Karnataka High Court
Sri Hanumantha Raju vs Sri Shivakumar on 5 September, 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL APPEAL NO.356/2018
Between:
Sri Hanumantha Raju
S/o late Sri Thimmaiah
Aged about 49 years
R/a No.8, 1st Main Road
First Stage, West of Chord Road
Rajajinagar
Bengaluru-560010. ...Appellant
(By Sri G. Papi Reddy, Advocate)
And:
Sri Shivakumar
C/o Sri Basavalingaiah
R/a No.1, 14th Main Road
Kamakshipalya
Vrushabavathinagara
Bengaluru.
And also working as
Lineman, Bescom
N-Sub Division
West of Chord Road
Rajajingar
Bengaluru-560010. ... Respondent
(Respondent served and unrepresented)
This Criminal Appeal is filed under Section 378(4)
Cr.P.C., praying to set aside the judgment dated 08.12.2017
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passed by the XIII A.C.M.M., Bengaluru in
C.C.No.34334/2014-acquiting the respondent/accused for
the offence punishable under Section 138 of N.I. Act and
etc.,
This Criminal Appeal coming on for Orders this day,
the Court made the following:
JUDGMENT
This appeal is directed against the judgment and order passed by the XIII Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No.34334/2014 dated 08.12.2017, whereunder the complaint came to be dismissed by acquitting the accused.
2. I have heard the learned counsel for the complainant/appellant. Though the notice is served on the respondent, he remained absent and there is no representation.
3. The case of the complainant in brief is that the complainant and the accused were acquainted with each other. The accused was working as a Lineman and he has approached the complainant for hand loan of Rs.10,00,000/- for his family necessities. Believing the -3- words of the accused, the complainant has paid a sum of Rs.10,00,000/- by way of cheque in the first week of July 2014 and the accused had issued a post dated cheque bearing No.289371 dated 05.08.2014 drawn on State Bank of Hyderabad. After the said period, the complainant approached and requested the accused for repayment of the said amount. The accused instructed the complainant to present the said cheque for encashment. As per the instructions of the accused, complainant presented the said cheque for encashment through his banker, it was returned with shara "Funds Insufficient" on 27.09.2014. Subsequently, the complainant got issued a notice to the accused on 21.10.2014 and the said notice returned with shara "Intimation delivered" since he has not received any acknowledgment for having served the notice to his residential address. Even the complainant has sent one more letter addressing to the accused on 29.11.2014. The accused did not come forward to pay the amount -4- under the cheque and as such, the complaint was registered. Thereafter, the learned Magistrate took the cognizance, accused was secured and his plea was recorded. He pleaded not guilty and claims to be tried. Hence, the trial was fixed.
4. In order to prove the case of the complainant, the complainant got himself examined as PW.1 and got marked Exs.P1 to P8. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C. The accused neither lead any evidence nor got marked any documents.
5. After hearing the learned counsel appearing for the parties, the impugned judgment and order of acquittal came to be passed. Assailing the same, the appellant/complainant is before this Court.
6. The main grounds urged by the learned counsel for the complainant are that though there is ample material to show that the accused has taken loan -5- of Rs.10,00,000/- and executed a demand promissory note and he also admitted the signature on the cheque and the said cheque is belonging to the account of the accused, without properly drawing the presumption as contemplated under Section 139 of the Negotiable Instruments Act, 1881 (the 'Act' for Short), the trial Court has ventured to go in a different angle and has shifted the burden on the complainant to show that the said cheque has been issued to discharge the debt or liability. The observation made by the trial Court is not in accordance with law.
7. He further submitted that during the course of cross-examination of PW.1, he was suggested to the effect that the said transaction has been taken place between the accused and the complainant. The trial Court without considering the oral and documentary evidence has come to a wrong conclusion in acquitting the accused. On these grounds, he prays to allow the -6- appeal and set aside the impugned order and convict the accused.
8. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
9. In order to prove the case of the complainant, the complainant got himself examined as PW.1. By reiterating the contents of the complaint, he has deposed that there was a legally recoverable debt and the accused has issued the cheque and thereafter, the said cheuqe has not been encashed and as such, the offence has been made out.
10. In order to prove the case, the complainant has to establish that the cheque was drawn from the account of the accused and there is legally recoverable debt or liability. The said cheque was returned unpaid due to insufficiency of the funds. By going through the evidence of PW.1 and the cross-examination, it reveals -7- that the said cheque bares the signature of the respondent/accused. It is the defence of the accused that there was a transaction between the accused and one Marimaadu and he has barrowed a sum of Rs.50,000/- from him and at that time, he has issued a signed blank cheque as a security and he has discharged the said loan amount of Rs.50,000/- to the said Marimaadu and without returning the said cheque in his favour, the said cheque has been given to the complainant and he has misused the cheque, which has been given as a security. Even the records indicate that there is no dispute so as to the fact that Ex.P1-cheque is belonging to the bank account of the accused and it bears the signature of the accused. When once the accused admits the signature on the said cheque, then under such circumstances, the Court shall draw a presumption under Section 139 of the Act. This proposition of law has been laid down by the Hon'ble Apex Court in the case of RANGAPPA VS. SRI MOHAN -8- REPORTED IN (2010) 11 SCC 441 at paragraph No.26, which read as under:
"26. In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstance therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant."
11. On going through the said paragraph, the Court has to draw a mandatory presumption under Section 139 of the Act. When once the accused admits the signature on the said cheque and the said admission includes a presumption that there exists a legally enforceable debt or liability. The said presumption is -9- rebuttable presumption by the accused and it is open to the accused to raise a defence, wherein the existence of legally enforceable debt or liability can be contested and disposed or rebutted. But, the trial Court without properly considering the said aspect has come to the conclusion that there is no legally recoverable debt or liability and the complainant has not proved that he was having capacity and has given an amount of Rs.10,00,000/- to the accused. The said observation of the trial Court is not in accordance with law. When once the Court has drawn the presumption under Section 139 of the Act, then under such circumstances, it can be inferred that there exists a legally enforceable debt or liability. Then the accused has to rebut the said presumption on preponderance of probabilities. But, as could be seen from the cross-examination of PW.1, no such evidence has been brought on records so as to accept the defence of the accused. Even the accused has not stepped into the witness box nor he got examined the said Marimaadu, to whom he has issued the said cheque and the
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said cheque has been misused by the complainant in collusion with him.
12. Be that as it may. If really the said cheque has been given to Marimaadu and the same has been misused, then under such circumstances, the accused/respondent ought to have been given a notice or he could have filed the complaint before the Police. No such action has also been taken in this behalf.
13. In the light of the discussion held by me as stated above, the said presumption which was drawn has not been rebutted. Then under such circumstances, admittedly when the said cheque belongs to the accused and it bears the signature and if he fails to rebut the defence taken by him, the case of the complainant stands proved. The trial Court without properly considering the said facts and without proper appreciation, it has come to the conclusion that no documents have been produced to show that the security has been taken to provide loan at the time of
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entering into a loan agreement. It has been further observed that no witnesses have been examined for having given Rs.10,00,000/-. It is nobody's case that in the presence of the witnesses, the said amount has been paid to the accused. Only on the presumption and assumption, the trial Court has come to a wrong conclusion and has acquitted the accused and dismissed the complaint.
14. Taking into consideration the above said facts and circumstances, the complainant/appellant has made out a case so as to set aside the impugned judgment and order of the trial Court.
15. In the light of the discussion held above the appeal is allowed and the judgment and order passed by the XIII Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No.34334/2014 dated 08.12.2017 is set aside and the respondent/accused is hereby convicted for the offence punishable under Section 138
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of the Act and he is sentenced to pay the fine amount of Rs.11,00,000/- and out of Rs.11,00,000/-, the amount of Rs.10,00,000/- may be paid to the complainant/appellant on proper identification and acknowledgment. Remaining amount of Rs.1,00,000/- credited to the State as fine amount.
With the above observations, the Criminal Appeal is disposed of.
I.A.No.1/2018 does not survive for consideration and the same is disposed of.
Sd/-
JUDGE ssb