Karnataka High Court
Narasimhegowda C M vs Smt. Deepthi R on 11 January, 2023
Author: P.N.Desai
Bench: P.N.Desai
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CRL.A No. 910 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE P.N.DESAI
CRIMINAL APPEAL NO. 910 OF 2011 (A)
BETWEEN:
NARASIMHEGOWDA C.M.
SINCE DECEASED BY LEGAL HEIR,
SMT. JAYALAKSHAMAMMA
W/O NARASIMHEGOWDA C.M.
AGED ABOUT 61 YEARS,
OCC: HOUSEHOLD WORK,
RESIDENT OF DWC 123/A,
HUTHA COLONY, BHADRAVATHI,
SHIMOGA DISTRICT - 577 301.
...APPELLANT
Digitally
signed by
NAGARATHNA (BY SRI. P.B. UMESH FOR SRI. R.B DESHPANDE, ADVOCATE)
M
Location:
HIGH COURT
OF
AND:
KARNATAKA
SMT. DEEPTHI R,
W/O NAGABHUSHANA,
MAJOR,
R/O HOUSE NO.239,
73RD CROSS,
KUMARASWAMY LAYOUT,
BANGALORE-78.
...RESPONDENT
(BY SRI. S.R MURALIDHAR, ADVOCATE)
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CRL.A No. 910 of 2011
THIS APPEAL IS FILED U/S. 378(4) CR.P.C BY THE ADV., FOR
THE APPELLANT PRAYING TO SET ASIDE THE ORDER DT:24.12.10
PASSED BY THE ADDL. SENIOR CIVIL JUDGE AND JMFC,
BHADRAVATHI IN C.C.NO.181/10 - ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 138 OF N.I. ACT.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is arising out of the judgment of acquittal dated 29.01.2011 passed in C.C.No.181/2010 by learned Addl. Sr. Civil Judge & JMFC, Bhadravathi, wherein the complaint filed by the appellant for the offence punishable under section 138 of Negotiable Instruments Act, 1988('N.I. Act' for short) came to be dismissed.
2. The appellant was the 'complainant' and the respondent was the 'accused' before the trial court. They will be referred as such by their respective ranks before the trial Court. It is noticed that the appellant died during the pendency of the case and his legal heir- wife is now prosecuting the appeal.
3. The complainant filed a private complaint under section 200 Cr.P.C. before the Trial Court stating that the accused had borrowed Rs.2.00 lakhs from the complainant on 25.05.2009 -3- CRL.A No. 910 of 2011 for her domestic purpose. The accused agreed to repay the same after one month. However, after one month, when the complainant approached the accused, the accused issued a cheque bearing No.562001 dated 29.06.2009 for Rs.2.00 lakhs drawn on ICICI Bank, Koramangala, Bangalore. The complainant presented the cheque through his banker and the cheque was returned dishonoured for reasons 'payment stopped by drawer'. Then on 21.07.2009, the complainant issued a legal notice through his counsel. Said notice was received by the accused, but the accused, did not repay the amount. Hence, he lodged the complaint.
4. Before the Trial Court, the complainant has given evidence as PW-1 and got marked six documents as Ex-P1 to P6. The accused got examined herself as DW-1 and got marked four documents as Ex-D1 to Ex-D4. After hearing the arguments, the learned JMFC acquitted the accused. Aggrieved by the same, this appeal is preferred.
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5. Heard Sri. P.B. Umesh, for Sri. R.B. Deshpande, for the appellant and Sri. S.R. Muralidhar, learned counsel for the respondent. Perused the judgment of the trial court.
6. Learned counsel for the appellant argued that the judgment of the Trial Court is erroneous, illegal and contrary to the evidence. The Trial Court has not considered that the complainant has fulfilled the ingredient of section 138 of N.I. Act. The complainant has proved that the accused has committed the offence. Though notice was given and it was served, no reply was given by the accused. Learned JMFC has also held that the complainant has fulfilled the requirements of section 138 of N.I.Act, but he has erred in not raising the presumption and acquitted the accused. Though learned JMFC has held that the cheque is signed by the accused which is issued by her, but acquitted the accused without there being any basis, is a serious error. Learned counsel argued that there is presumption in favour of the complainant, the same is not rebutted by the accused. Nowhere in the defence, the respondent-accused has denied the loan transaction. Learned -5- CRL.A No. 910 of 2011 counsel also argued that the defence of the accused is only that of denial. Such defence will not absolve to pay any amount. The finding of the learned JMFC that the appellant-complainant has not stated exact place of transaction is erroneous. On the other hand, there is oral and documentary evidence. When the respondent has clearly admitted that she has issued the cheque, then learned JMFC erred in not convicting the accused. No satisfactory evidence is placed by the respondent for rebutting the presumption or disputing the transaction. The cheque has been issued for payment of Rs.2.00 lakhs borrowed by the accused for domestic purpose, which is a legally enforceable debt or liability.
7. In support of his arguments, learned counsel for the appellant placed reliance on the decision in the case of Modi Cements Ltd., V. Kuchil Kumar Nandi, (1998) 3 SCC 249, wherein the Hon'ble Supreme Court considered the effect of dishonour of cheque because of stop payment instructions given to the bank. The Hon'ble Supreme Court held that section 138 of N.I. Act gets attracted in such situation and he relied on para 16 which reads as under:-
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16. "We see great force in the above submission because once the cheque is issued by the drawer a presumption under Section 139 must follow and merely because the drawer issues a notice to the drawee or to the Bank for stoppage of the payment, it will not preclude an action under Section 138 of the Act by the drawee or the holder of a cheque in due course. The object of Chapter XVII, which is intituled as "OF PENALTIES IN CASE OF DISHONOR OF CERTAIN CHEQUES FOR INSUFFICIENCY OF FUNDS IN THE ACCOUNTS" and contains Sections 138 to 142, is to promote the efficacy of banking operations and to ensure credibility in transacting business through cheques. It is for this reason we are of the considered view that the observations of this Court in Electronics Trade & Technology Development Corporation Ltd., Secunderabad (1996)2 SCC 739 in paragraph 6 to the effect "Suppose after the cheque is issued to the payee or to the holder in due course and before it is presented for encashment, notice is issued to him not to present the same for encashment and yet the payee or holder in due course presents the cheque to the bank for payment and when it is returned on instructions, Section 138 does not get attracted", does not fit in with the object and purpose for which the above chapter has been brought on the Statute Book."
8. Learned counsel further relied on the decision of the Hon'ble Supreme Court rendered in Crl.A.No.1233-1235/2022 in the case of P. Rasiya V. Abdul Nazeer and another dated 08.12.2022 wherein, the Hon'ble Supreme Court considered the presumption under section 139 of N.I. Act and held that unless -7- CRL.A No. 910 of 2011 contrary is proved, it shall be presumed that the holder of the 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. So with these arguments, learned counsel prayed to set-aside the judgment of acquittal passed by the trial court.
9. Against this, learned counsel for the respondent argued that the learned JMFC has appreciated the evidence on record and considered all the aspects and has rightly come to the conclusion that the complainant's case is not true and accordingly, he has acquitted the accused. The complainant though examined himself and produced the documents, but the accused has successfully rebutted the presumption by way of defence evidence and also by way of cross examination. Learned counsel argued that if the documents and the evidence of the complainant and the accused are considered, then it is -8- CRL.A No. 910 of 2011 evident that there is no relationship between the accused and the complainant, the complainant is a resident of Bhadravathi and as per his own complaint, he is aged about 58 years and the accused is aged 20 years and she is a resident of Bengaluru, for what purpose she will take loan or borrow any loan as stated in the complaint is not forthcoming, neither they are relatives nor they are friends. How they met each other is also not forthcoming. Learned counsel also referred to the cross examination of PW-1, wherein, the complainant has stated that four or five years prior to this transaction, the accused has received some amount and returned it, if that is considered, then the accused must be aged 15 years or 16 years and how a minor had transaction with the complainant is also not forthcoming. Learned counsel also argued that notice is not properly served on the accused. Therefore, the question of giving reply does not arise. There is discrepancy regarding the place where the transaction had taken place. On the other hand, the accused has taken a probable defence that her husband Nagabhushan had transaction with one Shivanna and the accused alongwith another person came to Bengaluru and -9- CRL.A No. 910 of 2011 said Shivanna made her to come to Kumaraswamy police station and in the said police station, by force, the cheque was obtained from her. There was also understanding in the police station that the said cheque will not be presented for encashment, but apprehending that the complainant would present the same, the accused has given intimation to the Bank to stop payment. Therefore, simply because the complainant has filed a case, the accused cannot be convicted. Learned JMFC has considered all the aspects and relying on the decisions of the Hon'ble Supreme Court in the case of Rangappa V. Mohan reported in AIR 2010 1898 and M/s. Kumar Exports vs. M/S Sharma Carpets reported in AIR 2009 SC 1518 and has rightly come to the conclusion that the complainant has failed to prove the initial burden and therefore, learned JMFC has rightly dismissed the complaint.
10. I have perused the oral evidence of the complainant and the contents of the complaint.
11. From the above material, the points that arise for my consideration is:-
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"Whether the judgment of acquittal passed by the learned JMFC in C.C.181/2010 is illegal, perverse and not based on settled principles of appreciation of law and evidence?
12. Admittedly, the cause-title of the complaint shows that the complainant is a resident of Bhadravathi. He is an VISL employee. The accused is a resident of Kumaraswamy Layout, Bengaluru. In his complaint and oral evidence, the complainant has stated that he knew the accused since several years. Ofcourse, it is a typed affidavit that for domestic purpose, the accused has borrowed loan of Rs.2.00 lakhs on 25.05.2009 and when he demanded the money, the accused issued cheque bearing No.56201 dated 29.06.2009 for Rs.2.00 lakhs drawn on ICICI Bank, Koramangala, Bangalore and as it was dishonoured, he has issued notice and filed the complaint. He has produced the said cheque Ex-P1. Ex-P2- bank endorsement shows that it was dishonoured for reasons "payment stopped by drawer". Ex-P3 is the legal notice. Ex-P5 is the postal acknowledgement. His cross examination reveals that he knew the accused for last four to five years. His evidence is recorded
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CRL.A No. 910 of 2011on 20.08.2010. The accused must be 20 years as on the date of issuance of cheque. He states that the accused had transaction with him and borrowed Rs.30,000/- once and returned it and again she borrowed some amount, but he cannot say, when it is borrowed and when it is returned. This appears to be very strange, why the accused aged 20 years would borrow Rs.30,000/- and have transaction with him is difficult to believe. It is also very strange that the accused and the complainant being residents of different places and districts not related with each other and not connected with each other, how the accused could ask Rs.2.00 lakhs from the complainant in cash is also not forthcoming.
13. Neither in his complaint nor in his oral evidence, the complainant has shown as to how he has given Rs.2.00 lakhs. Whether it was given in cash or through cheque is also not forthcoming. He has clearly admitted that if some person approaches him for money whether he will give loan?, for which he has stated that he would not give the loan. He stated that out of his salary, he has kept Rs.2.00 lakhs in cash in his house. He also states that the accused has promised that she
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CRL.A No. 910 of 2011would give interest for the said amount. So whether this complainant was doing money lending business is also not forthcoming. Nowhere he has stated regarding this either in his legal notice or in his notice. He states that the transaction took place at Bangalore in the house of one Thammanna who is his relative. But he has not shown Thammanna either as witness or has examined him. He states that he knew accused only through one Thammanna, but nowhere it is forthcoming as to who is that Thammanna, how he know this complainant and in what way, he is related to the complainant. He also admits, he do not know the names of parents of the accused. When the accused is minor, if she is doing any transaction with the complainant, then the accused must be knowing who are her parents, who are the family members of the accused. How the complainant can have money transaction with a person at Bangalore when he do not know the names of parents of the accused. He expresses his ignorance that the said transaction as stated by him is the transaction between the husband of the accused by name Nagabhushan and one Shivappa. He has denied the suggestion that the husband of the accused has
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CRL.A No. 910 of 2011borrowed Ambassador car on monthly rentals from Shivanna and in respect of that amount, her husband has to pay Rs.20,000/-, he has expressed his ignorance. He has denied the suggestion that the accused was called to Kumaraswamy police station and the complainant colluding with the Kumaraswamy police forcibly took a blank cheque signed by her. He also admitted that when he met the accused first time, she was not even married. So when she being an unmarried girl, for what domestic purpose, she will borrow the money is not forthcoming. Ofcourse, she was a young girl aged about 18 years. Then how, he can have transaction with such a young girl is also not forthcoming. Further, he states that after 15 days of giving the amount, accused gave the cheque, again this is contrary to his own contents of the complaint, that after one month, she gave a cheque. He has refused to identify the pass book of the accused and denied the suggestion that no such transaction was made by accused at any time. This is his evidence.
14. It is settled principles of law that in cases involving the cheque transaction and filed under section 138 of N.I. Act,
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CRL.A No. 910 of 2011which are popularly called as 'cheque bounce cases', the initial burden of proving the ingredient of section 138 N.I Act is on the complainant. Once, he proves that the cheque was issued by the accused and it was dishonoured and he issued statutory notice within prescribed time, then the ingredient under section 138 of N.I. Act are fulfilled. Further, there is also presumption under sections 118 and 139 of N.I. Act in favour of the accused. Ofcourse, that presumption is a rebuttal presumption. The accused can show that consideration and debt did not exist or that under the particular circumstances of the case, the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. The accused can rebut that presumption by two ways; one is by way of cross-examining the complainant and his witnesses and show before the Court that the complainant has failed to discharge the initial burden casted upon him. Secondly, he can also lead his defence evidence and show that there is non-existence of debt or any liability. The accused is not expected to prove his defence evidence beyond all reasonable doubt as expected in criminal trial. On the other
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CRL.A No. 910 of 2011hand, the accused can show by preponderance of probabilities that the presumption arising in favour of the complainant cannot be accepted. So in such circumstances, again the onus of proof shifts on the complainant. It is sufficient if the accused can bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or non-existence was so probable that a ordinary prudent man would under the circumstances of the case act upon the plea that they did not exist.
15. It is also settled principles of law that the court cannot insist in every case that the accused should disprove the existence of consideration and debt by leading direct evidence, because, the existence of negative evidence is neither possible nor contemplated. The accused may also rely upon the circumstances which are compelling and shift the burden again on the complainant.
16. In the light of these settled principles, let me consider the defence evidence adduced by the accused. The accused in her examination-in-chief affidavit evidence has
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CRL.A No. 910 of 2011stated that she is unaware of this complainant and Ex-P1 cheque was taken forcibly in blank signed form in collusion with the police officials of Kumaraswamy Layout police station, Bengaluru by colluding with one Shivanna by summoning her in the police station. The police had promised her they will not present the same for realisation without intimation to her. Same was recorded by the police in C.Misc.No.211/2009 on 16.06.2009. She has stated that she has not issued any cheque towards any enforceable debt or liability as stated by the complainant. She states that the cheque was taken only as a security with regard to the dispute between her husband and Shivanna and now it is misused. She states that the demand notice is not served on her. She had no financial transaction with the complainant and she is just 21 years old. So the evidence of the complainant that she had made transaction with him cannot be believed at all. She states that she is married to one Nagabushan on 19 th March 2008. She has produced documents in support of her evidence. Her cross examination by the complainant show that the complainant's case is not even probable. A suggestion was made that she has
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CRL.A No. 910 of 2011borrowed the amount at Bhadravathi from the complainant and promised to return within one month. On the other hand, the complainant in his complaint and evidence states that the transaction took place at Bengaluru and she has borrowed the amount at Bengaluru in one Thammanna's house. But here it is totally an inconsistent suggestion. Even it is suggested that she has mentioned the date and signed on cheque Ex-P1, which she has denied. So it appears, the contents of the cheque are written by some other person. She has admitted that she has informed the DCC bank, Bhadravathi not to make any payment. There was a transaction with one Shivanna and her husband Nagabhushan as he has purchased Indica Car on monthly rental basis and in said regard, Shivanna called her over phone and informed her that her husband has not paid the rent and hence he has lodged the complaint and asked her to come to Kumaraswamy police station. She has no transaction with Shivanna and she was called to the Kumaraswamy police station and in the police station, forcibly the cheque was taken from her. Ofcourse, she has not taken any steps or filed any complaint in this regard against the
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CRL.A No. 910 of 2011police. Nowhere, in the cross examination, it is elicited how this complainant is acquainted with the accused and how she knew him and what was the domestic purpose and what was the need for the accused to borrow the amount from the unknown complainant. Even according to the accused, when she was not at all married, where is the question of she seeking the amount for domestic purpose. The accused married only when she was aged 20 years and her husband is running a taxi. So why she will approach the complainant at Bhadravathi is not all forthcoming. On the other hand, she has produced the documents to show her date of birth as 10.03.1989, her degree certificate dated 25.05.2010 which are marked as Ex-D2, the application given to Kumaraswamy layout police station under RTI Act, 2005 Ex-D4 wherein she has requested to furnish statements in C.Misc.No.211/2009 dated 16.06.2009. Even she has appealed to Karnataka State Information commission. She has also produced a letter written by her counsel to the Inspector of Police dated 31.05.2010 regarding proceeding in C.Misc.No.211/2009. Same was received in the said police station.
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CRL.A No. 910 of 2011
17. The decisions relied on by learned counsel for the appellant and principles stated in those decisions are very well settled. There is no dispute about it. The facts and evidence placed before the Court and the circumstances under which the cheque came to be dishonoured and the plausible and probable explanation given by the accused will have to be considered. The Hon'ble Supreme Court considered the said presumption arising under section 139 of N.I. Act in various decisions wherein the Hon'ble Supreme Court in the case of Rangappa v. S. Mohan reported in (2010) 11 SCC 1441, modified the judgment of Krishna Janardhan Bhat v. Dattatraya G. Hegde reported in AIR (2008) 4 SC 1325 wherein it is held that the presumption is that there exists legally enforceable debt or liability, but is rebuttable presumption and it is open to the accused to raise a defence where the existence of legally enforceable debt or debt can be contested. The Hon'ble Supreme Court in M/s. M. M. T. C. Ltd. & Anr vs M/S Medchl Chemicals & Pharma Pvt. Ltd., and Another, reported in (2002) 1 SCC 234 at para 19 again considered as to what is the nature of presumption and how the accused can
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CRL.A No. 910 of 2011show that the "stop payment" instructions were not issued because of insufficiency or paucity of funds. If the accused shows that in his account there was sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop payment notice had been issued because of other valid causes including that there was no existing debt or liability at the time of presentation of cheque for encashment, then an offence under Section 138 would not be made out. The Hon'ble Supreme Court while considering the effect of stop payment in a decision in the case of Pulsive Technologies P. Ltd. vs. State of Gujarat & Ors. reported in 2014(13) SCC 18 at paras 9 and 10 held as under:-
9. "The High Court held that provisions of Section 138 of the NI Act are attracted where a cheque is returned by the bank on the ground that there is insufficient amount or that the amount of cheque exceeds the amount arranged to be paid from that account by an agreement made with the bank.
The High Court further held that the cheque in question was returned on account of "stop payment"
instructions given by the accused vide letter dated 13/07/2006 in view of the fact that the complainant had failed to discharge its obligations as per the agreement by not repairing/replacing the damaged UPS system. The High Court further observed that the
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complainant had not disclosed complete facts as required under provisos (b) and (c) of Section 138 of the NI Act. The High Court concluded that the complaint did not disclose offence contemplated under Section 138 of the NI Act. The High Court, in the circumstances, quashed the complaint.
10. The High Court, in our opinion, fell into a grave error when it proceeded to quash the complaint. Even "stop payment" instructions issued to the bank are held to make a person liable for offence punishable under Section 138 of the NI Act in case cheque is dishonoured on that count. In Modi Cements v. Kuchil Kumar Nandi[1] this Court made it clear that even if a cheque is dishonoured because of "stop payment"
instructions given to the bank, Section 138 of the NI Act would get attracted. This Court further observed that once the cheque is issued by the drawer a presumption under Section 139 must follow and merely because the drawer issues a notice to the drawee or to the bank for stoppage of the payment it will not preclude an action under Section 138 of the NI Act by the drawee or the holder of the cheques in due course."
18. Therefore, when the accused is not known to complainant nor accused has any particulars that she is from which town or village, when the accused is residing at Bengaluru and that complainant is residing at Bhadravathi working at VISL company, then how the complainant can approach the accused who is aged about 20 years and give her cash of Rs.2.00 lakhs, that too, for her domestic purposes,
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CRL.A No. 910 of 2011when he do not know the names of her parents. How he got acquainted with the accused is not forthcoming.
19. The Kerala High Court has considered the said circumstance as to when there is no acquaintance between the complainant and the accused, how the evidence is to be considered in the case of K. Chathukutty And Ors. vs K.S. Prasanna Venkitesan and Anr. reported in 2007 Cri.L.J. 1120. In that case, as evident from para 18, the accused has taken up the contention that he did not know the complainant and a case is set up against him at the instance of third person, the court believing on preponderance of probability accepted the said contention and there was no positive evidence in respect of that evidence that there was no acquaintance with the accused and the acquittal was upheld by Kerala High Court.
20. Regarding the contention of the appellant's counsel that notice issued was not replied, therefore, the complainant's case is deemed to have been admitted, such a contention also cannot be accepted, because, the complaint itself show that the legal notice is issued through the counsel of the
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CRL.A No. 910 of 2011complainant which is marked at Ex-P3 which shows that when the cheque was dishonoured, the complainant asked the accused and demanded for repayment of the amount and it is stated in Ex-P3 that the accused gave untenable reply. Hence, he has filed the complaint. So it is not that the accused has not informed him. What is untenable reply given by the accused is not forthcoming from the evidence of the complainant. On the other hand, the complainant states in his evidence before the court that the accused has given untenable reply. So that itself shows that the accused has given reply, according to the complainant, it is untenable reply. Ofcourse, non reply of the notice may be one of the circumstances in favour of the complainant, but, simply because, the accused has not replied to the legal notice, wherein it is mentioned that she has already replied, untenable reply for dishonour of the cheque or stoppage of payment, then that cannot be construed that it amounts to admission.
21. The complainant was expected to prove his case to the hilt and he could have taken advantage of failure on the part of the accused. The Kerala High Court again in a recent
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CRL.A No. 910 of 2011judgment in the case of Ramakrishna B.K. vs Narayana Bhat.P and another reported in 2021 SCC Online 1151 has considered said aspect and the question whether the reason that the accused did not respond to the legal notice and an adverse inference can be drawn against him. Relying on the decision of the Hon'ble Supreme Court in the case of Basalingappa v. Mudibasappa reported in (2019) 5 SCC 418, the Court held at para 23 as under:-
23. We may now notice the judgment relied on by the learned counsel for the complainant i.e. judgment of this Court in Kishan Rao v. Shankargouda [Kishan Rao v. Shankargouda, (2018) 8 SCC 165 : (2018) 4 SCC (Civ) 37 : (2018) 3 SCC (Cri) 544].. This Court in the above case has examined Section 139 of the Act. In the above case, the only defence which was taken by the accused was that cheque was stolen by the appellant. The said defence was rejected by the trial court. In paras 21 to 23, the following was laid down : (SCC pp.
173-74) "21. In the present case, the trial court as well as the appellate court having found that cheque contained the signatures of the accused and it was given to the appellant to present in the Bank, the presumption under Section 139 was rightly raised which was not rebutted by the accused. The accused had not led any evidence to rebut the aforesaid presumption. The accused even did not come in the witness box to support his case. In the
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CRL.A No. 910 of 2011reply to the notice which was given by the appellant, the accused took the defence that the cheque was stolen by the appellant. The said defence was rejected by the trial court after considering the evidence on record with regard to which no contrary view has also been expressed [Shankargouda v. Kishan Rao, 2016 SCC OnLine Kar 8467] by the High Court.
22. Another judgment which needs to be looked into is Rangappa v. Sri Mohan [Rangappa v. Sri Mohan, (2010) 11 SCC 441 : (2010) 4 SCC (Civ) 477 : (2011) 1 SCC (Cri) 184] . A three-Judge Bench of this Court had occasion to examine the presumption under Section 139 of the 1881 Act. This Court in the aforesaid case has held that in the event the accused is able to raise a probable defence which creates doubt with regard to the existence of a debt or liability, the presumption may fail. The following was laid down in paras 26 and 27 : (SCC pp. 453-54) '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 [Krishna Janardhan Bhat v.
Dattatraya G. Hegde, (2008) 4 SCC 54 : (2008) 2 SCC (Cri) 166] 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 circumstances therein. As noted in the
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CRL.A No. 910 of 2011citations, 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.
27. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions.
In such a scenario, the test of
proportionality should guide the
construction and interpretation of
reverse onus clauses and the
defendant-accused cannot be
expected to discharge an unduly high
standard of proof.'
23. No evidence was led by the accused. The defence taken in the reply to the notice that
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CRL.A No. 910 of 2011cheque was stolen having been rejected by the two courts below, we do not see any basis for the High Court coming to the conclusion that the accused has been successful in creating doubt in the mind of the Court with regard to the existence of the debt or liability. How the presumption under Section 139 can be rebutted on the evidence of PW 1, himself has not been explained by the High Court."
22. The Hon'ble Supreme Court held that merely the accused did not adduce evidence to prove negative fact, no adverse inference can be drawn. The degree of proof accepted is not regards as that of the complainant. No cogent evidence is placed by the complainant to prove his case.
23. So in the light of principles stated in the above referred decisions, if the present case is considered, then it is crystal clear that the judgment passed by the learned JMFC cannot be said as perverse or illegal. Learned JMFC has relied on the decision of M/s. Kumar Exports vs. M/s. Sharma Carpets reported in 2019 SC 1518 and discussed in detail regarding proof which is required to rebut under sections 118 and 139 of the N.I. Act. Learned JMFC has in detail referred to both oral and documentary evidence and found that there is inconsistency in the evidence of the complainant and it does
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CRL.A No. 910 of 2011not inspire confidence in the light of the defence taken by the accused and rebuttal evidence placed by her and upholding cross examination of the accused.
24. The Hon'ble Supreme Court 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.
25. In this regard, the Hon'ble Supreme Court has laid down the general principles regarding interference, the power of the appellate Court in an appeal against judgment of acquittal by the trial court. In the case of Sampat Babso Kale and Another v. State of Maharashtra [(2019) 4 SCC 739], at para-8, it is held thus:
"8. With regard to the powers of an appellate court in an appeal against acquittal, the law is well established that the presumption of innocence which is attached to every accused person gets strengthened when such an accused is acquitted
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by the trial court and the High Court should not lightly interfere with the decision of the trial court which has recorded the evidence and observed the demeanour of witnesses. This Court in the case of Chandrappa & Ors. v. State of Karnataka [(2007) 4 SCC 415], laid down the following principles:-
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted
conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
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CRL.A No. 910 of 2011(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
26. 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.
Accordingly, I pass the following:
ORDER
1. The appeal filed by the appellant-complainant under section 378(4) stands dismissed.
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2. The judgment of acquittal dated 24.12.2010 passed by learned Addl. Sr. Civil Judge & JMFC, Bhadravathi in C.C.No.181/2010 is hereby confirmed.
3. Office is directed to send back the records to the trial court.
4. No order as to costs.
Sd/-
JUDGE MN List No.: 1 Sl No.: 30