Karnataka High Court
Sri Shivakumar vs Sri M Chandrahasa Rai on 25 February, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.A No. 920 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 920 OF 2015
BETWEEN:
SRI. SHIVAKUMAR
S/O K.K. SHETTY
AGED ABOUT 41 YEARS
R/O ASHIKA, PANGALAI
DARBE, PUTTUR TALUK
D.K. DISTRICT - 574 202.
...APPELLANT
(BY SRI SUYOG HERELE E, ADVOCATE)
Digitally signed by
LAKSHMINARAYANA
MURTHY RAJASHRI AND:
Location: HIGH
COURT OF
KARNATAKA SRI M. CHANDRAHASA RAI
S/O NARAYANA RAI
AGED ABOUT 58 YEARS
R/O KODANKERI
KEDAMDY VILLAGE & POST
D.K. DISTRICT-575 003.
...RESPONDENT
(BY SRI. SACHIN MADEV HEDGE, ADVOCATE FOR
SRI. SACHIN B.S, ADVOCATE)
THIS CRL.A. IS FILED UNDER SECTION 378(4) Cr.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED
16.04.2015 PASSED BY THE LEARNED V ADDL. DISTRICT AND
SESSIONS JUDGE, D.K., MANGALURU SITTING AT PUTTUR,
D.K., IN CRL.A.No.43/2014 - ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 138 N.I. ACT.
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CRL.A No. 920 of 2015
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 complainant praying
to set aside the judgment dated 16.04.2015 passed in
Crl.A. No. 43/2014 by the V Additional District and
Sessions Judge, Dakshina Kannada, Mangaluru, sitting at
Puttur whereunder the judgment of conviction passed by
the trial Court in C.C. No. 29/2012 dated 17.02.2014 has
been reversed and respondent - accused has been
acquitted for offence under Section 138 of Negotiable
Instruments Act (hereinafter for the sake of brevity
referred to as the `N.I. Act').
2. Case of the appellant - complainant in brief is
as under:
The accused had borrowed a sum of Rs.65,000/-
from the complainant as hand loan. When the complainant
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demanded for re-payment, the accused issued a cheuqe
dated 01.08.2011 bearing No. 575938 for Rs.65,000/- to
the complainant and it was drawn on Vijaya Bank, Kumbra
Branch, Puttur Taluk in favour of the complainant. The
complainant presented the said cheque for encashment
and it was returned with endorsement `insufficient funds'
as per memo dated 03.08.2011. The complainant got
issued demand notice on 18.08.2011 calling upon the
accused to pay the cheque amount and the said notice has
been served on the respondent - accused on 18.08.2011.
The respondent - accused has given reply to the said
notice and did not make payment of cheque amount.
Therefore, the complainant has filed private complaint on
19.09.2011 for offence under Section 138 of the N.I. Act.
Learned Magistrate has taken cognizance and registered
C.C. No. 29/2012 against the respondent - accused for
offence under Section 138 of N.I. Act. Plea of the accused
has been recorded. The complainant, in order to prove his
case, has examined himself as P.W.1 and got marked
Ex.P.1 to Ex.P.5. Statement of the accused has been
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recorded under Section 313 of Cr.P.C. Accused has
examined himself as D.W.1 and examined another witness
as D.W.2 and got marked Ex.D.1 to Ex.D.3. After hearing
arguments on both sides learned Magistrate has passed
the judgment of conviction dated 17.02.2014 whereunder
respondent - accused has been convicted for offence under
Section 138 of N.I. Act. The respondent - accused had
challenged the said judgment of conviction dated
17.02.2014 before the V Additional District and Sessions
Judge, D.K., Mangaluru sitting at Puttur in Crl.A. No.
43/2014. Said criminal appeal came to be allowed by
judgment dated 16.04.2015 whereunder the judgment of
conviction passed by the trial Court has been reversed and
the respondent - accused has been acquitted for offence
under Section 138 of N.I. Act. Said judgment passed by
the appellate Court in Crl.A. No. 43/2014 has been
challenged by the appellant - complainant in this appeal.
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3. Heard learned counsel for appellant -
complainant and learned counsel for respondent -
accused.
4. Learned counsel for appellant - complainant
would contend that the signature on the cheque - Ex.P.1
has been admitted by the respondent - accused and
therefore, presumption under Section 139 of the N.I. Act
has been drawn. Said presumption has not been rebutted
by the respondent - accused. The respondent - accused
has taken up the defence that earlier he had availed loan
from a finance company whereunder the appellant -
complainant was a partner and at the time of availing loan
he had given Ex.P.1 - cheque as security and it has been
misused by the complainant. Said defence has not been
established. The respondent - accused has not produced
any document to show that he had availed loan of
Rs.17,000/- from the finance company run by the
complainant. The respondent - accused has failed to rebut
the presumption and the trial Court has rightly convicted
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the respondent - accused. The appellate Court has relied
upon the serial number of the cheques which have been
honoured in the year 2009 (as per Ex.D.1) which are prior
numbers than the serial number of the cheque - Ex.P.1. It
is not the case of the respondent - accused regarding the
said aspect and there is no defence set up in this regard in
reply notice - Ex.P.4. Therefore, the appellate Court has
erred in reversing the judgment of conviction. With this he
prayed to allow the appeal and affirm the judgment of
conviction passed by the trial Court. On the grounds
urged, learned counsel for appellant has 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.
5. Learned counsel for respondent - accused
would contend that the date of lending has not been
stated either in the legal notice or in the complaint. P.W.1
even in his chief examination has not stated the date of
lending. The purpose of lending has also not been stated
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either in the legal notice or in the complaint or in the chief
examination of P.W.1. Further, P.W.1 in his cross-
examination has admitted that he was running Bhagavathi
Finance. It is the defence of the respondent - accused that
he availed loan of Rs.17,000/- and he had given a signed
cheque as security at that time. Said defence of the
respondent probabalises considering the honoured cheque
numbers in Bank Account Statement -Ex.D.1 and serial
number of cheque - Ex.P.1. As the respondent - accused
has rebutted the said presumption drawn under Section
139 of the N.I. Act, onus shifts on the appellant -
complainant to prove the lending of Rs.65,000/- and
issuance of cheque for making payment of said debt. Said
onus has not been established. Considering this aspect
learned appellate Judge has rightly reversed the judgment
of conviction passed by the trial Court and acquitted the
appellant - complainant. With this he prayed to dismiss
the appeal.
6. Having heard the learned counsel for the
appellant - complainant and learned counsel for
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respondent - accused this Court has perused both the
judgments and the trial Court records.
7. Considering the grounds urged the following
point arises for consideration in this appeal.
Whether the appellate Court has erred in
reversing the judgment of conviction passed in C.C.
No. 29/2012 and acquitting the respondent - accused
for offence under Section 138 of N.I. Act?
8. My answer to the above point is in the negative
for the following reasons:
It is the specific case of the appellant - complainant
that he had lent Rs.65,000/- to the respondent - accused
one month prior to the date of cheque - Ex.P.1 and in
order to make re-payment of the same, respondent -
accused had issued Ex.P.1 - cheque for a sum for
Rs.65,000/-. The respondent - accused has admitted his
signature on Ex.P.1 - cheque. As respondent - accused
has admitted his signature on the cheque - Ex.P.1, a
presumption has to be drawn under Section 139 of the
N.I. Act that the cheque is issued for discharge of a debt.
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Standard of proof for rebutting the presumption is
preponderance of probabilities.
9. It is the defence of the respondent - accused
that he availed Rs.17,000/- from Bhagavati Finance and at
the time of borrowing he had issued blank signed cheque
as security and the complainant was running the said
Bhagavati Finance. Said defence has been put forth by the
respondent - accused in his reply notice dated 27.08.2011.
P.W.1 in his cross examination has admitted that he and
one Sri. Arvind were partners in Bhagavati Finance. P.W.1
has stated that the said Bhagavati Finance was running till
the year 2003. P.W.1 has denied that respondent -
accused has availed loan from the said Bhagavati Finance
in a sum of Rs.17,000/- and at the time of availing the
said loan he had issued the cheque - Ex.P.1 as security. In
order to probabalise the said defence the respondent -
accused has got summoned the statement of bank account
of Royal Garments. D.W.2 is the Bank Manager who has
produced Ex.D.1 - Bank account statement of Royal
Garments. The drawer of the cheque - Ex.P.1 is Royal
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Garments and it is signed by its proprietor. The cheque
number of Ex.P.1 is 575938 and cheque is dated
01.08.2011. A perusal of the entries in Bank statement -
Ex.D.1 indicates that cheque numbers 576485, 576482,
576486, 576488, 576490, 576487, 576489, 576492,
576491, 576493 have been issued and encashed between
03.03.2009 to 21.05.2009. A perusal of the cheque
numbers which have been issued and encashed during the
said period indicates that the cheque - Ex.P.1 (bearing
Sl.No. 575938) is having prior number to the cheques
which have been issued and encashed between March and
May 2009. Said aspect itself establishes that the cheque -
Ex.P.1 bearing No. 575938 has been issued prior to
03.03.2009. Said aspect also probabalises the defence of
respondent - accused that the cheque - Ex.P.1 has been
issued at the time of respondent - accused availing loan of
Rs.17,000/- from Bhagavati Finance. More so, P.W.1 has
admitted that he was one of the partners of Bhagavati
Finance. The respondent - accused by the said defence has
rebutted the presumption drawn under Section 139 of the
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N.I. Act. As the presumption is rebutted, it is for the
appellant - complainant to establish the lending and
issuance of cheque for making payment of amount
borrowed. The complainant has not stated the date of
lending in the legal notice, complaint and examination-in-
chief. How the complainant has been acquainted with the
accused has also not been stated by the complainant in
legal notice, complaint and chief-examination of P.W.1.
What is the purpose of loan has also not been stated. It is
not the case of the complainant that he has lent money for
interest. How the complainant is acquainted with the
respondent - accused has also not been stated either in
the legal notice or in the complaint or in the examination-
in-chief of P.W.1. Without considering all these aspects
learned trial Judge has convicted the respondent - accused
for offence under Section 138 of N.I. Act. Considering the
above aspects learned appellate Judge has rightly reversed
the judgment of conviction passed by the trial Court and
acquitted the respondent - accused for offence under
Section 138 of N.I. Act by the impugned judgment. There
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are no grounds made out to set aside the impugned
judgment passed by the appellate Court. In the result, the
appeal is dismissed.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
LRS
