Karnataka High Court
Sri.M.Naveen Kumar vs Sri.K.C.Gangaiah on 10 February, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.A No. 616 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO. 616 OF 2014
BETWEEN:
SRI. M. NAVEENKUMAR
S/O N. MUDDANA
AGED ABOUT 31 YEARS
R/O NO.42, NAVEEN NILAYA
2ND MAIN ROAD, ATTIGUPPE
VIJAYANAGAR, II STAGE
BANGALORE-560 040
...APPELLANT
(BY SRI. S.B. HALLI, ADVOCATE)
AND:
SRI. K.C. GANGAIAH
S/O CHENNAIAH
AGED ABOUT 35 YEARS
R/O KOLIHALLI VILLAGE
Digitally signed by PUTTAIANAPALYA, HIREHALLI POST
HEMAVATHY
GANGABYRAPPA TUMKUR TQ & DIST-572 101
Location: HIGH COURT ...RESPONDENT
OF KARNATAKA
(BY SRI. RAVICHANDRA T. C, ADVOCATE)
THIS CRL.A. IS FILED U/S. 378(4) CR.P.C PRAYING TO
SET ASIDE THE ORDER DATED:2.7.14 PASSED BY THE P.O.,
FTC-II, BANGALORE IN CRL.A.NO.39/14 - ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I.
ACT AND CONFIRM THE ORDER DATED:1.1.14 PASSED BY THE
XVI ADDL.C.M.M., BANGALORE IN C.C.NO.15432/2008.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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CRL.A No. 616 of 2014
CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL JUDGMENT
1. This appeal is filed by the appellant - complainant
challenging the judgment dated 02.07.2014 passed in
Crl.A.No.39/2014 by the Presiding Officer, Fast Track
Court - II, Bengaluru City, wherunder, conviction of the
respondent - accused passed in C.C.No.15432/2008 by
the judgment dated 01.01.2014 by the XVI Additional
Chief Metropolitan Magistrate, Bengaluru for the offence
under Section 138 of the Negotiable Instruments Act,
1881 (for short hereinafter referred to as "N.I.Act") has
been reversed and 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 appellant - complainant and the respondent -
accused were known to each other. The respondent -
accused was working under the complainant's brother in
his S.T.D and Xerox shop situated at Attiguppe,
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Vijayanagar, Bengaluru. The respondent - accused
approached the appellant - complainant on 01.10.2007
and availed hand loan of Rs.80,000/- to meet his urgent
and immediate financial and legal commitments. The
appellant - complainant paid hand loan of Rs.80,000/- and
the respondent - accused promised to repay the said loan
within five months. The appellant - complainant
approached the respondent - accused for repayment of
the amount borrowed and the respondent - accused had
issued a cheque bearing No.986591 dated 07.03.2008 for
Rs.80,000/-. The appellant - complainant presented the
said cheque for encashment. The said cheque has been
returned dishonoured on 06.05.2008 with an endorsement
'insufficiency of funds' in the account of the respondent -
accused. The appellant - complainant got issued the legal
notice to the respondent - accused on 12.05.2008 and the
same has been duly served on the respondent - accused.
The respondent - accused has not paid the cheque
amount. Therefore, the appellant - complainant has filed a
private complaint against the respondent - accused for the
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offence under Section 138 of the N.I.Act. The learned
Magistrate took cognizance and registered a case in
C.C.No.15432/2008 against the respondent - accused for
the offence under Section 138 of the N.I.Act. The plea of
the respondent - accused has been recorded. The
appellant - complainant in order to prove his case, got
examined himself as PW1 and got marked Ex.P1 to P7.
The statement of the respondent - accused has been
recorded under Section 313 of Cr.P.C. The respondent -
accused examined himself as DW1 and got marked Exs.D1
to D4. After hearing the arguments on both sides, the
learned Magistrate has formulated the points for
consideration and passed the judgment dated 01.01.2014
convicting the respondent - accused for the offence under
section 138 of the N.I.Act. The said judgment of conviction
has been challenged by the respondent - accused in
Crl.A.No.39/2014 before the Presiding Officer, Fast Track
Court - II, Bengaluru City. The Appellate Court after
hearing the arguments on both sides has passed the
judgment dated 02.07.2014 reversing the judgment of
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conviction passed in C.C.No.15432/2008 and acquitted the
respondent - accused of the offence under Section 138 of
the N.I.Act. The said judgment passed by the Appellate
Court in Crl.A.No.39/2014 has been challenged in this
appeal by the appellant - complainant.
3. Heard learned counsel for the appellant -
complainant and learned counsel for the respondent -
accused.
4. Learned counsel for the appellant - complainant
would contend that the respondent - accused has
admitted his signature on the cheque - Ex.P2. As the
respondent - accused has admitted his signature on the
cheque, a presumption under Section 139 of the N.I.Act
has to be drawn. The said presumption has not been
rebutted by the respondent - accused. Even though the
said cheque - Ex.P2 is a blank signed cheque and PW1 /
respondent - accused admitting, he filling the contents of
the cheque is covered under Section 20 of the N.I.Act.
The respondent - accused has taken up the defence that
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eleven cheques have been forcibly taken by the appellant -
complainant, his brother and one Sri.Chandrashekar and
he has not filed any complaint regarding the same and he
has not intimated his Banker in that regard. He placed
reliance on the decision of the Hon'ble Apex Court in the
case of Rajesh Jain Vs. Ajay Singh reported in 2023
INSC 888, on the point that if the presumption is not
rebutted, the respondent - accused has to be convicted for
the offence under section 138 of the N.I.Act. On these
grounds, he prayed to allow the appeal and restore the
judgment of conviction passed by the learned Magistrate.
5. Learned counsel for the respondent - accused would
contend that the respondent - accused has taken up the
specific defence that there are no transactions of any
borrowing between the respondent - accused and the
appellant - complainant. PW1, in his cross examination
has admitted that during January, 2008, the appellant -
complainant, his brother and one Sri.Chandrashekar went
to his native place and made galata and taken the blank
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cheques. He further submits that PW1 has also admitted
of his brother taking two signed cheques when his brother
lent money to the respondent - accused and he filling the
contents of the blank signed cheque. He further submits
that as there was a quarrel in January, 2008, there is no
question of issuing any cheque as per Ex.P2. The said
signed cheque issued to the brother of the appellant -
complainant has been misused by the appellant -
complainant. The said galata taken place in January, 2008
is with regard to the appellant - complainant, his brother
and Sri.Chandrashekar demanding Rs.15,00,000/-
borrowed by this respondent - accused. But in the case
on hand what is alleged is borrowing of Rs.80,000/-.
There is no case filed by brother of the appellant -
complainant for recovery of any amount from the
respondent - accused. Considering all these aspects, the
respondent - accused has rebutted the presumption drawn
under Section 139 of the N.I.Act. Considering the said
aspect, the learned Appellate Judge has rightly reversed
the judgment of conviction and acquitted the respondent -
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accused for the offence under Section 138 of the N.I.Act.
On that point, he placed reliance on the decision of the
Hon'ble Apex Court in the case of Bir Singh Vs. Mukesh
Kumar reported in (2019) 4 SCC 197.
6. Having heard the learned counsels, 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 Appellate Judge has erred
in reversing the judgment of conviction passed
by the Trial Court in C.C.No.15432/2008 for the
offence under Section 138 of the N.I.Act and
acquitting the respondent - accused?"
7. My answer to the above point is in the negative, for
the following reasons;
It is the specific case of the appellant - complainant
that the respondent - accused had borrowed Rs.80,000/-
as hand loan from him on 01.10.2007 and agreed to repay
the same within five months and the respondent - accused
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had issued a cheque - Ex.P2 dated 07.03.2008 for
Rs.80,000/- for making payment of the amount borrowed.
The respondent - accused has admitted his signature on
cheque - Ex.P2. As the signature on the cheque - Ex.P2
has been admitted, a presumption has to be drawn under
Section 138 of the N.I.Act that the cheque is issued for
discharging the debt. The said presumption is a rebuttable
presumption. The standard of proof for rebutting the said
presumption is preponderance of probability.
8. It is the specific defence of the respondent - accused
that he had not availed any loan from this appellant -
complainant and signed blank cheque issued to the
brother of the appellant - complainant has been misused
by the appellant - complainant. The respondent - accused
has also taken up the defence that during January, 2008,
the appellant - complainant, his brother and one
Sri.Chandrashekar came to his native place and made
galata and demanded Rs.15,00,000/- and at that time,
they forcibly taken eleven signed cheques. PW1, in his
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cross examination has admitted the suggestion that the
respondent - accused was working in Jagadeesh
Enterprises which is of the ownership of his brother. PW1
has further stated in his cross examination that his brother
has helped the respondent - accused financially to run the
said Jagadeesh Enterprises. PW1 has also admitted the
suggestion that his brother had obtained one or two
cheques from the respondent - accused when his brother
has given financial assistance to the respondent -
accused. The said admission would indicate that the
brother of the appellant - complainant had two signed
cheques of the respondent - accused with him. The
brother of the appellant - complainant has not filed any
recovery proceedings or the cheque dishonour case
against the respondent - accused by using the said signed
cheques given by this respondent - accused. PW1 in his
cross examination has admitted the suggestion that in the
month of January, 2008, he, his brother and his cousin
Sri.Chandrashekar made galata with the appellant -
complainant and demanded for repayment of
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Rs.15,00,000/-. The said galata took place as per the said
admission in January, 2008. The alleged repayment as
admitted by PW1 is Rs.15,00,000/-. The alleged borrowing
in the present case is Rs.80,000/- The said galata took
place in January, 2008 and Ex.P2 is dated 07.03.2008.
PW1 has admitted that it was a signed blank cheque and
he has filled in its contents. DW1, in his cross
examination has admitted that on 08.04.2008, brother of
the appellant - complainant by name Sri.Jagadeesh has
filed a complaint against the respondent - accused in
Chandra Layout Police Station. Even though the cheque is
dated 07.03.2008, it has been presented and dishonoured
on 06.05.2008 and notice dated 12.05.2008 has been
issued to the respondent - accused. Even though the
cheque is dated 07.03.2008, it has been presented on
06.05.2008 which is subsequent to the brother of this
appellant - complainant by name Sri.Jagadeesh filing the
police complaint against this respondent - accused.
Considering the said aspect, it probabilizes the defence of
the respondent - accused that the cheque given to brother
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of the appellant - complainant has been misused by filling
its contents. Considering the above aspects, the
respondent - accused has rebutted the presumption drawn
under Section 139 of the N.I.Act. The appellant -
complainant in order to establish his case of lending, has
not placed any evidence on record. Considering the said
aspect, the learned Appellate Judge has rightly reversed
the judgment of conviction passed by the learned
Magistrate. Considering these aspects, there are no
grounds for allowing the appeal. In the result, the
following;
ORDER
The appeal is dismissed.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
GH
