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1 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 11th DAY OF MARCH 2022 BEFORE THE HON’BLE MR. JUSTICE HEMANT CHANDANGOUDAR CRIMINAL APPEAL No.100196/2015
Between
Sri. Abdul Hafiz, S/o Mohammed Gouse, Aged about 55 years, Muslim, Tailor, C/o Mehtab Tailors, Kullayappa Building, Patel Nagar, Hospete, Hosapete Taluk, Ballari District. ...Appellant
(By Sri. Manjunatha G.Patil, Advocate)
A n d
B. Jeelan, S/o B.Sollaha Sab, Aged: 45 years, Bakery Businessman, Masjid Complex, Main Road, Beside Government Hospital, Chitwadigi, Hosapete, Hosapete Taluk, Ballari District.
...Respondent
(By Sri. M.Amaregouda, Advocate)
This criminal appeal is filed under Section 378(4) of the Code of Criminal Procedure, 1973, seeking to call for lower court records in C.C. No.2221/2012 dated
2 10.08.2015 on the file of the Hon’ble Additional Civil Judge & JMFC at Hosapete in Ballari District and to set aside the judgment passed in C.C.No.2221/2012 dated 10.08.2015 on the file of Hon’ble Additional Civil Judge & JMFC at Hosapete in Ballari District and convict the accused/respondent under Section 138 of N.I. Act.
This criminal appeal coming on for Admission this day, the Court delivered the following:
JUDGMENT
This appeal is filed against the judgment dated 10.08.2015 passed by the Additional Civil Judge & JMFC, Hosapete, in C.C. No.2221/2012 dismissing the private complaint filed by the appellant against the respondent for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘the Act’).
The appellant had filed a complaint against the respondent for the offence punishable under Section 138 of the Act alleging that the cheque issued by the respondent for a sum of Rs.8,00,000/- was dishonoured when the same was presented for realisation. The Trial
3 Court, after taking cognizance, issued notice to the respondent. The Respondent though admitted that the cheque belongs to him, however, denied the signature as well as the contents of the cheque. The Trial Court dismissed the complaint stating that the complainant has not placed any material as to his known source of income for having lent a sum of Rs.8,00,000/- to the respondent. It was further held that the respondent having denied the signature on the cheque, the complainant has not chosen to seek opinion of the expert for substantiating his claim that the cheque bears the signature of the accused- respondent herein. Taking exception to the same, this appeal is filed.
The learned counsel for the appellant submits that the income tax returns for the relevant period establishes that the complainant had sufficient income and the amount was lent to the respondent- accused for the purpose starting a Bakery. He further
4 submits that the respondent-accused having admitted that the cheque belongs to him, the burden was upon the respondent-accused to prove that the signature on the cheque was forged.
On the other hand, the learned counsel appearing for the respondent-accused submits that the complainant having failed to prove that the cheque was issued towards legally recoverable debt and also that the complainant having not proved that the signature on the cheque bears the signature of the respondent- accused, the Trial Court has rightly dismissed the complaint.
I have considered the submissions made by the learned counsel for the parties.
The respondent-accused having admitted that the cheque belongs to him, the initial burden to prove that the cheque does not bear his signature was
5 on the respondent-accused. However, the Trial Court has erroneously shifted the burden on the complainant and the same is impermissible.
The respondent-accused having admitted that cheque belongs to him, it is presumed that the cheque was issued towards legally recoverable debt and the burden was upon the respondent-accused, by leading rebuttal evidence, to prove that the cheque was not issued towards legally recoverable debt and also that the cheque does not bear his signature or it is forged.
The complainant has filed an application before this Court for production of income-tax returns for the relevant period to substantiate his claim that he had sufficient income to lend the money to the respondent-accused. However, the validity of the said documents requires to be considered by the Trial Court by permitting the parties to lead evidence and this Court
6 cannot consider the same in this appeal . Hence, I am of the view that the impugned order passed by the Trial Court requires to be interfered with. Accordingly, I pass the following: ORDER
The appeal is allowed. The impugned judgment dated 10.08.2015 passed by the Additional civil Judge and JMFC, Hosapete, in C.C. No.2221/2012 is set aside and the matter is remitted to the Trial Court for consideration of the complaint afresh from the stage of examination-in-chief of the complainant.
The learned Magistrate is requested to dispose of the matter within three months from the date of receipt of certified copy of this order.
The complainant is at liberty to produce additional documents, if any, before the Trial Court.
7 In view of disposal of the appeal, I.A. No.1/2020 is also dismissed as not surviving for consideration.
Sd/- JUDGE Kms