Karnataka High Court

T Tulasidas vs Smt Ratnamma on 18 March, 2025

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                                                              NC: 2025:KHC:12180
                                                         CRL.A No. 461 of 2021




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 18TH DAY OF MARCH, 2025

                                             BEFORE
                            THE HON'BLE MR JUSTICE S RACHAIAH

                            CRIMINAL APPEAL NO. 461 OF 2021 (A)

                   BETWEEN:

                   T. TULASIDAS S/O LATE T. K. KONDAIAH,
                   AGED ABOUT 53 YEARS,
                   RESIDING AT NO.58,
                   BASAVA SAMITHI MAIN ROAD,
                   NEAR NANJAPPA CIRCLE, THINDLU, VIDYARANYAPURA,
                   BENGALURU-560097.
                                                                     ...APPELLANT
                   (BY SRI K. VIJAYA KUMAR, ADVOCATE)

                   AND:

                   SMT. RATNAMMA
                   W/O LATE KRISHNAMURTHY,
                   AGED ABOUT 54 YEARS,
                   RESIDING AT NO.87, 2ND FLOOR,
                   AIYAPPA ENCLAVE, KOGILU, YELAHANKA,
                   BENGALURU-560064.
Digitally signed                                                   ...RESPONDENT
by RENUKA
Location: HIGH
                   (BY SRI. B. O. CHANDRA SHEKAR, ADVOCATE)
COURT OF
KARNATAKA                THIS CRL.A IS FILED U/S.378(4) CR.P.C PRAYING TO SET
                   ASIDE THE ORDER OF 'ACQUITTAL', VIDE JUDGMENT DATED
                   08.01.2021, PASSED BY THE HON'BLE LX ADDITIONAL CITY CIVIL
                   AND SESSIONS JUDGE(CCH-61), BENGALURU IN CRL.APPEAL.
                   NO.1622/2019 AT ANNEXURE-A AND CONFIRM THE JUDGMENT
                   DATED 01.07.2019 PASSED BY THE HON'BLE XVIII ADDITIONAL
                   CHIEF     METROPOLITAN     MAGISTRATE,     BENGALURU    IN
                   C.C.NO.19845/2017 AT ANNEXURE-B.

                        THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED
                   ON 10.03.2025 COMING ON FOR PRONOUNCEMENT OF ORDER,
                   THROUGH VIDEO CONFERENCING, THIS DAY, THE COURT
                   DELIVERED THE FOLLOWING:
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                                           NC: 2025:KHC:12180
                                        CRL.A No. 461 of 2021




CORAM:   HON'BLE MR JUSTICE S RACHAIAH


                      CAV JUDGMENT

1. This appeal is filed by the appellant being aggrieved by

the judgment of acquittal passed by the Appellate Court

for the offence punishable under Section 138 of the

Negotiable Instruments Act (for short 'N.I Act').

2. The ranks of the parties in the Trial Court will be

considered henceforth for convenience.

Brief facts of the case:

3. It is the case of the appellant that he knew the accused

since many years and both were known to each other. It

is stated that the accused had borrowed a sum of

Rs.30,00,000/- on different dates for the purpose of

purchasing the gold and silver articles on the occasion of

the marriage of her daughter and also for other legal

necessities.

4. It is stated that in the first week of April 2017, when the

complainant approached the accused and asked her to

return the loan which he had given to her, the accused

had issued a cheque dated 15.06.2017 for a sum of

NC: 2025:KHC:12180

Rs.30,00,000/- and requested the complainant to

present the same for encashment. When the said

cheque was presented for encashment, it got

dishonoured for want of sufficient funds. Therefore, the

complainant issued a notice to the accused and informed

her about the dishonour of cheque. In spite of service of

notice, the accused neither replied to the said notice nor

returned the amount. Therefore, the complainant filed a

complaint before the jurisdictional Magistrate.

5. To prove the case, the complainant got himself examined

as PW.1 and got marked 15 documents as Exs.P1 to P15.

On the other hand, the accused got herself examined as

DW.1 and examined another witness as DW.2. The Trial

Court after appreciating the oral and documentary

evidence on record, convicted the accused for the

offence punishable under Section 138 of N.I Act. On

appeal being filed, the Appellate Court set aside the

judgment of conviction passed by the Trial Court and

acquitted the accused for the offence punishable under

Section 138 of N.I Act.

NC: 2025:KHC:12180

6. Heard Sri.K.Vijaya Kumar, learned counsel for the

appellant and Sri.B.O.Chandra Shekar, learned counsel

for the respondent.

7. It is the submission of the learned counsel for the

appellant that the Appellate Court has misread the

principles of N.I Act and opined that the initial burden

would lie upon the complainant to prove his case and

thereafter the burden would be shifted to the accused,

which is contrary to the principles of the N.I Act and also

the law laid down by the Hon'ble Supreme Court in

various cases.

8. It is further submitted that the Trial Court has failed to

raise the presumption which was required to be raised in

favour of the complainant. Having failed to raise such

presumption, resulted in passing the impugned

judgments. Therefore, the judgment of acquittal passed

by the Appellate Court has to be set aside. Making such

submissions, the learned counsel for the appellant prays

to allow the appeal.

9. Per contra, the learned counsel for the respondent

justified the findings of the Appellate Court and he

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submitted that initially the complainant has to discharge

the presumption that he had sufficient means or financial

capacity to lend such a huge amount. Once it is proved,

the Trial Court has to raise the presumption in favour of

the complainant. Therefore, the burden would be shifted

on the accused to rebut the said presumption.

10. It is further submitted that the complainant being the

Conductor working at BMTC stated to have paid the

amount of Rs.30,00,000/- to the accused cannot be

accepted and the same is considered as unimaginable.

Such being the fact, the findings of the Appellate Court

in rendering the acquittal is appropriate and proper.

Interference with the findings is not necessary and

hence, the appeal has to be dismissed. Making such

submissions, the learned counsel for the respondent

prays to dismiss the appeal.

11. Having heard the learned counsel for the respective

parties and also perused the findings of the Appellate

Court in reversing the judgment of conviction passed by

the Trial Court, it is necessary to have a cursory look

upon the evidence both oral and documentary on record.

NC: 2025:KHC:12180

12. Before adverting to the facts of the case, it is relevant to

refer the proposition of law in respect of the N.I Act.

13. The Hon'ble Supreme Court in the case K.N.BEENA v.

MUNIYAPPAN AND ANOTHER1 held in paragraph No.7

as under:

"7. In this case admittedly the 1st respondent has led no evidence except some formal evidence. The High Court appears to have proceeded on the basis that the denials/averments in his reply dated 21-5- 1993 were sufficient to shift the burden of proof on to the appellant complainant to prove that the cheque was issued for a debt or liability. This is an entirely erroneous approach. The 1st respondent had to prove in the trial, by leading cogent evidence, that there was no debt or liability. The 1st respondent not having led any evidence could not be said to have discharged the burden cast on him. The 1st respondent not having discharged the burden of proving that the cheque was not issued for a debt or liability, the conviction as awarded by the Magistrate was correct. The High Court erroneously set aside that conviction.

(2001) 8 SCC 458

NC: 2025:KHC:12180

14. In another case, the Hon'ble Supreme Court in the case of TEDHI SINGH v. NARAYAN DASS MAHANT2 paragraph No.10 reads as under:

10. The trial court and the first appellate court have noted that in the case under Section 138 of the NI Act the complainant need not show in the first instance that he had the capacity. The proceedings under Section 138 of the NI Act is not a civil suit.

At the time, when the complainant gives his evidence, unless a case is set up in the reply notice to the statutory notice sent, that the complainant did not have the wherewithal, it cannot be expected of the complainant to initially lead evidence to show that he had the financial capacity. To that extent, the courts in our view were right in holding on those lines. However, the accused has the right to demonstrate that the complainant in a particular case did not have the capacity and therefore, the case of the accused is acceptable which he can do by producing independent materials, namely, by examining his witnesses and producing documents. It is also open to him to establish the very same aspect by

(2022) 6 SCC 735

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pointing to the materials produced by the complainant himself. He can further, more importantly, achieve this result through the cross-examination of the witnesses of the complainant. Ultimately, it becomes the duty of the courts to consider carefully and appreciate the totality of the evidence and then come to a conclusion whether in the given case, the accused has shown that the case of the complainant is in peril for the reason that the accused has established a probable defence.

15. On careful reading of the dicta of the Hon'ble Supreme

Court stated supra, it makes it clear that the

complainant need not show in the first instance that he

had the capacity to lend the amount and it is also held

that mere denial of the transaction is not sufficient to

hold that the accused has rebutted the presumption.

16. In this context, now it is relevant to refer the evidence of

DW.1 for the purpose of re-appreciation. DW.1

Rathnamma is a house wife. She admitted that she had

performed the marriage of her son on 08.09.2016 and

also admitted that the complainant is the uncle of her

NC: 2025:KHC:12180

daughter-in-law. She deposed that she had no

transaction with the complainant and the said cheque

had been issued to her son, who is examined as DW.2

and it was kept in the house of DW.2.

17. It is further stated that there was a difference of opinion

between DW.2 and her daughter-in-law and the same

has been ended in getting the divorce. She further

stated that her daughter-in-law being a relative of the

complainant stated to have stolen the said cheque and

handed over the same to the complainant and the

complainant had presented the said cheque only in order

to take revenge against the accused.

18. On conjoint reading of the evidence of DWs.1 and 2, it

appears that the divorce has been obtained by both

DW.2 and his wife after filing of this complaint.

However, in the settlement arrived at between the

parties, it has not been mentioned that the cheque was

stolen by his wife and it was given to the complainant for

encashment. If it was to be true, he being a Police Sub-

Inspector should have lodged a complaint against his

wife and he could have taken back the cheque.

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NC: 2025:KHC:12180

19. After having gone through the evidence of DWs.1 and 2

thoroughly, I am of the opinion that the accused has just

denied the transaction. However, such denial is not

sufficient to hold that she is not liable to pay the cheque

amount. Hence, I am of the considered opinion that the

findings of the Appellate Court in reversing the judgment

of conviction passed by the Trial Court is erroneous and

therefore, the said findings has to be reversed.

20. In the light of the observations made above, I proceed to

pass the following :

ORDER

(i) The Criminal Appeal is allowed.

(ii) The judgment of conviction and order on

sentence dated 08.01.2021 passed in Crl.A

No.1622/2019 by the LX Additional City

Civil and Sessions Judge, Bengaluru (CCH-