
cheque and her signature is admitted, the presumption
under Sections 118 and 139 of the Act would arise. The
accused even though set a defence, has not probabilised
the same. Under such circumstances, the accused is liable
for conviction.
7. Learned counsel contended that Exhibits-C7 to
C10 are the income tax returns pertaining to the
complainant. These documents disclose that the
complainant was having sufficient income and he had
advanced loans. Exhibit-C10 is the Income tax returns for
the assessment year 2018-19. In the balance sheet the
complainant has specifically shown, the loan advanced to
Smt.Dhanalakshmi.M., i.e., the accused and the amount of
Rs.3,50,000/- is also shown. When such clinching
documents are placed before the Court, the trial court
committed an error in forming an opinion that the
complainant has not proved his capacity to lend the money
and that he has not proved the actual lending of the
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amount. The trial court has ignored all these clinching
documents.
8. Learned counsel further submitted that Exhibit-
C11 is the passbook pertaining to the complainant. This
document discloses that a sum of Rs.1 lakh was withdrawn
by the complainant on 04.02.2014. He has withdrawn a
sum of Rs.2.5 lakhs on 08.07.2014 and again a sum of
Rs.1 lakh on 25.02.2016. It was during this period of time,
the amount was lent to the accused. This clinching
document was also ignored by the trial court, to acquit the
accused.
9. Learned counsel placed reliance on the
decisions of the Hon'ble Apex Court in ROHITBHAI
JIVANLAL PATEL vs STATE OF GUJARTH & ANOTHER -
2019 ACD 540 (SC); MMTC LTD & ANOTHER vs.
M/S.MEDCHL CHEMICALS & PHARMA (P) LTD. &
ANOTHERS - AIR 2002 SC 182; GOA PLAST PVT. LTD. vs.
CHICO URSULA D'SOUZA - 2004 Crl.L.J. 664; SYED
WAZEER PASHA vs. ARIFULLA KHAN - AIRONLINE 2022
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KAR 41. D.N.DEVARAJU vs. E. NARAYANAGOWDA -
LAWS(KAR) - 2016 - 3 - 215, in support of his contention
that when the accused categorically admitted the issuance
of the cheque as per Exhibit-P1, with her signature the
presumption under Section-139 of the Act would arise and
under such circumstances, she is liable for conviction. The
trial court ignored the settled position of law and
proceeded to acquit the accused without any basis. Hence,
he prays for allowing the appeal.
10. Per contra, the learned counsel for the
respondent / accused contended that the complainant has
made bald allegations in the complaint regarding lending
of amount of Rs.3,50,000/- to the accused. There was no
necessity for her to borrow the amount. The accused had
registered an FIR against the complainant on 11.01.2017
alleging that she had borrowed loan of only Rs.1 lakh and
the complainant is charging exorbitant interest and got
signatures on blank cheque and bond papers. The said
complaint was registered in Crime No.14/2017. It is only
thereafter the complainant presented the cheque for
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encashment. By that time, 'stop payment' instructions
was already given to the Bank and accordingly the cheque
was dishonoured. After receipt of the legal notice, a reply
as per Ex.C6 was issued by the accused taking specific
defence in that regard. The accused had also contended
that Ex.C1(a) is the forged signature of the accused and
she has not issued the same, as she never borrowed any
amount from the complainant. By taking such a defence
and producing relevant documents, the accused
probablised the defence. Inspite of that, the complainant
has not proved lending, manner of payment or existence
of legally enforceable debt. Therefore, the Trial Court was
right in acquitting the accused. It has passed a well-
reasoned order and it does not call for interference.
Accordingly, he seeks for dismissal of the appeal.
11. In view of the rival contentions urged by
learned counsel for both the parties, and on perusal of the
material including the trial court records, the point that
would arise for my consideration is:
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"Whether the impugned judgment of acquittal
passed by the Trial Court suffers from perversity or
illegality and calls for interference by this Court?"
12. My answer to the above point is in the
'Negative' for the following reasons:
It is the specific contention of the complainant in the
complaint that a sum of Rs.3,50,000/- was lent to the
accused. But when the amount of Rs.3,50,000/ was lent
by the complainant to the accused is not stated in the
complaint. The complainant only states that towards
discharge of the said loan of Rs.3,50,000/- the accused
had issued a cheque dated 17.02.2017, which is marked
as Exhibit-C1. On presentation of the cheque, the same
was dishonored with an endorsement that 'payment
stopped by drawer'.
13. A legal notice was admittedly was served on the
accused and the accused has issued his reply as per
Exhibit-C6 taking specific defence that the said cheque
belongs to her bank account, but denied to have signed
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the same. She contended that her signature on Exhibit-C1
is forged. She also contended that her husband had filed a
complaint against the complainant alleging charging of
exorbitant interest on the loan of Rs.1 lakh borrowed by
him and also her husband contended that blank cheques
were obtained by the complainant and there is possibility
of misusing the same. Therefore, it is the contention of the
accused that the cheque - Exhibit-C1 was also forcibly
taken by the complainant and presented for encashment,
even though there is no existences of legally enforceable
debt.
14. The accused even though denied issuance of
the cheque with her signature in the reply, during her
cross-examination she categorically admitted that the
cheque belonged to her bank account and it bears her
signature. Once the accused admits that the cheque
belongs to her bank account and it bears her signature,
the presumption under Sections-118 and 139 of the Act
would arise. The initial burden on the complainant gets
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discharged and it is for the accused to rebut the
presumption.
15. To discharge the burden, the accused has cross -
examined the complainant, produced several documents,
also stepped into the witness box and examined herself as
DW-1. The accused has deposed about her defence and
also produced Exhibit-D9 and D10, the copy of the
complaint lodged by her husband and the FIR that was
registered on the basis of the complaint. In the FIR the
husband of the accused has stated that the complainant is
in the habit of lending amount and charging exorbitant
interest of 8 to 13% per month. He refers to issuance of
various blank cheques in favour of the complainant, in
respect of the loans that were availed by some other
persons. He also contends that during October 2016, since
he could not pay the exorbitant interest charged by the
complainant, she was forced to leave the house. In that
regard, the accused had filed a missing complaint to the
Police on 05.01.2017 which was registered in FIR
No.4/2017. Subsequently, he returned to the house on
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08.01.2017. Therefore, he requested the Police to take
action against the complainant for charging exorbitant
interest and also harassing the accused. This complaint
was filed on 13.01.2017 and on the same day the FIR in
Crime No.14/2017 was registered by Channammanakere
Police Station.
16. It is stated that a B-report is filed on the said
FIR subsequently. But the fact remains that subsequent to
filing of this complaint and registration of the FIR, the
cheque Exhibit-C1, dated 17.02.2017 was came to be
presented for encashment and it was dishonored as
'payment stopped by the drawer', as per endorsement at
Exhibit-C2, dated 21.02.2017.
17. Exhibits-D9 and 10 were produced by the
accused and contended that under these circumstances,
the blank cheques with signature were obtained by the
complainant, even though there was no legally enforceable
debt. But strangely there is absolutely no cross-
examination to DW-1 by the learned counsel for the
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accused. Non-cross-examination of DW-1 on Exhibit-D9
and D10 is fatal to the case of the complainant. When the
complainant does not dispute Exhibits-D9 and D10, even
though the case is closed by filing a B-report, the
complainant cannot contend that he is entitled to ignore
these documents, which were referred while taking the
defence by issuing the reply at the initial stage, cross-
examined the complainant who is examined as PW-1 and
also examining herself as DW-1 by producing several
documents, including Exhibits-D9 and D10. Thus the
accused is successful in probabalising her defence.
18. Even after admitting issuance of the cheque with
her signature, when the accused is successful in rebutting
the legal presumption under Section-118 and 139 of the
Act, the burden again shifts on the complainant to prove
actual lending and existence of legally enforceable debt,
without the assistance of the legal presumption.
19. The complainant has not stated the date on
which the amount that was lent. In the complaint he only
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states that a sum of Rs.3,50,000/- was lent in favour of
the accused. But later he produced the bank pass-book,
Exhibit-C11 to contend that on various dates he has
withdrawn cash from his bank account and on such dates
he had lent the amount in installment to the accused.
There is absolutely no explanation for not raising such
contention in the complaint. There are no documents to
support the lending of the amount. Moreover, when
specific allegations are made against the complainant by
filing Exhibit-D9 by the husband of the accused and when
there is no cross-examination to DW-1 by the learned
counsel representing the complainant, it cannot be held
that the complainant has proved the lending of the money.
It is pertinent to note that Exhibits-D9 and D10 were much
prior to the presentation of the Cheque Exhibit-C1 by the
complainant.
20. In view of all these facts and circumstances, I
am of the opinion that the accused is successful in
rebutting the legal presumption by raising a probable
defence, but the complainant is not successful in proving
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actual lending of the amount and existence of the legally
enforceable debt.
21. Learned counsel for the appellant has placed
reliance on various rulings of the Hon'ble Apex Court
referred to above. In all these decisions, the Hon'ble Apex
court has reiterated the position of law, as to when the
initial burden on the complainant gets discharged which
give raise to the legal presumption under Section-118 and
139 of the Act, what is the degree of burden on the
accused to rebut the presumption and what will be the
effect of rebutting the presumption. The position of law
highlighted in these decisions cannot be disputed. When
once the accused has taken the defence and probablised
the same, the presumption gets rebutted and burden
shifts on the complainant. Thereafter, he has to prove the
lending of the amount and existence of legally enforceable
debt, without the help of the presumption of law. But the
complainant has failed to discharge his burden to prove
the guilt of the accused.
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22. In view of the discussions held above, I am of
the opinion that the appeal is liable to be dismissed. I
have gone through the impugned judgment of acquittal
passed by the trial court. It has taken into consideration
the oral and documentary evidence in the light of the
averments made in the complaint and arrived at the right
conclusion. I do not find any reason to interfere with the
same. Accordingly, I answer the above point in the
negative and proceed to pass the following:
ORDER
The appeal is dismissed.
SD/-
(M G UMA)
JUDGE
KNM para-1 to 5 & 10/ JJ para-6 to 20
