Karnataka High Court
A C Sreeram vs Sumija J on 5 February, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.A No. 194 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 194 OF 2015
BETWEEN:
A C SREERAM
S/O AGRAHAR CHOWDAPA
AGED ABOUT 75 YEARS
RESIDING AT No.D5
10TH CROSS, R.M.V. EXTENSION
BANGALORE - 560 080.
Digitally signed ...APPELLANT
by HEMAVATHY
GANGABYRAPPA
(BY SRI NAGARAJ G H, ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA AND:
SUMIJA J
W/O MURALI KRISHNA
NO.57, MCMS LAYOUT
BTM 2ND STAGE,
BEHIND METROPOLITAN CLUB
BANGALORE- 560 076.
...RESPONDENT
(BY SRI U J HARIPRASAD, ADVOCATE)
THIS CRL.A. IS FILED UNDER SECTION 378(4) Cr.P.C
PRAYING TO SET ASIDE THE ORDER DATED 11.11.14 PASSED
BY XXIII ADDL. CMM, BANGALORE CITY, IN
C.C.No.50953/2010-ACQUITTING THE RESPONDENT/ACCUSED
FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I.
ACT AND ETC.,
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CRL.A No. 194 of 2015
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 11.11.2014 passed in
C.C.No.50953/2010 by the XXIII Additional Chief
Metropolitan Magistrate, Bangalore, where the respondent
- accused has been acquitted for offence punishable under
Section 138 of the Negotiable Instruments Act, 1881
(hereinafter referred to as 'NI Act' for short).
2. The case of the appellant - complainant in brief,
is as under:
The respondent - accused is known to the
complainant and during the month of September, 2008,
the respondent - accused requested the complainant to
lend hand loan of Rs.5,00,000/- and agreed to repay the
same within six months. On the assurance of the accused,
the complainant had paid the hand loan of Rs.5,00,000/-
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(Rupees Five lakhs only) to the accused through cheque
bearing No.151089 dated 01.09.2008 drawn on State
Bank of Mysore, Madavanagar Branch, Bengaluru. The
complainant after lapse of six months, requested the
accused to repay the amount borrowed. The respondent -
accused has issued a cheque bearing No.570291/1 dated
21.10.2009 for a sum of Rs.5,00,000/- drawn on HDFC
Bank Ltd., J.P. Nagar II Phase, Bengaluru in favour of the
complainant. The complainant presented the said cheque
for encashment and it returned with an endorsement
"funds insufficient". The complainant got issued legal
notice on 09.11.2009 by RPAD and UCP. The said notice
has been served on the respondent - accused on
10.11.2009. As the respondent - accused did not pay the
cheque amount the complainant has filed a private
complaint against the respondent - accused for offence
punishable under Section 138 of the NI Act.
3. Learned Magistrate has taken cognizance and
registered case in C.C.No.50953/2010 for offence
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punishable under Section 138 of the NI Act against the
respondent - accused. The plea of respondent - accused
has been recorded. The complainant in order to prove his
case has examined his General Power of Attorney Holder
(hereinafter referred to as "GPA holder" for brevity) as
P.W.1 and got marked documents as Ex.P1 to P12. 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, got examined her
husband as D.W.2 and got marked documents as Ex.D1 to
D4. 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 hand loan of Rs.5,00,000/- has been paid
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by the appellant -complainant to the respondent -accused
by cheque No.151089 dated 01.09.2008 and it has been
en-cashed by the respondent -accused. The respondent -
accused who has been examined as D.W.1 has admitted
en-cashment of the said cheque for Rs.5,00,000/-. The
respondent -accused has admitted her signature on
cheque -Ex.P1. As respondent -accused has admitted her
signature on the cheque -Ex.P1, the presumption has to
be drawn under Section 139 of N.I Act that the cheque has
been issued for discharge of debt. The said presumption
has not been rebutted by the respondent -accused. The
contra stands have been taken up by D.W.1 and D.W.2
with regard to issuance of cheque -Ex.P1. As the said
presumption has not been rebutted, the learned
Magistrate ought to have convicted the respondent -
accused for offence punishable under Section 138 of the
N.I Act. With this, he prays to allow the appeal and
convict the respondent -accused for offence punishable
under Section 138 of the N.I Act.
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6. Learned counsel for the respondent -accused
would contend that there was sale transaction between the
appellant -complainant and respondent -accused. The
accused has executed sale deed dated 26.08.2008
infavour of the appellant -complainant. The said sale deed
is at Ex.D1. The cheque dated 01.09.2008 issued by the
appellant -complainant infavour of the respondent -
accused for Rs.5,00,000/- is towards part of the said sale
consideration. The husband of the respondent -accused
has undertaken to get the said property sold for higher
value and as security for the said undertaking the accused
has issued blank signed cheque infavour of the appellant -
complainant. The said blank signed cheque has been
misused by the appellant -complainant. The appellant -
complainant and husband of respondent -accused who has
been examined as D.W.2 have traveled together from
Bengaluru to Trivandram on 30.11.2010 whereunder sale
deed has been executed infavour of one M.K Salim. There
was no necessity for the respondent -accused to borrow
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Rs.5,00,000/- as she had sold property and got huge
money under the sale deed -Ex.D1. P.W.1 who is GPA
holder of the complainant has stated in his cross
examination that he has no personal knowledge regarding
the transaction between the appellant -complainant and
respondent -accused except issuance of cheque -Ex.P1.
Therefore, his evidence cannot be relied upon to prove the
case of the appellant -complainant. On that point he
placed reliance on the decision of the Hon'ble Apex Court
in the case of A.C. Narayanan & Another Vs State of
Maharastra & Others1. If the complainant ought to have
been examined the respondent -accused had chance of
extracting the real transaction between parties and to
avoid that the complainant has set up his GPA holder to
give evidence on his behalf. The evidence on record will
not establish the case of the complainant. Considering the
said aspect, learned Magistrate has rightly acquitted the
respondent -accused for offence punishable under Section
Reported in CDJ 2013 SC 805
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138 of the N.I Act. With this 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."?
My answer to the above point is in the negative for
the following reasons.
It is specific case of the appellant -complainant as
averred in the complaint that the respondent -accused has
borrowed Rs.5,00,000/- as hand loan during September -
2008 and the said amount is paid through cheque dated
01.09.2008 and the said cheque has been en-cashed by
the respondent -accused. In order to pay the amount
borrowed, the respondent said to have issued cheque -
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Ex.P1. The respondent -accused has admitted her
signature on Ex.P1 -cheque. Therefore, the presumption
arises 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. P.W.1 -who is GPA holder of the appellant -
complainant has stated in his cross examination that he do
not know the transaction between the appellant -
complainant and respondent -accused and he know only
the accused issuing the cheque to the appellant -
complainant. The said aspect itself indicates that P.W.1
who is GPA holder of the complainant is not aware of the
transaction between the appellant and accused.
9. The Hon'ble Apex Court in the case of A.C.
Narayanan(supra) has held as under
"26.(iii) It is required by the complainant to
make specific assertion as to the knowledge
of the power of attorney holder in the said
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transaction explicitly in the complaint and the
power of attorney holder who has no
knowledge regarding the transactions cannot
be examined as a witness in the case."
10. The complaint has been filed by complainant
and subsequently at the time of leading the complainant's
evidence, the power of attorney has been executed by the
complainant in favour of P.W.1 and it is dated 29.10.2010.
In the said power of attorney there is no mention that the
power of attorney holder is having knowledge of
transaction between the appellant -complainant and
respondent -accused. Even in the averments of the
complaint there is no mention regarding the power of
attorney holder is having knowledge of the transaction
between the appellant -complainant and respondent -
accused. The complainant has to make specific assertion
as to the knowledge of the power of attorney holder in the
said transaction explicitly in the complaint and the power
of attorney holder who has no knowledge regarding the
transaction cannot be examined as a witness in the case
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as held by the Hon'ble Apex Court in the case of A.C
Narayanan(Supra).
11. It is case of the appellant -complainant that the
respondent -accused has borrowed Rs.5,00,000/- as hand
loan. Ex.D1 -sale deed indicate that the respondent -
accused sold her property to the complainant for sale
consideration of Rs.17,00,000/- and it was registered on
26.08.2008. The respondent -accused has received the
sale consideration of Rs.17,00,000/- by way of cheque
dated 25.08.2008 and she has that money as on the date
alleged borrowing i.e. 01.09.2008. For what purpose the
respondent-accused has borrowed the said loan of
Rs.5,00,000/- from the complainant has not been stated
by the complainant either in his complaint or by P.W.1 in
his evidence. What was transaction between the appellant
-complainant and respondent -accused has also not been
stated in the statutory notice which is at Ex.P3 which has
been issued demanding payment of cheque amount. The
said notice has been issued by the appellant -complainant
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to the respondent -accused. It is case of the respondent
-accused that the cheque issued by the complainant for
Rs.5,00,000/- on 01.09.2008 which has been en-cashed
by the accused is towards sale consideration. It is case of
the accused that her property has been sold to the
complainant for Rs.22,00,000/- and sale deed has been
registered for Rs.17,00,000/- and for making payment of
remaining Rs.5,00,000/- the said cheque dated
01.09.2008 has been issued. D.W.2 -husband of the
respondent -accused and D.W.1 have stated that D.W.2
has undertaken to get sale of the said property purchased
by the appellant -complainant from the respondent -
accused for higher price and as security, the respondent -
accused has issued Ex.P1 -cheque. Ex.D3 is air ticket
wherein complainant and D.W.2 -husband of the
respondent -accused have traveled from Bengaluru to
Trivandram on 30.11.2010. Under Ex.D2 the complainant
has sold his property purchased from accused to one M.K
Salim and it has been registered on 31.11.2010 i.e. on the
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next day of complainant and D.W.2 traveled from
Bengaluru to Trivandram. The said aspect probablises the
defence of the respondent -accused. Considering the said
aspect, the respondent -accused has rebutted the
preemption drawn under Section 139 of the N.I Act. The
appellant -complainant has not entered into witness box
to prove the alleged transaction of hand loan and issuance
of cheque -Ex.P1 for making payment of said debt. As
GPA holder of complainant is not having knowledge of the
transaction between the appellant and respondent -
accused is not competent to give evidence. Considering
all these aspects, the appellant -complainant has not
proved that the respondent -accused has committed
offence punishable under Section 138 of N.I Act.
12. In the result, the appeal is dismissed.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
KG,DSP
