Karnataka High Court
Smt. Sakamma vs Sri N. Srinivas on 12 February, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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NC: 2025:KHC:6183
CRL.A No. 797 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO. 797 OF 2015
BETWEEN:
SMT. SAKAMMA
W/O SRI. PUTTEGOWDA
AGED ABOUT 41 YEARS
NO. 34, 4TH CROSS, 2ND MAIN
ROAD, KALYAN NAGAR
NAGARABHAVI MAIN ROAD
BANGALORE-560 072
...APPELLANT
(BY SRI. B.C. VENKATESH, ADVOCATE)
AND:
SRI. N. SRINIVAS
S/O NARASAIAH
AGED ABOUT 55 YEARS
NO. 406, 1ST MAIN ROAD
Digitally signed by
HEMAVATHY
2ND CROSS, MALLATHAHALI
GANGABYRAPPA VISVESWARAIAH LAYOUT
Location: HIGH
COURT OF 9TH BLOCK, BANGALORE-560 056
KARNATAKA
ALSO AT
WORKING AS ATTENDER
PUBLIC EDUCATION DEPARTMENT
BANGALORE ZILLA PANCHAYATH
BANGALORE SOUTH-2
POORNAIAH CHATRA, BALEPET
THULSI THOTA
BANGALORE-560 053
...RESPONDENT
(BY SRI. MOHAN KUMAR D, ADVOCATE)
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CRL.A No. 797 of 2015
THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO
SET-ASIDE THE ORDER DATED 08.05.2015 PASSED BY THE
XXII ACMM, BANGALORE, IN C.C.NO.26578/2014 -
ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
P/U/S 138 OF N.I. ACT.
THIS APPEAL, COMING ON FOR FURTHER 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 08.05.2015
passed in C.C.No.26578/2014 by the XXII Additional Chief
Metropolitan Magistrate, Bengaluru, whereunder, the
respondent - accused has been acquitted of the offence
under Section 138 of the Negotiable Instruments Act,
1881 (for short hereinafter referred to as "N.I.Act").
2. Case of the appellant - complainant in brief is as
under;
The appellant - complainant and the respondent -
accused are the distant relatives and the respondent -
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accused who is working as an Attender in the Education
Department had approached the appellant - complainant
for hand loan of Rs.1,20,000/- for his urgent family
necessities. The appellant - complainant had lent
Rs.1,20,000/- to the respondent - accused by cash during
June, 2013. The respondent - accused did not repay the
said money borrowed, within one year as agreed. On
insistence by the appellant - complainant, the respondent
- accused issued a cheque bearing No.004937 dated
28.07.2014 for Rs.1,20,000/- drawn on Axis Bank,
Nagarabhavi Branch, Bengaluru for making payment of the
amount borrowed. The appellant - complainant had
presented the said cheque for encashment. The cheque
returned dishonoured on 30.07.2014, with an
endorsement "funds insufficient" in the bank account of
the respondent - accused. The appellant - complainant
got issued the legal notice to the respondent - accused
demanding to pay the cheque amount. The said notice had
been issued to two addresses of the respondent - accused.
The notice issued to one address has been returned and
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the notice issued to the other address has been served on
the respondent - accused. Inspite of legal notice, the
respondent - accused neither replied nor paid the cheque
amount. The appellant - complainant filed a private
complaint against the respondent - accused for the offence
under Section 138 of the N.I.Act. The learned Magistrate
took cognizance and registered a case in
C.C.No.26578/2014 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 her case, got
examined herself as PW1 and got marked Exs.P1 to P6.
The statement of the respondent - accused has been
recorded under Section 313 of Cr.P.C. The respondent -
accused examined himself as DW1 and no documents are
marked on the defence 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
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been challenged by the appellant - complainant in this
appeal.
3. Heard learned counsel for the appellant -
complainant. Learned counsel for the respondent -
accused did not chose to argue the appeal stating that his
party is not in contact with him.
4. Learned counsel for the appellant - complainant
would contend that the respondent - accused has not
disputed his signature on the cheque and therefore, a
presumption arises under Section 139 of the N.I.Act that
the cheque is issued for discharging of the debt. The said
presumption has not been rebutted. The respondent -
accused has taken up the defence that his cheque has
been stolen. In order to establish the said defence, the
respondent - accused has not placed on record any
document regarding he filing any complaint for loss of his
cheque. As the presumption is not rebutted, the
respondent - accused requires to be convicted for the
offence under Section 138 of the N.I.Act. Without
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considering these aspects, the learned Magistrate has
erred in passing the judgment of acquittal. With this, he
prayed to allow the appeal.
5. Having heard the learned counsel for the appellant -
complainant, the Court has perused the impugned
judgment and the Trial Court records. Considering the
grounds urged, the following point arises for
consideration;
"Whether the Trial Court has erred in acquitting
the respondent - accused of the offence under
Section 138 of the N.I.Act?"
6. My answer to the above point is in the affirmative,
for the following reasons;
It is the specific case of the appellant - complainant
that the respondent - accused had borrowed Rs.1,20,000/-
during June, 2013 for his urgent family necessities and
agreed to repay the said loan amount within one year. In
order to repay the said amount borrowed, the respondent
- accused had issued a cheque - Ex.P1. The respondent -
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accused has admitted his signature on the cheque - Ex.P1.
As the signature of the respondent - accused on the
cheque is admitted, a presumption has to be drawn under
Section 139 of the N.I.Act that the cheque is issued for
discharge of the debt. The said presumption is a
rebuttable presumption. The standard of proof for
rebutting the said presumption is preponderance of
probability.
7. The respondent - accused has taken up the defence
that he had kept the signed cheque in his house for the
purpose of family expenses and it has been kept on the
T.V. stand and the same has been lost. Even though the
respondent - accused who has been examined as DW1 has
stated that he had given the complaint in Gnanabharathi
Police Station during December, 2014, but he has not
produced a copy of the said complaint. DW1 in his further
cross examination dated 22.04.2015 has stated that he
has not filed any police complaint regarding loss of the
cheque - Ex.P1. DW1 has admitted that his wife is
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suffering from heart disease. The defence of the
respondent - accused that he had lost the signed cheque
has not been established. The appellant - complainant and
the respondent - accused are the relatives and the amount
borrowed is for family necessities. Wife of the respondent
- accused is suffering from heart disease. Considering all
these aspects, the respondent - accused has not rebutted
the presumption drawn under Section 139 of the N.I.Act.
As the presumption is not rebutted, the cheque - Ex.P1
has been issued for making payment of the amount
borrowed. The Hon'ble Apex Court in the case of Rajesh
Jain Vs Ajay Singh reported in AIR Online 2023 SC
807 has observed thus;
"55. As rightly contended by the appellant, there is a
fundamental flaw in the way both the Courts below
have proceeded to appreciate the evidence on
record. Once the presumption under Section 139 was
given effect to, the Courts ought to have proceeded
on the premise that the cheque was, indeed, issued
in discharge of a debt/liability. The entire focus would
then necessarily have to shift on the case set up by
the accused, since the activation of the presumption
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has the effect of shifting the evidential burden on the
accused. The nature of inquiry would then be to see
whether the accused has discharged his onus of
rebutting the presumption. If he fails to do so, the
Court can straightaway proceed to convict him,
subject to satisfaction of the other ingredients
of Section 138. If the Court finds that the evidential
burden placed on the accused has been discharged,
the complainant would be expected to prove the said
fact independently, without taking aid of the
presumption. The Court would then take an overall
view based on the evidence on record and decide
accordingly."
8. The respondent - accused has failed to discharge his
onus of rebutting the presumption. Therefore, he has to
be convicted for the offence under Section 138 of the
N.I.Act, if the other ingredients of the offence under
Section 138 of the N.I.Act are satisfied. The cheque -
Ex.P1 came to be dishonoured with the bank endorsement
'funds insufficient' which is at Ex.P2 dated 30.07.2014.
The statutory notice has been issued on 04.08.2014 to the
respondent - accused to his two addresses. Ex.P3 is the
said legal notice dated 04.08.2014 and it has been issued
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by R.P.A.D and Exs.P4 and P5 are the postal receipts.
Ex.P6 is the postal acknowledgment containing signature
of the respondent - accused and it is served on
06.08.2014. The respondent - accused has denied the
service of notice on him. The respondent - accused has
not denied that he is working as an Attender in the
Education Department, Bengaluru, Zilla Panchayath,
Bengaluru South. On the said address, the demand notice
has been sent and it has been served on him. Therefore,
the said statutory notice has been served on the
respondent - accused on 06.08.2014. The respondent -
accused has not paid the cheque amount within fifteen
days from the date of service of notice. The complaint filed
by the respondent - accused is within the statutory period
of thirty days from the date of cause of action. Therefore,
all the ingredients of the offence under Section 138 of the
N.I.Act are made out. Without considering these aspects,
the learned Magistrate has erred in acquitting the
respondent - accused for the offence under Section 138 of
the N.I.Act. In the result, the following;
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ORDER
The appeal is allowed. The impugned judgment
dated 08.05.2015 passed in C.C.No.26578/2014 by the
XXII Additional Chief Metropolitan Magistrate, Bengaluru is
set-aside. The respondent - accused is convicted for the
offence under Section 138 of the N.I.Act and sentenced to
pay fine of Rs.1,30,000/- and in default of payment of the
said fine amount, to undergo simple imprisonment for a
period of six months. Out of the fine amount,
Rs.1,20,000/- is ordered to be paid to the appellant -
complainant as compensation. The respondent - accused
shall deposit the said fine amount within two months from
this day.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
GH
