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NC: 2023:KHC:43991 CRL.A No. 189 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF DECEMBER, 2023 BEFORE THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR CRIMINAL APPEAL NO. 189 OF 2018 BETWEEN:
B.N. NARAYAN RAO, S/O LATE BAPU RAO, AGED ABOUT 65 YEARS, OCC:RETIRED GOVERNMENT EMPLOYEE, R/AT NO.489, 11TH CROSS, 5TH MAIN, II STAGE, WEST OF CHORD ROAD, BANGALORE-560 086. …APPELLANT (BY SRI. C.H. JADHAV, SR. COUNSEL FOR SMT. RASHMI JADHAV, ADVOCATE)
AND:
D. RAJKUMAR, S/O LATE DURVASA NAIDU, AGE :MAJOR, R/AT NO.31/B, 6TH CROSS, II MAIN, ROAD,BAPUJINAGAR, MYSORE ROAD, BIKKODU HOBLI, BANGALORE-560 026. …RESPONDENT (BY SRI. B.N. MANJUNATH, ADVOCATE)
THIS CRL.A IS FILED U/S.378(4) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 08.02.2017 PASSED BY THE XV A.C.M.M., BANGALORE IN C.C.NO.8272/2016 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I.ACT.
THIS APPEAL COMING ON FOR FURNTER HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Digitally signed by SOWMYA D Location: High Court of Karnataka
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NC: 2023:KHC:43991 CRL.A No. 189 of 2018
JUDGMENT
This appeal is filed by the complainant under Section 378(4) of Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C' for short) challenging the judgment of acquittal passed by XV Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No.8272/2016 dated 08.02.2017. 2. For the sake of convenience, the parties herein are referred with original ranks occupied by them before the trial Court.
The brief factual matrix leading to the case are as under: The complainant and accused are acquainted with each other since last 15 years. It is asserted that accused is liable to pay a sum of Rs.4,50,000/- by the end of March 2007. After repeated requests and reminders accused has issued cheques for Rs.2 Lakhs and Rs.2.50 Lakhs dated 10.06.2007 and 10.07.2007 respectively and when the said cheques were presented for encashment, they were
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returned for ‘insufficient of funds’. Thereafter, the complainant issued a legal notice but the accused did not pay the cheque amount and hence, a complaint came to be lodged before the learned Magistrate.
The learned Magistrate after recording the sworn statement and after appreciating the documentary evidence has taken cognizance of the offence and issued process against the accused. The accused has appeared through his counsel and was enlarged on bail. 5. The plea under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'the N.I.Act' for short) is framed and accused denied the same. The complainant was got examined himself as PW1 and he placed reliance on 10 documents marked at Ex.P1 to Ex.P10. After conclusion of the evidence of the complainant, the statement of accused under Section 313 of Cr.P.C. is recorded to enable the accused to explain the incriminating evidence appearing against him in the case of the complainant. The case of accused is of total denial.
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NC: 2023:KHC:43991 CRL.A No. 189 of 2018
After hearing the arguments and after appreciating the oral and documentary evidence, the learned Magistrate by exercising the powers under Section 255(1) of Cr.P.C acquitted the accused for the offence under Section 138 of N.I.Act. Being aggrieved by this judgment of acquittal, the complainant is before this court by way of this appeal. 7. Heard the learned Senior counsel for the appellant. The learned counsel for the respondent did not appear before the court. Perused the records.
The learned Senior counsel for the accused would contend that the accused has issued two disputed cheques towards due amount of Rs.4,50,000/- and when legal notice came to be issued, there is no reply to the legal notice. He would also contend that issue of cheque and signature are undisputed and there is no rebuttal of presumption available in favour of the accused. Hence, he would contend that the learned Magistrate has committed an error in acquitting the accused and as such, he would
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NC: 2023:KHC:43991 CRL.A No. 189 of 2018
seek for allowing the appeal and convicting the respondent /accused.
Having heard the arguments and after perusing the records, now the following point would arise for my consideration: (i) Whether the judgment of acquittal passed by the trial court is perverse, arbitrary and erroneous so as to call for any interference by this court?
The specific contention of the complainant in the complaint is that the accused is well conversant with the family of the complainant since, last 15 years and he used to borrow money from the complainant now and then. It is asserted that accused became due to the complainant in a sum of Rs.4,50,000/- by the end of March 2007. This is the specific pleading made in the complaint. The complainant has no where pleaded as to how this amount of Rs.4,50,000/- was arrived and when the transactions have been taken place and how much
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NC: 2023:KHC:43991 CRL.A No. 189 of 2018
amount was paid on which date. The entire pleading in this regard is completely silent. The evidence and complaint pleadings lack material aspects in this regard. 11. The complainant was examined as PW1 and in his examination-in-chief; he has again reiterated the same fact as asserted in the complaint. In his evidence also, he has no where asserted when and in how many installments the amount was lent to the accused. 12. The cross-examination of complainant discloses that he is a retired ACP and he has served in Vijaynagar Police Station. Though he is a high rank police officer, and when he claims that he got acquainted with the accused while working as police officer, he pleads ignorance regarding the profession of the accused. This is an unbecoming of a police officer and this assertion on the part of the complainant is against the profession, in which he had served. The complainant in his further cross- examination admitted that in 1998, accused has availed Rs.50,000/- loan from him and he asserts that he used to
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return the same and again used to avail loan from him. He simply asserts that regularly the accused used to take loan and due was Rs.4,50,000/-.
According to the complainant, apart from this transaction, 6 to 7 times, the accused has availed the loan. Then the complainant is required to explain on which dates and to what extent the accused has availed the loan. 13. Further, on perusal of Ex.P1 and Ex.P2, it is evident that said cheques were issued on behalf of R.K.Plantations. It is not the case of the complainant that he had any dealings with R.K.Plantations. He has also admitted that in 1998 he has paid Rs.1,36,000/- by way of a cheque. He also admits that he is an income tax assessee and he has not shown this in his income tax returns. When complainant is a retired police officer and an income tax assessee, he should know that he is required to report the payment in his income tax returns, but he has not taken any steps in this regard. How he calculated this Rs.4,50,000/- is not known to himself and
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NC: 2023:KHC:43991 CRL.A No. 189 of 2018
if the transaction of 1998 is included or not is also not forthcoming. If the transaction of 1998 is included in this transaction, then the debt becomes barred by law of limitation. 14. The conduct of the complainant in withholding the material information and admitting the transaction of 1998, clearly discloses that the accused has rebutted the presumption under Section 139 of N.I.Act in favour of the complainant. 15. The learned Senior counsel appearing for the appellant placed reliance on a decision in ‘RAJESH JAIN VS. AJAY SINGH’, (2023) 10 SCC 148 but the said principles does not come to the aid of the appellant / complainant in any way as in the said decision how the rebuttal and standard of proof was to be considered and rest of the things were pertaining to that particular facts and circumstances of the case in hand. The Hon’ble Apex court in the said reported decision has considered the standard of proof required for rebuttal of presumption.
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NC: 2023:KHC:43991 CRL.A No. 189 of 2018
Admittedly, the standard of proof for complainant is beyond all reasonable doubt, but the accused can rebut the presumption on the basis of preponderance of probabilities by creating a dent in the case of the complainant. Further, the Hon'ble Apex Court in the decision in RAJA RAM S/O SRIRAMULU NAIDU (SINCE DECEASED) THROUGH LRS VS. MARUTHACHALAM (SINCE DECEASED) THROUGH LRS’, 2023 LIVE LAW (SC) 46, has clearly observed that the presumption can be rebutted on the basis of cross-examination or pleadings made by the complainant or by the documents relied by the complainant himself. 16. In the instant case, the pleadings in the complaint itself are so vague that it cannot be presumed that the entire Rs.4,50,000/- is a legally enforceable debt as the date of advancement of loan in installments was not at all referred and it is time barred debt. Though the accused has not led any evidence or replied to the legal notice, but in view of the decision referred to in RAJA
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RAM’S case (supra) the accused was able to rebut the presumption by pointing the vague pleadings made in the complaint and by way of cross-examination pertaining to earlier debt itself. Further the complainant being a retired senior police officer is unable to know the date of advancement of loan and he is not certain as to when exactly the loan was advanced and whether the loan was within the stipulated period or otherwise. In view of these facts and circumstances, the principles enunciated in RAJESH JAIN’S case referred supra relied upon by the learned senior counsel for the appellant cannot be made applicable to the facts of the case in hand as it will not come to the aid of the appellant in any way. 17. The learned Magistrate has considered all these facts and circumstances in its proper perspective and has rightly acquitted the accused. Further, the appellate court should be slow enough to interfere with the judgment of acquittal. Further, it is well settled law that when two conclusions are possible, the conclusion in favour of the
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accused shall prevail and the same shall not be disturbed by the appellate court. Looking to the pleadings and evidence of the complainant, the conclusion arrived by the learned Magistrate is also possible and as such, the question of disturbing the said conclusion does not arise at all. Hence, the judgment of acquittal passed by the learned Magistrate cannot be said to be arbitrary, erroneous or perverse so as to call for any interference by this court. As such, the point under consideration is answered in the negative and accordingly, I proceed to pass the following: O R DE R (i) The appeal stands dismissed.
Sd/- JUDGE
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