Karnataka High Court
Sri G Gopala Krishna vs Sri S Senthikumar on 6 February, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.A No. 714 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 714 OF 2015
BETWEEN:
SRI G GOPALA KRISHNA
S/O GANGAIAH
AGED ABOUT 36 YEARS
RESIDENT OF No. 541
3RD CROSS, 3RD MAIN
"A" BLOCK, 2ND STAGE
RAJAJINAGAR
BENGALURU - 560 010.
...APPELLANT
Digitally signed by (BY SRI A C BALARAJ, ADVOCATE)
LAKSHMINARAYANA
MURTHY RAJASHRI
Location: HIGH AND:
COURT OF
KARNATAKA
SRI S SENTHIKUMAR
S/O SRINIVASAN
AGED ABOUT 39 YEARS
RESIDENT OF No.5
15TH MAIN, 12TH CROSS
KURUBARAHALLI
BENGALURU - 560 086.
...RESPONDENT
(BY SRI CHANDRAHASA RAI B, AND
SRI N CHANAKRISHNAPPA, ADVOCATES)
THIS CRL.A. IS FILED UNDER SECTION 378(4) Cr.P.C
PRAYING TO SET ASIDE THE ORDER DATED 23.05.2015,
PASSED BY THE XXII A.C.M.M., BANGALORE IN
C.C.No.14279/2014-ACQUITTING THE RESPONDENT/ACCUSED
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CRL.A No. 714 of 2015
FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I.
ACT AND ETC.,
THIS APPEAL COMING ON FOR HEARING THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL JUDGMENT
1. This appeal is filed by the appellant - complainant
challenging the judgment of acquittal dated 23.05.2015
passed in C.C.No.14279/2014 by the XXII Additional Chief
Metropolitan Magistrate, Bengaluru, whereunder the
respondent - accused has been acquitted of the offence
under Section 138 of the N.I.Act.
2. Case of the appellant - complainant in brief is as
under;
The respondent - accused is known to the appellant
- complainant since several years and during April, 2012,
the respondent - accused approached the appellant -
complainant for the financial assistance of Rs.2,50,000/- in
order to clear some urgent debt, legal business and family
necessities. Considering the request of the respondent -
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accused, the appellant - complainant paid a sum of
Rs.2,50,000/- on 15.04.2012 by way of cash and at the
time of receipt of the amount, the respondent - accused
agreed to repay the said loan within ten months or at the
earliest. The appellant - complainant approached the
respondent - accused and demanded for repayment of the
said amount borrowed. The respondent - accused issued
the cheque bearing No.041398 dated 30.03.2013 for a
sum of Rs.2,50,000/- drawn on I.C.I.C.I Bank, Jayanagar
Branch, Benglauru. The appellant - complainant presented
the said cheque for encashment and it came to be
dishonoured with a shara "Account closed". The appellant
- complainant got issued the legal notice on 29.04.2013
calling upon the respondent - accused to pay the cheque
amount. On service of the said notice, the respondent -
accused did not pay the cheque amount, but he had issued
the reply denying the claim of the appellant -
complainant. As the cheque amount is not paid, the
appellant - complainant presented a private complaint
against the respondent - accused for the offence under
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Section 138 of the N.I.Act. Learned Magistrate took
cognizance and registered C.C.No.14279/2014 against the
respondent - accused for the offence under Section 138 of
the N.I.Act. The plea of the respondent - accused had
been recorded. The appellant - complainant in order to
prove his case has examined himself as PW1 and got
marked Exs.P1 to P6. The statement of the respondent -
accused had been recorded under Section 313 of Cr.P.C.
The respondent - accused examined himself as DW1 and
has not got marked any document on his side. The
learned Magistrate after hearing the arguments on both
sides has formulated the points for consideration and
passed the impugned judgment of acquittal. The said
judgment of acquittal has been challenged by the
appellant - complainant in this appeal.
3. Heard learned counsel for the appellant -
complainant. Learned counsel for the respondent -
accused is absent.
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4. Learned counsel for the appellant - complainant
would contend that the respondent - accused had
admitted his signature on Ex.P1 - cheque. As the
signature on the cheque has been admitted, a
presumption arises under Section 139 of the N.I.Act that
the cheque had been issued for making payment of the
legally enforceable debt. The said presumption has not
been rebutted by the respondent - accused. The
respondent - accused has not established his defence that
Ex.P1 - cheque had been given as a security to the loan
availed by him from the wife of the appellant -
complainant. Learned counsel for the appellant -
complainant further contended that dishonour of the
cheque for the reason "Account closed" also attracts the
offence under Section 138 of the N.I.Act, as the said
dishonour amounts to dishonour of cheque for want of
funds. On the said points, learned counsel for the
appellant - complainant placed reliance on the following
decisions:
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1. Kalamani tex and Another vs. P Balasubramanian
reported in (2021) 5 SCC 283.
2. NEPC Micon Ltd. And Others Vs. Magma Leasing Ltd.,
reported in (1999) 4 SCC 253
3. Sri Kiran Kumar V R vs. Sri T H Umesh
held in Crl.A.No.703/2014."
On these grounds, learned counsel for the appellant -
complainant prayed to allow the appeal and convict the
respondent - accused for the offence under Section 138 of
the N.I.Act.
5. Having heard learned counsel for the appellant -
complainant, this Court has perused the impugned
judgment and the Trial Court records. Considering the
grounds urged, the following point arises for
consideration;
"Whether the learned Magistrate has erred in
acquitting the respondent - accused of the
offence punishable under Section 138 of the
N.I.Act?"
6. My answer to the above point is in the negative, for
the following reasons;
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It is the specific case of the appellant - complainant
that on 15.04.2012, he had lent Rs.2,50,000/- in cash to
the respondent - accused, who had agreed to repay the
same within ten months. It is the further case of
the appellant - complainant that Ex.P1 - cheque had been
issued by the respondent - accused for making the
payment of the amount borrowed. The respondent -
accused has admitted his signature on the cheque - Ex.P1.
As the signature on the cheque is admitted, a presumption
under Section 139 of the N.I.Act that the cheque had been
issued for making payment of debt requires to be drawn.
The said presumption is a rebuttable presumption. The
standard of proof for rebutting the said presumption is
preponderance of probability as held by the Hon'ble Apex
Court in the case of Basalingappa Vs. Mudibasappa
reported in (2019) 5 SCC pg 418. In the said case the
Hon'ble Apex Court has also held that the inference of
preponderance of probability can be drawn not only from
the materials brought on record by the parties, but, also
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by reference to the circumstances upon which the
respondent - accused relies.
7. In the case relied upon by the learned counsel for the
appellant - complainant in the case of Kalamani tex and
Another vs. P Balasubramanian, the Hon'ble Apex
Court has held as under;
"13. Adverting to the case in hand, we find on a plain
reading of its judgment that the trial Court
completely overlooked the provisions and failed to
appreciate the statutory presumption drawn
under Section 118 and Section 139 of NIA. The
Statute mandates that once the signature(s) of an
accused on the cheque/negotiable instrument are
established, then these 'reverse onus' clauses
become operative. In such a situation, the obligation
shifts upon the accused to discharge the
presumption imposed upon him. This point of law
has been crystalized by this Court in Rohitbhai
Jivanlal Patel v. State of Gujarat in the following
words:
"18. In the case at hand, even after
purportedly drawing the presumption
under Section 139 of the NI Act, the trial
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court proceeded to question the want of
evidence on the part of the complainant as
regards the source of funds for advancing
loan to the accused and want of examination
of relevant witnesses who allegedly
extended him money for advancing it to the
accused. This approach of the trial court had
been at variance with the principles of
presumption in law. After such presumption,
the onus shifted to the accused and unless
the accused had discharged the onus by
bringing on record such facts and
circumstances as to show the
preponderance of probabilities tilting in his
favour, any doubt on the complainant's case
could not have been raised for want of
evidence regarding the source of funds for
advancing loan to the appellant- accused."
8. It is the specific defence of the respondent - accused
that he had availed loan of Rs.10,000/- from the wife of
the appellant - complainant ie., Smt.C.Anasuyadevi on
27.09.2007 and he had issued Ex.P1 - cheque as a
security for the said loan. The said defence has been
stated by the respondent - accused in his reply to the
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statutory notice which is at Ex.P6. DW1 / respondent -
accused in his chief examination has also stated that he
had given Ex.P1 - cheque to Smt.Anasuyadevi in the year
2007 when he had availed loan of Rs.10,000/- from her
as a security to the loan amount and it was a blank signed
cheque. DW1 / respondent - accused has denied that he
had borrowed Rs.2,50,000/- from the appellant -
complainant. The said defence which is put forth to PW1
in his cross examination, he has denied the same. The
cheque said to have been issued by the respondent -
accused is at Ex.P1. In the memo issued by the Bank while
returning the cheque, the reason for dishonour is "Account
closed" and the said memo is at Ex.P2. On Ex.P1 -
cheque also, there is crossed mark by the red ink pen and
in between it is endorsed with "Account closed on
28.10.2009". The said cheque is dated 30.03.2013. The
said account of the respondent - accused has been closed
more than three years prior to the date of cheque. The
said aspect itself would indicate and buttress the
contention of the respondent - accused that the cheque -
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Ex.P1 has been issued as a security to the wife of the
appellant - complainant when he had availed loan of
Rs.10,000/- from her. The said aspect itself probabilizes
the defence of the respondent - accused that blank signed
cheque has been given by the respondent - accused to the
wife of the appellant - complainant as a security to the
loan availed by him from the wife of the appellant -
complainant. There is no suggestion to DW1 that he had
issued the cheque of the account which is closed and he
has cheated the appellant - complainant. The alleged loan
was during April, 2012 and the cheque is dated
30.03.2013 and the account has been closed on
28.10.2009. Even the hand writing regarding name of the
payee and the amount in words are different. It is
suggested in the cross examination of PW1 that the hand
writing in Ex.P1 are not that of the respondent - accused
and it has been filled up by the appellant - complainant
and it has been denied by the appellant - complainant.
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9. The appellant - complainant is said to have lent
Rs.2,50,000/- to the respondent - accused by cash. The
capacity of the appellant - complainant has been
challenged. As the presumption has been rebutted, it is
for the appellant - complainant to establish the lending
and issue of cheque for discharge of the debt. PW1 in his
cross examination has stated that he has availed loan from
Syndicate Bank in the year 2011 in a sum of Rs.2,00,000/-
and he had given his site for rent to a shop and he had got
Rs.1,00,000/- in that regard and he had kept that money
in his house. PW1 has admitted that he is having the said
rental agreement and the document pertaining to the loan
availed by him. The said documents are not produced by
the appellant - complainant. PW1 has also admitted that
mother of the respondent - accused and his wife are close
friends. In view of rebuttal of the presumption, it is for
the appellant - complainant to prove the alleged lending
and his capacity to lend the amount. Therefore, the
decision relied upon by him in the case of Sri.Kiran
Kumar supra, does not apply to the facts of the case on
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hand. The Hon'ble Apex Court in the case of NEPC Micon
Ltd., and others supra, has held that dishonour of the
cheque for reason "account closed" also amounts to
dishonour of cheque for want of money in the account of
the drawer. Even though the endorsement "account
closed" also amounts to dishonour of cheque for want of
funds, but in the case on hand, the account has been
closed more than three years prior to the date of cheque.
Considering all these aspects, the learned Magistrate has
rightly acquitted the respondent - accused of the offence
under Section 138 of the N.I.Act by a reasoned judgment.
There are no grounds made out for allowing the appeal.
In the result, the following;
ORDER
The appeal is dismissed.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
GH
