Karnataka High Court
Smt. Vijayalakshmi vs Sri Chandrashekar B on 17 January, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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NC: 2025:KHC:1938
CRL.A No. 162 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 162 OF 2014
BETWEEN:
SMT. VIJAYALAKSHMI
W/O G.CHANDRASHEKAR
AGED ABOUT 36 YEARS
R/AT No. 282/59, 3RD CROSS
BRAHAMANANDAMUTT ROAD
RAMACHRAPURAM
OPP. SANGEETHA VIDEO
BANGALORE - 560 021.
...APPELLANT
(BY SRI PAVAN KUMAR N, ADVOCATE
SRI L. SRINIVASA BABU, ADVOCATE)
AND:
SRI CHANDRASHEKAR B
Digitally signed by
LAKSHMINARAYANA PROPRIETOR OF MANASA-
MURTHY RAJASHRI CORRESPONDENCE COLLEGE, REG.,
Location: HIGH
COURT OF D/No. 454, 3RD CROSS, 3RD MAIN
KARNATAKA KAMALANAGAR,
BANGALORE - 560 079.
AND ALSO AT:
SRI CHANDRASHEKAR.B
PROPRIETOR OF MANASA
CORRESPONDENCE COLLEGE, REG.,
No.58, 2ND FLOOR, 5TH CROSS
SAMPIGE ROAD
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CRL.A No. 162 of 2014
MALLESHWARAM CIRCLE,
BANGALORE - 560 003.
...RESPONDENT
(BY SRI SWAROOP, ADVOCATE FOR
SRI M C RAVIKUMAR, ADVOCATE - V.C.)
THIS CRL.A. IS FILED UNDER SECTION 378(4)Cr.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
ACQUITTAL DATED 21.10.2013 PASSED BY THE XIII A.C.M.M.,
BANGALORE IN C.C.No.26411/2011 - ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 138 OF N.I.ACT AND ETC.,
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 appellant - complainant
challenging the judgment of acquittal dated 21.10.2013
passed in C.C.No.26411/2011 by the XIII 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').
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2. The brief facts of the complainant's case is that; the
appellant - complainant is the Proprietor of Sree Sai
Lakshmi Enterprises doing fabrication work for their
livelihood. The respondent - accused is the family friend
of the appellant - complainant since several years and due
to such acquaintance, the respondent - accused
approached the appellant - complainant in the last week
of December, 2010 for the financial assistance of
Rs.4,00,000/-, promising to repay the same within three
months. The appellant - complainant had lent
Rs.4,00,000/- during the last week of December, 2010 to
the respondent - accused. The respondent - accused, in
order to repay the said loan amount had issued two post
dated cheques, bearing No.086849 dated 07.03.2011 for a
sum of Rs.2,00,000/- and bearing No.086850 dated
21.03.2011 for a sum of Rs.2,00,000/-, both drawn at
U.T.I Bank Limited, Malleshwaram, Bengaluru. The
appellant - complainant presented the said two cheques
and they came to be dishonoured with an endorsement -
"Account Closed". The appellant - complainant got issued
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the legal notice to the respondent - accused on
18.04.2011. On service of the said notice, the respondent
- accused had sent the reply. As the cheque amount has
not been paid, the appellant - complainant filed a private
complaint for the offence under Section 138 of the N.I.Act
against the respondent - accused. The learned Magistrate
took cognizance of the offence and registered
C.C.No.26411/2011 against the respondent - accused.
The plea of the respondent - accused has been recorded.
The appellant - complainant, in order to prove her case,
has examined herself as PW1 and got marked Exs.P1 to
P6. 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
Exs.D1 to D3. 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.
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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 signatures on Exs.P1 and P2 - cheques and
therefore, a presumption arises under Section 139 of the
N.I.Act, that the cheques have been issued for making
payment of legally enforceable debt. The respondent -
accused had sent a false reply as per Ex.D3. The appellant
- complainant has denied the suggestion that Exs.P1 and
P2 - cheques were given to her husband as a security at
the time of the respondent - accused availing loan of
Rs.50,000/- and they have not been returned after
repayment of the loan and they have been misused by the
appellant - complainant. Without considering all these
aspects, the learned Magistrate has erred passing the
judgment of acquittal. On these grounds, he prayed for
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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 had availed loan of
Rs.50,000/- from husband of the appellant - complainant
on 24.03.2007 and at that time, he had given the blank
signed cheques. The said loan had been repaid by the
respondent - accused on 16.04.2008 and the same can be
seen from the statement of account which is at Ex.D1.
Inspite of repayment of the said loan, husband of the
appellant - complainant has not returned the cheques and
he got them misused by handing over them to the
appellant - complainant who is his wife. The said closing
of account of the respondent - accused on 16.07.2008
itself would indicate that the cheques were issued prior to
closure of the said account. The respondent - accused has
denied the transaction and issue of the cheques to the
appellant - complainant in his reply notice - Ex.D3. The
appellant - complainant has not chosen to examine her
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husband, in order to disprove the contentions of the
respondent - accused. 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, this 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;
Exs.P1 and 2 - cheques are stated to be issued by
the respondent - accused for making payment of the
amount borrowed. The respondent - accused had
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admitted his signatures on Exs.P1 and 2 - cheques. As
the respondent - accused had admitted his signatures on
the cheques, a presumption arises under Section 139 of
the N.I.Act that the cheques were issued for making
payment of the legally recoverable debt. The said
presumption is a rebutable presumption. It is the defence
of the respondent - accused that he had availed loan of
Rs.50,000/- on 24.03.2007 from husband of the appellant
- complainant in a sum of Rs.50,000/- and it had been
repaid by him on 16.04.2008. Ex.D1 - bank statement
contains an entry dated 16.04.2008, whereunder
Rs.50,000/- had been paid by this respondent - accused
to the husband of the appellant - complainant. It is the
contention of the respondent - accused that Exs.P1 and 2
- cheques were issued as a security to the husband of
the appellant - complainant at the time of availing the said
loan and they had been misused by the appellant -
complainant and her husband. Ex.D2 is the document,
wherein it is stated that the account of the respondent -
accused has been closed on 16.07.2008. The cheques -
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Exs.P1 and 2 are dated 07.03.2011 and 21.03.2011.
Considering the said date of closure of the account and the
dates of the cheques - Exs.P1 and 2, it fortifies the
defence of the respondent - accused that the cheques
were issued as a security to the husband of the appellant
- complainant, when he availed loan on 24.03.2007. In
order to disprove the contentions of the respondent -
accused that he had given the cheques to the husband of
the appellant - complainant, the appellant - complainant
ought to have examined her husband. The appellant -
complainant has not chosen to examine her husband. The
appellant - complainant has not produced any document
to show her financial capacity to lend a sum of
Rs.4,00,000/-. Considering all these aspects, the
respondent - accused has rebutted the presumption raised
under Section 139 of the N.I.Act. Considering all these
aspects, the learned Magistrate has rightly acquitted the
respondent - accused for the offence under Section 138 of
the N.I.Act by a well reasoned judgment. There are no
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NC: 2025:KHC:1938
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
