Karnataka High Court
Smt. V Sharada vs Sri R V Ramesh on 2 February, 2023
Author: P.N.Desai
Bench: P.N.Desai
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CRL.A No. 269 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE P.N.DESAI
CRIMINAL APPEAL NO. 269 OF 2011
BETWEEN:
SMT. V. SHARADA,
AGED ABOUT 40 YEARS,
D/O. LATE VENKATAGIRYAPPA,
NO.34, 4TH CROSS, 2ND MAIN,
AGP LAYOUT, MAHALAKSHMI LAYOUT
BANGLAORE-560086
...APPELLANT
(BY SRI. S.N.RAMAPRASAD., ADVOCATE)
AND:
SRI. R.V. RAMESH,
AGED ABOUT 50 YEARS,
S/O. SRI.B.VENKATARAMAIAH,
R/AT NO.219, SHIVANILAYA,
Digitally signed by 11TH CROSS, GANESH BLOCK,
NAGARATHNA M
Location: HIGH
MAHALAKSHMIPURAM,
COURT OF BANGALORE - 560 096
KARNATAKA
...RESPONDENT
(BY SRI. NANJUNDARADHYA B.G., ADVOCATE)
THIS CRL.A. IS FILED U/S. 378(4) CR.P.C PRAYING TO
SET ASIDE THE ORDER DT:16.12.10 PASSED BY THE XIII
ACMM, BANGALORE IN C.C.NO.2117/09 - ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF
N.I. ACT.
THIS APPEAL, COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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CRL.A No. 269 of 2011
JUDGMENT
This appeal arises out of the judgment passed by learned XIII ACMM, Bangalore in C.C.No.2117/2009 dated 16.12.2010 wherein the learned ACMM acquitted the accused for the offences punishable under Section 138 of the Negotiable Instruments Act (for short hereinafter referred to as 'N.I. Act').
2. The appellant was the complainant and the respondent was the accused before the Trial Court and they will be referred as per their respective ranks held before the Trial Court.
3. In brief the case of the complainant is that the complainant and accused are known to each other. They are family friends. The accused used to take hand loan from the complainant. It is contended that on 27.12.2004, the accused borrowed a sum of Rs.4,70,000/- by way of cash for the purpose of education of accused son -Sri. Nagesh and accused -3- CRL.A No. 269 of 2011 again borrowed Rs.1,50,000/-. In January 2005, the accused again borrowed Rs.2,60,000/- by way of cash from the complainant. It is contended that totally Rs.8,80,000/- was borrowed by the accused from the complainant and their family members i.e., R. Srinivasa Murthy and Hemanth Kumar for the purpose of Engineering education of R. Nagesh who is the son of accused. Now R. Nagesh has completed his education and became software engineer, got a good job and he is settled at USA.
4. When the complainant and her family members requested the accused to return the amount, the accused postponed the same by stating one or the other reason for one and half year. Finally two cheque bearing No.688100 dated 23.05.2008 and cheque bearing No.688099 dated 04.06.2008 were issued by the accused, drawn on ICICI Bank Ltd., Malleshwaram Branch, in the name of Anjaneya and company for a sum of Rs.4,11,000/- and Rs.4,70,000/- respectively. -4- CRL.A No. 269 of 2011 The complainant presented the said cheques, but they are returned with bank endorsement dated 07.08.2008 that 'the account closed'. Immediately, the complainant approached the accused and the accused refused to pay the amount. Hence, he issued statutory legal notice. Accused has given reply. Hence, he filed the complaint.
5. In order to prove the case, the complainant got examined herself as PW-1 and her relative one Sri. R.Srinivasa Murthy was examined as PW.2 and got marked twelve documents as Exs.P1 to P12. The accused got examined himself as DW-1 and also got marked two bank statements as Exs.D1 and D2. After hearing the arguments, the learned JMFC acquitted the accused. Aggrieved by the same, the complainant has filed this appeal.
6. Heard Sri. S.N. Ramaprasad, the learned counsel for the appellant and Sri. Nanjundaradhya B.G., learned counsel for the respondent.
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7. The learned counsel for the appellant argued that the Trial Court has not properly appreciated the evidence of PW.1. The complainant has helped the accused since the accused was jobless and he is not earning any income for his livelihood and in order to help the son of the accused for his education purpose, the complainant has given the money. The Trial Court has not considered the presumption arising under Section 139 of N.I. Act. The accused has admitted issuance of cheques - Exs.P.1 and P.2 and also has admitted his signature on the same. The complainant has issued the notice which was served on the accused and accused has given untenable reply. Therefore, ingredients of Section 138 of the N.I. Act are proved by the complainant. The accused has failed to rebut the burden casted upon him. Without there being any material, the finding of the Trial Court that the complainant has failed to discharge her initial burden is erroneous. On the other hand, the complainant has -6- CRL.A No. 269 of 2011 produced the cheques, bank endorsement and legal notice, given her oral evidence and also examined her relative as PW-2, which corroborated the evidence of PW-1. Hence, he prayed to allow the appeal. In support of his contention learned counsel has relied upon the decision of Hon'ble Supreme Court in in the case of Triyambak S. Hegde Vs. Sripad passed in Criminal Appeal No.849-850 of 2011 dated 23.01.2021, wherein the Hon'ble Supreme Court has stated with regard to the presumption arising under Sections 118 and 139 of the N.I. Act and at paragraph Nos.11 and 12 it is held as under:
"11. From the facts arising in this case and the nature of the rival contentions, the record would disclose that the signature on the documents at Exhibits P-6 and P-2 is not disputed. Exhibit P-2 is the dishnoured cheque based on which the complaint was filed. From the evidence tendered before the JMFC, it is clear that the respondent has not disputed the signature on the cheque. If that be the position, as noted by the courts below a -7- CRL.A No. 269 of 2011 presumption would arise under Section 139 in favour of the appellant who was the holder of the cheque. Section 139 of the N.I.Act reads as hereunder:-
"139. Presumption in favour of holder - it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability."
12. Insofar as the payment of the amount by the appellant in the context of the cheque having been signed by the respondent, the presumption for passing of the consideration would arise as provided under Section 118(a) of n.I. Act which reads as hereunder: -
"118. Presumptions as to negotiable instruments - Until the contrary is proved, the following presumptions shall be made (a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was -8- CRL.A No. 269 of 2011 accepted, indorsed, negotiated or transferred for consideration."
With these main arguments, learned counsel for the appellant has prayed to allow the appeal.
8. Against this learned counsel for the respondent argued that the Trial Court has rightly appreciated the evidence on record and has come to the conclusion that complainant has failed to discharge the initial burden. On the other hand, accused has led defence evidence and has shown before the Court that the case of the complainant is not proved and he has rebutted the evidence. The learned counsel also argued that according to complainant the loan was borrowed in the year 2004, but the Cheques were issued in the year 2008. Therefore, the debt itself has become time barred. Trial Court has rightly dismissed the complaint and acquitted the accused.
9. Learned counsel argued that there is an admission by PW-1 that she has not lent any money to -9- CRL.A No. 269 of 2011 the accused but only her relatives who have given the amount to the accused. She has not given a single rupee to the accused. Therefore, the question of complainant claiming it as legally recoverable debt is not proved. Therefore, the question of raising presumption under Section 139 and 118 of N.I. Act does arise.
10. On the other hand, PW-1 has admitted that the accused has borrowed Rs.2,60,000/- and he has repaid the same through cheques which are evident from bank statement produced by the accused marked as Exs.D.1 and D.2. The son of the accused completed his Engineering course in the year 2001 itself. Therefore, the question of the accused borrowing amount at this length of time does not arise. Earlier the accused borrowed the amount from complainant and has given cheques and the complainant after payment, returned the other cheques. But when the accused has totally paid the entire amount borrowed from the
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CRL.A No. 269 of 2011complainant, two cheques were not returned by the complainant stating that she has lost them. Believing her words, the accused kept quiet. PW-1 herself admitted that the cheques are issued in the year 2005. There is no date mentioned exactly when the amount was borrowed, how the amount was borrowed. Even the evidence of PW-2 also shows that he does not know this accused and he has no transaction with accused. He does not know for what purpose the loan was taken by the accused. Therefore, the evidence of PW.2 will also not support the case of the complainant. Hence, the learned counsel argued that the Trial Court after considering the entire evidence has rightly come to a conclusion that complainant has failed to discharge initial burden of payment of money to the accused. Therefore, as there is no legally enforceable debt or liability, the question of raising presumption does not arise.
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CRL.A No. 269 of 2011
11. On the other hand, the accused has replied the legal notice and lead his defence evidence which probabilise the defence version as true. Therefore, the Trial Court has rightly acquitted the accused. Learned counsel argued that this Court being Appellate Court while dealing with the judgment of acquittal will not interfere, unless, the judgment of the trial Court is perverse, illegal and not based on settled principles regarding appreciation of evidence in cheque bounce cases. With these arguments he prayed to dismiss the appeal.
12. I have perused the evidence on record and also the judgment of the Trial Court.
13. PW.1/V.Sharada, the complainant has stated that the accused has borrowed the loan to the tune of Rs.4,70,000/- on 27.12.2004, by way of cash for the purpose of education of his son by name Nagesh. Again Rs.1,50,000/- was borrowed, but no date or year when
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CRL.A No. 269 of 2011such amount is borrowed is forthcoming. Again, the complainant contended that a sum Rs.2,60,000/- was borrowed in the month of February, 2005. Therefore, all these transactions according to the complainant took place in the year 2004-2005. But she has not stated the specific date or stated as to how the amount is given. It is the case of the complainant that she has not given her personal amount to the accused, but the complainant has stated that she has borrowed the said amount from her sister's sons one R.Srinivas Murthy and R.Hemanth Kumar and given it to the accused. Further the complainant herself admitted that son of the accused completed his graduation in engineering and working in USA. Therefore, it appears that long back the son of the accused completed his engineering course and has got good job. Then why the accused given cheque in the year 2008 is not forthcoming. Even the accused has issued two cheques for Rs.4,70,000/- and Rs.4,11,000/- respectively. The total amount is
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CRL.A No. 269 of 2011Rs.8,81,000/-. But according to the complainant, she has given only Rs.8,80,000/-. Then why she is claiming extra a sum of Rs.1,000/- is not forthcoming. The complainant in order to discharge her initial burden, has produced the cheques - Exs.P1 and P2 and also the bank endorsements wherein it is stated that 'Account closed'. The complainant has produced the legal notice
- Ex.P7. In the examination-in-chief, the complainant has reiterated her complaint averments. In the cross- examination, the complainant has stated that she was an income tax assessee. Every year she has to declare her income to the higher authority. Further she has deposed that she has not shown the loan transaction between the accused and herself in assets and liability statement, as she has borrowed the loan from her elder sister's sons - Hemanthkumar and Srinivasmurthy and given to the accused. Then why the accused has issued cheques in her favour is not forthcoming. The complainant has not stated as to why she has borrowed
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CRL.A No. 269 of 2011the loan from her sister's sons is not forthcoming. She has clearly stated that she has not paid the amount to accused out of her personal amount. But the complainant has stated that she has borrowed the loan from her sister's sons in the year 2004-2005 and given to the accused. But to prove the same, no records are produced. Even she has not mentioned with regard to the same in the legal notice. The complainant has stated that she is not doing any money lending business also. The complainant has stated that at the time of obtaining the loan, the accused has executed a document with regard to borrowing the loan from her on a stamp paper. But the complainant has not produced that document. Even if the accused has executed such documents as stated by complainant in the cross- examination, the said documents could have become time barred as the same were stated to have been executed in the year 2004. The complainant herself stated that the original copies of the said agreements
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CRL.A No. 269 of 2011are with her only. But she has not produced the same. Again in the further cross-examination, she has stated that the accused has taken back those documents. The complainant has stated that she has not verified whether the accused needed money for his son's education. But the complainant has stated that the accused by stating so has borrowed the money. The complainant has denied the suggestion that son of the accused got admitted to the college in the year 2001 and the fee for the engineering course was only Rs.13,000/- and Rs.16,000/- was travelling expenses. The complainant has denied the suggestion that the son of the accused got scholarship for his education from the Canara bank under the Vidya Sagar scheme. Further the complainant has admitted that the son of the accused has got job. The complainant has denied the suggestion that on 21.12.2005, the accused gave a cheque for Rs.1,24,000/- through his son Nagesh. Further the bank account extract of complainant is
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CRL.A No. 269 of 2011shown to her and she has admitted that it is her bank account extract. She has admitted that on 21.11.2005, a sum of Rs.1,24,000/- was credited to her account. But she has stated that the said money is not related to this transaction. She states that the accused used to borrow the money from her frequently and used to return the amount through the cheque. She states that only except these two cheques, the accused has taken back all other cheuqes which were given by accused earlier. The complainant has admitted that she has not given loan to the accused out of her personal funds, but she has borrowed the amount from her sister's sons and given to the accused. She cannot say when exactly, she has given the amount to the accused. She has denied the suggestions that even after the accused repaying the entire amount borrowed from the complainant, the complainant retained two cheques with her and misused the same and filed a false complaint.
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CRL.A No. 269 of 2011
14. PW.2/R.Srinivasa Murthy, is the relative of PW.1. He has also stated that the accused used to take money from his aunt/PW.1 and returning the amount. During the year 2004 the accused borrowed a sum of Rs.4,70,000/- by way of cash and again he borrowed a sum of Rs.1,50,000/- and also further borrowed a sum of Rs.2,60,000/- during the year 2005. The said amount was given by himself and his brother to the complainant to give it to the accused. Further he has stated that son of the accused after completing his engineering education got job in USA. He has stated that after receiving the money, the accused requested time to repay the same and he postponed the same on one or the other reason, best known to him and the accused dragged on the time upto 2008. On several request made by PW.1, the accused has issued two cheques and the same were dishonoured. But the accused did not repay the amount. Hence, his aunt PW.1 filed the case. In the cross-examination, he has also admitted that he
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CRL.A No. 269 of 2011has no document to show that he has given any hand loan to his aunt-PW.1. He do not know whether the accused has taken loan from the bank. He has also stated that he do not know when the cheques were given by accused to PW.1. He has stated that himself and his brother have not given any amount to PW.1 in the year 2005. He has denied the suggestion that he do not know whether the cheques produced by PW.1 are in respect of the loan borrowed by the accused from complainant. There is discrepancies in the examination- in-chief and cross-examination of PW.1. Therefore, his evidence will not help in any way to the case of the complainant. Because he has not stated that as to how the accused has borrowed loan from the complainant and no records are produced to show that he is having capacity to pay such amount.
15. Against this R.V.Ramesh/DW.1 stated that he has borrowed loan of Rs.2,60,000/- from the complainant and the complainant has taken two
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CRL.A No. 269 of 2011agreements from the accused dated 27.12.2004 one for Rs.1,40,000/- and another for Rs.1,20,000/-. The complainant has given Xerox copies of the same. He further stated that he has repaid the said loan amount to the complainant by way of cash as well as through cheque through his son's account. He has stated that at the time of borrowing the amount from the complainant, he has given 12 signed cheques. After repaying the amount, the complainant has returned only 10 cheques, but not returned two cheques and stated that she has lost those two cheques. The accused stated that the accused believed the version of complainant and kept quite considering that she will not misuse the same and will return the cheques which were misplaced when they were traced. The accused has stated that even this fact is mentioned in the reply notice in detail. He has stated that the education of his son was completed in the year 2005 itself, then there is no question of borrowing such loan in the year 2008. Though the accused was cross-
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CRL.A No. 269 of 2011examined at length, but nothing is elicited from his cross-examination. The accused has denied the suggestion that the complainant helped him to pay the arrears of rent to the tune of Rs.50,000/- and the said transaction was of the year 1997. The accused has admitted his signatures on Exs.P1 and P2, but he has not filled the contents in the cheque and stated that the contents in the cheuqe are filled by the complainant as per her convenience and mentioned the dates as 04.06.2008 and 23.05.2008. In the further cross- examination he has stated that he was working in the Engineering college in the year 2004 and during the year 2004-2008, he was getting salary, then the question of borrowing the amount from the complainant does not arise. But some suggestions were made and he has denied the same. He has produced the bank extracts of his son and himself which shows that the accused has sufficient balance in his account.
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16. Therefore, on perusing the entire evidence, it is evident that the complainant and the accused had some transaction in the year 2004 as admitted by the accused but the accused has repaid the amount borrowed from the complainant. Now the complainant states that the cheques amount were borrowed by the complainant from her sister's son and given to accused in the year 2005. But no records are not produced to prove the same. Even PW.2 who is the relative of PW.1 has not supported the complainant and there is discrepancies in the evidence of PW.2. The complainant has not given any loan to the accused. In the cross- examination the complainant has stated that she has given loan in the year 2005 and the cheques are said to have been issued in the year 2008, if it is so, at the time of issuance of cheques itself, the debt which is alleged to be due had become time barred debt as already three years have been lapsed. The contention of the accused is that he had issued 12 blank cheques,
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CRL.A No. 269 of 2011when he borrowed a sum of Rs.2,60,000/- on 27.12.2004 and out of that, the accused has paid some amount to the complainant through the account of his son and by leading his defence evidence, the accused has rebutted the presumption and stated that the cheques are not issued for legally recoverable debt. Then the burden is on the complainant to prove that there is existence of legally enforceable debt, but the complainant by producing any document has proved that there is legally recoverable debt.
17. Learned counsel relied upon the decision of Hon'ble Supreme Court in the case of P.Rasiya Vs. Abdul Nazer and Anr. reported in 2022 SCC Online SC 1131 and referred to paragraph No.7 which reads as under:
7. Feeling aggrieved and dissatisfied with the judgment and orders passed by the Appellate Court affirming the conviction of the accused under Section 138 of the N.I. Act, the accused
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preferred three different Revision Applications before the High Court. By the impugned common judgment and order, the High Court has reversed the concurrent findings recorded by both the courts below and has acquitted the accused on the ground that, in the complaint, the Complainant has not specifically stated the nature of transactions and the source of fund. However, the High Court has failed to note the presumption under Section 139 of the N.I. Act. As per Section 139 of the N.I. Act, it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for discharge, in whole or in part, of any debt or other liability. Therefore, once the initial burden is discharged by the Complainant that the cheque was issued by the accused and the signature and the issuance of the cheque is not disputed by the accused, in that case, the onus will shift upon the accused to prove the contrary that the cheque was not for any debt or other liability. The presumption under Section 139 of the N.I. Act is a statutory presumption and thereafter, once it is presumed that the cheque is issued in whole or in part of any debt or other liability which is in favour of the Complainant/holder of the cheque,
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CRL.A No. 269 of 2011in that case, it is for the accused to prove the contrary. The aforesaid has not been dealt with and considered by the High Court. The High Court has also failed to appreciate that the High Court was exercising the revisional jurisdiction and there were concurrent findings of fact recorded by the courts below.
18. Therefore, once the initial burden is discharged by the complainant that the cheque was issued by the accused and the signature and the issuance of cheque is not disputed by the accused, in that case, the onus will shift upon the accused to prove the contrary that the cheque was not for any debt or other liability. Here the accused has also admitted the cheque and his signature and whatever the presumption is in favour of the complainant, is to be rebutted by the accused by way of either cross-examining the complainant or by way of leading the defence evidence.
19. The cross-examination of the complainant clearly shows that she has not given any money to the
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CRL.A No. 269 of 2011accused out of her personal funds and she has borrowed the loan from her sister's son in the year 2004 and gave it to the accused. Though the PW.2 who is the complainant's sister's son was examined, but nothing helpful to complainant is elicited from his evidence and there are discrepancy in his examination-in-chief and cross-examination. No document regarding such loan transaction is produced to show that there is any transaction between accused and the complainant. Admittedly the cheques were given in the year 2004. But in the cheques, as to why the year is mentioned as 2008 is not forthcoming. On the other hand, the accused has closed his account long back, as the complainant has not issued remaining two cheques given by him and inturn the complainant has stated that she has lost those two cheques. Hence the accused on the apprehension that the complainant might have misuse the same, has closed the account. The complainant has not chosen to examine the manager of
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CRL.A No. 269 of 2011the bank, where the accused was having the account to show that as to how and when the accused has closed his account.
20. Learned counsel for the respondent/accused has relied on the decision of Hon'ble Supreme Court in the case of Basalingappa Vs. Mudibasappa reported in AIR 2019 SC 1983 wherein the Hon'ble Supreme Court considered the effect of non-mentioning of the date of issuance of cheque by the complainant in complaint as well as in his evidence and failure to prove the financial capacity and at 23 to 26 it is held as under:
23. We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:-
(i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the
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presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
(iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.
(v) It is not necessary for the accused to come in the witness box to support his defence.
24. Applying the preposition of law as noted above, in facts of the present case, it is clear that signature on cheque having been admitted, a presumption shall be raised under Section 139 that cheque was issued in discharge of debt or liability. The question to be looked into is as to whether any probable defence was raised by the accused. In cross-examination of the PW1, when the specific question was put that cheque was issued in relation to loan of Rs.25,000/- taken by the accused, the PW1 said that he does not remember. PW1 in his evidence admitted that he retired in 1997 on which date he received monetary
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CRL.A No. 269 of 2011benefit of Rs. 8 lakhs, which was encashed by the complainant. It was also brought in the evidence that in the year 2010, the complainant entered into a sale agreement for which he paid an amount of Rs.4,50,000/- to Balana Gouda towards sale consideration. Payment of Rs.4,50,000/- being admitted in the year 2010 and further payment of loan of Rs.50,000/- with regard to which complaint No.119 of 2012 was filed by the complainant, copy of which complaint was also filed as Ex.D2, there was burden on the complainant to prove his financial capacity. In the year 2010-2011, as per own case of the complainant, he made payment of Rs.18 lakhs. During his cross-examination, when financial capacity to pay Rs.6 lakhs to the accused was questioned, there was no satisfactory reply given by the complainant. The evidence on record, thus, is a probable defence on behalf of the accused, which shifted the burden on the complainant to prove his financial capacity and other facts.
25. There was another evidence on the record, i.e., copy of plaint in O.S. No. 148 of 2011 filed by the complainant for recovery of loan of Rs. 7 lakhs given to one Balana Gouda in December, 2009. Thus, there was evidence on record to indicate that in December, 2009, he gave Rs.7 lakhs in sale agreement, in 2010, he made payment of Rs.4,50,000/- towards sale consideration and further he gave a loan of Rs.50,000/- for which complaint was filed in 2012 and
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CRL.A No. 269 of 2011further loan of Rs.6 lakhs in November, 2011. Thus, during the period from 2009 to November, 2011, amount of Rs.18 lakhs was given by the complainant to different persons including the accused, which put a heavy burden to prove the financial capacity when it was questioned on behalf of the accused, the accused (sic) being a retired employee of State Transport Corporation, who retired in 1997 and total retirement benefits, which were encashed were Rs.8 lakhs only. The High Court observed that though the complainant is retired employee, the accused did not even suggest that pension is the only means for survival of the complainant. Following observations were made in Paragraph 16 of the judgment of the High Court:-
"16. Though the complainant is retired employee, the accused did not even suggest that pension is the only means for survival of the complainant. Under these circumstances, the Trial Court's finding that the complainant failed to discharge his initial burden of proof of lending capacity is perverse."
26. There is one more aspect of the matter which also needs to be noticed. In the complaint filed by the complainant as well as in examination-in-chief the complainant has not mentioned as to on which date, the loan of Rs.6 lakhs was given to the accused. It was during cross-examination, he gave the date as November, 2011. Under Section 118(b), a
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CRL.A No. 269 of 2011presumption shall be made as to date that every negotiable instrument was made or drawn on such date. Admittedly, the cheque is dated 27.02.2012, there is not even a suggestion by the complainant that a post dated cheque was given to him in November, 2011 bearing dated 27.02.2012. Giving of a cheque on 27.02.2012, which was deposited on 01.03.2012 is not compatible with the case of the complainant when we read the complaint submitted by the complainant especially Para 1 of the complaint, which is extracted as below:-
"1. The accused is a very good friend of the complainant. The accused requested the Complainant a hand loan to meet out urgent and family necessary a sum of Rs.6,00,000/- (Rupees Six Lakh) and on account of long standing friendship and knowing the difficulties, which is being faced by the accused the complainant agreed to lend hand loan to meet out the financial difficulties of the accused and accordingly the Complainant lend hand loan Rs.6,00,000/- (Rupees Six Lakh) dated 27.02.2012 in favour of the Complainant stating that on its presentation it will be honored. But to the surprise of the Complainant on presentation of the same for collection through his Bank the Cheque was returned by the Bank with an endorsement "Funds Insufficient" on 01-03- 2012."
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21. Admittedly in this case the complainant has no financial capacity and her contention that she has borrowed the loan from her sister's sons and given to the accused is not proved. Learned counsel also relied on the decision of High Court of Punjab and Haryana in the case of Parveen Mehta Vs. Vishal Joshi passed in CRM-A-1997-MA-2015 dated 16.05.2022 wherein the Court has considered that simply because the accused has admitted his signature is not sufficient to prove the offence under Section 138 of N.I. Act. But the complainant has to show that the cheque was issued for discharge of any debt or liability. He has also relied on the judgment of co-ordinate bench of this Court in the case of Vishal Vs. Prakash Kadappa Hegannawar reported in 2020 (3) KCCR 2373 wherein at paragraph Nos.19, 20, 23, and 24 held as under:
"19. In the present case on hand, though the accused has admitted the signature of cheque and that it belongs to him, but has denied the transaction of there being any
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legally recoverable debt and any consideration was paid by virtue of the said cheque - Ex.P1. On going through the oral evidence and documents produced by the complainant, it is the case of the complainant that he has borrowed loan from his friend, father, brother and Bank/Society to pay to the accused a sum of Rs.14,00,000/- which he has paid at one stretch. Though the complainant has produced Exs.P1 to P8 and got marked Ex.P9 through PW.4, there is no document produced by the complainant to show that he has parted with the amount to the accused. It is also trite law that when a person is paying huge amount of Rs.14,00,000/- to a person whom he is not very well acquainted with, he would pay the said amount without there being any corroborative or supportive document or agreement. Therefore, it is hard to believe that the complainant has parted with the huge amount of Rs.14,00,000/- without there being any supportive document or witness to the said parting of the amount. It is also relevant to note here that when the accused raises the plea that there is no transaction and he does
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not know the accused and places material for closure of the account, the onus shifts on the complainant to prove that he had parted with the amount as loan to the accused and that he had the financial capacity and a legally recoverable debt.
20. It is also to be noted that the complainant has not clearly and specifically stated with regard to the date of payment of the alleged loan to the accused either in his complaint or in his evidence, it is also hard to believe that after giving such a huge amount to a person, who is not so very close and the complainant being a businessman that he would part with such a huge amount without charging any interest. All these facts raise a doubt in the mind of this Court as to whether such a transaction has existed or happened.
23. The sum and substance of these judgments of the Hon'ble Apex Court is that there is a presumption under Section 139 of N.I. Act which includes a presumption of existing legally enforceable debt or liability. However, such a presumption is rebuttable in nature and once the presumption is rebutted
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by the accused, the onus shifts on the complainant to prove his case. In the case of Basalingappa Vs. Mudibasappa, it is held that though the signature has been admitted, a presumption shall be raised under Section 139 of the N.I.Act that the cheque was issued in discharge of a legal debt or liability. What has to be seen is if the said presumption is rebutted by way of a probable defence raised by the accused. In my opinion on perusal of the entire evidence and the material documents, it is seen that the accused has raised a probable defence and the burden has shifted to the complainant to prove his financial capacity and the issue of there being any legally recoverable debt.
24. Further the Trial Court has rightly come to a conclusion that the complainant version of parting huge amount of Rs.14,00,000/- without there being any other materials to support and having not proved in the evidence that he had the source of income to pay to the accused, is fatal and also failed to prove that there is any legally recoverable debt to the accused."
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22. The learned counsel for respondent also relied on another decision of Hon'ble Supreme Court in the case of Indus Airways Private Limited and others Vs. Magnum Aviation Private Limited and another reported in (2014) 12 SCC 539, wherein the at paragraph No.9 it is held as under:
9. The Explanation appended to Section 138 explains the meaning of the expression "debt or other liability" for the purpose of Section 138.
This expression means a legally enforceable debt or other liability. Section 138 treats dishonoured cheque as an offence, if the cheque has been issued in discharge of any debt or other liability. The Explanation leaves no manner of doubt that to attract an offence under Section 138, there should be a legally enforceable debt or other liability subsisting on the date of drawal of the cheque. In other words, drawal of the cheque in discharge of an existing or past adjudicated liability is sine qua non for bringing an offence under Section 138. If a cheque is issued as an advance payment for purchase of the goods and for any reason purchase order is not carried to its logical conclusion either because of its cancellation or otherwise, and material or goods
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CRL.A No. 269 of 2011for which purchase order was placed is not supplied, in our considered view, the cheque cannot be held to have been drawn for an existing debt or liability. The payment by cheque in the nature of advance payment indicates that at the time of drawal of cheque, there was no existing liability."
23. Therefore, in view of the principles stated by the Hon'ble Supreme Court in the above cases, if the present appeal is considered, it is evident that the learned ACMM has rightly come to conclusion that the complainant has failed to prove that the complainant has paid huge amount of Rs.8,80,000/- to the accused. When complainant has admitted that she has not given loan to the accused out of her personal money and she states that she has borrowed money from her sister's sons and given to the accused. The accused has issued the cheques in the year 2004, when he has borrowed money from complainant, then why the complainant kept quite more than three years i.e., till 2008 and
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CRL.A No. 269 of 2011presented the cheque in the year 2008 is not forthcoming. The complainant has stated that the accused has borrowed the loan for the purpose of education of his son. But as admitted by the PW.2 the son of the accused has completed his education and got job in USA during the year 2004 itself. Then why the accused borrow amount during the year 2008 is not forthcoming. The accused has produced his bank extracts from the year 2004 to 2008, perusal of the same, it is clear that the accused has sufficient balance in his account and he has no need to borrow loan from the complainant. But the complainant has not given satisfactory explanation to substantiate the same. On the other hand, the accused has placed defence evidence and has probabalise his defence in view of the admission by the PWs.1 and 2. Therefore, the learned ACMM has came to the conclusion that the complainant has failed to discharge his initial burden and to show
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CRL.A No. 269 of 2011that the two cheques were issued for legally enforceable debt or liability.
24. It is settled principles of law that this Court being a First Appellate Court cannot lightly interfere in the judgment of the acquittal by the Sessions Court, unless, said finding is not based on the evidence or the judgment is perverse which requires interference by this Court.
25. The Hon'ble Supreme Court in the case of Sampat Babso Kale and Another v. State of Maharashtra [(2019) 4 SCC 739], while dealing with the power of the appellate court in interfering with the judgment of acquittal held that unless the judgment of trial court is perverse, illegal and not based on sound principles regarding appreciation of evidence, the appellate court shall not interfere in the judgment of acquittal. Because the judgment of acquittal gives double presumption of innocence to the accused.
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26. In view of the principles stated by the Hon'ble Supreme Court in the decisions referred above and on re-assessing the entire evidence of prosecution witnesses, I find that the judgment of acquittal passed by the trial court is neither illegal, perverse, erroneous nor the judgment has resulted in miscarriage of justice. Absolutely, there are no grounds to interfere in the judgment of acquittal. The appeal being devoid of merit is liable to be dismissed.
27. Accordingly, I pass the following:
ORDER
1. The appeal filed by the appellant under section 378(4) Cr.P.C. stands dismissed.
2. Consequently, the judgment and order of acquittal dated 16/12/2010 passed in C.C.2117/2009 by XIII ACMM, Bengaluru, against the respondent/accused is hereby confirmed.
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3. Bail bond, if any, executed by the accused, the same shall stand cancelled.
4. Office is directed to send back the records to the trial court.
5. No order as to costs.
Sd/-
JUDGE BVK,HJ List No.: 1 Sl No.: 38