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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF DECEMBER, 2021
BEFORE
THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO. 431 OF 2017
BETWEEN:
KANTHA RAJ, S/O B.MUNIREDDY, AGED ABOUT 39 YEARS, RESIDING AT ANANDA REDDY LAYOUT, ELECTRONIC CITY, 2ND PHASE, BENGALURU-562 100.
… APPELLANT
(BY SRI. KUMARA K.G., ADVOCATE)
AND:
SHAM SHUDIN, S/O A.M.HAMED, AGED ABOUT 59 YEARS, RESIDING AT GOPAMMA LAYOUT, KAMASANDRA ROAD, NEAR ANANTH NAGAR JUNCTION, ELECTRONIC CITY POST, ANEKAL TALUK, BENGALURU-562 100.
… RESPONDENT
(BY SRI. KESTHUR N. CHENDRA SHEKHER, ADVOCATE)
THIS CRL.A. IS FILED UNDER SECTION 378(4) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 08.12.2016 PASSED BY THE XV A.C.M.M., BENGALURU IN C.C.NO.3333/2016 - ACQUITING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENT ACT.
THIS CRIMINAL APPEAL IS COMING ON FOR ADMISSION THROUGH VIDEO CONFERENCE/PHYSICAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING;
J U D G M E N T
This is a complainant's appeal preferred against the order passed by the trial Court acquitting the accused- respondent of an offence punishable under Section 138 of Negotiable Instrument Act (herein after referred as N.I. Act).
Heard the learned counsel appearing for both the parties and perused the material on record.
It is the case of the complainant that, accused is well-known to him and in the last week of the September 2015, he approached him seeking financial assistance to improve his business and at his request, a sum of Rs.10,00,000/- was paid as hand loan with a promise by the accused that the said amount will be repaid within one month. When the complainant approached the accused after one month and requested him to return the amount,
in discharge of his liability, the accused issued a cheque bearing 008650 dated 25.10.2015 drawn on State Bank of Patiala, Meenakshi Towers, 1/43/2 Singasandra, Hosur Main Road Branch, Bengaluru. When the said cheque was presented to his bankers, Andhra Bank, Electronic City Branch, Bengaluru on 04.11.2015, the same was returned with an endorsement 'Account Closed' on 13.11.2015. Legal notice dated 23.11.2015 was issued by way of RPAD calling upon the accused to repay the amount and the same was served on 26.11.2015. However, instead of repaying the amount, the accused sent untenable reply and failed to make payment within the statutory period. Hence, committed an offence under Section 138 of N.I. Act.
The accused has denied that at any point of time, he approached the complainant seeking hand loan of Rs.10,00,000/-. It is his specific defence that a sum of Rs.5,00,000/- was borrowed by the accused from the
complainant and at the time of payment of the said amount, the complainant insisted to furnish the blank cheques and documents towards security and the said cheques have been misused and the present complaint was filed claiming Rs.10,00,000/-, which was not at all due to the complainant.
It is the contention of the learned counsel for the appellant that, there is an initial presumption in favour of the complainant that when he is in possession of the cheque belonging to the accused and also signed by him, the said cheque has been issued in discharge of a legally recoverable debt. He contends that the accused has admitted the relationship and the money transaction which took place between the complainant and himself. He therefore contends that the trial Court was not justified in acquitting the accused when the defence has failed to satisfactorily rebut the presumption. He contends that in
respect of another cheque issued for a sum of Rs.5,00,000/-, the trial Court has convicted the accused in CC No.3334/2016 holding that the non-production of Sale Deed, bank statement of account, Income Tax returns have no relevancy. However, the trial Court has taken a different view in the present case holding that unless the financial position is not made clear, it is difficult to sustain the contention of the complainant. He therefore contends that the reasons assigned by the trial Court are not in accordance with law.
It is the specific case of the complainant that, in the last week of September, he advanced Rs.10,00,000/- to the accused as hand loan and the cheque issued by the accused in discharge of the said liability, came to be dishonored and therefore the accused has committed an offence under Section 138 of N.I. Act.
It is relevant to mention that the complainant has taken a similar stand that in the last week of September 2015, a sum of Rs.5,00,000/- was advanced to the accused and the cheque issued towards the payment of said amount was dishonored. The trial Court has observed that, it is quite unusual and unnatural to advance huge sum of Rs.15,00,000/- to the complainant in the last week of September 2015. It is relevant to note that in the complaint no reference has been made regarding the two cheques issued by the accused. There is no mention with regard to the hand loan of Rs.5,00,000/- advanced to the accused.
Learned counsel for the respondent has pointed out that insofar as the cheque issued for a sum of Rs.5,00,000/-, the accused admitted the said liability in the reply notice marked as Ex.P6 which fact has been taken into consideration by the trial Court in CC No.3334/2016.
He submits that the accused has even paid the said amount to the complainant, which is not in dispute.
In the instant case, admittedly at the time of advancing a huge sum of Rs.10,00,000/- by way of cash, no documents have been executed. According to the complainant, he sold a site for a sum of Rs.27,00,000/- and therefore he had sufficient source to advance the hand loan of Rs.10,00,000/- to the accused. Even though the complainant has stated that he could produce the certified copy of the Sale Deed, he has not produced and marked the copy of the Sale Deed and pleaded ignorance with regard to the date of registration of the document in the cross-examination. There is absolutely no documents placed by the complainant to show that in the last week of September 2015 he possessed a sum of Rs.10,00,000/- and therefore it cannot be said that the finding recorded by the trial Court is erroneous. The presumption available to
the complainant is rebutable in nature and the accused in this case has been able to raise probable defence that there was no debt or liability towards the complainant. The judgment of acquittal passed by the trial Court does not call for any interference.
Accordingly, appeal is dismissed.
Sd/- JUDGE