Karnataka High Court
Sri P Vinod Kumar vs Sri Abdul Sattar on 16 January, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.A No. 353 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 353 OF 2014
BETWEEN:
SRI P VINOD KUMAR
S/O LATE N.B. PURUSHOTHAMA RAO
AGED ABOUT 49 YEARS
RESIDING AT No.150
VEERAPILLAI STREET
SHIVAJINAGAR
BANGALORE - 560 001.
...APPELLANT
Digitally signed by
LAKSHMINARAYANA (BY SRI ASHOKA E, ADVOCATE)
MURTHY RAJASHRI
Location: HIGH
COURT OF AND:
KARNATAKA
SRI ABDUL SATTAR
S/O LATE YOUSUF SIDDIQ SAIT
AGED ABOTU 63 YEARS
RESIDING AT No.21 VITTAL MALYA ROAD
VIK GARDEN LAVELLY MARK, FLAT No.217
RAJANI GANDHA APARTMENT
(NEAR SHELL PETROL BUNK )
BANGALORE - 560 068.
...RESPONDENT
(BY SRI A C PATIL, ADVOCATE)
THIS CRL.A IS FILED UNDER SECTION 374(3) Cr.P.C
PRAYING TO SET ASIDE THE JUDGMENT OF ACQUITTAL DATED
11.02.2014 IN C.C.No.27572/2011 PASSED BY THE XIV ADDL.
CHIEF METROPOLITAN MAGISTRATE, BANGALORE - ACQUITTING
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CRL.A No. 353 of 2014
THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 138 OF N.I.ACT AND ETC.,
THIS APPEAL COMING ON FOR ARGUMENTS 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 11.02.2014
passed in C.C.No.27572/2011 by the XIV 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. Case of the appellant - complainant in brief is that;
The appellant - complainant and the respondent -
accused were known to each other since several years and
the respondent - accused had approached the appellant -
complainant and borrowed a sum of Rs.8,30,000/- for the
purpose of discharging his debt, agreeing to repay the same
with interest and issued a crossed cheque bearing
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No.085236 dated 27.06.2011 for Rs.8,30,000/- drawn on
Union Bank of India, Hains Road Branch, Bengaluru towards
discharge of the hand loan. The said cheque came to be
presented by the appellant - complainant for encashment
through the Corporation Bank, Cantonment Branch,
Bengaluru and the same has been returned on 28.06.2011
with endorsement - "funds insufficient" . The appellant -
complainant got issued the legal notice dated 06.07.2011 to
the respondent - accused demanding to pay the cheque
amount. The said notice has been served on the
respondent - accused. The respondent - accused has not
paid the cheque amount, but has sent a false reply. 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 criminal case in C.C.No.27572/2011 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, has examined himself as PW1 and got
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examined one Sri.P.Ravi Kumar as PW2 and got marked
Exs.P1 to P7. The statement of the respondent - accused
came to be recorded under Section 313 of Cr.P.C. The
respondent - accused has been examined as DW1 and got
marked Ex.D1. The Trial Court 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 the respondent - accused had admitted his
signature on Ex.P1 - cheque and therefore, a presumption
arises under Section 139 of the N.I.Act, that the cheque
had been issued for making payment of legally enforceable
debt. The evidence of PW2 coupled with the evidence of
PW1 establishes the amount borrowed by the respondent -
accused. The respondent - accused had not rebutted the
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said presumption. Without considering all these aspects,
the learned Magistrate has erred in acquitting the
respondent - accused. On these grounds, he prayed for
allowing the appeal and convicting the respondent -
accused for the offence under Section 138 of the N.I.Act.
5. Learned counsel for the respondent - accused would
contend that the respondent - accused on receipt of Ex.P3
- legal notice, has sent his reply - Ex.P7 denying the
amount borrowed, his acquaintance with the appellant -
complainant and his issuance of cheque to the appellant -
complainant. He further submits that PW2 is the younger
brother of the appellant - complainant and he was holding
the vakalth for the appellant - complainant in this case and
his evidence cannot be relied upon as he is an interested
witness. The respondent - accused who has been
examined as DW1 has produced Ex.D1 - letter containing
endorsement of the Bank that the cheque No.085236 ie.,
Ex.P1 was issued to M/s.Fathima Timbers having Current
Account No.457701010016011. He submits that there is no
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cross examination of DW1 with regard to the said Ex.D1.
He submits that Ex.P1 - cheque is of the year prior to 2000
and the same has been admitted by PW1 in his cross
examination. He submits that even on perusal of Ex.P1, it
is clear that the print year contains the numerical "19",
which itself would indicate that the cheque had been issued
prior to the year 2000. The respondent - accused in his
reply has denied the alleged borrowing and issuance of
cheque - Ex.P1 to the appellant - complainant. The date of
borrowing is not mentioned in Ex.P4 - legal notice,
complaint and the evidence of PWs.1 and 2. The capacity
of PW1 to lend huge amount of Rs.8,30,000/- has not been
established. He submits that there was another cheque
dishonour case filed by the present appellant - complainant
against Sri.Nissar Ahmed, wherein also the appellant -
complainant contended that he had lent Rs.8,30,000/- and
the cheque had been issued on 27.06.2011. He submits
that the said aspect itself would show that the alleged
lending by the appellant - complainant is Rs.8,30,000 +
Rs.8,30,000 = Rs.16,60,000/-. The appellant -
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complainant has not placed on record his capacity to lend
the said huge amount. He submits that in the sworn
statement of PW1, the appellant - complainant had stated
that he had lent money on 27.06.2011 to the respondent -
accused and on the same date, the respondent - accused
had issued a cheque - Ex.P1 for Rs.8,30,000/- and it was
presented on the same day and it was dishonoured on
28.06.2011. The said aspect is contradictory to the
contents of Ex.P4 - legal notice and the averments of the
complaint. The respondent - accused had taken up the
defence that Ex.P1 - cheque was signed by the respondent
- accused which was blank, has been given to one
Sri.Nissar Ahmed as a security to get the loan and it
reached one Sri.Ravi Kumar who has misused the same
through this respondent - accused. The said presumption
under Section 139 of the N.I.Act has been rebutted by the
respondent - accused by preponderance of probability and
therefore, the onus has been shifted to the respondent -
accused to prove the alleged borrowing and issuance of
cheque towards legally enforceable debt. Even the date of
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borrowing has not been stated in the legal notice, complaint
and the evidence of PWs.1 and 2. He has placed reliance
on several decisions on his contentions. He submits that
considering all these aspects, the learned Magistrate has
rightly passed the judgment of acquittal. With this, he
prayed for dismissal of the appeal.
6. Having heard the learned counsels, the Court has
perused the impugned judgment and the Trial Court
records.
7. Considering the grounds urged, the following point
arises for consideration;
"Whether the Trial Court has erred in passing the
judgment of acquittal, 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 nagative, for
the following reasons;
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It is the case of the appellant - complainant that the
respondent - accused had borrowed Rs.8,30,000/- from the
appellant - complainant. The date of borrowing the said
amount has not been stated in Ex.P4 - legal notice,
averments of the complaint and in the evidence of
PWs.1 and 2.
9. PW2 is stated to be an eye witness to the alleged
borrowing by the respondent - accused from the appellant
- complainant. PW2 had admitted in his cross examination
that he is the younger brother of the appellant -
complainant and as an advocate, he has drafted the legal
notice and also the complaint and he was an advocate for
the appellant - complainant at the time of filing the private
complaint. The said aspect itself would indicate that PW2 is
an interested witness and therefore, his evidence is not
trustworthy to place reliance on, to prove the alleged
lending of money by the appellant - complainant to the
respondent - accused.
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10. It is the defence of the respondent - accused that he
is not acquainted with the appellant - complainant, he has
not borrowed any money from him and he has not issued
any cheque to him. It is his further defence that Ex.P1 -
cheque has been issued which is blank and signed by him to
one Sri.Nissar Ahmed to avail loan by him and that is more
than ten years prior to he receiving the legal notice - Ex.P4.
PW1 in his cross examination had admitted that Ex.P1 -
cheque is of the year prior to 2000. On perusal of Ex.P1 -
cheque, one can see that the year printed on it at the date
column commencing with the numerical "19". The said
aspect itself fortifies the defence of the respondent -
accused that the cheque is of the year prior to 2000.
11. Ex.D1 is the letter of the respondent - accused given
to the Union Bank of India dated 06.06.2013 and in its
bottom, there is an endorsement of the Bank. As per the
said endorsement, the cheque No.085236 had been issued
to M/s. Fathima Timbers, Current Account No.
457701010016011 maintained with their bank since
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19.07.1988. The said cheque No.085236 is the cheque
which is at Ex.P1. The said Ex.P1 has been marked in the
evidence of DW1. There is no cross examination with
respect to the said document ie., Ex.D1 by the appellant -
complainant. All these aspects fortifies the defence of the
respondent - accused that the cheque - Ex.P1 had been
issued by him to Sri.Nissar Ahmed and it has been misused.
12. The appellant - complainant to establish that he had
the financial capacity to lend Rs.8,30,000/- has not placed
any evidence on record. As the respondent - accused has
rebutted the presumption raised under Section 139 of the
N.I.Act, the onus shifts on the appellant - complainant to
establish the alleged lending and issuance of cheque
towards the legally enforceable debt. The appellant -
complainant has not proved the said lending to the
respondent - accused. Considering all these aspects, the
learned Magistrate has rightly passed the impugned
judgment of acquittal, acquitting the respondent - accused
for the offence under Section 138 of the N.I.Act. There are
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no grounds made out for setting aside the impugned
judgment of acquittal. In the result, the following;
ORDER
The appeal is dismissed.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
GH
