Criminal Appeal No. 242 of 2013 · The High Court
Case Details
- 1 - NC: 2025:KHC:4514 CRL.A No. 242 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL APPEAL No. 242 OF 2013 BETWEEN: KRISHNA GOWDA AGED ABOUT 38 YEARS S/O SRI CHOWDE GOWDA R/AT #48, SHIVASHAKTHI NAGAR GANAPATHYAPURA 2ND CROSS KONANAKUNTE POST CHUNCHANGHATTA MAIN ROAD BANGALORE - 560 062. (BY SRI J PRAKASH, ADVOCATE) AND: …APPELLANT DURGESH AGED ABOUT 38 YEARS PROPRIETOR :SRI LAKSHMI ENTERPRISES NEAR SRI BYRESHWARA ENTERPRISES LAKSHMINARAYANASWAMY MUNEKOLALA, MARATHAHALLI POST BANGALORE – 560 037. (BY SMT. K M ARCHANA, AMICUS CURIAE) …RESPONDENT THIS CRL.A. IS FILED UNDER SECTION 378 Cr.P.C PRAYING TO SET ASIDE THE ORDER DATED:10.01.13 PASSED BY THE P.O., FTC-V, BANGALORE RURAL DIST., BANGALORE IN CRL.A.No.2/12 AND CONSEQUENTLY ALLOW THE COMPLAINT VIDE NO C.C.No.4290/2010 ON THE FILE OF THE CJM, BANGALORE DIST., BANGALORE - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT AND ETC., Digitally signed by HEMAVATHY GANGABYRAPPA Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:4514 CRL.A No. 242 of 2013 THIS APPEAL COMING ON FOR FURTHER 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 passed in Crl.A.No.2/2012 by the Presiding Officer, Fast Track Court-V, Bengaluru Rural District, Bengaluru, whereunder, the judgment of conviction of the respondent – accused for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short hereinafter referred to as ‘N.I.Act’) passed in C.C.No.4290/2010 dated 20.12.2011 by the Chief Judicial Magistrate, Bengaluru Rural District, Bengaluru has been reversed and the respondent – accused has been acquitted of the offence under Section 138 of the N.I.Act. 2.
Legal Reasoning
The brief facts of the complainant’s case is as under; The respondent – accused is the friend of the appellant – complainant and he has borrowed hand loan of Rs.2,70,000/- from the appellant – complainant on - 3 - NC: 2025:KHC:4514 CRL.A No. 242 of 2013 15.01.2010 by agreeing to repay the said amount. In order to repay the said amount borrowed, the respondent – accused had issued a post dated cheque bearing No.316788 for Rs.2,70,000/- dated 01.03.2010. The appellant – complainant presented the said cheque for collection. The said cheque came to be dishonoured for want of sufficient funds on 03.03.2010. The appellant – complainant got issued the legal notice and the same has been served on the respondent – accused. The respondent – accused did not pay the cheque amount within the stipulated period. Therefore, the appellant – complainant had filed a private complaint against the respondent – accused for the offence under Section 138 of the N.I.Act. The learned Magistrate took cognizance against the respondent – accused for the offence under Section 138 of the N.I.Act and registered C.C.No.4290/2010. The plea of the respondent – accused has been recorded. The appellant – complainant in order to prove his case has examined himself as PW1 and got marked Exs.P1 to P7. The statement of the respondent – accused had been - 4 - NC: 2025:KHC:4514 CRL.A No. 242 of 2013 recorded under Section 313 of Cr.P.C. The learned Magistrate after hearing the arguments on both sides, had formulated the points for consideration and thereafter, passed the impugned judgment dated 20.12.2011 convicting the respondent – accused for the offence under Section 138 of the N.I.Act and sentenced him to undergo simple imprisonment for a period of two months and to pay the compensation of Rs.3,00,000/-. The said judgment of conviction has been challenged by the respondent – accused before the Presiding Officer, Fast Track Court-V, Bengaluru Rural District, Bengaluru in Crl.A.No.2/2012. The Appellate Court after hearing the arguments on both sides, has formulated the points for consideration and passed the impugned judgment acquitting the respondent – accused for the offence under Section 138 of the N.I.Act. The said judgment of the Appellate Court has been challenged by the appellant – complainant in this appeal. - 5 - NC: 2025:KHC:4514 CRL.A No. 242 of 2013 3. Heard learned counsel for the appellant – complainant and learned counsel for the respondent – accused. Learned counsel for the respondent – accused
Legal Reasoning
Sri.S.Balakrishnan has filed a retirement memo and therefore, Smt.Archana K.M, learned counsel who is listed on Probono Advocates empanelled at the High Court Legal Services Committee, Bengaluru, rendering free services to the needy has been appointed to represent the respondent – accused. 4. Learned counsel for the appellant – complainant would contend that the respondent – accused had admitted his signature on Ex.P1 – cheque and therefore, a presumption has to be drawn under Section 139 of the N.I.Act. The defence of the respondent – accused that he had lost the cheque has not been established. The respondent – accused inspite of service of legal notice had not chosen to send any reply putting forth his defence. The respondent – accused has not filed any complaint regarding loss of his cheque, nor he had intimated his - 6 - NC: 2025:KHC:4514 CRL.A No. 242 of 2013 Banker regarding the same and asking for “stop payment” of the cheque. The respondent – accused had not rebutted the presumption drawn under Section 139 of the N.I.Act. Considering the said aspect, the learned Magistrate has rightly convicted the respondent – accused for the offence under Section 138 of the N.I.Act. He further submits that the Appellate Court has harped upon the capacity of the appellant – complainant to lend money even though no defence was put forth by sending any reply to the said legal notice and without rebuttal of the presumption. He has placed reliance on the decision of the Hon’ble Apex Court in the case of Rajesh Jain Vs. Ajay Singh, Crl.A.No.3126 of 2023 and contended that the accused has not filed any police complaint regarding loss of the cheque and as signature on the cheque is admitted, the presumption as to the legally enforceable debt has to take effect. He submits that the Appellate Court erred in passing the judgment of acquittal by reversing the judgment of conviction passed by the Trial Court. On these grounds, he prayed to allow the appeal and set - 7 - NC: 2025:KHC:4514 CRL.A No. 242 of 2013 aside the judgment of the Appellate Court and to affirm the judgment passed by the learned Magistrate. 5. Learned counsel for the respondent – accused would contend that the appellant – complainant has not placed sufficient material to establish the legally enforceable debt. Except the cheque, there are no other documents to prove the alleged debt. The appellant – complainant had no capacity to lend huge amount of Rs.2,70,000/- as he is working as a Cashier in the Bar and earning salary of Rs.6,000/- per month and his monthly expenditure is Rs.5,000/- per month. 6. On perusal of the cross examination of PW1 itself would indicate that he had no financial capacity to lend Rs.2,70,000/-. The appellant – complainant has not produced any documents to show that he is having agricultural land and getting income from that. The appellant – complainant has admitted that he had availed loan for construction of the house in the year 2006 and therefore, he was not possessing any money to lend the - 8 - NC: 2025:KHC:4514 CRL.A No. 242 of 2013 same to the respondent – accused during the year 2010. The appellant – complainant has not placed any document to show that he had cash of Rs.2,70,000/- in January, 2010. The respondent – accused has taken up the defence that he had lost the cheque and it had been misused by the appellant – complainant. The same has been suggested to PW1 in his cross examination. As the respondent – accused has taken up the said defence, it is for the appellant – complainant to establish his capacity to lend Rs.2,70,000/-. On the points urged, learned counsel has placed reliance on the following decisions; “1. Sri Dattatraya Vs. Sharanappa, 2024 INSC 586 2. Basalingappa Vs. Mudibasappa, Crl.No.636/2019 3. John K.Abraham Vs. Simon C.Abraham and Ors., Crl.No.2043 of 2013 4. Tukaram Vs. Dileep and Ors., Crl.A.No.762 of 2024” On these grounds, she prayed for dismissal of the appeal. - 9 - NC: 2025:KHC:4514 CRL.A No. 242 of 2013 7. Having heard the learned counsels, this Court has perused the impugned judgment and the Trial Court records. Considering the grounds urged, the following point arises for consideration; “Whether the Appellate Court has erred in reversing the judgment of conviction of the respondent – accused for the offence under section 138 of the N.I.Act in C.C.No.4290/2010 and acquitting the respondent – accused for the offence punishable under Section 138 of the N.I.Act?” 8. My answer to the above point is in the affirmative, for the following reasons; It is the specific case of the appellant – complainant that he had lent Rs.2,70,000/- to the respondent – accused on 15.01.2010. In order to repay the said loan, the respondent – accused had issued a cheque – Ex.P1 dated 01.03.2010 for Rs.2,70,000/-. The respondent – accused has admitted his signature on Ex.P1 – cheque. As the respondent – accused has admitted his signature on the cheque, the presumption under Section 139 of the N.I.Act requires to be drawn that the cheque – Ex.P1 had - 10 - NC: 2025:KHC:4514 CRL.A No. 242 of 2013 been issued for making payment of the legally enforceable debt. The said presumption is a rebuttable presumption. The standard of proof to rebut the said presumption is preponderance of probability as held by the Hon’ble Apex Court in the case of Basalingappa (supra). 9. It is the specific defence of the respondent – accused that there was loss of his cheque when he visited the Bar and Restaurant of the appellant – complainant. The defence of the respondent – accused has been put in the cross examination of PW1 and the said suggestion has been denied by PW1 in his cross examination. The respondent – accused has not filed any complaint regarding his loss of cheque nor he has intimated his Banker regarding his loss of cheque and for “stop payment” of the cheque lost. Even the respondent – accused has not led any defence evidence to establish the same. The respondent – accused has also not chosen to send any reply to the legal notice sent by the appellant – complainant. The said defence of the respondent – - 11 - NC: 2025:KHC:4514 CRL.A No. 242 of 2013 accused that he has lost the cheque when he visited the Bar and Restaurant in which the appellant – complainant is working is a mere contention as the same has been denied by PW1 in his cross examination. Considering the said aspect, the respondent – accused has failed to rebut the said presumption drawn under section 139 of the N.I.Act that the cheque has been issued for making payment of the legally enforceable debt. 10. Only on rebuttal of the said presumption drawn under Section 139 of the N.I.Act, the onus shifts on the appellant – complainant to prove the legally enforceable debt. 11. The Hon’ble Apex Court in Rajesh J Vs. Ajay Singh’s case supra, wherein the facts are similar, has held that the respondent – accused failed to provide any substantial evidence or file a police complaint regarding the alleged missing cheque and therefore, case of the appellant – complainant remained consistent and signature on the said cheque was unchallenged, allowing presumption as to - 12 - NC: 2025:KHC:4514 CRL.A No. 242 of 2013 legally enforceable debt to take effect. The Hon’ble Apex Court further held that the High Court has erroneously questioned the complainant’s lack of evidence to support the loan claim instead of focusing on whether the respondent – accused had successfully discharged his burden to show absence of any debt at the time of issuing the cheque and set aside the order of acquittal. 12. Learned counsel for the respondent – accused placing reliance on the decision referred to supra relied on by her, has contended that it is for the complainant to establish his capacity to lend the money. The Hon’ble Apex Court in the case of Tedhi Singh Vs. Narayan Dass Mahant reported in (2022) 6 SCC 735 has held that the appellant – complainant need not show in first, his financial capacity, unless the accused set up a case questioning the complainant’s capacity in reply to the statutory notice. When the presumption drawn under Section 139 of the N.I.Act that the cheque had been issued for making payment of the legally enforceable debt - 13 - NC: 2025:KHC:4514 CRL.A No. 242 of 2013 has not been rebutted, question of the appellant – complainant proving his capacity and debt does not arise. Without considering all these aspects, the Appellate Court has much harped upon the capacity of the appellant – complainant to lend the money and erred in acquitting the respondent – accused. The said judgment of the Appellate Court requires to be set-aside and conviction of the respondent – accused for the offence under Section 138 of the N.I.Act passed by the Trial Court requires to be affirmed. The Trial Court has sentenced the respondent – accused to undergo simple imprisonment for a period of two months and to pay compensation of Rs.3,00,000/-. Considering the facts and circumstances of the case, there is no necessity of passing the sentence of imprisonment as the appellant – complainant is interested only in getting
Decision
back the money lent. In the result, the following; ORDER The appeal is allowed. The judgment dated 10.01.2013 passed in Crl.A.No.2/2012 by the Presiding Officer, Fast Track Court-V, Bengaluru Rural District, - 14 - NC: 2025:KHC:4514 CRL.A No. 242 of 2013 Bengaluru is set-aside. The conviction of the respondent – accused for the offence under Section 138 of the N.I.Act passed in C.C.No.4290/2010 dated 20.12.2011 by the Chief Judicial Magistrate, Bengaluru Rural District, Bengaluru is affirmed. The sentence passed by the learned Chief Judicial Magistrate, Bengaluru Rural District, Bengaluru is modified as under; The respondent – accused is sentenced to pay fine of Rs.2,80,000/- and in default of payment of the said fine, he shall undergo simple imprisonment for a period of six months. Out of the said fine amount, a sum of Rs.2,70,000/- is ordered to be paid as compensation to the appellant – complainant. The respondent – accused shall deposit the said fine amount within two months from this day. Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE GH List No.: 1 Sl No.: 19