KASTURBA ROAD

After due service of summons, the accused has appeared before the trial Court and contested the case by pleading not guilty to the plea recorded by the trial Court.

In order to prove the allegations against the accused, complainant got herself examined as PW-1 and relied upon Ex.P1 to 7.

During the course of his statement under Section 313 Cr.P.C, the accused has denied the incriminating evidence led by the complainant.

In fact, the accused has stepped into the witness box and examined himself as DW-1. No documents are marked on behalf of the accused.

Vide the judgment and order dated 17.12.2012, the trial Court held the accused guilty of the of the charge and sentenced him to pay fine in a sum of Rs.7,00,000/- with default sentence. Out of the fine amount, a sum of Rs.6,90,000/- was ordered to be paid to the complainant by way of compensation.

Aggrieved by the same, the accused approached the Session Court in Crl.A.No.25011/2013. Vide the impugned judgment and order the Sessions Court has allowed the appeal, setting aside the judgment and order of the trial Court and acquitted the accused.

Aggrieved by the same the complainant is before this Court contending that the order of acquittal passed by the Session Court by reversing the findings of conviction recorded by the trial Court is highly arbitrary,

The Sessions Court has also erred in observing that complainant had no financial capacity to lend loan of Rs.6,50,000/- especially when the accused has failed to rebut the evidence of complainant that she was in possession of Rs.10,00,000/- received from her husband, by selling the property. The Sessions Court is not justified in reversing the well reasoned judgment of the trial Court, solely on the ground that complainant has failed to prove her financial capacity. Viewed from any angle, the impugned judgment and order is not sustainable and pray to allow the appeal, set aside the judgment and order of the Sessions Court and restore the judgment and order of the trial Court.

On the other hand, learned counsel appearing for accused has supported the judgment and order passed by the Sessions Court and submitted that the husband of complainant and accused were friends and he used to go to the factory of accused and assist him and could lay his

Heard elaborate arguments of both sides and perused the record.

Having regard to the fact that the accused admit that cheque in question belongs to him, drawn on his account maintained with his banker and it bears his signature, presumption under Section 139 of the N.I Act is operating in favour of the complainant, placing the initial

However, in John K.Abraham Vs. Simon C. Abraham & Anr (John K.Abraham)2, 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:

As held by the Hon'ble Supreme Court in Tedhi Singh Vs Narayan Das Mahant (Tedhi Singh)3, 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. As noted earlier in the present case though the accused has sent reply, therein he has not challenged the financial capacity of complainant, but at trial he has challenged their financial capacity.

In Basalingappa Vs. Mudibasappa (Basalingappa)4, the Hon'ble Supreme Court held that when accused dispute the financial capacity of complainant to pay the amount and lead evidence to prove it and thereby

In fact in APS Forex vs Shakti International Fashion Linkers Pvt. Ltd (APS Forex)5, the Hon'ble Supreme Court held that when accused raises issue of financial 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 her 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)6, K.Subramani Vs. K.Damadara Naidu (K.Subramani)7 and K.Prakashan Vs. P.K.Surenderan (K.Prakashan)8, also the Hon'ble Supreme Court held that the presumption under Section 139 of N.I. Act, is a rebuttable presumption and

Keeping in mind the ratio in the above decisions of the Hon'ble Supreme Court and having regard to the fact that accused has challenged the financial capacity of complainant, at the outset it is necessary to examine whether the complainant has proved her financial capacity after which it would be necessary for the accused to prove his defence.

During her cross-examination, complainant has admitted that her late husband used to visit the factory of accused and assist him in his office work. However, she has denied that her husband used to do mechanical and other official work in the factory of accused and also looking after the cheque transaction in his factory. During the course of his evidence, the accused has deposed that, the husband of complainant namely late M Devaraj was his friend and earlier he and accused worked in VST Tillers

Though the accused has deposed that he used to pay certain amount to the services rendered by late Devaraj, no such documents are produced. However, the evidence of accused coupled with

Now coming to the defence of the accused that complainant never had the financial capacity to lend him hand loan in a sum of Rs.6,50,000/-. During the course of his evidence, the accused has specifically deposed that the

It is pertinent to note that complainant is a homemaker. She is not having any income or avocation of her own. With regard to her means to pay substantial sum of Rs.6,50,000/-, during her cross-examination complainant has deposed that her husband had land and getting income from them. About 10 years back, he had sold his site and the sale consideration was with her and utilising the same she has lent Rs.6,50,000/- to accused. She has also stated that neither herself nor her husband were Income Tax Assessees. Admittedly, the complainant has not produced any documents to show that her husband was owning lands and getting income and also

The complainant has admitted that her husband had purchased a swift car by taking loan from the bank and during his lifetime housing loan was also availed and the installments are being paid by her. Despite her lengthy cross-examination challenging her capacity to lend Rs.6,50,000/- to the accused, the complainant has not chosen to produce any documents to prove her financial capacity. Thus, the complainant has failed to prove that at the relevant point of time she was in possession of Rs.6,50,000/- and lent the same to the accused.

When the complainant has failed to prove her financial capacity, as held in APS Forex, the burden has not shifted on the accused to rebut the presumption under Section 139 of N.I Act. The trial Court has accepted the

Anyhow, even in the absence of proof that he was paid certain sum for the services rendered by him, the fact remains that the complainant has failed to prove her financial capacity to lend exorbitant sum of Rs.6,50,000/. In fact, the admission elicited in the cross-examination of complainant establish the fact that complainant and his husband have borrowed loan from the bank, not only for construction/purchase of the house, but also for purchasing car and the said installments were being paid. When complainant has failed to prove her financial capacity and the burden has not shifted on the accused to

On the other hand on re-appreciation of the oral and documentary evidence placed on record, the Sessions Court has rightly interfered with the order passed by the trial Court and acquitted the accused. After going through the elaborate evidence led by both the parties, this Court is of the considered opinion that it is not a fit case to interfere with the impugned judgment and order passed by the Sessions Court. In the result, the appeal fails and accordingly the following: ORDER (i) Appeal filed by the complainant under Section 378(4) of Cr.P.C is dismissed. (ii) The impugned judgment and order dated 25.11.2014 in CrlA.No.25011/2013 on the file of FTC-III, Mayohall, Bengaluru, reversing the judgment and order of conviction dated 17.12.2012 imposed by