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CRL.A NO.12 OF 2015 c/w CRL.A NO.13 OF 2015 CRL.A NO.14 OF 2015 CRL.A NO.15 OF 2015 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.12 OF 2015 C/W CRIMINAL APPEAL NO.13 OF 2015 CRIMINAL APPEAL NO.14 OF 2015 CRIMINAL APPEAL NO.15 OF 2015
IN CRL.A NO.12 OF 2015
BETWEEN:
SRI S P BAHUBALI AGED ABOUT 51 YEARS, SON OF SRI S J PADMARAJ, RESIDING AT NO.23/1, FLAT NO.102, 4TH MAIN ROAD, GANGANAGAR, BENGALURU - 560 032.
……APPELLANT (BY SRI. SATYANARAYANA CHALKE, ADVOCATE FOR SRI. SARAVANA S, ADVOCATE)
AND:
SRI N NARASIMHA MURTHY AGED ABOUT 65 YEARS, SON OF SRI LATE UGREGOWDA, RESIDING AT NO.21/1, SUHRUTH, 2ND FLOOR, YAMUNA BAI ROAD, MADHAVANAGAR, BENGALURU - 560 001.
ALSO AT: PARTNER M/S MOTI MAHAL HOTEL, 5TH MAIN ROAD, GANDHINAGAR, BENGALURU - 560 009. …..RESPONDENT (BY SRI. C V ANNAIAH, ADVOCATE)
CRL.A NO.12 OF 2015 c/w CRL.A NO.13 OF 2015 CRL.A NO.14 OF 2015 CRL.A NO.15 OF 2015 2
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C PRAYING TO a) SET ASIDE THE JUDGMENT OF ACQUITTAL DATED 18.10.2014 IN C.C.NO.21404/2009, PASSED BY THE XV ACMM, BENGALURU CITY AND FURTHER BE PLEASED TO CONVICT THE ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I.ACT; b) PASS SUCH OTHER ORDER/S AS THIS HON'BLE COURT DEEMS FIT IN THE CIRCUMSTANCES OF THE CASE AND IN FAVOUR OF THE APPELLANT, IN THE ENDS OF JUSTICE.
IN CRL.A NO.13 OF 2015
BETWEEN:
SRI S P BAHUBALI AGED ABOUT 51 YEARS, SON OF SRI S J PADMARAJ, RESIDING AT NO.23/1, FLAT NO.102, 4TH MAIN ROAD, GANGANAGAR, BENGALURU - 560 032.
……APPELLANT (BY SRI. SATYANARAYANA CHALKE, ADVOCATE FOR SRI. SARAVANA S, ADVOCATE)
AND:
SRI N NARASIMHA MURTHY AGED ABOUT 65 YEARS, SON OF SRI LATE UGREGOWDA, RESIDING AT NO.21/1, SUHRUTH, 2ND FLOOR, YAMUNA BAI ROAD, MADHAVANAGAR, BENGALURU - 560 001.
ALSO AT: PARTNER M/S MOTI MAHAL HOTEL, 5TH MAIN ROAD, GANDHINAGAR, BENGALURU - 560 009. …..RESPONDENT (BY SRI. C V ANNAIAH, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C PRAYING TO a) SET ASIDE THE JUDGMENT OF ACQUITTAL DATED 18.10.2014 IN C.C.NO.21136/2009, PASSED BY THE XV ACMM, BENGALURU CITY AND FURTHER
CRL.A NO.12 OF 2015 c/w CRL.A NO.13 OF 2015 CRL.A NO.14 OF 2015 CRL.A NO.15 OF 2015 3 BE PLEASED TO CONVICT THE ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I.ACT; b) PASS SUCH OTHER ORDER/S AS THIS HON'BLE COURT DEEMS FIT IN THE CIRCUMSTANCES OF THE CASE AND IN FAVOUR OF THE APPELLANT, IN THE ENDS OF JUSTICE.
IN CRL.A NO.14 OF 2015
BETWEEN:
SRI S P BAHUBALI AGED ABOUT 51 YEARS, SON OF SRI S J PADMARAJ, RESIDING AT NO.23/1, FLAT NO.102, 4TH MAIN ROAD, GANGANAGAR, BENGALURU - 560 032.
……APPELLANT (BY SRI. SATYANARAYANA CHALKE, ADVOCATE FOR SRI. SARAVANA S, ADVOCATE)
AND:
SRI N NARASIMHA MURTHY AGED ABOUT 65 YEARS, SON OF SRI LATE UGREGOWDA, RESIDING AT NO.21/1, SUHRUTH, 2ND FLOOR, YAMUNA BAI ROAD, MADHAVANAGAR, BENGALURU - 560 001.
ALSO AT: PARTNER M/S MOTI MAHAL HOTEL, 5TH MAIN ROAD, GANDHINAGAR, BENGALURU - 560 009. …..RESPONDENT (BY SRI. C V ANNAIAH, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C PRAYING TO a) SET ASIDE THE JUDGMENT OF ACQUITTAL DATED 18.10.2014 IN C.C.NO.21135/2009, PASSED BY THE XV ACMM, BENGALURU CITY AND FURTHER BE PLEASED TO CONVICT THE ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I.ACT; b) PASS SUCH OTHER ORDER/S AS THIS HON'BLE COURT DEEMS FIT
CRL.A NO.12 OF 2015 c/w CRL.A NO.13 OF 2015 CRL.A NO.14 OF 2015 CRL.A NO.15 OF 2015 4 IN THE CIRCUMSTANCES OF THE CASE AND IN FAVOUR OF THE APPELLANT, IN THE ENDS OF JUSTICE.
IN CRL.A NO.15 OF 2015
BETWEEN:
SRI S P BAHUBALI AGED ABOUT 51 YEARS, SON OF SRI S J PADMARAJ, RESIDING AT NO.23/1, FLAT NO.102, 4TH MAIN ROAD, GANGANAGAR, BENGALURU - 560 032.
……APPELLANT (BY SRI. SATYANARAYANA CHALKE, ADVOCATE FOR SRI. SARAVANA S, ADVOCATE)
AND:
SRI N NARASIMHA MURTHY AGED ABOUT 65 YEARS, SON OF SRI LATE UGREGOWDA, RESIDING AT NO.21/1, SUHRUTH, 2ND FLOOR, YAMUNA BAI ROAD, MADHAVANAGAR, BENGALURU - 560 001.
ALSO AT: M/S MOTI MAHAL HOTEL, 5TH MAIN ROAD, GANDHINAGAR, BENGALURU - 560 009. …..RESPONDENT (BY SRI. C V ANNAIAH, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C PRAYING TO a) SET ASIDE THE JUDGMENT OF ACQUITTAL DATED 18.10.2014 IN C.C.NO.21102/2009, PASSED BY THE XV ACMM, BENGALURU CITY AND FURTHER BE PLEASED TO CONVICT THE ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I.ACT; b) PASS SUCH OTHER ORDER/S AS THIS HON'BLE COURT DEEMS FIT IN THE CIRCUMSTANCES OF THE CASE AND IN FAVOUR OF THE APPELLANT, IN THE ENDS OF JUSTICE.
CRL.A NO.12 OF 2015 c/w CRL.A NO.13 OF 2015 CRL.A NO.14 OF 2015 CRL.A NO.15 OF 2015 5
THESE APPEALS HAVING BEEN HEARD AND RESERVED ON 13.03.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
COMMON JUDGMENT
These appeals filed under Section 378 (4) of Cr.P.C. are by the complainant challenging the acquittal of respondent/accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short 'N.I. Act').
For the sake of convenience, the parties are referred to by their rank before the trial Court.
Since the complainant and accused are common and the transaction out of which the four cheques came to be issued are the same, the evidence led by both parties in all the four cases is exactly the same, these appeals are clubbed and disposed of by a common order.
It is the case of complainant in respect of payment and discharge of his liability to the complainant,
CRL.A NO.12 OF 2015 c/w CRL.A NO.13 OF 2015 CRL.A NO.14 OF 2015 CRL.A NO.15 OF 2015 6 accused issued 4 cheques for Rs.5 lakhs each, drawn on his account, maintained with Sri Thyagaraja Co-operative Bank Ltd, J.P Nagar Ist Phase branch, Bengaluru, with an assurance that they would be honoured on presentation. As per the instructions of the accused, complainant presented the cheques for realisation through his banker, M/s Dena Bank, K.G Road branch, Bengaluru. However, they were returned with endorsement account closed. On receipt of intimation, complainant got issued legal notice dated 27.6.2009 through RPAD and Certificate of Posting. The same is duly served on the accused. However, accused has not paid the amount due. On the other hand he has sent an evasive reply and hence the complaint.
After due service of summons, the accused has appeared before the trial Court and contested the matter.
He has pleaded not guilty and claimed trial.
CRL.A NO.12 OF 2015 c/w CRL.A NO.13 OF 2015 CRL.A NO.14 OF 2015 CRL.A NO.15 OF 2015 7 7. In order to prove the allegations against the accused, complainant has examined himself as PW-1 and got marked Ex. P1 to 9.
During the course of his statement under Section 313 Cr.P.C, the accused has denied incriminating evidence led by the complainant.
In all the four cases, the accused has examined himself as DW-1. He has got marked Ex.D1 to 14.
Vide the impugned judgments and orders, the trial Court has dismissed the complaints.
Aggrieved by the same, the complainant has filed these appeals, contending that there is total non- application of mind on the part of the trial Court and while doing so it has not appreciated the facts and material on record, both oral and document, in its proper perspective. The trial Court has failed to agree that complainant has complied with all the necessary ingredients, for the offence punishable under Section 138
CRL.A NO.12 OF 2015 c/w CRL.A NO.13 OF 2015 CRL.A NO.14 OF 2015 CRL.A NO.15 OF 2015 8 of N.I Act and thereby committed grave error. The impugned judgment and order are bad in law and requires to be set aside. The trial Court has failed to appreciate that the complainant is having the benefit of presumption under Section 139 of the N.I Act and the same is not rebutted by the accused. Under such circumstances, the trial Court has erred in acquitting the accused.
11.1 The trial Court has failed to appreciate the fact that complainant is having sufficient credibility to pay the loan in question and committed a grave error in arriving at conclusion that complainant had no financial capacity to lend Rs.20 lakhs to the accused . Despite leading lengthy evidence, the accused has failed to rebut presumption under Section 139 of the N.I Act and therefore the burden has not shifted on the complainant to prove his case. Thus the complainant has led elaborate evidence to prove the allegations against the accused. The same is not appreciated by the trial Court
CRL.A NO.12 OF 2015 c/w CRL.A NO.13 OF 2015 CRL.A NO.14 OF 2015 CRL.A NO.15 OF 2015 9 in proper perspective and as such the impugned judgment and order are perverse.
11.2 The trial Court has erred in not appreciating the fact that the subject cheque itself is the proof for the advancement of loan and therefore, no other document is required to establish the said fact. The trial Court has also erred in holding that the accused is financially sound and as such the case of the complainant that he has lent Rs.20 lakhs to accused is doubtful. Viewed from any angle, the impugned judgments and orders are not tenable and calls for interference by this Court and hence the appeals.
On the other hand learned counsel for accused has supported the impugned judgments and orders and submitted that the complainant has failed to prove his financial capacity and that he has lent Rs.20 lakhs to the accused. On the other hand by preponderance of probability, the accused has established that the cheques in question were issued blank during 1997 when accused borrowed a sum of Rs.40,000/- from the complainant
CRL.A NO.12 OF 2015 c/w CRL.A NO.13 OF 2015 CRL.A NO.14 OF 2015 CRL.A NO.15 OF 2015 10 and though he paid the said amount, complainant failed to return the cheques. Later at the instance of one Anand Kumar Bhandari with whom the accused had several disputes, complainant has filed these complaints by utilising the old cheques. In fact, accused never had the necessity of borrowing Rs.20 lakhs from the complainant and appreciating these aspects, the trial Court has rightly dismissed the complaints and pray to dismiss the appeal also.
In support of his arguments, learned counsel for accused has relied upon the following decisions: (i) S.Timmappa Vs. L. S.Prakash (Timmappa)1
(ii) Basalingappa Vs. Mudibasappa
(Basalingappa)2
(iii) Amzad Pasha Vs. H.N.Lakshmana (Amzad Pasha)3
(iv) K.Subramani Vs. K.Damodara Naidu
(K.Subramani)4
(v) Rajaram Sriramulu Naidu (Since deceased) Through LRs Vs. Maruthachalam (Since deceased) Through LRs (Rajaram Sriramulu Naidu)5
1 2010 Crl.L.J. 3386 2 AIR 2019 SC 1983 3 2011 Cri.L.J 552 4 2015 AIR SCW 64
CRL.A NO.12 OF 2015 c/w CRL.A NO.13 OF 2015 CRL.A NO.14 OF 2015 CRL.A NO.15 OF 2015 11
(vi) Krishna Janardhan Bhat Vs. Dattatraya G.Hegde (Krishna Janardhan Bhat)6
(vii) John K.John Vs. Tom Varghese and Anr.
(John)7
(viii) Charles Harry Vs. Praveen Jain
(Charles Harry)8
Thus, it is the definite case of complainant that accused borrowed a sum of Rs.20 lakhs from him and issued the subject cheques towards payment of the same. However, on presentation they were dishonoured on the ground that the account is closed. Despite service of notice when accused failed to pay the amount due under the cheques, he has filed these complaints.
Though, accused admit that the subject cheques are drawn on his account, maintained with his banker and it bears his signature and they were issued to the complainant, he has denied that he borrowed Rs.20 lakhs from the complainant and issued the subject cheques towards repayment of it. On the other hand as
5 AIR 2023 SC 471 6 2008 AIR SCW 738 7 2007 AIR SCW 6736 8 2024 (1) KCCR 545
CRL.A NO.12 OF 2015 c/w CRL.A NO.13 OF 2015 CRL.A NO.14 OF 2015 CRL.A NO.15 OF 2015 12 claimed that during 1997 he had borrowed Four times Rs.10,000/- each from the complainant and issued four blank cheques to the complainant as per his directions and even though he repaid the said amount, the blank cheques remained with the complainant and at the instance of one Anand Kumar Bhandari, utilising the old cheques complainant has filed these complaints. At the trial, the accused has also challenged the financial capacity of complainant to lend him and necessity of accused to borrow 20 lakhs.
Having regard to the fact that the cheques in question belongs to the accused, drawn on his account maintained with his banker and they bear his signatures, presumption under Section 139 of the N.I Act comes into operation in favour of the complainant to the effect that the cheques are issued towards repayment of any legally recoverable debt or liability, placing the initial burden on the accused to prove otherwise and the circumstances in which cheques came to be issued to the accused or reached the hands of complainant. In the present case,
CRL.A NO.12 OF 2015 c/w CRL.A NO.13 OF 2015 CRL.A NO.14 OF 2015 CRL.A NO.15 OF 2015 13 in the reply to the legal notice itself, the accused has come up with the definite stand that he never borrowed Rs.20 lakhs from the complainant and on the other hand, the subject cheques were issued blank when he had borrowed Rs.40,000/- from the complainant during 1997, and he has misused the same to file these complaints.
However, in John K.Abraham Vs. Simon C. Abraham & Anr (John K.Abraham)9, the Hon'ble Supreme Court held that in order to draw presumption under Sections 118 and 139 of N.I Act, the burden lies on the complainant to show that:
(i) She had the requisite funds for advancing the sum of money/loan in question to accused.
(ii) The issuance of cheque by accused in support of repayment of money advanced was true and
(iii) The accused was bound to make payment as had been agreed while issuing cheque in favour of the complainant.
9 (2014) 2 SCC 236
CRL.A NO.12 OF 2015 c/w CRL.A NO.13 OF 2015 CRL.A NO.14 OF 2015 CRL.A NO.15 OF 2015 14 18. In Tedhi Singh Vs Narayan Das Mahant (Tedhi Singh)10, the Hon'ble Supreme Court held that where the accused has failed to send reply to the legal notice, challenging the financial capacity of the complainant, at the first instance, complainant need not prove his financial capacity. However, at the trial if the financial capacity of complainant is challenged, then it is for the complainant to prove the same. In the present case, though the accused sent reply to the legal notice, therein, he has not disputed the financial capacity of the complainant. However, at the trial, he has questioned the source through which he has allegedly paid Rs.20 lakhs to the accused. Therefore, it is incumbent upon the complainant to prove his financial capacity despite their being a presumption under Section 139 of N.I Act, operating in favour of the complainant.
In APS Forex vs Shakti International Fashion Linkers Pvt. Ltd (APS Forex)11, the Hon'ble Supreme Court held that when accused raises issue of financial
10 2022 SCC OnLine SC 302 11 (2020) 12 SCC 724
CRL.A NO.12 OF 2015 c/w CRL.A NO.13 OF 2015 CRL.A NO.14 OF 2015 CRL.A NO.15 OF 2015 15 capacity of complainant, in support of his probable defence, despite presumption operating in favour of complainant regarding legally enforceable debt under Section 139 of N.I. Act, onus shifts again on the complainant to prove his financial capacity by leading evidence, more particularly when it is a case of giving loan by cash and thereafter issue of cheque.
In Vijay Vs. Laxman and Anr (Vijay)12, K.Subramani Vs. K.Damadara Naidu (K.Subramani)13 and K.Prakashan Vs. P.K.Surenderan (K.Prakashan)14, also the Hon'ble Supreme Court held that the presumption under Section 139 of N.I. Act, is a rebuttable presumption and when accused rebut the same by preponderance of probabilities, it is for the complainant to prove his case beyond reasonable doubt including the financial capacity.
In the light of the ratio in the above decisions, at the outset, it is necessary to examine whether the
12 (2013) 3 SCC 86 13 (2015) 1 SCC 99 14 (2008) 1 SCC 258
CRL.A NO.12 OF 2015 c/w CRL.A NO.13 OF 2015 CRL.A NO.14 OF 2015 CRL.A NO.15 OF 2015 16 complainant has proved his financial capacity to lend Rs.20 lakhs to the accused. During the course of his examination-in-chief, the complainant has not lead any oral or documentary evidence to prove his financial capacity. During his cross-examination, complainant has deposed that his family is having a Complex consisting of 72 shops and above it, he is running a hostel for students. It is elicited that the tenant in the said shops are in occupation therein since the time of his grandfather and father and the rent paid by them is also old rents and they have not been revised recently.
Complainant has also admitted that those tenants have not paid any advance to him, but claimed that he has received good will in a sum of Rs.30 lakhs from the tenants. However, no documents are produced to evidence the said fact. The complainant also conceded that whatever rent he receives from the shops is utilised for repairing and maintenance of the same. Complainant has also claimed that he was running a lodge by name Sagari. He is also a partner of Hotel Suprabhata situated
CRL.A NO.12 OF 2015 c/w CRL.A NO.13 OF 2015 CRL.A NO.14 OF 2015 CRL.A NO.15 OF 2015 17 in Anand Rao Circle, but he is not getting any income from the same.
When a specific question was put as to whether he is having any documents to show that the at relevant point of time, he was in possession of Rs.20 lakhs, complainant has answered in the negative. He is also unable to state the date, month and the year in which he had lent Rs.20 lakhs to the accused. Though he has claimed that he is an income tax assessee and periodically submits returns, as conceded by him in the said returns, the fact of he having advanced hand loan of rupees Rs.20 lakhs to the accused is not reflected. Despite denying that he had no financial capacity to lend Rs.20 lakhs, the complainant has not produced even a scrap of paper to prove the same.
On the other hand, during the course of his examination-in-chief, the accused has deposed in detail that earlier he was supplying food to the Mico factory in the name and style of Murthy and Company and for the said business, he had opened the account in question on
CRL.A NO.12 OF 2015 c/w CRL.A NO.13 OF 2015 CRL.A NO.14 OF 2015 CRL.A NO.15 OF 2015 18 which the subject cheques have been drawn. He has also deposed that during 1996, he was supplied with a cheque book consisting of 25 cheque leaves and he had given four of them, which are the subject cheques to the complainant while borrowing Rs.40,000/- in four instalments of Rs.10,000/- each. Though he has repaid the same, complainant failed to return the cheques and on that basis, he has filed the present complaints.
Accused has specifically deposed that after the contract between him and MICO factory regarding supply of food came to an end in 2000, he stopped operating the said account and therefore bank closed it during 2003. The accused has produced his account statements to show that the cheques in the series to which the subjects belong are utilised within 1998. Admittedly, the subject cheques are printed before 2000, and though the complainant has claimed that the loan was borrowed by the accused during 2009, he has not resisted the issue of cheques which are printed before the year 2000. Having regard the fact that earlier more particularly during 1997
CRL.A NO.12 OF 2015 c/w CRL.A NO.13 OF 2015 CRL.A NO.14 OF 2015 CRL.A NO.15 OF 2015 19 accused was in the habit of borrowing hand loan from the complainant and the cheques are printed before 2000, it corroborate and support the defence of the accused that they were issued for an earlier transaction in blank and they have been utilised subsequently, especially when the complainant has failed to prove his financial capacity. Complainant is also not in a position to state for what purpose accused was in need of such a substantial sum of Rs.20 lakhs.
On the other hand, the oral and documentary evidence led by the accused prove the fact that he is a partner in hotel Moti Mahal and hotel Highland and getting income of Rs.40,000 to 50,000/- per month. As per Ex.D3(a) he has received a sum of Rs.53 lakhs during December 2005 with regard to joint development of hotel Highland. As per Ex.D4(a) he has periodically received a sum of Rs.1,32,000/- per month towards land rent. In fact, during his cross-examination, complainant has admitted that accused is owning several income generating properties.
CRL.A NO.12 OF 2015 c/w CRL.A NO.13 OF 2015 CRL.A NO.14 OF 2015 CRL.A NO.15 OF 2015 20
During the cross-examination of complainant, the accused has elicited that One Anand Kumar Bhandari was a common friend of complainant and accused. He was also a tenant under the accused. On account of certain dispute between them, several complaints and cases were filed against each other and the relationship between them was spoiled. The accused has also produced documents to show that the relationship between accused and said Anand Kumar Bhandari was spoiled and several litigation were fought between them. In fact, as per Ex.D12, eight criminal complaints are filed by the said Anand Kumar Bhandari against the accused are dismissed and the Co-ordinate Bench of this Court has upheld the same.
The accused has also succeeded in securing a decree for recovery of possession of the property from the said Anand Kumar bhandari. Having regard to the fact that the said Anand Kumar Bhandari continued to be a good friend of complainant, probabalise the defence of the accused that at his instance, he has chosen to
CRL.A NO.12 OF 2015 c/w CRL.A NO.13 OF 2015 CRL.A NO.14 OF 2015 CRL.A NO.15 OF 2015 21 prosecute the accused. While the complainant has failed to prove his financial capacity and that he has lent Rs.20 lakhs to the accused, the accused on the other hand proved that he is having sufficient income of his own and he had no necessity of borrowing Rs.20 lakhs from the complainant.
Moreover, in the complaint, the complainant has not averred as to the nature of the transaction that took place between him and the accused. He has not even stated for what purpose the loan was borrowed and the date month and year of the transaction. According to the complainant, the transaction is of the year 2009 during the period Rs.20 lakhs is quite substantial money and at any stretch of imagination, it cannot be excepted that complainant do not remember the date month and year of the transaction. It appears since the cheques are printed before the year 2000 and complaint is filed during 2009, very consciously the complainant has chosen not to plead about the transaction, lest the accused may take the plea of limitation. The very fact
CRL.A NO.12 OF 2015 c/w CRL.A NO.13 OF 2015 CRL.A NO.14 OF 2015 CRL.A NO.15 OF 2015 22 that the cheque leaves in question are printed before the year 2000 supports the contention of the accused that they were issued by him in 1997.
In S.Thimmappa, the Co-ordinate Bench of the Court, on facts held that in the absence of pleading with regard to the date on which the loan was advanced and inconsistency, the case of the complainant was rejected and acquittal of the accused was upheld. However, the ratio in that case and in Krishna Janardhan Bhat that the existence of debt is not the subject matter of presumption under Section 139 is over ruled by the Hon'ble Supreme Court in Rangappa Vs Sri Mohan (Rangappa)15. In Basalingappa, Amzad Pasha, K Subramani, it was held that despite presumption under Section 139 of N.I Act, on the failure of the complainant to prove his financial capacity, the complaint is liable to be dismissed. In Rajaram Sriramulu Naidu, the fact that in the income tax return, the complainant failed to disclose the fact of lending
15 (2010) 11 SCC 441
CRL.A NO.12 OF 2015 c/w CRL.A NO.13 OF 2015 CRL.A NO.14 OF 2015 CRL.A NO.15 OF 2015 23 money to the accused was held to be one of the grounds to reject the case of the complainant.
In the present case also, the complainant has failed to plead and prove the facts regarding advancing hand loan to the accused and he has also failed to prove his financial capacity. Taking into consideration the oral and documentary evidence placed on record the trial Court has come to a correct conclusion that charges against accused are not proved and acquitted him. The findings of the trial Court is consistent with the evidence brought on record by both parties. On re-appreciation of the entire evidence placed on record, this Court finds no justifiable grounds to interfere with the conclusions arrived at by the trial Court. In the result, all the appeals fails and accordingly the following: ORDER (i) Appeals filed by the complainant under Section 378(4) of Cr.P.C. are dismissed.
(ii) The impugned common judgment and order dated 18.10.2014 in C.C.No.21102/2009 c/w
CRL.A NO.12 OF 2015 c/w CRL.A NO.13 OF 2015 CRL.A NO.14 OF 2015 CRL.A NO.15 OF 2015 24 C.C.Nos.21135/2009, 21136/2009 and 21404/2009 on the file of XV ACMM, Bengaluru is hereby confirmed.
(iii) The registry is directed to send back the trial Court records along with copy of this judgment forthwith.
Sd/- JUDGE RR