Karnataka High Court
R.H.Munendra vs R.B.Santhosh Kumar on 28 March, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL APPEAL NO.944/2013
BETWEEN:
R.H.MUNENDRA,
SON OF HANUMANTHA RAYAPPA,
AGED ABOUT 58 YEARS,
RESIDING AT RAMACHANDRA HOSUR,
NANDI HOBLI, CHIKKABALLAPURA TOWN.
SINCE DECEASED BY HIS LRS.
1. SMT. AMBIKA,
WIFE OF LATE R.H.MUNENDRA,
AGED ABOUT 38 YEARS.
2. KUMARI. GAGANA SREE R.N.,
DAUGHTER OF LATE R.H.MUNENDRA,
AGED ABOUT 19 YEARS.
3. KUMARI. HARINI M.A.,
DAUGHTER OF LATE R.H.MUNENDRA,
AGED ABOUT 17 YEARS.
4. MASTER. SUDHARSHAN RAO M.D.,
SON OF LATE R.H.MUNENDRA,
AGED ABOUT 15 YEARS.
ALL ARE RESIDING AT NO.4,
RAMACHANDRA HOSUR, NANDI HOBLI,
CHIKKABALLAPUR-562 101.
(APPELLANTS 3 AND 4 ARE MINORS,
THEY ARE REPRESENTED BY THEIR
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MOTHER AND NATURAL GUARDIAN
SMT. AMBIKA - THE APPELLANT NO.1).
(AMENDED VIDE COURT ORDER DATED 21.08.2024)
... APPELLANTS
(BY SRI. T.SRINIVASAN, ADVOCATE)
AND:
R.B.SANTHOSH KUMAR,
SON OF BACHAPPA,
AGED ABOUT 33 YEARS,
RESIDING AT RAMACHANDRA HOSUR,
NANDI HOBLI,
CHIKKABALLAPURA TOWN.
... RESPONDENT
(RESPONDENT SERVED AND UNREPRESENTED)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4)(5) OF CR.P.C PRAYING TO SET ASIDE THE ORDER
DATED 21.08.2013 PASSED BY THE ADDITIONAL CIVIL JUDGE
AND JMFC, CHIKKABALLAPUR IN C.C.NO.307/2008 ACQUITTING
THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 21.03.2025, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
3
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV JUDGMENT
Heard the learned counsel for the appellants. The
respondent though served is unrepresented.
2. This appeal is filed against the judgment of acquittal
passed by the Trial Court for the offence punishable under
Section 138 of the Negotiable Instruments Act ('NI Act' for short)
in C.C.No.307/2008 vide order dated 21.08.2023, on the file of
the Additional Civil Judge and JMFC, Chikballapura.
3. The factual matrix of the case of the complainant is
that the complainant and the accused were having acquaintance
with each other as they are friends and the complainant is a
businessman and in this relation the accused approached the
complainant in the month of May 2007 and requested him to
lend a hand loan of Rs.2 lakhs for his financial necessities.
Hence, the complainant arranged a sum of Rs.2 lakhs and lent
the same to the accused in the second week of May 2007 and
the accused assured to repay the same within six months from
the said date. Thereafter, the complainant approached the
accused for repayment of loan and the accused issued a cheque
for a sum of Rs.2 lakhs dated 15.03.2008 towards discharge of
his liability. When the said cheque was presented, it was
dishonoured with an endorsement "insufficient funds" and hence
the complainant approached the accused and he gave evasive
reply and hence he issued s legal notice on 31.03.2008 and the
same was sent through RPAD as well as COP. On receipt of
notice, the accused gave untenable reply and hence complaint
was filed and cognizance was taken and the accused was
secured and he did not plead guilty and hence the complainant
examined himself as P.W.1 and got marked the documents at
Exs.P.1 to 6. The accused was subjected to 313 statement and
he lead defence evidence by examining himself as D.W.1 and got
marked the documents at Exs.D1 to 9. The Trial Court having
considered both oral and documentary evidence placed on
record, did not accept the case of the complainant and acquitted
the accused in coming to the conclusion that the complainant
was not having capacity to lend money and taken note of the
handwritings are in different ink and no document was taken
place prior to 15.03.2008 i.e., at the time of advancing loan.
The Trial Court also observed that the complainant has not put
forth about requirement of the accused and dismissed the
complaint. Hence, the present appeal is filed before this Court.
4. The main contention of the learned counsel for the
appellants is that the Trial Court committed an error in not
accepting the case of the complainant and the Trial Court
seriously erred in holding that there is nothing on record to show
as to the reason for the cheque been returned as unpaid. The
Trial Court has utterly failed to consider that on the reverse of
the Cheque, an endorsement has been made as "insufficient
funds" and the bank authorities and the Post Office authorities
have affixed their signature and seal in this regard. The cheque
is marked as Ex.P.1 and Ex.P.2 is an endorsement issued by the
Post Office in support of Ex.P.1 showing that the cheque was
dishonoured and has bounced. Exs.P.1 and 2 have to be read
together and conjointly. It is not the case of the accused that
the cheque was not returned for insufficient funds and the
accused does not dispute the same. In the course of cross-
examination, the accused admits that he had ascertained that
the cheque was presented on 15.03.2008. When the cheque
was presented, there was no sufficient fund in his account. The
Court fails to consider this material evidence and erroneously
held that there is no endorsement as to why the cheque was
returned.
5. The learned counsel contend that the Trial Court has
erred in holding that the accused has put forth a probable
defence by producing the proceedings in PCR No.29/2010 filed
by one Sri R.N.Bachchappa against the complainant, wherein
complaint under Section 138 of the NI Act has been filed for
dishonour of cheque drawn for a sum of Rs.5 lakhs. The cause
of action for that complaint is said to have arisen on March 2009,
which is subsequent to the complaint in question. The Trial
Court erroneously relied upon the same. The cheque in that
complaint was lost when the complainant met with an accident
and in this regard he had lodged a police complaint, but the
Court below did not consider the document and arrived at an
erroneous finding. The Trial Court could not have decided the
complaint at hand by referring to the subsequent false complaint
filed against the complainant. Hence, the finding of the Trial
Court that the complainant was not having capacity to lend the
money is erroneous. The Trial Court fails to take note of the
date of transaction.
6. It is the specific contention of the complainant that
in his absence recently the father of the accused had filed a case
against him for dishonour of cheque that he had received
summons about 2 to 3 months prior to deposition of his
evidence. He had filed a complaint in Chikkaballapura Rural
Police Station as to the loss of cheque books. In that regard, the
complaint in C.C.No.562/2011 is pending for consideration.
When the two cheque books could not be traced, immediately he
closed the account. The averments made in the complaint filed
by the father of the accused is that in the month of January
2009 he gave the complainant a sum of Rs.5 lakhs as loan. It is
strange that when the complaint is pending against his son, the
accused in an earlier transaction, the father of the accused gave
loan to the complainant. Thus, it is not the normal human
conduct to owe a debt and subsequently give loan to the same
person. It is strange that the father would give loan of Rs.5
lakhs to the complainant and the same has not been considered
by the Trial Court. The Trial Court erred in holding that PCR
No.74/2011 was filed by N.Ramesh in respect of an alleged
transaction dated 12.12.2010, wherein the complainant is said to
have borrowed Rs.2,80,000/- from N.Ramesh. It is the evidence
of the complainant that the said Ramesh is a stranger to him and
he has not borrowed any money from him. The Trial Court
without taking into consideration all these materials committed
an error in acquitting the accused. Hence, it requires
interference of this Court.
7. Having heard the learned counsel for the appellants
and having perused the material available on record, the points
that arise for the consideration of this Court are:
(i) Whether the Trial Court committed an error in
dismissing the complaint and whether it
requires interference of this Court by
exercising the appellate jurisdiction?
(ii) What order?
Point No.(i):
8. Having heard the learned counsel for the appellants
and on perusal of the complaint, it is specifically mentioned in
the complaint that both the complainant and the accused are
known to each other and the accused had approached him in the
month of May 2007 and requested to lend Rs.2 lakhs for his
immediate financial necessities and hence the complainant made
the payment and though the accused assured to repay the same
within a period of six months, he did not repay the amount and
on demand, he issued the subject mater of the cheque. It is not
in dispute that the cheque which was presented was dishonoured
with an endorsement "funds insufficient". The accused did not
dispute the said cheque and he admits the cheque as well as his
signature. It is important to note that when the notice was
given in terms or Ex.P.3, it is categorically stated that for
immediate financial necessities he had borrowed the loan and
given the cheque. But reply was given in terms of Ex.P.4
denying all the averments and the accused took the defence that
he came to know the cheque referred in the notice is lost by the
accused and the same was misused by filling unlawful amount
and he has not obtained any loan from the complainant. When
such defence was taken, nothing is suggested in the cross-
examination of P.W.1 regarding he lost the cheque and the same
was misused and only suggestion was made with regard to
entering into an agreement and P.W.1 admits that he had seen
the said agreement and the accused had told him that
immediately after selling the property he is going to clear the
loan.
9. It is the evidence of P.W.1 that the cheque was given
in the house of the accused in the presence of his family
members. It is important to note that he categorically says that
the accused put the cheque date in the month of March 2008
when he demanded after six months. He admits that before
15.03.2008 between him and accused no document of money
transaction came into existence. It is his case that the accused
had availed loan and cheque was given subsequently on
demand. No doubt, in the cross-examination of P.W.1, a
suggestion was made that a case is filed against the complainant
by the father of the accused and he admits the same. But he
says that earlier he lost two cheques when he met with an
accident and complaint was filed in 2010 and Ex.D.1 was
confronted for having filed the complaint against him i.e., PCR
29/2010. The document of Ex.D2 is also confronted that case
was filed by one R.N.Bachchappa against the complainant,
wherein bail application was filed and marked as Ex.D3 and also
document Exs.D5 and 6 reply notice was given.
10. This Court has to look into the evidence of D.W.1,
wherein there is categorical denial of transaction between the
complainant and the accused. In the cross-examination he
admits the issuance of cheque and signature and also he came
to know that when the cheque was presented, the same was
dishonoured within an endorsement "insufficient funds". It is
important to note that in the cross-examination he says that he
cannot say what has been mentioned in the notice and also in
the reply notice given by his counsel. He categorically admits
that when the transaction was taken place between him and the
complainant, the complainant met with an accident. When a
suggestion was made that the complainant lost some cheques
and in that regard he gave the complaint, he says that he is not
aware of the same. He admits that the documents which he
marked are given by his father. When a suggestion was made
that Ex.D1 case was filed on 25.02.2010, he denies the same.
But the fact that it was filed in 2010 is evident from the records
i.e., subsequent to the filing of this case. It is important to note
that when the accused took the defence that he lost the cheque,
nothing is stated as to when he lost the cheque and where he
lost. Only total denial that he has not availed the loan. Even in
the chief examination also he has not stated when he lost the
cheque and when the accused admits the cheque as well as his
signature, he ought to have placed the material on record
regarding probable defence, but no such probable defence has
been raised except in the reply stated that he lost the cheque
and nowhere he has stated where he lost the cheque and
misusing of the said cheque.
11. The Trial Court got carried away with the documents
which have been marked by the accused i.e., Ex.D1 and Ex.D1 is
subsequent to the filing of the case against the accused and the
said complaint is filed in 2010. The fact that the complainant
met with an accident is admitted, but denied that the
complainant lost the cheque. When the complainant placed on
record the cheque as well as cheque is admitted and signature
belongs to the accused, the accused ought to have placed on
record the material raising probable defence and no such
probable defence is raised except total denial and how the
document of Ex.P.1 gone to the hands of the complainant,
nothing is stated. With regard to he lost the cheque also, no
complaint was given and hence the question of misuse of cheque
does not arise. Mere filing of the complaint by other persons
against the complainant cannot be a ground to acquit the
accused and nothing is placed on record to show that the
complainant has been convicted for the offence under Section
138 of the NI Act either in PCR No.74/2011 or in PCR filed by the
father of the accused in PCR No.29/2010. The Trial Court
committed an error in dismissing the complaint in coming to the
conclusion that the documents, which have been relied upon by
the accused probablise the case of the accused. The Trial Court
extracted the evidence of P.W.1, but there is no admission with
regard to the accused lost the cheque and no such suggestion
was made except handwritings are different in the cheque, since
the signature is in different ink and other handwritings are
different ink and the same cannot be a ground to suspect the
case of the complainant. No doubt, P.W.1 denies the filing of
case against him either by Narendra or Ramesh and the same
cannot be a ground to acquit the accused. P.W.1 says that when
he lost two cheques books, he gave the complaint.
12. The other contention of the accused is that the
complainant was not having any capacity to lend the amount and
an observation is made that the complainant had stated that he
was a teacher, but he clarified in the cross-examination that by
mistake it was mentioned as teacher. He specifically stated that
he was carrying on business activities. The Trial Court
committed an error in holding that there is no endorsement
regarding cheque was dishonoured. Having considered the
document of Exs.P.1 and 2, it is very clear that on the overleaf
of the cheque, it is mentioned as "insufficient funds" and also
endorsement was issued and Ex.P.2 is also marked, wherein also
it is specifically mentioned that it was bounced and the Trial
Court committed an error in not considering the document of
Exs.P.1 and 2 as contended by learned counsel for the appellant.
The Trial Court mainly relies upon the documentary evidence
placed on record by the defence Exs.D1 to 5 i.e., bail application
Ex.D3, surety affidavit Ex.D4 and Ex.D5 copy of the notice dated
31.03.2008 addressed to R.B. Santosh Kumar by R.H.Manendra
in respect of cheque bearing No.584072 dated 15.03.2008
drawn at the Post Office savings bank account for Rs.2 lakhs,
which is the subject matter of the cheque in the case on hand
and the said notice has been caused to the accused and also
taken note of the reply notice addressed by R.B. Santosh Kumar.
These documents will not come to the help of the accused and
those documents reflects with regard to the filing of the case
against the complainant and mere filing of those complaints
cannot be a ground to come to conclusion that the complainant
is not in a position to give loan to other persons. Except
producing those documents, nothing is placed on record about
the result of those cases. Hence, the Trial Court committed an
error in relying upon 'D' series documents in the absence of any
specific defence and placing on record the probable defence of
the accused what made him to execute Ex.P.1 cheque and no
such circumstance is also placed on record how Ex.P.1 gone to
the hands of the complainant. Hence, the Trial Court committed
an error in dismissing the complaint and failed to consider the
presumption under Section 139 of the NI Act and the said
presumption has not been rebutted by the accused placing on
record any material before the Court by raising probable defence
except stating that he lost cheque and no attempt was made or
steps has been taken regarding loss of Cheque, either complaint
is given or any preponderance of probabilities is placed on record
to substantiate his contention that he lost cheque. Hence, the
impugned order requires to be set aside. Hence, I answer the
point in the affirmative.
Point No.(ii):
13. In view of the discussions made above, I pass the
following:
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment of the Trial Court
dated 21.08.2013 passed in C.C.No.307/2008
is set aside.
(iii) Consequently, the complaint filed by the
complainant is allowed and the
respondent/accused is convicted for the
offence punishable under Section 138 of the NI
Act. The respondent/accused is directed to
pay a sum of Rs.3,00,000/- within two months
from today. If the accused fails to pay the
amount within two months, he shall undergo
imprisonment for a period of six months.
(iv) Out of the amount of Rs.3,00,000/-, an
amount of Rs.2,90,000/- is payable to the
complainant and the remaining amount of
Rs.10,000/- to be defrayed to the State.
Sd/-
(H.P. SANDESH)
JUDGE
MD
