Karnataka High Court
Sri N M Rajashekaraiah vs Smt A D Girijamma on 20 February, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.A No. 1201 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO. 1201 OF 2013
BETWEEN:
SRI. N.M. RAJASHEKARAIAH
S/O N.M. CHANNABASAIAH
AGED ABOUT 70 YEARS
R/AT GOPANALU VILLAGE
DAVANAGERE TALUK
DAVANAGERE DISTRICT
...APPELLANT
(BY SRI. VIRUPAKSHAIAH P.H, ADVOCATE)
AND:
SMT. A.D. GIRIJAMMA
W/O A.N. LOKESH
AGED ABOUT 45 YEARS
TEACHER, GOVERNMENT HIGHER
PRIMARY SCHOOL, ANABERU
Digitally signed by DAVANAGERE TALUK AND DISTRICT
HEMAVATHY
GANGABYRAPPA ...RESPONDENT
Location: HIGH
COURT OF (BY SMT. VIJAYA M.N, ADVOCATE)
KARNATAKA
THIS CRL.A. IS FILED U/S.378(4) OF CR.P.C PRAYING TO
SET ASIDE THE ORDER DATED:24.9.13 PASSED BY THE PRL.
SENIOR CIVIL JUDGE AND JMFC, DAVANAGERE IN
C.C.NO.532/12 - ACQUITTING THE RESPONDENT/ACCUSED
FOR THE OFFENCES P/U/S 138 OF N.I. ACT.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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CRL.A No. 1201 of 2013
CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL JUDGMENT
This appeal is filed by the complainant praying to set
aside the judgment of acquittal dated 24.09.2013 passed
in C.C.No.532/2012 by the Principal Senior Civil Judge and
JMFC, Davangere and convict the respondent -accused for
offence punishable under Section 138 of the Negotiable
Instruments Act, 1881 (hereinafter referred to as 'N.I. Act'
for brevity).
2. The case of the appellant - complainant in brief
is as under:
The respondent -accused has borrowed a sum of
Rs.1,00,000/- from the appellant -complainant on
03.01.2007 agreeing to repay the same. The appellant -
complainant requested to the respondent -accused to
repay the amount borrowed. The respondent -accused
has issued cheque bearing No.099328 dated 03.10.2008
for Rs.1,00,000/- drawn on Central Bank of Indian,
Davanagere infavour of the appellant -complainant. The
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appellant -complainant presented the said cheque for
encashment and the said cheque has been returned as
dishonoured on 16.10.2008 with endorsement "insufficient
funds" in the account of the respondent -accused. The
appellant -complainant got issued legal notice on
23.10.2008. Inspite of service of the said notice, the
respondent -accused has not paid the cheque amount.
Therefore, the complainant has filed a private complaint
against the respondent - accused for offence punishable
under Section 138 of the N.I Act.
3. Learned Magistrate has taken cognizance
against the respondent -accused and registered case in
C.C.No.532/2012 for offence punishable under Section 138
of the N.I Act. The plea of respondent - accused has been
recorded. The complainant in order to prove his case has
examined himself as P.W.1 and got marked documents as
Ex.P1 to P8. The statement of respondent -accused came
to be recorded under Section 313 of Cr.P.C. The
respondent -accused has examined herself as D.W.1 and
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got marked documents as Ex.D1 and D2. 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 admitted her
signature on cheque -Ex.P2. As the respondent -accused
has admitted her signature on cheque -Ex.P2, the
presumption under Section 139 of the N.I Act has to be
drawn that the cheque has been issued for discharge of
debt. The said presumption drawn under Section 139 of
the N.I Act has not been rebutted by the respondent -
accused. The respondent -accused has not given any
reply to the notice got issued by the appellant -
complainant. The respondent -accused who has taken
defence that she has issued signed cheques at the time of
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availing loan from the Veermaheshwari Society wherein
the appellant -accused was Director has not been
established. There is no suggestion to P.W.1 that he
misusing signed cheques issued by the respondent -
accused. D.W.1 has also not stated regarding misusing the
signed cheque by the appellant -complainant. The
presumption is not rebutted by the respondent -accused,
the learned Magistrate ought to have convicted the
respondent -accused for offence punishable under Section
138 of the N.I Act. 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 appellant -complainant has
admitted that he was Director in Veermaheshwari Society
wherein the respondent -accused has taken loan of
Rs.25,000/- for treatment of her husband who met with an
accident. The respondent -accused who alleged to have
not paid loan taken from Veermaheshwari Society. Inspite
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of same, the appellant -complainant lending huge amount
of Rs.1,00,000/- appears to be doubtful. Considering the
said aspect, the respondent -accused has rebutted the
presumption raised under Section 139 of the N.I Act.
Therefore, the learned Magistrate has rightly acquitted the
respondent -accused for offence punishable under Section
138 of the N.I Act.
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 in the
affirmative for the following reasons.
It is the case of the appellant -complainant that he
has lent amount of Rs.1,00,000/- to the respondent-
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accused 03.01.2007 and for making repayment of amount
borrowed, the respondent -accused has issued Ex.P2 -
cheque for Rs.1,00,000/- on 03.10.2008. The respondent
-accused has admitted her signature on cheque -Ex.P2.
As the respondent -accused has admitted her signature on
cheque -Ex.P2, the presumption under Section 139 of the
N.I Act has to be drawn that the cheque has been issued
for discharge of debt. The said presumption is rebuttable
presumption. The standard of proof for rebutting the said
presumption is preponderance of probability.
8. The notice got issued by the appellant -
complainant to the respondent -accused on dishonour of
cheque has been served on the respondent -accused. The
respondent -accused has not choosen to give any reply to
the said notice. The respondent -accused has not put
forth her defence by sending reply to the legal notice. It is
defence of the respondent -accused that she has availed
loan from Veermaheshwari Society in a sum of
Rs.25,000/- in the year 2006 and in the said Society the
appellant -complainant was working as Director. At the
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time of availing loan she has given three signed cheques
to the appellant -complainant. The appellant -
complainant who has been examined as P.W.1 has
admitted that he was Director in Veermaheshwari Society
and the respondent -accused availed loan in the said
society. P.W.1 has denied that the respondent -accused
having given three signed cheques and promissory note at
the time of availing loan from Veermaheshwari Society to
the appellant -complainant. Ex.D2 is a copy of notice sent
to the respondent -accused by the appellant -complainant
as Director of Veermaheshwari Society demanding
repayment of loan borrowed along with the interest and it
is dated 22.12.2009. The said letter itself indicates that
the respondent -accused has not repaid the loan borrowed
from Veermaheshwari Society. D.W.1 in her cross
examination has admitted that she has not having enmity
with the appellant -complainant and he is reputed and
respectable person in Gopanalu village. She has also
admitted that he is having agricultural land and house in
the said village. She has also admitted that he is
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financially sound. She has also admitted that she has not
asked the appellant -complainant seeking return of
cheques given by her to him in writing. There is no
evidence of D.W.1 regarding the appellant -complainant
misusing the signed cheques given by her. D.W.1 has also
admitted that there are four cheque bounce cases are
pending against her in Court at Davanagere. The said
aspect itself indicate that the respondent -accused was in
need of money and she has borrowed money from
different persons. The respondent -accused has failed to
establish her defence that she gave signed cheques to the
appellant -complainant. Therefore, the presumption
drawn under Section 139 of the N.I Act remained
unrebutted.
9. The Hon'ble Apex Court in the case of Rajesh
Jain Vs Ajay Singh1 has observed as under
"55. As rightly contended by the appellant,
there is a fundamental flaw in the way both the
Courts below have proceeded to appreciate the
Reported in AIR Online 2023 SC 807
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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
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."
10. As the respondent -accused has failed to rebut
the presumption raised under Section 139 of N.I Act, the
respondent -accused requires to be convicted for offence
punishable under Section 138 of the N.I Act subject to
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satisfaction of other ingredients of Section 138 of the N.I
Act.
11. Cheque -Ex.P2 issued by the respondent -
accused has been dishonoured for want of funds in the
account of the respondent -accused and bank
endorsement dated 06.10.2008 is at Ex.P4. The appellant
-complainant has got issued legal notice dated 23.10.2008
to the respondent -accused and a copy of which is at
Ex.P5. The said notice has been sent to the respondent -
accused by registered post and also under certificate of
posting. Ex.P8 is postal acknowledgment which indicates
that the said notice has been served on the respondent -
accused on 27.10.2008. The respondent -accused has not
sent any reply to the legal notice. The complaint has been
filed within statutory period from the date of cause of
action. Considering all these aspects, the ingredients of
offence punishable under Section 138 of the N.I Act are
satisfied. Without considering all these aspects, learned
Magistrate has erred in passing judgment of acquittal of
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the respondent -accused 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
24.09.2013 passed in C.C.No.532/2012 by the
Principal Senior Civil Judge and JMFC,
Davangere 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
Act and he has been sentenced to pay fine of
Rs.1,10,000/-(Ruppes One Lakh Ten Thousand
Only) and in default of payment of said fine
amount he shall undergo simple imprisonment
for a period of 03 (three) months.
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iv) Out of the fine amount Rs.1,00,000/-(Ruppes
One Lakh only) is ordered to be paid as
compensation to the appellant -complainant.
v) The respondent -accused shall deposit the said
fine amount within 02 (two) months from this
day.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
DSP
