Sri R. Lakshman vs Sri R. Chandran
2025 Latest Caselaw 2704 Kant

Karnataka High Court

Sri R. Lakshman vs Sri R. Chandran on 22 January, 2025

Author: Shivashankar Amarannavar

Bench: Shivashankar Amarannavar

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                                                             NC: 2025:KHC:2652
                                                        CRL.A No. 252 of 2015




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 22ND DAY OF JANUARY, 2025

                                             BEFORE
                      THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
                                 CRIMINAL APPEAL No. 252 OF 2015
                      BETWEEN:

                         SRI R. LAKSHMAN
                         S/O.LATE RAMASWAMY
                         AGED 57 YEARS
                         R/AT No.419, 14TH CROSS
                         LIC COLONY, SRIRAMAPURA 2ND STAGE
                         MYSORE - 570 023.
                                                                  ...APPELLANT

                      (BY SRI SHANTKUMAR N, ADVOCATE FOR
Digitally signed by
LAKSHMINARAYANA        MURUGESH V CHARATI, ADVOCATE)
MURTHY RAJASHRI
Location: HIGH
COURT OF
KARNATAKA
                      AND:

                         SRI R. CHANDRAN
                         S/O RAJU GOWDA
                         AGED 61 YEARS
                         R/AT No.-109/2B
                         DEVAIAHNA HUNDI MAIN ROAD
                         SRIRAMAPURA 2ND STAGE
                         MYSORE- 570 023.
                                                              ...RESPONDENT

                      (BY SRI G RAVINDRA BABU, ADVOCATE - ABSENT)

                           THIS CRL.A. IS FILED UNDER SECTION 378(4) Cr.P.C
                      PRAYING TO SET ASIDE THE ORDER DATED 10.10.2013
                      PASSED BY THE I ADDL. I CIVIL JUDGE & JMFC, MYSORE, IN
                      C.C.No.1292/09 - ACQUITTING THE RESPONDENT/ACCUSED
                      FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I.
                      ACT AND ETC.,
                                   -2-
                                                 NC: 2025:KHC:2652
                                            CRL.A No. 252 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

challenging the judgment of acquittal dated 10.10.2013

passed in C.C. No. 1292/2009 by the I Additional Civil

Judge and JMFC, Mysuru whereunder the respondent -

accused has been acquitted for offence under Section 138

of the Negotiable Instruments Act (hereinafter for the sake

of brevity referred to as the `N.I. Act').

2. Brief facts of the complainant's case is, that the

complainant and accused are old friends and in the month

of January, 2007 the respondent - accused requested the

complainant to lend loan of Rs.18,00,000/- to meet the

expenses relating to construction of the house and also to

clear the debts. After one month, the respondent - accused

repaid Rs.20,000/- and assured that the balance amount

would be paid as early as possible. The respondent -

accused did not pay the amount as agreed. When the

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complainant insisted the accused to repay the balance

amount, the accused had issued cheque bearing No.

560490 for Rs.17,80,000/- dated 21.02.2009 of ICICI Bank

Limited, Mysuru. The complainant presented the cheque

and the same came to be dishonoured with shara

"insufficiency of funds" in the account of the accused. The

complainant got issued legal notice to the respondent -

accused. The respondent - accused sent reply to the said

notice but, did not pay the cheque amount. Therefore, the

appellant - complainant filed a private complaint against

the respondent - accused for offence under Section 138 of

the N.I. Act. Learned Magistrate has taken cognizance of

the offence and registered C.C. No. 1292/2009 against the

respondent - accused for offence under Section 138 of the

N.I. Act. Plea 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.11. Statement of the respondent -

accused has been recorded under Section 313 of Cr.P.C.

The respondent - accused has examined himself as D.W.1

and got marked Ex.D.1 to Ex.D.20. The trial Court after

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hearing arguments on both sides formulated points for

consideration and passed the impugned judgment of

acquittal. Said judgment of acquittal has been challenged

by the complainant in this appeal.

3. Heard learned counsel for appellant -

complainant. Learned counsel for respondent - accused is

absent.

4. Learned counsel for appellant would contend

that the respondent - accused has admitted his signature on

the cheque - Ex.P.1 and therefore, a presumption under

Section 139 of the N.I. Act requires to be drawn. Said

presumption raised under Section 139 of the N.I. Act has

not been rebutted by the respondent - accused. The

contention of the respondent - accused that the cheque -

Ex.P.1 has been issued by him to one Sri. Tilakramu as

security has not been established by examining the said Sri.

Tilakramu and his wife Smt. Renuka. The respondent -

accused has failed to rebut the presumption. The suit filed

by the respondent - accused in O.S. No.1292/2009 is

subsequent to the filing of the present complaint by the

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complainant and therefore, it is an after thought. To create

record and defence said suit has been filed. Without

considering these aspects learned Magistrate has erred in

passing the impugned judgment of acquittal. With this he

prayed to allow the appeal and convict the respondent -

accused for offence under Section 138 of the N.I. Act.

5. Having heard the learned counsel for appellant

and on perusal of the impugned judgment of acquittal and

trial Court records the following point arises for

consideration in this appeal.

"Whether the learned Magistrate erred in

acquitting the respondent - accused for offence

under Section 138 of the N.I. Act?"

6. My answer to the above question is in the

negative for the following reasons:

It is the case of the complainant that the respondent

had borrowed Rs.18,00,000/- from him in January, 2007

and he repaid Rs.20,000/- within one month thereafter. It

is the further case of the complainant that the respondent

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- accused had issued a cheque - Ex.P.1 dated 21.02.2009

bearing No. 0560490 for Rs.17,80,000/- for making

payment of the balance amount of the debt. The

respondent - accused has admitted his signature on the

cheque - Ex.P.1. Therefore, a presumption has been

drawn that the said cheque has been issued for making

payment of legally enforceable debt. Said presumption is a

rebutable presumption. It is for the respondent - accused

to rebut the said presumption.

7. The defence of the respondent - accused is that

he had issued a blank signed cheque to one Sri. Tilakramu

and his wife Smt. Renuka with regard to a sale transaction

between his son and the said Sri. Tilakramu in the year

2007 by mentioning the date as 21.02.2007 and the said

cheque has been misused by the complainant in collusion

with the said Sri. Tilakramu by altering the date mentioned

in the said cheque.

8. On bare perusal of the cheque - Ex.P.1 it is

clearly visible that the year in the said cheque has been

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altered from 2007 to 2009. The numerical `7' has been

altered to numerical `9'. Said cheuqe has been sent for

expert opinion and the report dated 11.04.2013 of the

expert indicate that 3 different inks were observed in the

altered portion of the date and the same is evident that the

last part of the date has been materially altered. Said

aspect fortifies the defence of the respondent - accused that

the cheque has been issued by him in the year 2007 and it

has been misused by the said Sri. Tilakramu and the

complainant altering the year in the said cheque. As there

is an allegation that there is collusion between the Sri.

Tilakramu and the complainant, the question of respondent

- accused examining the said Sri. Tilakramu to establish his

defence does not arise.

9. The respondent - accused and the complainant

were partners and the partnership deed executed between

them is dated 17.06.1998 which is at Ex.P.10. The

respondent - accused and the appellant - complainant were

not in cordial terms after the year 2004 as the respondent -

accused had filed a complaint against the appellant -

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complainant. When the relationship between the appellant

and the respondent is not cordial, there is no question of

borrowing loan and issuing cheque for repayment of the

amount borrowed. More so, the respondent accused has

filed a suit in O.S. No. 1615/2009 against the appellant -

complainant, Sri. Tilakramu and his wife Smt. Renuka

seeking return of the cheque which is at Ex.P.1. Considering

all these aspects the respondent - accused has rebutted the

presumption raised under Section 139 of the N.I. Act. As

the presumption has been rebutted, onus is on the

appellant - complainant to prove actual lending of loan

amount and issuance of cheque - Ex.P.1 for making

repayment of the loan amount. The appellant - complainant

has not proved that he had lent Rs.18,00,000/- to the

respondent - accused during January, 2007. Even the

appellant - complainant has not produced any documents

to show how he got cash of Rs.18,00,000/- even though he

has produced copy of the sale deed which is at Ex.P.9 as

the amount of sale consideration has been credited to his

bank account. Considering all these aspects learned

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Magistrate has rightly held that the respondent - accused

has not committed any offence under Section 138 of the

N.I. Act. Said judgment of acquittal passed by the learned

Magistrate is a reasoned judgment. There are no grounds

made out for allowing the appeal and setting aside the

impugned judgment of acquittal.

10. In the result, the appeal is dismissed.

Sd/-

(SHIVASHANKAR AMARANNAVAR) JUDGE

LRS