Criminal Appeal No. 228 of 2015 · The High Court
Case Details
- 1 - NC: 2025:KHC:23101 CRL.A No. 228 of 2015 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE S RACHAIAH CRIMINAL APPEAL NO. 228 OF 2015 (A) BETWEEN: SRI SHYAMSUNDAR B S S/O B.SHIVASHANKAR AGED ABOUT 30 YEARS R/AT.NO.11/1, AMMA BAGHAVAN NILAYA 7TH CROSS, BAPUJINAGAR MYSORE ROAD BANGALORE-560 026. (BY SRI. M SHARASS CHANDRA., ADV.) AND: SRI B S NAGENDRA S/O SIDDAPPA AGED ABOUT 40 YEARS R/AT.S.SIDDAPPA COMPOUND, C.N.PALYA 2ND STAGE, NAGASANDRA POST BANGALORE-560 073. (BY SRI. NARASIMHARAJU., ADV.) … APPELLANT … RESPONDENT
Facts
Digitally signed by SREEDHARAN BANGALORE SUSHMA LAKSHMI Location: High Court of Karnataka THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 13.1.2015, PASSED BY THE XXII ACMM, BANGALORE IN C.C.NO.17655/2012 RESPONDENT/ ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT. ACQUITTING THE THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 2 - NC: 2025:KHC:23101 CRL.A No. 228 of 2015 HC-KAR CORAM: HON'BLE MR JUSTICE S RACHAIAH ORAL JUDGMENT 1. This appeal is filed by the appellant being aggrieved by the judgment of acquittal dated 13.01.2015 in C.C No.17655/2012 on the file of XXII Additional Chief Metropolitan Magistrate, Bengaluru City. 2. The ranks of the parties henceforth will be considered as per their rankings before the Trial Court, for convenience. Factual matrix of the case: 3. The complainant filed a private complaint stating that on 17.08.2011, the accused had approached the complainant and requested him for financial assistance for a sum of Rs.15.00 lakhs as a hand loan. The complainant considering his request, paid the amount of Rs.15.00 lakhs. After a lapse of four months, the accused in order to discharge the legally enforceable debt, is stated to have issued post dated cheque bearing No.079716 dated 19.12.2011 drawn on Canara Bank, Chikkabidarakallu Branch, Bengaluru. The said cheque was presented for encashment, however, the same came to be dishonoured - 3 - NC: 2025:KHC:23101 CRL.A No. 228 of 2015 HC-KAR with a shara ‘payment stopped by drawer’. Thereafter, a legal notice came to be issued by the complainant and it was duly served on the following day. Inspite of notice having been served to the accused, the accused did not repay the amount. Hence, he filed a complaint before the Trial Court. 4. The accused after entering his appearance, took a defence that he had not borrowed a loan. In fact, the said cheque has been lost and a police complaint has also been lodged etc. The Trial Court after considering the defence, opined that the complainant had not proved the case beyond a reasonable doubt that he had advanced a loan of Rs.15.00 lakhs to the accused. Hence, the appeal was dismissed. 5.
Legal Reasoning
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 pointing to the 1 (2022) 6 SCC 735 - 6 - NC: 2025:KHC:23101 CRL.A No. 228 of 2015 HC-KAR 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.” 9. On careful reading of the dictum 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. 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. 10. In the present case, the defense of the accused is that he had not borrowed any loan from the complainant. In fact, he had given stop payment to the bank in respect of the cheque in dispute and also lodged a complaint to the police regarding the lost of the cheque. Once such - 7 - NC: 2025:KHC:23101 CRL.A No. 228 of 2015 HC-KAR defense is taken by the accused by producing the cogent documents, it can be held that the accused has rebutted the presumption. Obviously, the onus will be shifted to the complainant to prove the case that he had advanced the huge amount. 11. Now, it is necessary to refer the evidence of the complainant. According to the complainant, he is stated to have lost a sum of Rs.15,00,000/- to the accused as a hand loan by way of cash. However, he had not produced any documents to show that he had a sufficient amount to advance the loan. Even though he had contended that his mother had sold the property and received an amount of Rs.25,00,000/-, the fact remains that, his mother has not been examined to demonstrate that she paid the said amount to the complainant to advance loan to the accused. Merely producing the sale agreement, which is marked as Ex.P.5, is not sufficient to hold that the complainant had sufficient amount to advance the loan and it cannot be held that he had advanced the said loan to the accused. As such, the complainant had failed to prove the advancement of the loan to the accused. - 8 - NC: 2025:KHC:23101 CRL.A No. 228 of 2015 HC-KAR 12. In the light of the observation made above, I am of the considered view that the findings of the Trial Court appears to be appropriate and there is no reason to interfere with the said findings. 13. Hence, I proceed to pass the following:
Arguments
Heard Sri.M.Sharass Chandra, learned counsel for the appellant and Sri.Narasimharaju, learned counsel for the respondent. 6. It is the submission of learned counsel for the appellant that the findings of the Trial Court in recording the acquittal is erroneous and not proper for the reason that once the complainant proved that the cheque had been - 4 - NC: 2025:KHC:23101 CRL.A No. 228 of 2015 HC-KAR issued to the accused and he had affixed his signature to the cheque, the Trial Court ought not to have raised the presumption that it was issued for the purpose of discharging the legally enforceable debt or liability. As the Trial Court failed to take note of the said fact, resulted in passing the impugned judgment, which is required to be set aside. Making such submissions, learned counsel for the appellant prays to allow the appeal. 7. Per contra, learned counsel for the respondent/ accused vehemently submitted that the findings of the Trial Court in recording the acquittal is proper. The defence of the accused has been considered properly. Therefore, an acquittal order has been passed, which is proper and appropriate. Hence, interference with the said findings is not necessary. Making such submissions, learned counsel for the respondent prays to dismiss the appeal. 8. Having heard the learned counsel for the respective parties and also perused the findings of the Trial Court, now, it is relevant to refer the proposition of law before adverting to the other facts and circumstances. The - 5 - NC: 2025:KHC:23101 CRL.A No. 228 of 2015 HC-KAR Hon'ble Supreme Court in the case of TEDHI SINGH v. NARAYAN DASS MAHANT1, held in paragraph No.10, which reads as under: “10. The Trial Court and the First Appellate Court have noted that in the case under Section 138 of the N. I. Act the complainant need not show in the first instance that he had the capacity. The proceedings under Section 138 of the N. I. 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
Decision
ORDER The appeal stands dismissed. Sd/- (S RACHAIAH) JUDGE UN List No.: 1 Sl No.: 45