Karnataka High Court
Sri Pundareekakasha B R vs Smt K Vijayalakshmi on 21 January, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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NC: 2025:KHC:2474
CRL.A No. 497 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 497 OF 2015
BETWEEN:
SRI PUNDAREEKAKASHA B R
AGED ABOUT 58 YEARS,
SON OF LATE B R RANGAPPA
RESIDING AT No.7,
NAGAPPA STREET MAIN ROAD
PALACE GUTTAHALLI,
BANGALORE - 560 003.
...APPELLANT
(BY SRI VENKATRAMANA M K, ADVOCATE)
Digitally signed by
LAKSHMINARAYANA AND:
MURTHY RAJASHRI
Location: HIGH
COURT OF
KARNATAKA SMT. K VIJAYALAKSHMI
AGED ABOUT 51 YEARS
WIFE OF SHIVAKUMAR
S.D.A ADMINISTRATIVE SECTION,
BANGALORE RURAL ZILLA PANCHAYATH,
K G ROA,D
BANGALORE - 560 009.
...RESPONDENT
(BY SRI. H ABHISHEK GOWDA, ADVOCATE - ABSENT)
THIS CRL.A. IS FILED UNDER SECTION 378(4) Cr.P.C
PRAYING TO SET ASIDE THE ORDER DATED:26.2.2015,
PASSED BY THE XL ACMM, BANGALORE (S.C.H.NO.14), IN
C.C.No.13157/13 - ACQUITTING THE RESPONDENT/ACCUSED
FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I.
ACT AND ETC.,
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CRL.A No. 497 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
This appeal is filed by the appellant -complainant
challenging the judgment of acquittal dated
26.02.2015 passed in C.C.No.13157/2013 by the XL
Additional Chief Metropolitan Magistrate, Bengaluru
City, wherein the respondent -accused has been
acquitted for the offence punishable under Section 138
of Negotiable Instruments Act, 1881 (hereinafter
referred to as "N.I. Act" for brevity).
2. The case of the complainant's in brief is as
under:
The husband of the respondent -accused i.e. Sri
Shivakumar is one of the friends of the complainant
and acquainted him with since last 05 years. The
respondent -accused is Government employee and
during third week of October -2012, she sought
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financial help from the complaiannt in order to meet
out her urgent necessities. The respondent -accused
sought for a hand of Rs.1,50,000/- assuring to the
complainant that that she will repay the same within
three months. Accordingly, the appellant -
complainant has paid Rs.1,50,000/- by way of cash on
28.10.2012 to the respondent -accused at his
residence. The respondent -accused after receipt of
Rs.1,50,000/- has executed an on demand promissory
note and consideration receipt for having received a
sum of Rs.1,50,000/- on 28.10.2012. The respondent
-accused in order to repay the said amount barrowed
has issued the cheque bearing No.780257 dated
01.02.2013 drawn on Bank of Maharastra,
Gandhinagar Branch, Bengaluru infavour of the
complainant and took back on demand promissory
note and consideration receipt. The complainant
presented the said cheque for collection and same
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came to be dishounoured for a reason "Payment
stopped by Drawer". The complainant got issued
notice on 15.03.2013. The said notice has been
served on the respondent -accused. The respondent -
accused did not repay the cheque amount. Therefore,
the appellant -complainant has filed private complaint
against the respondent -accused for offence
punishable under Section 138 of the N.I Act.
3. The learned Magistrate has taken
cognizance against the respondent -accused and
registered C.C.No.13157/2013 for the offence
punishable under Section 138 of N.I. Act. The plea of
the respondent 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 P6. The
statement of the respondent -accused came to be
recorded under Section 313 of Cr.P.C. The respondent
-accused has examined himself as D.W.1 and got
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marked three documents as Ex.D1 to D3. Learned
Magistrate after hearing arguments on both side has
formulated points for consideration and passed the
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 -
complainant. The learned counsel for the respondent -
accused is absent.
5. Learned counsel for the appellant-
complainant would contend that the respondent-
accused has admitted her signature on Ex.P1 -Cheque
and it is drawn on her account. Therefore, the
presumption requires to be drawn under Section 139
of the N.I. Act. The said presumption has not been
rebutted. The trial Court has erred in holding that the
appellant -complainant has no financial capacity to
lend money of Rs.1,50,000/- to the respondent -
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accused. The respondent -accused even after receipt
of demand notice -Ex.P3 and issuing reply to the said
notice as per Ex.P6 has not choosen to take any action
against the appellant -complainant for misusing her
cheque. The said presumption raised under Section
139 of the N.I. Act has not been rebutted by the
respondent -accused. Without considering all these
aspects, learned Magistrate has erred in passing the
impugned judgment of acquittal. With these, he prays
to allow the appeal and convict the respondent -
accused for offence punishable under Section 138 of
N.I Act.
6. Learned counsel for the appellant -
complainant has placed reliance on the following
decisions
1)Tedi Singh Vs Narayana Dass Mahant1
2)APS Forex Services(P) Ltd Vs Shakthi International
Fashions Liners and Another2
3)Laxmi Dyechem Vs State of Gujarat and Ohers3
Reported in Crl.A.No.362/2022 dated 07.03.2022
Reported in (2020) 12 SCC 724
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4)Uttam Ram Vs Devinder Singh Hudan Another4
5)Devaraj Vs Balappa5
6)M/s Shree Daneshwari Traders Vs Sanjay Jain and
Anr6
7)Kalamani Tex And Another Vs P.Balasunbramanian7
8)Kishan Rao Vs Shankargouda8
9)T.P. Murugan (dead) Thr Lrs Vs Bojan Posa Nandhi9
10)Rohitbhai Jivanlal Patel Vs State of Gujarat and
Anr10
11)Rajaram (since deceased) Vs Maruthachalam11
7. Having heard learned counsel, this Court
has perused impugned judgment and trial Courts
records. Considering grounds urged, the following
point arises for consideration.
"Whether the trial Court has erred in
acquitting the respondent -accused for
offence punishable under Section 138 of N.I
Act?"
My answer to the above point is in the negative
for the following reasons.
Reported in (2012) 13 SCC 375
Reported in 2019 (2) Kar. LR 717 (SC)
Reported in II (2023) BC 72 (KAR)
Reported AIR 2019 SC 4003
Reported (2021) 5 SCC 283
Reported AIR 2018 SC 3173
Reported AIR 2018 SC 3601
Reported AIR 2019 SC 1876
Reported I (2023) BC 248 (SC)
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The respondent -accused has admitted her
signature on Ex.P1 -Cheque which has been drawn on
her account. As respondent -accused has admitted
her signature on the Cheque the presumption requires
to be raised that the said cheque has been issued for
making payment of legally enforceable debt. The said
presumption is rebuttable presumption.
8. It is specific case of the appellant -
complainant that at the time of barrowing money, the
respondent -accused has executed on demand
promissory note and consideration receipt. It is further
case of the appellant -complainant that while issuing
Ex.P1 -Cheque, the respondent -accused demanded
to return on demand promissory note and
consideration receipt and therefore, he has returned
them to the respondent -accused. The appellant -
complainant is law graduate he has registered himself
as an advocate. As complainant is law graduate he
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knows consequences of returning on demand
promissory note unless the debt is repaid. Even the
photocopy of alleged on demand promissory note and
consideration receipt are not retained by the appellant
-complainant. It is specific defence of the respondent
-accused that she lost her two signed cheques kept in
her bag during December -2012 when she went to
shop and she filed complaint regarding the same to
the Police as per EX.D1 and police have issued
acknowledgement in that regard as per Ex.D3. The
respondent -accused has also intimated regarding loss
of cheque to her Banker by letter dated 20.12.2012.
The respondent -accused by her oral evidence and
documents -Ex.D1 to D3 has rebutted presumption
that cheque -Ex.P1 has been issued to the appellant -
complainant for making payment of legally
enforceable debt.
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9. Cheque -Ex.P1 is dated 01.02.2013. It is
case of the appellant -complainant that when he
demanded repayment of amount barrowed, the
respondent -accused has issued cheque on
01.02.2013. Prior to the said date i.e.01.02.2013, the
respondent -accused has given intimation to her
Banker regarding loss of signed cheques and also filed
complaint to the Police on 20.12.2012 as per Ex.D1
and D2. The said complaint and intimation to the
Banker is prior to the date of cheque i.e. 01.02.2013.
It is not suggested to DW.1 that she had plan earlier
and as per that plan she filed complaint to police as
per Ex.D1 and given intimation to the Banker as per
Ex.D2 and thereafter, she issued cheque as per EX.P1
on 01.02.2013. Considering all these aspects, the case
of the complainant is that he returned on demand
promissory note and consideration receipt while he
receiving Ex.P1 -Cheque appears to be a cock and bull
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story. As respondent -accused rebutted the
presumption raised under Section 139 of the N.I Act,
the onus is on the appellant -complainant to establish
the lending of money and issuance of cheque towards
legally enforceable debt. The complainant failed to
prove the alleged lending of money and issuance of
cheque for making payment of said debt.
10. Considering all these aspects, learned
Magistrate has rightly acquitted the respondent -
accused for offence punishable under Section 138 of
N.I Act by well reasoned judgment. There are no
grounds for allowing the appeal.
11. In the result, the appeal is dismissed.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
DSP
