Karnataka High Court
C P Prasanna S/O Prabhakaran vs M Rajan S/O Kuttappan on 4 September, 2024
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NC: 2024:KHC:36044
CRL.A No. 248 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL APPEAL NO. 248 OF 2013 (A)
BETWEEN:
C.P. PRASANNA
S/O PRABHAKARAN,
AGE: 43 YEARS
OCC: AGRICULTURIST,
R/O CHULLIKATTU HOUSE,
NEAR YADEHALLI CIRCLE
ANANDAPURAM, SAGAR
TALUK, SHIMOGA DISTRICT
(COMPLAINANT BEFORE TRAIL
COURT AND RESPONDENT BEFORE
Digitally signed
THE SESSIONS COURT)
by NANDINI B ...APPELLANT
G
Location: high
court of (BY SRI. HARISH B.S., FOR SRI. B.S. PRASAD, ADVOCATES)
karnataka
AND:
M. RAJAN,
S/O KUTTAPPAN
AGE: 53 YEARS
R/O HOUSE NO. 38/2255
EDAKKANDY, THAZHAN,
PARAMBA EDAKKAD POST,
CALICUT - 673 005
KERALA STATE. (ACCUSED BEFORE
TRIAL COURT AND APPELLANT BEFORE
SESSIONS COURT)
...RESPONDENT
(BY SRI. K. VISHWANTHA, FOR SRI. V.S. HEGDE, ADVOCATES)
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CRL.A No. 248 of 2013
THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO SET -
ASIDE THE ORDER OF ACQUITTAL DATED 22.11.2008 PASSED BY
THE DIST. JUDGE, F.T.C.-I, SHIMOGA IN CRL.A.NO.98/2005 -
ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S
138 OF N.I.ACT. - RESTORE THE ORDER OF CONVICTION DATED
07.10.2005 PASSED BY THE ADDL. C.J. (JR. DN.) & J.M.F.C., SAGAR
IN C.C.NO.304/2000.
THIS CRL.A., COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE M G UMA
ORAL JUDGMENT
The complainant in CC No.304/2000 on the file of the
learned Additional JMFC, Sagar, is impugning the judgment
dated 22.11.2008, passed in Crl.A.No.98/2005 on the file of the
learned District Judge and I Fast Track Court, Shimoga,
acquitting the accused for the offence punishable under Section
138 of Negotiable Instruments Act (for short 'the NI Act') by
setting aside the judgment of conviction and order of sentence
passed by the Trial court vide judgment dated 07.10.2005.
2. For the sake of convenience, the parties shall be
referred to as per their rank and status before the Trial Court.
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3. Brief facts of the case are that, the complainant
filed the private complaint in PCR No. 299/1999 before the Trial
Court against the accused, alleging commission of the offence
punishable under Section 138 of NI Act. It is the contention of
the complainant in the private complaint that he was knowing
the accused and on 15.02.1998, the accused had approached
him and borrowed loan of Rs.75,000/- to meet his financial
needs. He promised to repay the same within a month. In spite
of repeated demands, the accused had not repaid the same but,
finally issued the cheque bearing No.0117251 dated 16.08.1999
for the said amount, drawn on Vijaya Bank towards repayment
of the loan that was due to the complainant. When the cheque
was presented for encashment, the same was dishonored as
account closed on 20.09.1999. The complainant issued the legal
notice notifying the accused about dishonor of the cheque and
calling upon to repay the cheque amount. The notice was served
on the accused and he has issued an untenable reply instead of
repaying the amount. Thereby, he has committed offence under
Section 138 of NI Act. Accordingly, the complainant requested
the Trial court to take cognizance of the offence and to initiate
legal action.
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4. The Trial Court took cognizance of the offence and
summoned the accused. The accused appeared before the Trial
Court and pleaded not guilty. The complainant examined himself
as PW-1 and got marked Ex.P-1 to P-5 in support of his
contention. The accused has denied all the incriminating
materials available on record in his statement recorded under
Section 313 of Cr.PC, examined himself as DW-1 and got
marked Ex.D-1 to D-6 in support of his defence. The Trial Court
after taking into consideration all these materials on record
came to the conclusion that the complainant is successful in
proving the guilt of the accused beyond reasonable doubt and
hence, convicted and sentenced the accused for the offence
punishable under Section 138 of NI Act.
5. Being aggrieved by the same, the accused has
preferred Crl.A.No.98/2005. The First Appellate Court on
re-appreciation of the materials on record, came to the
conclusion that the accused was successful in rebutting the
presumption under Section 139 of NI Act, but the complainant
has not discharged his burden of proving lending of amount and
existence of legally recoverable debt. Accordingly, impugned
judgment was passed acquitting the accused for the above said
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offence. Being aggrieved by the same, the complainant is before
this Court.
6. Heard Sri Harish B.S, learned counsel for Sri. B.S.
Prasad, learned counsel for the appellant and Sri.
K.Vishwanatha, learned counsel for Sri. V.S.Hegde, learned
counsel for respondent. Perused the materials including the Trial
Court records.
7. 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 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' and
pass the following:
REASONS
8. It is the specific contention of the complainant that
the accused had borrowed a sum of Rs.75,000/- from him on
15.02.1998 and towards repayment of the same, issued cheque
- Ex.P-1 bearing No.0117251 dated 16.08.1999. On
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presentation, the same was dishonored as account closed. When
the legal notice was issued, the accused had issued a reply
notice, but had not repaid the cheque amount. Thereby, he has
committed the offence under Section 138 of NI Act.
9. The complainant examined himself as PW-1 had
produced Exs.P-1 to P-5. Admittedly, Ex.P-5 is the reply notice
issued by the accused. In Ex.P-5, the accused has taken the
defence that he had borrowed an amount from one P.
Ramachandran and had given blank cheques including the
cheque in question i.e., Ex.P-1, as security. Even after
repayment of the loan amount to P.Ramachandran he had not
returned the cheque and therefore, suit O.S.No.33/1997 came
to be filed against said P.Ramachandran, seeking direction to
return the blank cheques. In spite of that, the same were not
retuned. Instead the said P.Ramachandran handed over the
cheques to the complainant, which was misused by the
complainant.
10. The accused has cross examined PW-1 and stepped
into the witness box as DW-1. Ex.D-1 is the certified copy of the
plaint in O.S.No.33/1997 on the file of the learned Munsiff
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Court, Kozhikode. The accused is plaintiff therein and suit was
filed against P.Ramachandran referred to in the reply notice. In
the suit, it is the contention of the accused as plaintiff that he
had borrowed an amount of Rs.15,000/- from P.Ramachandran
and at the time of borrowing, he had issued 3 blank cheque
leaves. Even when he repaid the loan amount with interest, the
said P.Ramachandran had not returned the blank cheque leaves.
Per contra, the said P.Ramachandran had borrowed an amount
of Rs.1,50,000/- from the accused and had issued cheque
bearing No.0909070 dated 06.11.1996. When the said cheque
was presented for encashment, the same was dishonored as
funds insufficient. He had not repaid the cheque amount and
therefore, the accused had filed the complaint under Section
138 of NI Act.
11. It is pertinent to note that in Ex.D-1 i.e., the plaint
in O.S.33/1997, which was filed during Nov-1996, there is
reference to 3 blank cheque issued by the accused in favour of
P. Ramachandran and it is also pertinent to note that the plaint -
A Schedule appended to the plaint refers to the cheque bearing
No. 0117252 and the other blank cheques. It is also relevant to
refer to Ex.P-1 bearing No. 0117251, which is first in the series,
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which is specifically referred to in the plaint A - Schedule. By
producing Ex.D-1 also deposing as DW-1, the accused is
successful in probabalizing his defence that he had issued blank
cheques in favour of one P. Ramachandran and had filed the suit
O.S.No.33/1997 by referring to the cheque bearing No.0117252
and 2 other blank cheques. Since Ex.P-1 is bearing No.
0117251, it could be concluded that the accused was successful
in probabalizing his defence. When the accused probabalizes his
defence, he has successfully rebutted the legal presumption
under Section 139 of NI Act and the reverse burden shifted on
the complainant to prove lending of the amount and existence of
legally recoverable debt.
12. The complainant contended that he had lent an
amount of Rs.75,000/- to the accused on 16.08.1999. According
to the complainant, the said amount was paid in cash. So there
is absolutely no material to substantiate lending of the amount
or to prove existence of legally recoverable debt. Under such
circumstances, the accused is entitled for acquittal.
13. Even though, the Trial Court convicted the accused
by holding that the complainant is successful in proving the guilt
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of the accused beyond reasonable doubt, the First Appellate
Court on re-appreciation of the materials on record formed a
different opinion holding that the accused is successful in
rebutting the presumption by producing Ex.D-1. I do not find
any perversity or illegality in the finding recorded by the First
Appellate Court. It is the settled position of law that even if
another opinion could be formed based on oral and documentary
evidence that are placed before the Court than the one formed
by First Appellate Court, it is not justifiable for this Court to set
aside the judgment of acquittal, by forming the other opinion.
Under such circumstances, I do not find any reason to interfere
with the impugned judgment of acquittal passed by the First
Appellate Court. Accordingly, I answer the above point in the
negative and proceed to pass the following:
ORDER
The Criminal Appeal is dismissed.
Sd/-
(M G UMA)
JUDGE
SPV
