Karnataka High Court
Sri Kiran Kumar V R vs Sri T H Umesh on 13 January, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.A No. 703 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 703 OF 2014
BETWEEN:
SRI KIRAN KUMAR V R
AGED ABOUT 28 YEARS
S/O RAMAIAH, C/O RAMDAS
R/AT No.80, TYPE-3
CPRI-COLONY, NEW BEL ROAD
BANGALORE - 560 012.
...APPELLANT
(BY SRI RAMAPRAKASH N, ADVOCATE)
AND:
Digitally signed by
SRI T H UMESH
LAKSHMINARAYANA AGED ABOUT 40 YEARS
MURTHY RAJASHRI
Location: HIGH
S/O HORAKERAPPA
COURT OF R/AT THIMMANAHALLI VILLAGE
KARNATAKA
THIMMANAHALLI POST
KANDIKERE HOBLI
CHIKKANAYAKANAHALLI TALUK
TUMKUR DISTRICT - 572 214.
...RESPONDENT
(BY SRI THYAGARAJA S, ADVOCATE)
THIS CRL.A. IS FILED UNDER SECTION 378(4) Cr.P.C
PRAYING TO SET ASIDE THE ORDER DATED:2.6.14 PASSED BY
THE XXII ADDL.C.M.M., BANGALORE CITY IN C.C.No.18566/12
- ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 138 OF N.I. ACT AND ETC.,
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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CRL.A No. 703 of 2014
CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL JUDGMENT
1. This appeal is filed by the appellant - complainant
praying to set-aside the judgment of acquittal dated
02.06.2014 passed in C.C.No.18566/2012 by the XXII
Additional Chief Metropolitan Magistrate, Bengaluru,
whereunder, the respondent - accused has been acquitted
of the offence punishable under Section 138 of the
Negotiable Instruments Act, 1881 (for short hereinafter
referred to as 'N.I.Act').
2. The brief facts of the complainant's case is that;
The appellant - complainant and the respondent -
accused were known to each other. The respondent -
accused had approached the appellant - complainant
seeking hand loan and the appellant - complainant had
lent Rs.1,00,000/- to the respondent - accused as hand
loan during the last week of June, 2011. The respondent
- accused had agreed to repay the said hand loan within
three months and he did not repay the same within three
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months. The appellant - complainant insisted the
respondent - accused to repay the hand loan amount and
therefore, he had issued a cheque bearing No.715814
dated 01.02.2012 drawn on Canara Bank for a sum of
Rs.1,00,000/- in favour of the appellant - complainant.
The appellant - complainant presented the said cheque for
collection and the same came to be returned with an
endorsement - "insufficient funds". The appellant -
complainant got issued the legal notice to the respondent
- accused on 14.02.2012, calling upon him to pay the
cheque amount. Notice has been served on the respondent
- accused. The respondent - accused did not repay the
cheque amount nor given any reply to the said legal
notice. The appellant - complainant initiated the
proceedings against the respondent - accused for the
offence under Section 138 of the N.I.Act. The learned
Magistrate, after recording the sworn statement, took
cognizance of the offence under Section 138 of the N.A.Act
against the respondent - accused and registered
C.C.No.18566/2012. The respondent - accused appeared
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in the said case and plea has been recorded. The appellant
- complainant in order to prove his case, examined
himself as PW1 and got marked Exs.P1 to P6. The
respondent - accused has been examined himself as DW1
and no documents were marked on his side. The
statement of the respondent - accused came to be
recorded under Section 313 of Cr.P.C. The learned
Magistrate, after hearing the arguments on both sides has
formulated the points for consideration and thereafter,
passed the impugned judgment of acquittal. The said
judgment of acquittal has been challenged by the
appellant - complainant in the present appeal.
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 DW1, in the cross examination has
admitted the signature on the cheque and therefore, a
presumption arises under Section 139 of the N.I.Act, that
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the cheque has been issued for making payment of legally
enforceable liability. He further submits that the
respondent - accused who has putforth his defence that
cheque - Ex.P1 has been issued as a security for the chit
transaction run by one Sri.Ramdas who is father of the
appellant - complainant and it has been misused. He
further submits that the respondent - accused in order to
establish his defence has not examined any witness. PW1
has denied all the suggestions regarding the defence of
the respondent - accused. Without considering all these
aspects, the learned Magistrate has erred in passing the
impugned judgment of acquittal. Learned counsel for the
appellant - complainant has placed reliance on the
following decisions:
"1. M/s. Maheshwari Constructions Private Limited
Vs. M/s. Lords Palace and Resorts, reported in
2007(2) KCCR 1199.
2. Sri N Hasainar Vs. Sri M Hasainar, reported in
2008 (4) KCCR 2414.
3.L Mohan Vs. V Mohan Naidu, reported in
2004 (3) KCCR 1816.
4. Sri N Hasainar Vs. Sri M Hasainar, reported in
ILR 2008 KAR 4361.
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5. M/s Gowri Containers Vs. S C Shetty and
Another, reported in ILR 2007 KAR 4586.
6. J Rajanna Setty Vs. Sri Patel Thimmegowda,
reported in ILR 1998 KAR 1825.
7. K Narayana Reddy Vs. N M Muniyappa, reported
in ILR 1999 KAR 3200."
5. Learned counsel for the respondent - accused would
contend that PW1 in his cross examination has admitted
that he has completed his diploma in the year 2013 and
that itself would indicate that he had no capacity to lend
the loan of Rs.1,00,000/- to the respondent - accused in
the year 2011. The ink used for filling up the contents of
the cheque namely the amount, name of the payee and
the date are different than that of the ink used for
signature of the drawer. Considering all these aspects, the
learned Magistrate has rightly acquitted the respondent -
accused. With this, he prayed to dismiss the appeal.
6. Having heard the learned counsels, the Court has
perused the impugned judgment and the Trial Court
records.
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7. Considering the grounds raised and urged, the
following point arises for consideration;
"whether the Trial Court has erred in acquitting
the respondent - accused of the offence
punishable under Section 138 of the N.I.Act"
8. My answer to the above point is in the affirmative,
for the following reasons;
It is the specific case of the appellant - complainant
that he had lent Rs.1,00,000/- to the respondent -
accused and in order to repay the same, he had issued
Ex.P1 - cheque for Rs.1,00,000/- and the same came to
be dishonoured for want of funds. The respondent -
accused who has been examined as DW1 has admitted in
the cross examination that the signature on the cheque is
of himself and he has issued the said cheque. When the
respondent - accused has admitted that the cheque -
Ex.P1 has been issued by him, a presumption arises under
Section 139 of the N.I.Act, that the cheque has been
issued for making payment of legally enforceable debt /
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liability. The said presumption under Section 139 of the
N.I.Act is a rebuttable presumption. The respondent -
accused has to rebut the said presumption either by cross
examination of the appellant - complainant and his
witnesses and by leading evidence also. It is the defence
of the respondent - accused that one Sri.Ramdas was
running the chit transaction and the respondent - accused
who was a member in the chit transaction had issued a
blank signed cheque - Ex.P1 as a security. The said
defence of the respondent - accused has been denied by
PW1 in his cross examination. It is for the appellant -
complainant to prove that one Sri.Ramdas was running the
chit transaction and he is related to the appellant -
complainant and the respondent - accused had issued
Ex.P1 - cheque to the said Sri.Ramdas as a security for
the said chit transaction. PW1, in his cross examination
had denied that one Sri.Ramdas was running the chit
transaction and Ex.P1 has been issued as a security to the
said Sri.Ramdas and it has been misused. In order to
prove that Sri.Ramdas was running the said chit
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transaction and this respondent - accused has given Ex.P1
- signed cheque to him as a security, the respondent -
accused has not examined any members of the said chit
transaction. The respondent - accused has made an
application under Section 311 of Cr.P.C seeking issuance
of witness summons to two witnesses namely
Sri.Manjunath T.N and Sri.Ramakrishna. The said
application of the respondent - accused came to be
rejected by the Trial Court by order dated 07.05.2014.
The said order has not been challenged by the respondent
- accused and it became final. Even in the application
filed by the respondent - accused under Section 311 of
Cr.P.C, it is not stated that those two witnesses are the
members of the chit transaction run by Sri.Ramdas.
Considering the said aspect , it is clear that the respondent
- accused has failed to rebut the presumption raised under
Section 139 of the N.I.Act. Merely because the appellant -
complainant has not proved his capacity to lend money, it
will not rebut the presumption raised under Section 139 of
the N.I.Act. Merely because the appellant - complainant
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has completed his Diploma course in the year 2013, it
cannot be said that in the year 2011, he had no capacity
to lend money, since his age had not been ascertained in
the cross examination.
9. The co-ordinate Bench of this Court in the case of
N.Hasainar, (2008) 4 KCCR 2414 supra, has held that
proving of capacity to lend money is not warranted when
the presumption under Section 139 of the N.I.Act
is raised and issuance of cheque is admitted. The
Co-ordinate Bench of this Court in the case of
M/s.Maheshwari Constructions Private Limited,
2007(2) KCCR 1199, supra, has held that filling up of
the date in the cheque by the complainant does not
invalidate the cheque and the complaint for the offence
under Section 138 of the N.I.Act, is maintainable. The
Trial Court without proper appreciation of the evidence on
record has passed the impugned judgment of acquittal.
The appellant - complainant has proved all the ingredients
of the offence under Section 138 of the N.I.Act. Even the
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respondent - accused, inspite of receipt of legal notice
after dishonour of the cheque has not chosen to give any
reply to the legal notice, putting forth his defence. In view
of the above, the following;
ORDER
The appeal is allowed. The impugned judgment of
acquittal dated 02.06.2014 passed in C.C.No.18566/2012
by the XXII Additional Chief Metropolitan Magistrate,
Benglauru is set-aside. The respondent - accused is
convicted for the offence under Section 138 of the N.I.Act
and he is sentenced to pay fine of Rs.1,50,000/- and in
default of payment of fine, to undergo simple
imprisonment for a period of six months. Out of the fine
amount, a sum of Rs.1,40,000/- is ordered to be paid to
the appellant - complainant as compensation.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
GH
