Karnataka High Court
Sri Siddaiah Gowda vs Smt Ravi Kumari on 4 February, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.A No. 183 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 183 OF 2013
BETWEEN:
SRI SIDDAIAH GOWDA
S/O SRI BORE GOWDA
AGED ABOUT 48 YEARS
R/A No.46/1, 7TH CROSS
AZADNAGAR, CHAMARAJPET
BANGALORE -560 018.
...APPELLANT
(BY SRI. DHARMAPAL, ADVOCATE)
Digitally signed by
LAKSHMINARAYANA AND:
MURTHY RAJASHRI
Location: HIGH
COURT OF SMT. RAVI KUMARI
KARNATAKA S/O SRI ANANDA
AGED ABOUT 40 YEARS
R/A No.19, 5TH CROSS
2ND MAIN, AZADNAGAR
CHAMARAJPET
NEAR CAMBRIDGE SCHOOL
BANGALORE - 560 018.
...RESPONDENT
(BY SRI V NAGAREDDY, ADVOCATE)
THIS CRL.A IS FILED UNDER SECTION 378(4) Cr.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED
05.02.2013 PASSED BY THE XIII A.C.M.M., BANGALORE IN
C.C.No.23670/2008-ACQUITTING THE RESPONDENT/ACCUSED
FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF
N.I.ACT AND ETC.,
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CRL.A No. 183 of 2013
THIS APPEAL COMING ON FOR FURTHER HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL JUDGMENT
This appeal is filed by the complainant challenging the
judgment of acquittal dated 05.02.2013 passed in
C.C.No.23670/2008 by the XIII A.C.M.M., Bengaluru,
whereunder the respondent -accused has been acquitted
for the offence punishable under Section 138 of Negotiable
Instruments Act, 1881 (hereinafter referred to as "N.I.
Act" for brevity).
2. The brief facts of the appellant -complainant's
case is that
The complainant and accused are residing in the same
locality and they are family friends. Both used to help each
other in the family affairs. During the month of December
-2007, the accused along with her sister Pushpa had came
to the house of the complainant to arrange loan of
Rs.4,00,000/- to repair their lorries and to repair her
house. The complainant lent a sum of Rs.1,00,000/- each
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vide four cheques dated 31.12.2007, 07.01.2008,
14.01.2008 and 21.01.2008. The respondent -accused
promised to repay the said amount within 06 months.
Towards the repayment of the said amount, the
respondent -accused has issued cheque bearing
No.871587 dated 10.07.2008 for Rs.4,00,000/- drawn in
Syndicate Bank, Puttanachetty Road Brnach, Bengaluru.
The appellant -complainant presented the said cheque for
encashment and it came to be dishonoured with
endorsement as want of sufficient fund in the account of
the respondent -accused. The complainant got issued
legal notice to the respondent -accused. Inspite of service
of legal notice the respondent -accused neither replied to
the legal notice nor paid the cheque amount. Therefore,
the appellant -complainant has filed private complaint
against the respondent -accused for offence punishable
under Section 138 of Negotiable Instruments Act, 1881.
3. Learned Magistrate took cognizance and
registered case against the respondent -accused for
offence punishable under Section 138 of N.I. Act in
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C.C.No.23670/2008. The plea of the respondent -accused
has been recorded. The complainant in order to prove his
case has examined himself as P.W.1, got examined one
witness as P.W.2 and got marked documents as Ex.P1 to
P11. The statement of respondent -accused came to be
recorded under Section 313 of Cr.P.C. The respondent -
accused has been examined himself as D.W.1 and no
documents are produced on behalf of the respondent -
accused. Learned Magistrate after hearing arguments on
both sides has formulated points for consideration and
passed impugned judgment of acquittal. The said
judgment of acquittal has been challenged by the
complainant in this appeal.
4. Heard learned counsel for the appellant and
learned counsel for the respondent.
5. Learned counsel for the appellant would
contend that the respondent -accused has not disputed
her signature on cheque -Ex.P1. As the respondent -
accused has not been disputed signature on Ex.P1 -
cheque, the presumption has to be drawn under Section
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139 of N.I Act that cheque has been issued for making
payment of legally enforceable debt. The said presumption
has not been rebutted by the respondent -accused. He
further submits that amount has been lent through four
cheques on different dates and they have been en-cashed
and there are entries in that regard in the passbook of the
bank account of the complaint which is at EX.P6. The
respondent -accused has not put forth his defence at
initial stage by sending reply to the legal notice. The
complainant has credited sufficient balance in order see
that cheques issued to respondent -accused are honoured
prior to their dates. The said aspect has been
misunderstood by the learned Magistrate by starting that
cheques have been en-cashed by the complainant and
amount is re-deposited to the bank account of the
complainant. The appellant has examined his wife -
Sumitra who is signatory to Ex.P4 and P5. The contention
of the respondent -accused is that P.W.2 -wife of the
complainant was running chit transaction has been denied
by P.W.2. The respondent -accused in order to establish
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that P.W.2 -Sumitra was running chit transaction has not
placed any materials on record. The respondent -accused
has not established that Ex.P1 -Cheque has been issued to
P.W.2 as security to chit transaction. Without considering
all these aspects, learned Magistrate has erred in passing
judgment of acquittal. With these, he prays to allow the
appeal and convict the respondent - accused for offence
punishable under Section 138 of the N.I Act.
6. Learned counsel for the respondent -accused
would contend that the respondent -accused has taken up
the defence that the Ex.P1 -cheque has been issued as
security to the chit transaction run by wife of the
complainant -P.W.2 -Sumitra. The respondent -accused
has also denied the capacity of the complainant to lend
huge amount of Rs.4,00,000/-. The respondent -accused
has denied execution of Ex.P4 -on demand promissory
note and Ex.P5 -consideration receipt. He submits that
Ex.P6 -Bank pass book itself indicate that on the same
day the amount of the three cheques have been re-
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credited to the account of the complainant that itself
indicate that cheques have not been en-cashed by the
accused. P.W.1 has stated that he has availed loan and
gave to the accused and no materials have placed in that
regard. D.W.1 -accused has stated his defence in his
evidence. Considering all these aspects, learned
Magistrate has rightly passed judgment of acquittal of the
respondent -accused for offence punishable under Section
138 of the N.I Act. With these, he prays for dismissal of
the appeal.
7. Having heard learned counsels, the Court has
perused the impugned judgment and trial Court records.
Considering the grounds urged, the point arises for my
consideration is
"Whether learned Magistrate has erred in
passing the judgment of acquittal of
respondent -accused for offence punishable
under Section 138 of N.I. Act."?
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My answer to the above point is in the affirmative
for the following reasons.
It is specific case of the appellant -complainant that
the respondent -accused borrowed Rs.4,00,000/- and in
order to repay the amount borrowed has issued Ex.P1 -
cheque for Rs.4,00,000/-. The respondent -accused has
admitted her signature on Ex.P1 -cheque. As respondent
-accused has admitted her signature on Ex.P1 -cheque,
the presumption has to be drawn under Section 139 of the
N.I Act that cheque has been issued for making payment
of debt. The said presumption is rebuttable presumption.
The standard of proof for rebutting the said presumption is
preponderance of probability.
8. It is defence of the respondent -accused that
Sumitra -P.W.2 -wife of the appellant -complainant was
running chit transaction and Ex.P1 cheque has been issued
as security to the said chit transaction. P.W.2 -Sumitra,
the wife of the appellant -complainant has denied the
suggestion that she was running chit transaction and
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Ex.P1 -cheque has been issued as security for the said
chit transaction. D.W.1 in his cross examination has
admitted that there are other members of the said chit
transaction. The respondent -accused has not choosen to
examine any of the members of the chit transaction to
establish his defence that Ex.P1 -cheque has been given
as security to the chit transaction run by P.W.2 -Sumitra.
In the cross examination of P.W.1 it is suggested by
showing four pocket note books stating that contents are
in hand writing of his wife. The said suggestion itself
indicates that the respondent -accused is possessing those
04 pocket note books and they are not produced. Even,
P.W.2 has denied the suggestion that three books shown
to her contained her hand writing. The said books are not
produced even though accused has been examined as
D.W.1.
9. Ex.P6 is bank pass book of the complainant of
Syndicate Bank. Entries dated 31.12.2007, 07.01.2008,
14.01.2008 and 21.01.2005 indicate that cheques issued
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in the name of Ravi Kumari for Rs.1,00,000/- each have
been en-cashed. The said entries indicate that Ravi
Kumari who is accused herein has en-cashed those
cheques drawn for Rs.1,00,000/- each. It is contention of
the respondent -accused that on the dates of en-cashing
the said cheques, same amount of Rs.1,00,000/- has been
deposited in the account of the complainant. On perusal
of the said pass book even though there is deposit of
Rs.1,00,000/- it is not by cash it is by clearing SBM
cheque. Therefore, the said contention is that the amount
has been withdrawn by the complainant in the name of the
respondent -accused and same is deposited in his
account. The very said availability of the balance in the
bank account of the complainant indicate that he had
capacity to lend the amount. More so the complainant has
stated that he borrowed amount from different persons
and made arrangements for payment to the respondent -
accused. Considering all these aspects, the respondent -
accused has failed to rebut the presumption drawn under
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Section 139 of the N.I Act that cheque has been issued for
making payment of debt.
10. Ex.P1 -cheque has been dishounoured for want
of funds in the account of the respondent -accused. Within
statutory period the notice -Ex.P7 dated 31.07.2008 has
been issued to the respondent -accused by RPAD and
under certificate of posting. The notice sent to the
respondent -accused by RPAD has been served on her and
postal acknowledgment is at Ex.P10. The respondent -
accused has not sent any reply to the legal notice nor paid
the cheque amount. The respondent -accused has denied
service of said legal notice. Considering the postal
acknowledgement and certificate of posting it is clear that
the notice has been served on the respondent -accused.
The respondent -accused has not paid the cheque amount
within statutory period and therefore, the complaint has
been filed within statutory period from the date of cause of
action. Considering all these aspects, the appellant -
complainant has established that the respondent -accused
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has committed offence punishable under Section 138 of
N.I Act.
11. Without considering all these aspects, learned
Magistrate has erred in passing the impugned judgment of
acquittal and therefore, impugned judgment of acquittal
requires to be set aside. The respondent -accused requires
to be convicted for offence punishable under Section 138
of the N.I Act.
12. In the result, the following
ORDER
i) The appeal is allowed.
ii) The impugned judgment of acquittal dated
05.02.2013 passed in C.C.No.23670/2008 by
XIII A.C.M.M., Bengaluru acquitting the
respondent -accused for offence punishable
under Section 138 of the N.I Act is set aside.
iii) The respondent -accused is convicted for
offence punishable under Section 138 of the N.I
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Act and he has been sentenced to pay fine of
Rs.4,10,000/- and in default of payment of said
fine amount he shall undergo simple
imprisonment for a period of 06 months.
iv) Out of the fine amount Rs.4,00,000/- is
ordered to be paid as compensation to the
appellant -complainant.
v) The respondent -accused shall deposit the said
fine amount within 02 months from this day.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
DSP
