Bangalore District Court
Sri.G.S.Guruprasad vs Sri.Chandrashekar on 10 August, 2021
BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
(CCH-67)
DATED: This the 10 th day of August, 2021
PRESENT
Smt. K.KATHYAYANI, B.Com., L.L.M .,
LXVI Addl.City Civil & Sessions Judge,
Bengaluru.
Crl.Appeal No.171 of 2019
Appellant: Sri.G.S.Guruprasad,
S/o Late Sri.G.V.Sheshanna,
Aged about 42 years,
R/at No.405,
NCN Classic Apartment,
No.112/1A, 2nd Main,
Reliable Lake Dew Residency,
Harlur Road, HSR Extension,
Bengaluru - 560 102.
(By Sri.T.T.Virupaksha, Adv.)
/Vs/
Respondent : Sri.Chandrashekar,
S/o Late Sri.S.R.Sathyanarayana
Shetty,
R/at No.1, 2nd Cross,
N.S.Iyengar Street,
Sheshadripuram,
Bengaluru - 560 102.
(By Sri.T.S.Gurunath, Advocate.)
JUDGMENT
The appellant/accused has preferred this appeal against the respondent/complainant under Section 374(3) of Cr.P.C. being aggrieved by the judgment of conviction 2 Crl.A.No.171/2019 passed in CC.No.21408/2013 on 21.12.2018 by the learned XX ACMM, Bengaluru.
2. For the sake of convenience, the ranks of the parties are retained as they are before the Trial Court.
3. The brief facts of the case are that;
a) The complainant alleging that he and the accused were well acquainted to each other and on the said acquaintance, the accused used to borrow and return loans from the complainant. The loan availed by the accused accrued to a sum of Rs.11,00,000/- and he has voluntarily agreed to repay the loan amount together with interest at 1% p.m.
b) The accused towards repayment of the said amount, issued the cheque bearing No.243922 dated 06.03.2013 for a sum of Rs.11,00,000/-.
c) When the said cheque was presented for encashment, the same was returned dishonored with a shara that "insufficient fund".
d) In spite of issuance of legal notice dated 24.04.2013, the accused neither replied nor paid the amount due under the said cheque. Hence, the 3 Crl.A.No.171/2019 complainant filed the complaint in PCR.No.13908/2013 for the offence under Section 138 of the Negotiable Instruments Act of 1881 (for short, "the Act") which was registered as CC.No.21408/2013.
4. The trial Court record reveals that on receipt of the complaint, the learned Magistrate recorded the sworn statement of the complainant and on satisfaction, has taken cognizance for the offence alleged and issued summons to the accused.
a) The accused put his appearance through his counsel and was enlarged on bail.
b) Plea of the accused was recorded for the offence alleged, for which, the accused pleaded not guilty.
c) In support of his case, the complainant himself was examined as PW-1 and got examined his wife Smt.Anasuya as PW-2. Got exhibited 29 documents at Ex.P-1 to 29 and closed his side.
d) The statement of the accused under Section 313 of Cr.P.C. was recorded wherein the accused denied all the incriminating evidence against him and in support of his defence, he himself entered into the witness box as DW-1. 4 Crl.A.No.171/2019 Got exhibited 6 documents at Ex.D-1 to D-6 and closed his side.
e) The Trial Court, after hearing the arguments of both the sides on merits of the case and on going through the evidence on record, has passed the impugned judgment convicting the accused for the offence alleged and sentenced accordingly.
5. Being aggrieved by the judgment of conviction, the accused has approached this Court mainly with the following grounds (though there are many a grounds stated in the memorandum of appeal, prima facie, they are all the details and the reasons assigned by the accused in support of the following grounds and to avoid repetitions, they will be taken into consideration at the time of discussion on merits of the appeal);
a) Even after repayment of the loan amount of Rs.50,000/- he had borrowed from the complainant, the complainant did not return the blank signed cheque issued by him for the security purpose and misusing the same, has come up with the present complaint. 5 Crl.A.No.171/2019
b) To fill up the lacunae, in collusion with his brother and brother in law with whom his relationship is not good, the complainant has produced some documents.
c) The legal notice alleged to be issued by the complainant was not served on him.
d) The complainant had no financial capacity to lend the alleged quantum of amount.
e) The complainant has failed to prove his case.
f) He has let in the evidence rebutting the statutory presumptions.
g) But, the trial Court without considering the evidence let in by him, relying on the evidence of the complainant, has passed the impugned judgment of conviction which is arbitrary, perverse, illegal and contradictory to the facts and evidence on record. Thus, resulted in miscarriage of justice and therefore, needs to be set aside. Accordingly, prayed to allow the appeal and to set aside the impugned judgment.
6. In response to the due service of notice from this Court, the complainant appeared through his counsel.
7. Secured the trial Court records. 6 Crl.A.No.171/2019
8. Heard the learned counsels for both the parties on merits. In addition, the counsel for accused has filed written arguments and the counsel for complainant prayed to consider his written arguments filed before the trial Court.
a) In support of his arguments, the counsel for the accused has produced the xerox copies/online printouts of the decisions in;
1) AIR 2019 SC 1983.
2) 2012(3) KCCR 2057.
3) 2016 Crl.L.J. 1267.
4) 2015(5) KCCR 990.
5) (2013)3 SCC 86.
6) 2008 Crl.L.J. 2955.
7) 2014(4) KCCR 3661 (SC).
8) AIR 2019 SC 942.
9) 2014(3) DCR 767.
10) ILR 2014 KAR 6572.
11) 2017(3) DCR.
12) Judgment of the Hon'ble High Court of Karnataka, Bengaluru in Criminal Appeal No.1145/2011 c/w Criminal Appeals Nos.1135/2011 and 1146/2011 dated 06.01.2021.
b) On the other hand, the counsel for the complainant has produced the xerox copies/online printouts of the decisions reported in;
1) Judgments of the Hon'ble Apex Court in;
i) Criminal Appeal Nos.230-231 of 2019 dated 06.02.2019.
7 Crl.A.No.171/2019
ii) Criminal Appeal No.508/2019 dated 15.03.2019
2) LAWS (KAR) 2014 (6) 28.
3) 2018 Supreme Court 3601.
4) 2019 (2) Kar.L.R.171 (SC).
5) AIR 2018 Supreme Court 3173.
6) 2006 Cri.L.J.1
7) 2017(2) AKR 527.
8) 2007 Cri.L.J. (NOC) 520.
c) This Court has carefully gone through the written arguments of both the sides and the citations relied on by the respective counsels both before the trial Court and before this Court as well as perused the record.
9. On the basis of the grounds made out, the points arose for the due determination of this Court are;
1. Whether the accused/the ap-
pellant proves the grounds urged by him in support of this appeal?
2. Whether the impugned judg-
ment requires interference by this Court?
3. What Order?
10. The answer of this Court to the above points are;
1) Point No.1 : In Partially Affirmative.
2) Point No.2 : In Affirmative.
3) Point No.3 : As per final order for the following reasons.
8 Crl.A.No.171/2019REASONS
11. POINTS Nos.1 AND 2:- Since the finding on point No.2 is consequential to the findings on point No.1, these points are taken together.
12. The trial Court record demonstrates that the complainant has come up with the present case on the allegations that;
a) He and the accused are well known to each other and he is also the well wisher of the accused.
b) Two years before filing the complaint, the accused was constructing his house and used to approach him and seek financial help and used to clear the same part by part.
c) The accused had also voluntarily agreed to pay 1% interest per month and had assured to clear the entire amount within December-2012.
d) The principle amount borrowed by the accused accrued to a sum of Rs.11,00,000/-.
e) After stipulated period, whenever he requested the accused to return the entire amount, the accused dodged the time with one or the other reasons and finally, issued 9 Crl.A.No.171/2019 the cheque for Rs.11,00,000/-, which came to be dishonored for "funds insufficient".
f) He issued demand notice on 24.04.2013 which was served on the accused on 26.04.2013 and he received the acknowledgement on 29.04.2013.
g) The accused assured to clear the entire amount within 30.04.2013, but failed either to return the amount or to give reply to the notice in writing. Hence, he has come up with the present complaint.
13. On the other hand, the defence raised by the accused is that;
a) He knows the complainant since 25 years. The complainant is also known to his father Sri.Sheshanna, his brother Sri.Avinash and his brother in law Sri.G.S.Chandrashekar and his family members.
b) In January-2012, he approached the complainant for Rs.50,000/- for his urgent business transaction. By that time, the complainant told that he did not have money and asked him to give signed blank cheque so that he/the complainant could collect money from his friend and then to give it to him/the accused. Accordingly, he issued the 10 Crl.A.No.171/2019 signed blank cheque and obtained Rs.50,000/- in January-2012.
c) Immediately in the next month, he approached the complainant to return his cheque by receiving Rs.50,000/-, but the complainant told that the cheque was misplaced and he will return when it would be traced. Accordingly, he collected the bank account number of the complainant and deposited Rs.50,000/- on 06.02.2012, but the complainant, by misusing the said cheque, has come up with the present false complaint.
d) In the year 2000 and 2003, he sold his properties fallen to his share.
e) He is not having good relationship with his brother, brother in law and others. Taking advantage of the same, the complainant colluding with them, collected some documents and information from his brother and brother in law and filed this false complaint.
f) He was not intimated with the presentation of cheque and he did not receive any demand notice.
g) The complainant had no financial capacity to lend the alleged quantum of the loan amount. 11 Crl.A.No.171/2019
14. So, there is no dispute with regard to the fact that the complainant and the accused are known persons. The accused raised loan from the complainant and issued the disputed cheque.
15. The disputed facts of the case are with regard to;
a) The purpose of raising loan;
b) The quantum of the loan amount;
c) The alleged misuse of the cheque and the alleged collusion.
d) The intimation about presentation of the cheque and the issuance/the receipt of the demand notice.
e) The financial capacity of the complainant to lend the alleged loan amount.
16. It is settled proposition of law that;
a) in view of no dispute with regard to the fact that the cheque in question belongs to the bank account of the accused; and
b) it is signed by him and issued by him in favour of the complainant, the statutory presumption under Section 118 of the Act with regard to the cheque and its contents as well as the complainant is the holder of the cheque and 12 Crl.A.No.171/2019
c) the statutory presumption under Section 139 of the Act that unless the contrary is proved, the holder of the cheque i.e., the complainant received the cheque of the nature referred to in Section 138 of the Act for the discharge in whole or in part of any debt or other liability i.e., towards the balance of the alleged loan amount of Rs.11,00,000/- are in favour of the complainant.
17. In this back ground, let this Court now to go through the grounds urged by the accused in support of this appeal one after another in detail. As noted above, the accused has raised totally 7 grounds and the grounds stated in the memorandum of his appeal are all prima facie the details and reasons he has assigned in support of the above 7 grounds.
18. Out of the 7 grounds, except the ground on non service of the legal notice, all the other grounds are inter connected with each other. Hence, let this Court first to consider the ground on non service of demand notice on the accused. The details/the reasons the accused has assigned in support of this ground are that; 13 Crl.A.No.171/2019
a) It is settled law that the demand notice is a prerequisite and is mandatory.
b) Though the legal notice is not served on him, he has not taken that contention as his defence.
c) To avoid service of notice, the complainant has sent the same to his old address.
d) The complainant has admitted in his cross examination that he went to No.405, 4 th Floor, NCN Classic Apartment along with police officers to arrest him/the accused as he was living in the said apartment which shows that the complainant, to avoid the service of notice has sent the notice to the old address.
e) He has denied in his cross examination that he was residing in the address shown in the complaint in the year 2013.
19. Before proceeding on the present ground, let this Court to go through the relevant provision of law i.e., Section 138(b) of the Act, which is extracted here below;
"138. Dishonour of cheuqe for insufficiency etc., of funds in the accounts.- Where any cheque .....14 Crl.A.No.171/2019
PROVIDED that nothing con- tained in this section shall apply un- less
(a) the cheque has been .....
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within thirty days of the receipt of infor-
mation by him from the bank re-
garding the return of the cheque as unpaid, and ....."
20. So, the plain reading of the above provision is in support of the first reason assigned by the accused in support of this ground i.e., 18(a) that it is settled law that the demand notice is a prerequisite and is mandatory.
21. So far the next reason in support of this ground i.e., though the legal notice is not served on him, he has not taken that contention as his defence, since it is question of law, even the accused did not take any defence in that regard, the same has to be considered by the Court. So, it is necessary to see whether the demand notice at Ex.P-3 was served on the accused or not. 15 Crl.A.No.171/2019
22. As noted above, it is the contention/reason assigned by the accused at para 18(c) and (d) that to avoid service of notice, the complainant has sent the same to his old address and the complainant has admitted in his cross examination that he went to No.405, 4 th Floor, NCN Classic Apartment along with police officers to arrest him/the accused as he was living in the said apartment.
23. It is apparent on the face of the cross examination of the complainant that he has admitted the suggestion that he went along with police to arrest the accused as the accused was continuously absent for a period of one year and by that time, he shown the residence of the accused in NCN Classic Apartment and the accused resides at Door No.405 in the Fourth Floor of the said apartment.
24. Admittedly, the address shown in the demand notice at Ex.P-3 reads;
"Sri.G.S.GURUPRASAD, S/o Late Sheshanna, Major in Age, No.33/2, 'Sai Sadhan', 8th Cross, 1st Phase, Reliable Residency, Haralur Main Road, BANGALORE - 560 102.16 Crl.A.No.171/2019
Phone No. 9902026199".
25. The address shown in the cause title of the complaint is also the same. The complainant has not produced any document to show that at the time of issuing demand notice, the accused was residing in the address shown in the demand notice and in the cause title of the complaint.
26. With regard to the last reason of this ground i.e., 18(e) that he has denied in his cross examination that he was residing in the address shown in the complaint in the year 2013, it is supported by the cross examination of the accused.
27. However, it is important to note that in continuation, the accused has deposed that, earlier he was residing in the cause title address. That apart, in his cross examination in the last para at page No.9, though he has denied the the suggestion that the chota signature over the postal acknowledgement at Ex.P-5 is his signature, he has admitted the suggestion that the address mentioned therein is correct. At this stage, he has voluntarily deposed that when the said letter came, he was not in home and 17 Crl.A.No.171/2019 again voluntarily deposed that by that time, he had vacated the said house.
28. Moreover, to the suggestion that he did not say that he had vacated the house shown in the legal notice either in his chief affidavit evidence, he has deposed that no such circumstances came and he did not feel it necessary to say the same.
29. He has also deposed that he did not furnish any documents before the Court that, by that time, he was residing in a different address and he needs time to produce the documents. Further, he has deposed that he has no documents to show that he resides in a different address as on the date of his deposition.
30. At this stage, it is important to note that the address of the accused and his wife shown in the sale deed at Ex.P-22 is the same address and it is dated 01.10.2014. The demand notice at Ex.P-3 is admittedly, dated 24.04.2013. Hence, Ex.P-22 falsifies the evidence of the accused that he had vacated the address shown in the demand notice at Ex.P-3 when it was sent to him. Therefore, the accused has failed to establish this ground. 18 Crl.A.No.171/2019
31. The reasons assigned by the accused in support of his ground that to fill up the lacunae, in collusion with his brother and brother in law who are not in good terms with him, the complainant has produced some more documents are that;
a) The complainant did not mention in his notice, complaint, sworn statement or chief evidence about the alleged documents and witness except cheque, but later as an afterthought, he has produced more than 22 documents in his cross examination at a later stage by alleging that those documents were given by him and out of those documents, no single document disclose about the fact of the complainant lending money to him.
b) The complainant admitted that he went to Chikmagaluru District, Kadur Sub-Registrar office to collect document (Ex.P-26) and collected some documents (Ex.P-22 and 23) from the Sub-Registrar's office, Bengaluru.
c) The complainant has alleged that he had lent money to him more than 5 times on trust without taking single receipt or document at any point of time regarding 19 Crl.A.No.171/2019 lending of the alleged amount. This version of the complainant is not believable and is an afterthought to built up his case and fill up the lacuna and he has produced Ex.P-12 to 21 collecting from his brother who is not in good terms with him.
d) The other documents at Ex.P-22, 23 and 26 were collected by the complainant from the Sub-Registrar's office during the pendency of the case. This shows that complainant has tried to show huge number of documents and to construct the building without basement.
e) In this regard, Section 114(g) of the Evidence Act would operate to draw an adverse inference against the complainant as held by the Hon'ble Supreme Court in the case of Narayan Menon Vs State of Kerala and another and other rulings. The trial Court erred in not considering and discussing these facts in the impugned judgment.
32. With regard to the first reason of this ground i.e., stated in para No.31(a), it is on record that initially, the complainant has produced only 6 documents and in the course of his cross examination, he got exhibited the subsequent documents part by part i.e., has produced the 20 Crl.A.No.171/2019 other documents at Ex.P-7 to 21 on 09.02.2016; Ex.P-22 to 25 on 08.12.2017 and Ex.P-26 to 29 on 03.02.2018, wherein the documents at Ex.P-12 to 21 are the documents alleged to be given by the accused to the complainant.
33. Out of the above documents, Ex.P-12 is the original partition deed dated 19.03.1993 belongs to the family of the accused which demonstrates that in the family partition, two sites fell to the share of the accused. At this stage itself, it is pertinent to note that Ex.D-2 and 4 reflect that as contended by the accused, he has sold those sites under the registered sale deeds dated 07.05.2003 and 05.05.2000 for Rs.60,000/- and Rs.10,000/- respectively. Ex.D-2, 5 and 6 are the same sale deeds.
34. Ex.P-13 is the FC book; Ex.P-14 is Form No.2 of the vehicle bearing No.KA-02 AC-8484 in the name of the accused and Ex.P-15 to 21 are the blank printed forms of the delivery note, authorization letter, sale receipt, no- objections/clearance certificate, transfer insurance, forms Nos.30 and 29 respectively having signatures of the accused alone.
21 Crl.A.No.171/2019
35. So, prima facie, as rightly contended by the accused Ex.P-12 to 21 are produced at the later stage in the course of cross examination of the complainant and none of those documents disclose about the fact of lending money by the complainant.
36. Admittedly, there is no reference on record with regard to the above documents till the production of those documents before the Court in the cross examination of the complainant on 09.02.2016. Hence, it can be safely concluded that those documents were produced before the Court as an afterthought. Thus, the accused is successful in establishing this reason in support of the present ground.
37. With regard to the next reason in support of this ground i.e., stated in para No.31(b), it is apparent on the face of record that;
a) Ex.P-22 is the certified copy of the sale deed dated 01.10.2014 executed by the accused and his wife in respect of the house at Bengaluru for Rs.95,00,000/-.
b) Ex.P-23 is the EC pertains to the property at Ex.P- 22 and reflects all the transactions including the purchase 22 Crl.A.No.171/2019 of the property by the accused and his wife and sale of the property by them and the mortgage of the property by both the accused and his wife as well as the purchasers at Ex.P-
22.
c) Ex.P-22 and 23 are issued by the office of Sub- Registrar, Shivajinagar, Bengaluru.
d) Ex.P-26 is the certified copy of the EC in respect of the site measuring 60 x 40 situated within the town limits of Kadur Town Municipality i.e., the 1 st item of the properties fell to the share of the accused in the family partition at Ex.P-12.
e) Ex.P-26 is issued by the office of the Sub-Registrar, Kadur and there is mention of the partition deed at Ex.P-
12.
38. So, the fact in this reason in support of this ground i.e., the complainant has obtained these documents i.e., Ex.P-22, 23 and 26 from the offices of the concerned Sub-Registrars is on record.
39. So far the next reason in support of this ground i.e., stated in para No.31(c), the first portion i.e., the complainant had lent money to him more than 5 times on 23 Crl.A.No.171/2019 trust without taking single receipt or document at any point of time regarding lending of the alleged amount is admittedly, the case of the complainant and he has specifically stated the same in his cross examination.
40. The next reason that the above version of the complainant is not believable and it is an afterthought to built up his case and fill up the lacuna is concerned, it is an admitted fact and evident on record that the complainant did B.Pharma and was running a Factory and he has filed cheque bounce cases against other persons as well.
41. Hence, it can be safely concluded that he is a worldly wised man and has knowledge that it is safe to have written documents particularly in money transactions. But, the complainant has specifically deposed that on the trust, he lent the money without documents.
42. At this stage, it is important to note that it is the case of the accused himself that he knows the complainant since 25 years. The complainant also knows his father, brother, brother in law and his family members. It is also 24 Crl.A.No.171/2019 an admitted fact that the brother in law of the accused was the partner of the complainant's Factory. Hence, the version of the complainant that on trust, he lent the money without documents cannot be thrown out rightly.
43. With regard to the last portion of this reason i.e., stated in para No.31(c) that the complainant has produced Ex.P-12 to 21 collecting from his brother who is not in good terms with him, it is the defence of the accused that he gave Ex.P-12 to 21 to his brother Sri.Avinash to get transferred the bike after clearing the bike loan and as his brother did not clear the loan, he did not transfer the bike into the name of his brother Sri.Avinash which was within the knowledge of the complainant, but taking the benefit of the dispute between him and his brother Sri.Avinsh, the complainant produced the said documents by getting the same from Sri.Avinash.
44. The above defence was put forth to the complainant in his cross examination by way of suggestions which are in turn denied by the complainant.
45. But as noted above, Ex.P-12 is the original partition deed and the accused has sold away the 25 Crl.A.No.171/2019 properties fell to his share by virtue of Ex.P-12 in the year 2000 and 2003 itself as per Ex.D-2 and 4 and the alleged loan transactions of this case is of the year 2010 and 2011.
46. As observed above, Ex.P-13 is the FC book and Ex.P-14 is Form No.2 of the vehicle bearing No.KA-02 AC- 8484 in the name of the accused and they are original documents.
47. Ex.P-15 to 21 are the blank printed forms of the delivery note, authorization letter, sale receipt, no- objections/clearance certificate, transfer insurance, forms Nos.30 and 29 respectively having signatures of the accused alone.
48. The record reveals that admittedly, none of the parties let in any supportive evidence to substantiate their respective contentions i.e., the accused himself gave the above documents to the complainant or the complainant obtained them from the brother of the accused who is not in good terms with the accused.
49. However, since Ex.P-12 to 14 are the original documents and they are in possession of the complainant, the accused has to establish his version as he is alleging 26 Crl.A.No.171/2019 the collusion. But, the accused did not let in any supportive evidence.
50. However, the version of any party is accepted, it would not help them to establish their respective case on hand as the above documents are no way connected to the alleged loan transaction as there is no pleading with regard to the above documents particularly on behalf of the complainant.
51. So far the next reason i.e., stated in para No.31(d), it is apparent on the face of record that the documents at Ex.P-22, 23 and 26 were collected by the complainant from the concerned Sub-Registrars' office during the pendency of the case. But, by production of these documents, it cannot be said that the complainant has tried to show huge number of documents and to construct the building without basement as urged by the accused.
52. With regard to the last reason in support of this ground i.e., stated in para No.31(e) i.e., in this regard Section 114(g) of the Evidence Act would operate to draw an adverse inference against the complainant as held by 27 Crl.A.No.171/2019 the Hon'ble Supreme Court in the case of Narayan Menon Vs State of Kerala and another and other rulings, let this Court first to go through the provision of Section 114(g) of the Evidence Act which is extracted here below;
"114. Court may presume exis- tence of certain facts.- the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustrations The Court may presume.-
(a) that a man .....
.....
(g) that evidence which could be and is not produced would, if pro-
duced, be unfavorable to the person who withholds it;
.....
But the Court shall also have regard to such facts as the fol-
lowing, in consideration whether such maxims do or do not apply to the particular case before it.-
As to illustration (a) - Shop-
keeper has .....
As to illustration (g) - A man re-
fuses to produce a document which would bear on a contract of small importance on which he is 28 Crl.A.No.171/2019 sued, but which might also injure the feelings and reputation of his family;
....."
53. But, in the present case on hand, it is not the defence that the document important for the adjudication of the case is not produced, instead it is the defence that the complainant by getting documents himself from the offices of the concerned Sub-Registrars and by getting some documents from his brother has produced huge number of documents to construct the building without basement. Hence, the presumption stated under Section 114(g) of the Evidence Act is not helpful to the accused to substantiate his defence/the present ground in support of this appeal.
54. So far the ruling referred above i.e., the decision of the Hon'ble Supreme Court in the case of Narayan Menon Vs State of Kerala and another and other rulings, the same will be taken later at the time of consideration on the decisions relied on by the respective parties. So, apart from his contention that as an after thought, the 29 Crl.A.No.171/2019 complainant has produced 22 documents, the accused has failed to establish the other reasons of this ground.
55. With regard to his ground that the complainant had no financial capacity to lend the alleged quantum of amount, the reasons assigned by the accused are that;
a) The complainant has admitted in his cross examination that he is not working since from 10 years and is staying in the house of his wife who is also not doing any job and he has no children.
b) The RTCs produced at Ex.P-7 to 11 to show that the complainant is doing agriculture in Pavagada. The said RTCs show that the owner of the said lands have availed loan and the said property is joint family property. It is well known that the Pavagada Taluk is a dry and drought area.
c) PW-2/the wife of the complainant has admitted in her cross examination that the rain is the source of the crop. She has also admitted that her husband used to keep money in Bank and during 2010-2013, her husband was having Rs.1,00,000/- to Rs.1,50,000/- in his account and during emergency, he used to keep Rs.5,000/- to Rs.10,000/- in the house.
30 Crl.A.No.171/2019
d) The complainant has also produced Ex.P-7, the sale deed to show that during the year-2002, he has sold the property. But has failed to establish that he had the amount out of the said sale consideration till 2011 to lend the same to him.
e) In his cross examination, the complainant has admitted that he had started a factory before 2002 and closed the same.
f) The complainant has admitted in his cross examination that he/the accused is running a school and having Bar and Restaurant; he/the accused is doing real estate and having lands and is a rich person. Hence, there is no need for him to avail loan from the complainant.
g) The documents at Ex.P-1 to P-29 are produced by the complainant. But, no document establishes that the complainant had capacity to lend the amount and also did not disclose the fact that he has availed loan from the complainant.
56. So far the first reason in support of this ground i.e., stated in para No.55(a) that the complainant has deposed in his cross examination that he is not working 31 Crl.A.No.171/2019 since from 10 years and is staying in the house of his wife who is also not doing any job; he has no children, there is no dispute and same is in page No.5 of the cross examination of the complainant.
57. With regard to the next reason i.e., stated in para No.55(b) that the RTCs at Ex.P-8 to 11 demonstrate that they are in the joint names of the complainant and his brothers and totally measure {7.07 (+ 0.05 kharab), 4.35.08 (+ 1.28 kharab), 7.37 (+ 3.28 kharab) and 11.13 (+ 0.06 kharab)} 31.12.08 (+ 5.27 kharab) acres of land with 30 coconut trees and 18 tamarind trees, wherein 7.7 acres has well water source and 11.13 acres has talaparike water source. The crop shown is ground nut and 11.13 acre is shown as bagayat and the other lands as dry.
58. So prima facie, it appears that the complainant and his family has had sufficient landed properties, but admittedly, they have an undivided share of the complainant and with regard to the income derived from those lands, particularly of the share of the complainant, there is no supportive documentary evidence. 32 Crl.A.No.171/2019
59. So far the next reason in support of this ground i.e., stated in para No.55(c) that PW-2/the wife of the complainant has stated in her cross examination that the rain is the source of the crop; her husband used to keep money in Bank and during 2010-2013, her husband was having Rs.1,00,000/- to Rs.1,50,000/- in his account and during emergency, he used to keep Rs.5,000/- to Rs.10,000/- in the house, the same is apparent on the face of the cross examination of PW-2.
60. With regard to the next reason i.e., stated in para No.55(d) that the complainant has produced Ex.P-7, the certified copy of the sale deed to show that during the year 2002, he has sold the property, Ex.P-7 demonstrates that it is dated 16.12.2002 and the sale consideration is Rs.7,20,000/-.
61. In respect of Ex.P-7, in his cross examination, the complainant has admitted the suggestion that the sale is of the year 2002 and deposed that he kept the sale consideration amount in the house since 2002 to 2012. Though the complainant has deposed that he does not know when the daughters of the elder brother of his wife 33 Crl.A.No.171/2019 were married, he has specifically denied that he gave the amount to their marriage by selling the site.
62. But, it is important to note that the complainant has not let in any evidence apart from his oral testimony to substantiate that he kept the sale consideration amount in the house i.e., Rs.7,20,000/- which is admittedly, a huge amount since 2002, in the house that too for a long period of 9 to 10 years i.e., till 2011 to 2012.
63. At this stage, it is also pertinent to note that as noted above, it is in the cross examination of PW-2 that her husband used to keep money in Bank and during 2010 - 2013, her husband was having Rs.1,00,000/- to Rs.1,50,000/- in his account and during emergency, he used to keep Rs.5,000/- to Rs.10,000/- in the house.
64. Moreover, it is not a natural human conduct to keep such a huge amount in the house that too for such a long period. Hence, prima facie, the accused has rightly contended that the complainant has failed to establish that he had the amount out of the said sale consideration till 2011 to lend the same to him.
34 Crl.A.No.171/2019
65. So far the next reason i.e., stated in para No.55(e) that in his cross examination, the complainant has admitted that he had started a factory before 2002 and closed the same, is not only supported by the cross examination of the complainant, but also by the cross examination of his wife/PW-2 who has stated that her husband has started a Factory at Kamakshipalya and since, none in the Factory were working properly, he gave the said Factory to somebody.
66. The next reason in support of this ground i.e., stated in para No.55(f) that the complainant has admitted in his cross examination that he/the accused is an agriculturist, running a school and having Bar and Restaurant as well as doing real estate is apparent on the face of the cross examination of the complainant.
67. So far the further contention that he is a rich person. Hence, there was no need for him to avail loan from the complainant, it is important to note that it is the defence of the accused himself that he raised loan of Rs.50,000/- from the complainant in January-2012 that too by giving blank signed cheque as security. 35 Crl.A.No.171/2019
68. That apart, it is in Ex.P-22 that the accused and his wife purchased the site vide registered sale deed dated 15.07.2009 and put up the construction over the same as per the sanctioned plan dated 04.10.2011 and sold the said property for their family necessities and Ex.P-23 demonstrates that the sale consideration paid by the accused and his wife to purchase the site is Rs.24,00,000/-.
69. Moreover, the accused himself in his cross examination denying the suggestion that in the year 2010 - 11, he had purchased the house and renovated the same, has voluntarily deposed that in 2009, he purchased the site and in 2010, he constructed the house on the said site and performed the house warming ceremony in August - 2012.
70. It is also in the cross examination of the accused that he constructed the 3 storied building in the site measuring 40 x 60 and incurred Rs.90,00,000/- for construction. He raised bank loan of Rs.55,00,000/- and using his savings, he constructed the house. Though he has stated that he has no impediment to produce the 36 Crl.A.No.171/2019 documents to show that he had raised the alleged bank loan and he had savings amount, the record reveals that he has not produced any such documents before the trial Court.
71. Hence, though the accused denied that as there was short of amount for construction, he approached the complainant often and raised loan, prima facie, it appears that in view of the admitted fact on record that the accused was constructing three storied house in the year 2010 - 2011 incurring the expenses of Rs.90,00,000/- which is admittedly a big amount, the case of the complainant that the accused was in need of financial assistance for construction of his house, cannot be thrown out rightly.
72. The last reason in support of this ground i.e., stated in para No.55(g) that none of the documents at Ex.P-1 to P-29 establishes that the complainant had capacity to lend the amount and also did not disclose the fact that he has availed loan from the complainant, the documents at Ex.P-1 to 23 and 26 are discussed above.
73. Ex.P-24, 25 and 27 to 29 are the dairies of the complainant. Ex.P-24 is the dairy of the year 2011. With 37 Crl.A.No.171/2019 regard to Ex.P-24, in his cross examination, the complainant has admitted that in Ex.P-24, in the page dated 09.02.2011, the entry pertains to the date 09.02.2011 is mentioned. The said entry at Ex.P-24 is exhibited at Ex.P-24(a) and the relevant entry therein reads;
"Received 50000/- from G.S.Gu- rupasad through IOB Bank"
74. As noted above, the above fact i.e., payment of Rs.50,000/- by the accused to the complainant by depositing to the bank account of the complainant is not in dispute.
75. The complainant has also admitted the suggestions that he wrote the dairies of 2011, 2012 and 2013 in the page dated 16.03.2011 and in the said entries i.e., at the page dated 16.03.2011, there is mention with regard to receipt of cheque for Rs.10,000/- from the accused. The relevant entry therein reads;
"Received 10000/- from Mr.G.S.Guruprasad through cheque IDBI Bank Dated 11/03/2013 10 x 1000 = 10000/- Ten thousand only"
38 Crl.A.No.171/2019
76. In his cross examination, the complainant, to the question that in case of issuance of cheque, there would be no need to mention the face value of the notes, has answered that for his convenience, he has written and has admitted the suggestion that he wrote the face value of the notes in the dairy in respect of all the alleged dates of payments.
77. The complainant has also admitted the suggestion that there is difference of ink in dairy dated 16.03.2011. At this stage, he has voluntarily deposed that the entries pertain to different years are in different inks. However, in view of no dispute with regard to the above entry pertain to this case, the differences if any in the ink used to write the other writings in the said date are not that much of importance.
78. The complainant, in his cross examination, has also admitted the suggestion that on 18.03.2011, he closed the dairy by writing in black ink and date i.e. 18.03.2012 is written in blue ink and in the said dairy, he written that the amount was paid in the month of March-2012 and no 39 Crl.A.No.171/2019 dairy is written on 18.03.2012 in the dairy of 2012. The relevant entry in the dairy dated 18.03.2011 reads;
"18 March 2012 Milk 20.00 Tiffin 220.00 B'gram 60.00 Soji 30.00 Panch 220.00 paid Rs.250000/- to Mr.G.S.Gu- ruprasad by cash at my House at 12.30 pm 200 x 1000 + 100 x 500 = 250000/- Two lacs Fifty Thousand & no paisa"
79. So, the above entry is in support of the above admission. The entry at Ex.P-25 i.e., the dairy of 2012 dated 18.03.2012 reads;
"paid Rs.250000/ to Mrs.G.S.Gu- ruprasad by cash at my House at 12.30 PM 200 x 1000 + 100 x 500 = 250000/- Two lacs Fifty Thousand & no paisa"
80. Hence, the entry is contradictory to the admission of the complainant that there is no dairy is written on 18.03.2012 in the dairy of 2012 as Ex.P-25 reflects the above entry.
81. It is also in the cross examination of the complainant that in the dairy at Ex.P-24, in the date on 40 Crl.A.No.171/2019 15.07.2011, he himself wrote that he gave Rs.3,00,000/-. He has admitted the suggestion that he wrote the face value of the note as "1000 x 100" and in the same way written "10 x 100" and also "100" and not written the face value of the notes.
82. He has further deposed that in the above mentions, "100" indicates the face value of the notes and "10" indicates the numbers of notes. To the suggestion that if all the above numbers are totaled, it comes to Rs.2,10,000/-, he has answered that it comes to Rs.3,00,000/-. But the total comes of Rs.3,00,000/- and the relevant entry reads;
"paid to Rs.300000/- Mr.G.S.Gu- rupasad at my House at 11.45 Am By cash 200 x 500, 1000 x 100, 10 x 100 x 100 = 300000/- 3 lac & no paisa"
83. He has admitted the suggestion that the entry in Ex.P-24 at the date 28.12.2011, "100" indicates the face value and "300" indicates the numbers of notes and in the same way in "500 x 300", 500 indicates the face value of the notes and 300 indicates the numbers of notes. 41 Crl.A.No.171/2019
84. He has admitted the suggestion that in the same way, it is also written that "500 x 100" and denying the suggestion that if all the amount totaled it comes to Rs.2,30,000/-, he has answered that it comes Rs.5,00,000/-. The relevant entry reads;
"paid to 500000/- Mr G.S.Gurprasad by cash Dated 28 Dec 2011 at my House at 4.30 pm 300 x 100 + 300 x 500 + 500 x 100 = 500000/-c Five lacs)"
85. The Court can take judicial notice that at the relevant point of time, there was no note of Rs.300/- face value and as noted above, the complainant has also deposed that it is 300 notes of Rs.100/- and Rs.500/- face value. So, it is 100 x 300 + 500 x 300 + 500 x 100 and the total comes to (Rs.30,000/- + 1,50,000/- + Rs.50,000/- =) Rs.2,30,000/- and not Rs.5,00,000/- as the complainant says.
86. In respect of Ex.P-27 i.e., the dairy of 2010, in his cross examination, the complainant has admitted that in Ex.P-27, the name of "G.S.Guruprasad" is written in blue ink and thereafter, 5 lakh is written and then the address is written in blue ink. At this stage, the complainant has 42 Crl.A.No.171/2019 further deposed that the said entry belongs to the earlier transaction.
87. As there is no mention with regard to the page of the said entry, the entire dairy at Ex.P-27 is gone through and it is found that there are totally 3 entries pertain to "G.S.Guruprasad" i.e., 19.01.2010, 20.12.2010 and on the back of 31.12.2010 under the head PHONE INDEX, which read;
"G.S.Guruprasad 348/1 I Floor 8th Main Rs/3,50,000 6 Block Koramangala
88. The above entry is dated 09.01.2010, the name and amount on the right are in black ink and the address on left is in blue ink.
"Received Rs.5000/- From Mr.G.S.Guruprasad at Koramangala at 3.10 PM at Bakary on 20 Dec 2010 by cash 1 x 1000 + 8 x 500 = 5000/- Five thousand & no paisa"
89. The above entry is dated 20.12.2010 and written in black ink. Rest of the entries in the said date i.e., with regard to the house hold expenses are in blue ink.
"G.S.Guru prasad 500000 365 7th Block Opp Reliance Fresh Koramangala".43 Crl.A.No.171/2019
90. The above entry is the last entry in the page of phone index on the back of 31.12.2010. The name is writ- ten in blue ink and the rest i.e., the amount and the ad- dress are written in black ink. So, it appears that the entry suggested to the complainant is the last entry stated above.
91. In respect of the dairy at Ex.P-28, in his cross ex- amination, to the question that in the dairy at Ex.P-28, he has written CC.No.21408/2013 - G.S.Chandrashekar 11 lakh, the complainant has answered that it is written wrongly. The relevant entry reads;
"11,00,000 CC No 21408/13 30 Jan 2015 G.S.Chandrasekar"
92. So, the above entry supports the suggestion. But, prima facie, though the name differs, the CC number mentioned therein is admittedly pertains to the case on hand, wherein admittedly, the accused is the appellant herein whose name is admittedly, "G.S.Guruprasad". Hence, there is nothing on record to disbelieve the evidence of the complainant that the name is mentioned wrongly.
93. With regard to the above dairies, it is the defence taken by the accused that there is no mention about the 44 Crl.A.No.171/2019 said dairies either in the demand notice, or in complaint, or in the sworn statement; to fill up the lacuna, on completion of the evidence of the complainant, the said dairies were created and the complainant got deposed by his wife about the said dairies.
94. It is an admitted fact and evident on record that there is no mention in respect of the above dairies either in the demand notice, or in the complaint or in the sworn statement for that matter in the chief affidavit evidence of the complainant and admittedly, those dairies were produced on completion of the evidence of the complainant by getting him recalled on 08.12.2017 after completion of the evidence of PW-2 on 10.04.2017.
95. So far the defence that the said dairies were all created on completion of the evidence of the complainant, the plain perusal of all the above dairies reflect not only the alleged transaction of the present case on hand i.e., the transaction between the complainant and the accused, but also the transactions of the complainant with others and the house hold expenses.
45 Crl.A.No.171/2019
96. Of course, there is no continuous maintenance of the dairies, but, the above dairies clearly demonstrate that the complainant is in habit of making note of the transactions he has had and also the house hold expenses incurred in the dairies.
97. Therefore, without any corroborative and supportive piece of evidence, even it appears that it cannot be said that the above dairies are created by the complainant to fill up the lacuna, in view of the admitted facts that there is no mention with regard to the said dairies and the relevant entries therein which are material documents and material facts in the demand notice, the complaint, the sworn statement, the chief affidavit evidence of the complainant and their belated production on completion of evidence of both the complainant and his wife on getting recalled the complainant, the defence of the accused that the said dairies are created cannot be thrown outrightly particularly in respect of the entries pertain to the accused.
98. As noted above, it is the defence of the accused that he has raised loan of Rs.50,000/- and repaid the same 46 Crl.A.No.171/2019 by depositing to the account of the complainant. But, as noted above, there is a entry in Ex.P-24 dated 16.03.2011 with regard to the payment of Rs.10,000/- by cheque and there is no cross examination by the accused with regard to the said entry. On the other hand, the said entry was got admitted by putting suggestion to the complainant on behalf of the accused.
99. That apart, as noted above, there is also an entry in Ex.P-25 dated 19.01.2010 in respect of the receipt of Rs.5,000/- by cash by the complainant and there is no cross examination on behalf of the accused in respect of the said entry which justifies the evidence of the complainant that the entries in the dairy at Ex.P-25 belong to the previous transaction.
100. Therefore, though prima facie, it appears that there had been some money transactions between the parties, in view of the admitted non disclosure of the said dairies before their production on completion of the evidence of both the complainant and his wife, a doubt arises in the mind of reasonably prudent man with regard to the genuineness of the entries at Ex.P-24, 25, 27 and 29 47 Crl.A.No.171/2019 dated 18.03.2012, 15.07.2011 and 28.12.2011 in respect of the alleged payments of Rs.2,50,000/-, Rs.3,00,000/- and Rs.2,30,000/- respectively i.e., totally Rs.7,80,000/- towards the alleged loan amount.
101. Hence, though the accused has failed to establish that he was not in need of financial assistance, the dairies at Ex.P-24, 25 and 27 to 29 are created documents, he is successful in establishing that the entries in the said dairies pertaining to the alleged loan amount are not genuine and the complainant has failed to establish that he kept the sale consideration of Rs.7,20,000/- at Ex.P-7 which is admittedly of the year-2002 till 2011-12.
102. Though the evidence on record demonstrates that the there is sufficient landed properties to the complainant, it is evident on record that he has had an undivided share alone in the said properties and admittedly, he has not let in any evidence in support of the income out of the said landed properties in particular, his undivided share of the income out of the said properties. Thus, prima facie, there is force in the ground of the 48 Crl.A.No.171/2019 accused that the complainant had no financial capacity to lend the alleged quantum of the loan amount.
103. With regard to his ground that the complainant has failed to prove his case, one of the reasons assigned by the accused is that the essential ingredients such as date, or at least month and year, place of alleged transaction, documents and witnesses should be mentioned in the complaint. But the complainant except cheque, has not mentioned about the day, month, year and place and on which place and date, the transaction took place either in his notice or in the complaint or in the sworn statement or in the chief evidence.
104. In support of this ground, the counsel for the accused has relied on the decision reported in 2017(3) DCR 720 (between P.V.Clement Vs P.X.Abraham and Ors. in Crl.A.No.28 of 2010 decided on 30.10.2017 before his Lordship K.Abraham Mathew, J.), wherein he has drawn the attention of this Court to the observations of the Hon'ble High Court of Kerala that;
"Negotiable Instruments Act, 1881 - ..... Essential ingredients - Absence thereof - Scope - Held - Since neither 49 Crl.A.No.171/2019 in demand notice or in complaint affidavit the date of transaction and date of execution of cheque are disclosed, so these improbabilites are sufficient to rebut the presumption under Section 139 of NI Act - Accused is entitled to acquittal - Appeal is dismissed.
.....
Cases Referred :
.....
4. Vijay Vs Laxman and others (2013 (3) SCC 86) .....
.....
4. Assuming that the appellant has ..... It is now well settled that even probabilites are sufficient to rebut the presumption as held by the Supreme Court in Kundan Lal Rallaram Vs Custodia Evacuee Property, Bombay (AIR 1961 SC 1316), M.S.Narayanan alias Mani Vs. State of Kerala and others (AIR 2006 SC 3366) and Rangappa Vs Mohan (AIR 2010 SC 1898).
5. Neither in Ex.P1 notice or in the complaint the date of the transaction and the date of issuance of Ex.P1 cheque are disclosed. This is fatal as of held by the supreme Court in Vijay Vs. Laxman and others (2013 (3) SCC
86). For the first time it was in the proof affidavit filed by the appellant. He mentioned that he lend the amount covered by the cheque on 02.11.2008. .....
6. In the cross examination, PW1 admitted that he had been jobless for four years. He was a Government employee. He retired from service in April 2005. His monthly pension was 50 Crl.A.No.171/2019 Rs.907/-. He did not have any deposit in a bank. .....
....."
105. The trail Court record demonstrates that it is apparent on the face of record that the date, time and place of lending money are not specifically stated either in the legal notice at Ex.P-3 or in the complaint at Ex.P-6 or in the sworn statement or in the chief affidavit evidence of the complainant.
106. Of course, it is the case of the complainant as noted above that the accused was constructing the house about two years back and whenever the accused was in requirement of the amount, he used to approach him and seek financial help and used to clear the same part by part.
107. The record reveals that the complaint was presented on 03.06.2013. So two years back referred in the complaint comes to around 2011. So far the fact that the accused was constructing house in the year 2011, there is no dispute and in his cross examination, the complainant at pages Nos.6, 9, 18 and 20 has specifically detailed the payment of loan amount he made which read;
Loan Lent Repayment
51 Crl.A.No.171/2019
Date Amount Date Amount
July-2011 Rs.3,00,000/- October-2011 Rs.1,00,000/-
August-2011 Rs.1,00,000/- February-2012 Rs. 50,000/-
December- Rs.5,00,000/-
2011
March-2012 Rs.2,50,000/-
April-2012 Rs.1,00,000/-
Total Rs.12,50,000/ Total Rs.1,50,000/-
-
108. The complainant has specifically deposed that totally, he paid Rs.12,50,000/-. As it is stated in the complaint that the accused used to clear the loan part by part, after deducting the above stated repayment of Rs.1,50,000/-, the balance comes to Rs.11,00,000/- i.e., the cheque amount.
109. The complainant has also deposed in his cross examination that the accused used to come to his house and to take money. By that time, he and his wife alone were in the house. His wife/PW-2 filed her chief affidavit evidence in support of the case of the complainant and though in her cross examination, she has admitted that she came to know about the accused when her husband came to the Court, further she has also deposed that she saw her husband giving amount to the accused. 52 Crl.A.No.171/2019
110. But, in view of the fact that it is apparent on the face of record that the complainant has not mentioned about the day, month, year and place and on which place and date, the transactions took place either in his notice or in the complaint or in the sworn statement or in the chief evidence, that too when he relies on the entries in the diaries at Ex.P-24, 25 and 27 to 29 noted above which were also not disclosed till the production of the above diaries that too on completion of the evidence of the complainant and his wife, the dictum laid down in the above decision is helpful to the accused and the other side has not drawn the attention of this Court to any citation over ruling the above principle. Hence, the accused is successful in demonstrating this reason.
111. The other reason assigned by the accused in support of his ground that the complainant has failed to establish his case is that, the complainant in his complaint states that the cheque issued on 06.03.2013. But, in his cross examination at page No.12, at para 2, states that the cheque was issued on 26.02.2013 and states that he doesn't know the different ink and hand writing used in 53 Crl.A.No.171/2019 the cheque even though it is visible to naked eyes that the contents of the cheque is in different hand writing and in different ink.
112. As noted above, in the complaint, it is stated that finally on repeated requests, towards the discharge of his liability, the accused came to his house and issued the cheque in question and he has not specifically stated the date of issue of the cheque in question in the complaint.
113. So for the date of issuance of cheque referred in the above reason, i.e., in the cross examination of the complainant, the complainant has stated that the accused issued the cheque on 26.02.2013, it is apparent on the face of the cross examination of the complainant and the said date is not forthcoming in the complaint, in the sworn statement and in the chief affidavit evidence of the complainant. Hence, this part of the reason is supported by the record.
114. So for the difference in the ink used in the cheque at Ex.P-1 referred in the above ground, the plain perusal of the cheque at Ex.P-1 demonstrates that there is no such difference appears to the naked eye. Therefore, the 54 Crl.A.No.171/2019 accused has failed to establish this part of the present reason.
115. In support of his ground that he has let in the cogent and corroborative evidence and rebutted the presumptions, one of the reasons stated by the accused is that he has established that the complainant had no capacity to lent the money and that he has returned the amount as per Ex.D-1.
116. As observed above, the accused is of course successful in establishing his ground that the complainant had no financial capacity to lend the alleged quantum of the loan amount. So for the payment of Rs.50,000/- by deposit to the account of the complainant, as per Ex.D-1, there is no dispute between the parties. Hence, the accused is successful in establishing this reason.
117. The reasons he has assigned in support of his grounds that he has rebutted the presumptions and the trial Court has erroneously passed the impugned judgment are that;
a) He has rebutted the presumption with regard to Ex.P-1 and P-12 by adducing cogent evidence by producing 55 Crl.A.No.171/2019 Ex.D-1 to D-6 and nothing is contradicted in his cross examination.
b) Though he has entered into witness box and lead his chief evidence by marking Ex.D-1 to 6 and subjected himself to cross examination, the trial Court has not considered the same and only on the basis of 313 statement, opined that mere denial does not sufficient to rebut the presumption.
c) Merely admitting the issuance and signature on the blank cheque, the trial Court cannot come to a conclusion that the cheque was issued to the complainant towards legally enforceable debt.
d) Proving of issuing and signing of cheque is only to prove one part. But, on the other part, the complainant has to prove that the said cheque has been issued towards legally enforceable debt.
e) The complainant has utterly failed to prove the existence of legally enforceable debt against him and question of drawing presumption under Section 139 of the Act does not arise.
56 Crl.A.No.171/2019
f) The trial Court erred in not looking into the fact as to, whether there exists legally recoverable debt or not and blindly passed the impugned judgment.
g) The trial Court has not looked into the written arguments and also the rulings produced by him and passed one sided judgment.
118. Since the reason in para No.117(g) is on the rulings relied on by the accused before the trial Court, this reason is taken first for consideration. Before the trial Court, the counsel for the accused has relied on the decisions reported in;
a) 2015(1) DCR 642 (between Mr.B.Shivaram Versus Mr.M.V.Venkatesh in Criminal Appeal No.743/2010 decided on 03.02.2015 decided before his Lordship Budihal R.B., J.), wherein he has drawn the attention of this Court the observations of the Hon'ble High Court of Karnataka that;
"Negotiable Instruments Act, ..... Held : Regarding the contention that amount of Rs.3.00 lakh was kept in the house of the complainant for the first time, that too voluntarily, PW1 in his evidence has deposed that the 57 Crl.A.No.171/2019 he kept the said amount in his house. But, he had not mentioned the said fact specifically either in the legal notice or in the complaint filed before the Magistrate Court. The relationship of the complainant and the accused is admitted. It is also an admitted fact that the own sister of the accused was given in marriage to the complainant. So, naturally, there would be trust and confidence between the parties. ..... Considering all these materials on record, the trial Court has rightly come to the conclusion that the complainant was not at all having financial capacity to advance Rs.3.00 lakh to the accused and ultimately, acquitted by the accused by dismissing the complaint. .....
7. ..... In the cross examination, ..... When he was asked as to whether he was having Rs.3.0 lakh in the year 2008 and whether he will produce the documents in that regard, he answered that he has to see. However, he has voluntarily deposed that the amount of Rs.3.00 lakh, which was kept in his house for the purpose of his daughter's marriage, was given to accused. ..... ....."
(i) In the present case on hand also, it is the contention of the complainant that he paid the alleged qunatum of loan amount out of the sale consideration at 58 Crl.A.No.171/2019 Ex.P-7 i.e., Rs.7,20,000/-. Admittedly, the sale deed at Ex.P-7 is of the year 2002 and the alleged loan amount was lent in the year 2010-11.
(ii) In this case also, there is no dispute between the parties they are known to each other since 25 years and the complainant is also knowing the family members of the accused. Therefore, the facts and circumstances of the above decision and the case on hand are similar to each other. Thus, the principles rendered in the above decision are applicable to the case on hand.
b) (2014) 2 Supreme Court Cases 236 (between John K. Abraham Versus Simon C. Abraham and Another in Criminal Appeal No.2043 of 2013 decided on December 5, 2013 before their Lordships S.S.Nijjar and F.M.Ibrahim Kalifulla, JJ.), wherein he has relied on the observations of the Hon'ble Apex Court that;
"Debt. Financial and Monetary Laws
- ..... Dishonour of cheque - Drawing of presumption under S. 118 r/w S.139 - Prerequisites for, when cheque is for repayment of a loan/advanced money - Proof required on the part of complainant - Held, in order to draw presumption under S. 118 r/w 59 Crl.A.No.171/2019 S. 139, burden lies on complainant to show: (i) that he had the requisite funds for advancing the sum of money/loan in question to accused, (ii) that the issuance of cheque by accused in support of repayment of money advanced was true, and (iii) that the accused was bound to make payment as had been agreed while issuing cheque in favour of complainant - In present case, complainant not aware of the date when substantial amount of Rs.1,50,000 was advanced by him to appellant - accused - Respondent complainant failed to produce relevant documents in support of the alleged source for advancing money to accused - Complainant also not aware as to when and where the transaction took place for which the cheque in question was issued to him by accused - Complainant also not sure as to who wrote the cheque and making contradictory statement in this regard. - ..... .....
6. When we examined the case of .... ...
6.2 As regards the source of advancing the sum of Rs.1,50,000, the respondent claimed that the same was from and out of the sale consideration of his share in the family property, .....
....."
c) 2018 (1) DCR 762 (between Rajesh Versus Miss Sanjana in Criminal Appeal No.347 of 2007 decided on 60 Crl.A.No.171/2019 03.02.2018 before his Lordship Arun D. Upadhye, J.), wherein he has relied on the observations of the Hon'ble High Court of Bombay that;
" Negotiable Instruments Act, 1881
- ..... Section 378 - Appeal against acquittal - Validity - Held - Since complainant has completely failed to prove his version with cogent evidence, so rejecting his complaint is just and proper - Requires no interference - Appeal in merit less and is dismissed. .....
.....
6. Shri Vyas, the learned counsel for the respondent No.1-accused ..... He also submitted that the income of the complainant is of Rs.5,000/- to Rs.6,000/- per month and therefore, there is no possibility that he advanced loan of Rs.80,000/-. ..... .....
9. It is to be noted that the ..... The evidence of the complainant is not cogent one to show that he has advanced loan, .....
10. The accused has also ..... However, nothing was brought on recorded to show that he has paid amount of Rs.45,000/- to her . ..... ....."
d) 2015 (2) KCCR 1115 (SC) (between Ramdas Versus Krishnanand in Criminal Appeal No.1522 of 2014 decided on 23.07.2014 before her Ladyship Mrs.Ranjana 61 Crl.A.No.171/2019 Prakash Desai and his Lordship N.V.Ramana, JJ.), wherein he has relied on the observations of the Hon'ble Apex Court that;
" NEGOTIABLE INSTRUMENTS ACT, 1881 - Section 138 - ..... No material on record in support of claim - Also no calculation of account or stipulation of any interest on alleged loan amount to show as to how amount Rs.5,00,000 was figured, in return of a hand loan of Rs.1,75,000 - Whether there was sufficient balance amount or not in bank account of accused when cheque was dishonoured - Not known - in absence of any authenticated and supporting evidence, Court cannot believe that complainant has raised an amount of Rs.1,75,000/- that too by obtaining loan of Rs.1,50,000/- from a bank, only to give hand loan to his employer - Trial Court taking note of financial condition of complainant and corroborative and unshaken defence version, dismissing complaint - Acquitting accused Justified - Interference by High Court - Not Proper.
....."
(i) In the present case on hand also, the accused is successful in establishing that the complainant had no financial capacity to advance the alleged loan and the complainant has failed to establish his source of income 62 Crl.A.No.171/2019 out of the sufficient land holdings he has placed before the Court. Hence, the dictum laid down in the above decisions is helpful to the accused.
(ii) The impugned judgment demonstrates that the trial Court has lost sight of the principles laid down in the above decisions and thus, the accused is successful in demonstrating the reason assigned by him in para No.117(g).
119. At this juncture itself, to avoid repetitions, let this Court to go through the decisions relied on by the counsel for accused in this appeal on the above principles reported in;
a) AIR 2019 SC 1983 (between Basalingappa Vs Mudibasappa in Criminal Appeal No.636 of 2019 (arising out of SLP (Cri.) No.8641 of 2018 decided on 09.04.2019 before their Lordsips Ashok Bhushan J and K.M.Joseph J.) wherein he has drawn the attention of this Court to the observations of the Hon'ble Apex Court that;
"(A) Negotiable Instruments Act ............ His failure to prove financial capacity though he is a retired employee to advance substantial amount to different 63 Crl.A.No.171/2019 persons including accused -
Findings of trial Court that complainant cannot prove his financial capacity, cannot be termed as perverse without discarding evidence laid by defence - Accused entitled to acquittal.
.....
7. Now, we look into the facts ........ observations in Paragraph No.17:
"17. In the instant case the cheque amount involved is Rs.6,00,000/- and the complainant is an retired bus conductor and he had retired from service in the year 1997 and has received the entire retirement monetary benefits of Rs.8,00,000/- and the same was deposited in the account of the complainant and it was encashed by the complainant. It is observed that the complainant is silent as to his source of income at present. He has nowhere specified as to what is he working and his earning, to show his position to lend the amount as specified in the cheque. There is no single document to show his earning nor has the complainant executed any document for having lent such heavy amount of Rs.6,00,000/- to the accused. .....
I am of the opinion that the whole transaction is at a doubt and the circumstance does not give rise to the lending of loan amount of Rs.6,00,000/- as claimed by the complainant. Accordingly, points No.1 in the negative.
.....64 Crl.A.No.171/2019
11. This Court in ..... has been laid down:
"12. Upon consideration of various judgments .......... Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The Court may not insist upon the defendant to disprove the existence of consideration by 65 Crl.A.No.171/2019 leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. .....
.....
27. Thus, there is a ..... The High Court was unduly influenced by the fact that the accused did not reply the notice denying the execution of cheque or legal liability. Even before the trial Court, appellant accused has not denied his signature on the cheque.
....."
b) 2012(3) KCCR 2057 (between Veerayya Vs G.K.Madivalar in Criminal Revision Petition No.1571 of 2010, decided on 30.11.2011 before his Lordship V.Jagannathan, J.) wherein he has drawn the attention of this Court to the observations of the Hon'ble High Court of Karnataka, Circuit Bench at Dharwad that;
"A. NEGOTIABLE INSTRUMENTS ACT, 1881 ..... Except cheque no other document - complainant running a tailoring shop on foot path with a tin shed - At no point of time had a bank balance of more than Rs.50,000/- - No proof as to other source of income from land - No evidence that he had a Bank balance of Rs.2 lakhs on the day he has alleged to have advanced the loan - .....66 Crl.A.No.171/2019
Held, mere issuance of cheque is not sufficient unless it is shown that said cheque was issued towards discharge of a legally recoverable debt - When the financial capacity of complainant is questioned, the complainant has to establish his financial capacity - Judgments of Courts below were set aside - Petitioner was acquitted of offence under Section 138 of NI Act. .....
4. Learned Counsel ..... The first one is that, there is no proof of the complainant having lent Rs.2,00,000/- to the petitioner because no receipt or any document was obtained by the complainant from the accused. Secondly it is argued that the complainant had no capacity to advance Rs.2,00,000/- because, the complainant was a tailor by occupation. It is also argued in the same context that the complainant does not even know the name of the person who had lent Rs.50,000/- to the complainant. .....
13. Thirdly, the complainant has admitted in his cross examination that for having advanced Rs.2,00,000/- to the accused, the complainant did not take any document whatsoever, neither a receipt nor a promissory note was obtained from the accused. In the face of the said evidence of the complainant and his occupation as that of a tailor, in the face of the complainant not placing sufficient evidence to show that he had the 67 Crl.A.No.171/2019 financial capacity to advance Rs.2,00,000/- to the petitioner, it has to be held that the complainant had no capacity to advance Rs.2,00,000/- to the petitioner.
.....
15. It may not be out of place ..... the petitioner has drawn my attention to the observations of the trail Court in the suit filed by the complainant, wherein the trial Court has observed that at no point of time, was there a balance of more than Rs.5,000/- in the account of the complainant. ..... there is absolutely no material placed by the complainant to show that, on the day he advanced Rs.2,00,000/- loan to the accused, he had that much of bank balance.
.....
17. As far as the cheque ..... mere issuance of cheque itself would not be sufficient unless it is shown that the said cheque was issued towards discharge of a legally recoverable debt. In the instant case, as the very advancement of loan of Rs.2,00,000/- by the complainant to the accused itself is doubtful, the question of the cheque being issued towards discharge of the debt, therefore, does not arise.
c) 2016 Crl.L.J. 1267 (between Venkatesh Sadanand Pai Vs Kanchana Kakodkar in Criminal Appeal No.26 of 2013 decided on 03.07.2015 before his Lordship C.V.Bhadang, J.) wherein he has drawn the attention of 68 Crl.A.No.171/2019 this Court to the observations of the Hon'ble Bombay High Court (GOA Bench) that;
" Negotiable Instruments Act ..... Complainant alleged on basis of promissory note executed by accused that he had advanced various amounts ranging from Rs.30,000/- to 80,000/- to accused totaling to Rs.7 lacks for a period from June 2006 to December 2007. However, complainant had neither made mention about said promissory note in statutory demand notice nor in compliant .....
.....
2. The brief facts are that ..... According to the appellant, for a period from June 2006 to December 2007 the appellant had advanced various amounts ranging from Rs.30,000/- to Rs.80,000/- to the respondent, totaling to Rs.7 lakhs. The first respondent had promised to repay the said amount within a month from the date of the last payment of Rs.75,000/- on 05.12.2007. However, she failed therein. .....
.....
10. Turning to the present case, admittedly the appellant had retired from the school when various advances of the amounts from June, 2006 is said to be made to the first respondent on a specious ground that the first respondent was known to the appellant, as she was the wife of the headmaster of the school, where the appellant was earlier 69 Crl.A.No.171/2019 serving. It has come in the evidence of PW1 that there was no business transaction as such between the appellant and the first respondent and for the matter of that, between the appellant and Avdhuth Kakodkar, the husband of the respondent. It is not even the case that Avdhuth Kakodkar had at any time approached the appellant with a request for financial accommodation. According to the appellant, it is only when the first respondent defaulted in the matter of repayment of the amount that he sought intervention of Avdhuth Kakodkar, when the subject cheque and another cheque for Rs.4 lakhs were passed by the first respondent. If we see the details of the amounts, which are allegedly advanced, they are ranging from Rs.30,000/- to Rs.80,000/- and extend over a fairly long period. PW1 has admitted that the first respondent was a housewife. It is difficult to understand as to what would be the "emergent need", of a housewife that too without the intervention of the husband, she approached the appellant, seeking amounts totaling to Rs.7 lakhs. PW1 has further admitted that he had not taken anything in writing for the amount of Rs.30,000/- and Rs.40,000/-. Therefore he has stated that he had taken receipts however, he does not remember where he has kept the said acknowledgments. Although he says that he can produce the same, if located, they were not produced. He 70 Crl.A.No.171/2019 has further admitted that his monthly income was Rs.30,000/-. However, he then stated that the balance amount was given from the income of his wife, besides the rental income and income from agriculture. He then stated that he paid the amount of Rs.30,000/- for the second time, even when the earlier amount was not repaid. He has stated that he has paid income tax till 2004 and after his retirement, he has not filed any income tax returns. It is further stated that the first respondent had not paid any interest as there was no talk about the same between them. It is really difficult to accept that the appellant would advance these amounts without there being anything in writing and without there being any agreement to pay interest and particularly, when on his own saying, he continued to advance the amount, although the amounts paid earlier, were not repaid. ....."
d) 2015(5) KCCR 990 (between L.Raju Vs Gurappa Reddy in Criminal Appeal No.13 of 2010 decided on 09.07.2015 before his Lordship Pradeep D. Waingankar, J.) wherein he has drawn the attention of this Court to the observations of the Hon'ble High Court of Karnataka that;
" .....
2. The brief facts of the case .....The respondent (hereinafter be called as 71 Crl.A.No.171/2019 'accused') borrowed a sum of Rs.6.00 lakhs as hand loan from the appellant (hereinafter called as 'complainant') to meet his financial necessities during the month of January 2006. The accused repaid an amount of Rs.88,000/- out of the lona amount of Rs.6,00,000/-. For the balance amount of Rs.5,12,000/-, the accused issued a cheque for Rs.2,62,000/- and another cheque for Rs.2,50,000/- dated 13.03.2008. ..... .....
4. At the outset, it has to be stated that ..... Accused can rebut the presumption by leading evidence or from the evidence placed on record by the complainant. The accused need not prove his case beyond reasonable doubt. ..... But there is no presumption as to the existence of debt or liability. Therefore, the existence of debt and liability of the accused towards the complainant is to be established by the complainant by cogent and convincing evidence. It is in this background the evidence placed on record by the parties will have to be appreciated.
5. The case of the complainant that he advanced a hand loan of Rs.6 lakh to the accused in the month of January 2006. Admittedly, there is no documentary evidence for having advanced such a huge amount as hand loan to the accused. No specific date on which the amount was advanced as hand loan is not forthcoming in the 72 Crl.A.No.171/2019 complaint. There is no evidence to show that the complainant having withdrawn an amount of Rs.6,00,000/- from his bank account in Janata Seva Co operative Bank Limited so as to advance same to the accused ..... He was made to come to the office for good number of times and was told ultimately that those documents are with other partners and later on he was told that they are misplaced somewhere. Thus from Ex.D1 one thing is evidence that at an undisputed period of time, the accused did give four signed blank cheques to the Syndicate Finance Corporation as security while obtaining the loan as desired by both the partners. ..... In money matters Court expects more transparency. Thus from all these facts and circumstances discussed and narrated above, I have no hesitation in holding that the complainant failed to prove the existence of debt of Rs.5,12,000/-. .....
....."
e) (2013) 3 Supreme Court Cases 86 (in Vijay Vs Laxman and another in Criminal Appeal No.261 of 2013 arising out of SLP (Crl.) No.6761 of 2010. From the Judgments and Orders dated 29.01.2010 of the High Court of Madhya Pradesh, Bench at Indore in Crl. Revision Petition No.926 of 2009 decided on February 7, 2013 73 Crl.A.No.171/2019 before their Lordships T.S.Thakur and Gyan Sudha Misra, JJ.), wherein he has drawn the attention of this Court to the observations of the Hon'ble Apex Court that;
"A. Debt, Financial and Monetary Laws - ..... Case set up holder of cheque itself dubious, ..... Date of advancement of loan not mentioned in complaint - .....
B. Debt, Financial and Monetary Laws - ..... Comparative degree of onus of proof on complainant and drawer of cheque - Reiterated, per Thakur, J. (supplementing), standard of proof required for rebutting the presumption under Ss.118 and 139 of the NI Act is not as high as that required of the prosecution and is rebuttable on the preponderance of probabilities - .....
....
GYAN SUDHA MISRA, J. .....
2. In order to appreciate the merit of this appeal, ..... The appellant complainant, therefore, issued a legal notice after a few days on 17.08.2007 to the respondent accused which was not responded as the respondent neither replied to the notice nor paid the said amount.
3. It is an admitted fact that the respondent accused is a villager who supplied milk at the dairy of the complainant's father in the morning and evening and his father made payment for the supply in the evening. .....74 Crl.A.No.171/2019
.....
11. While dealing with the aforesaid two presumptions, the learned Judges of this Court in P.Venugopal v. Madan P. Sarthi had been pleased to hold that under Sections 139, 118(a) and 138 of the NI Act existence of debt or other liabilities has to be proved in the first instance by the complainant but thereafter the burden of proving to the contrary shifts on the accused. .....
12. Applying the ratio of the aforesaid case as also the case of K.N. Beena v. Muniyappan, when we examine the facts of this case, ..... In the first place, the respondent- accused is alleged to have issued a post-dated cheque dated 14.08.2007 but the appellant complainant has conveniently omitted to mention the date on which the loan was advanced which is fatal to the complainant's case ..... .....
20. The High Court has rightly accepted the version given by the respondent-accused herein. We say so for reasons more than one. In the first place the story of the complainant that he advanced a loan to the respondent accused is unsupported by any material leave alone any documentary evidence that any such loan transaction had ever taken place. So much so, the complaint does not even indicate the date on which the loan was demanded and advanced. It is blissfully silent about these aspects 75 Crl.A.No.171/2019 thereby making the entire story suspect. We are not unmindful of the fact that there is a presumption that the issue of a cheque is for consideration. Section 118 and 139 of the Negotiable Instruments Act make that abundantly clear. That presumption is however rebuttable in nature. ..... .....
24. Presumptions under Section 118(a) and 139 were held to be rebuttable on a preponderance of probabilities in Bharat Barrel & Drum Mfg. Co. Vs. Amin Chand Pyarelal also where the Court observed.
"11.....
.....
27. Coming then to the present case, the absence of any details of the date on which the loan was advanced as also the absence of any documentary or other evidence to show that any such loan transaction had indeed taken place between the parties is a significant circumstance. .....
28. In the totality of the above circumstances, the High Court was perfectly justified in its conclusion that the prosecution had failed to make out a case against the accused and in acquitting him of the charges. With these observations in elucidation of the conclusion drawn by my worthy colleague, I agree that the appeal fails and be dismissed."76 Crl.A.No.171/2019
f) 2008 Crl.L.J. 2955 (between Rajendraprasad Gangabisheen Porwal Vs Parasal Saklecha and Another in Cri.R.A.No.256 of 2007 decided on 04.03.2008 before his Lordship V.R.Kingaonkar, J.) wherein he has drawn the attention of this Court to the observations of the Hon'ble High Court of Bombay (Aurangabad Bench) that;
"(B) Negotiable Instruments Act ..... -
Proof - Case of complainant that on request of accused he lent amount of Rs.25 lakhs to accused for construction of house and purchasing furniture - Loan was given only for four days - Accused gave him post dated cheque -
Material on record showing that complainant himself was indebted and was under financial difficulties - Glaring discrepancy regarding cause of loan demanded by accused as shown in complaint and as deposed by witness complainant -
Occupation of complainant was agriculture - No evidence produced to prove financial viability of complainant to raise such huge amount - Conviction of accused merely because he admitted his signature on disputed cheque not proper - It would not relieve complainant from requirement to prove pre-existing debt or legal liability to pay amount shown in cheque.
.....
27. Reverting the version .....
77 Crl.A.No.171/2019.....
(v) Deceased complainant was dealing in 'Kirana' business which had to be closed down and therefore, his occupation is shown in the complaint as "Agriculture" which is a general and sweeping statement.
There is no substantial statement made in the complaint as regards the agricultural income available to the deceased complainant, nor any documentary evidence is adduced in order to prove his financial viability to raise such huge amount out of the agricultural income. One cannot totally ignore the social context in this behalf.
A judicial notice can be taken of the fact that in this area, there are cases of agriculturists committing suicide due to losses in the agricultural business. So, it was more expected of the deceased complainant to explain as to how he was a successful agriculturist to overcome the difficulties and could have raised such huge amount from his agricultural sources.
....."
g) 2014(4) KCCR 3661 (SC) (between Subramani Vs Damodara Naidu in Criminal Appeal No.2402 of 2014 decided on 13.11.2014 before their Lordships V.Gopala Gowda and C.Nagappan, JJ) wherein he has drawn the attention of this Court to the observations of the Hon'ble Apex Court that;
78 Crl.A.No.171/2019
" NEGOTIABLE INSTRUMENTS ACT, 1881 - ..... - Yet complainant alleged to have lent huge amount -
Source claimed by him not proved
- Trial Court acquitting accused by holding that complainant had no source of income to lend such a sum, he failed to prove that there was legally recoverable debt payable by accused to him and that in discharge of such liability he issued cheque - Proper - High Court holding that order of acquittal recorded by trial Court suffer from legal infirmity as prosecution has been undone only on ground that complainant had not proved his capacity to lend money - interfering with judgment of acquittal - Remanding matter - Unsustainable - Hence set aside - Judgment of acquittal restored.
.....
3. The respondent ..... The case of the complainant is that the accused borrowed a loan of Rs.14 lakhs in cash .....
4. In the trial ..... are as under:
"(i) Whether in an action under Section 138 of the NI Act for dishonour of cheque is the complainant required to establish his financial capacity to lend money?
(ii) Will not presumption under Section 139 of the NI Act accrues to the benefit of the complainant unless the accused rebuts that presumption?"
.....
79 Crl.A.No.171/2019
9. In the present case ..... The source claimed by the complainant is savings from his salary and an amount of Rs.5 lakhs derived by him from sale of site No.45 belonging to him. Neither in the complaint nor in the chief examination of the complainant, there is any averment with regard to the sale price of site No.45. ..... On the contrary, the complainant as admitted in his evidence that in the year 1997, he had obtained a loan of Rs.1,49,205/- from LIC. It is pertinent to note that the alleged loan of Rs.14 lakhs is claimed to have been disbursed in the year 1997 to the accused. Further the complainant did not produce bank statement to substantiate his claim. The trial Court took into account the testimony of the wife of the complainant in another criminal case arising under Section 138 of the NI Act in which she has stated that the present appellant/accused had not taken any loan from her husband. On a consideration of entire oral and documentary evidence the trial Court came to the conclusion that the complainant had no source of income to lend a sum of Rs.14 lakhs to the accused and he failed to prove that there is legally recoverable debt payable by the accused to him.
....."
h) AIR 2019 SC 942 (between Anss Rajashekar Vs Augustas Jeba Ananth in Criminal Appeal Nos.95 - 96 of 80 Crl.A.No.171/2019 2019 arising out of Special Leave Petition (Crl.) Nos.3737 - 3738 of 2016 decided on 18.01.2019 before their Lordship Dr.Dhananja Y. Chndrachud and M.R.Sha, JJ.) wherein he has drawn the attention of the this Court to the observations that;
"Negotiable Instruments Act ..... - Failure of complainant to establish source of funds alleged to be utilized for disbursal of loan to accused - presence of doubt on transaction as complainant not disclosing facts as to cheques and any steps taken by him for recovery of same - ..... .....
6. The trial Court by a judgment dated 31 January 2009 acquitted the appellant. The complainant - respondent filed Criminal Appeal No.285 of 2009 before the High Court by its judgment dated 29 October 2010, the High Court allowed the appeal and remitted the matter to the trial Court, having regard to the judgment of this Court in "Rangappa Vs. Sri.Mohan". On remand, the trial Court by a judgment dated 5 March 2011 convicted the appellant and sentenced him to undergo imprisonment of one year and to pay a fine of Rs.7 lakhs out of which an amount of Rs.6.75 lakhs was directed to be paid to the respondent by way of compensation. The appellant instituted Criminal Appeal No.245 of 2011 before the Additional 81 Crl.A.No.171/2019 Sessions Judge, Bangalore. By a judgment dated 05 March 2012, the First Appellate Court reversed the conviction and sentence recorded by the trial Court. ..... The High Court reversed the judgment of acquittal recording that while the notice of the appeal was served upon the appellant, he had remained absent. While recording the conviction under Section 138 of the Act, the High Court modified the sentence to the effect that the appellant shall pay a fine of Rs.5 lakhs which would be paid as compensation to the respondent and, .....
.....
12. It is in this background, ..... Accordingly to PW-1, the loan of Rs.15 lakhs was paid into the hands of a representative of the appellant at his request. ..... In the notice of demand that was issued by the complainant to the appellant after the cheque had been returned for want of funds, the complainant stated that the appellant had sought a 'financial accommodation' of Rs.15 lakhs and paid a sum of Rs.20,000/-
(corrected thereafter in a corrigendum). The ..... the accused had demanded a loan of Rs.15 lakhs, but at that time the complainant had only paid an amount of Rs.5 lakhs as a loan for which the accused issued Exhbibit P1. .....
13. Besides what has bee set out above, an important fact in the matter was that the complainant failed to establish the source of funds which he is alleged to have 82 Crl.A.No.171/2019 utilized for the disbursal of the loan of Rs.15 lakhs to the appellant.
During the course of his cross examination the ..... The complainant admitted that he had not mentioned anything about the accused having issued these two cheques in his complaint. Nothing was stated by the complainant in regard to the fate of the earlier two cheques which were allegedly issued by the appellant. The non disclosure of the facts pertaining to the earlier two cheques, and the steps, if any, taken for recovery was again a material consideration which indicated that there was a doubt in regard to the transaction. ....."
i) The judgment passed by the Hon'ble High Court of Karnataka, Bengaluru in Criminal Appeal No.1145/2011 c/w Criminal Appeal Nos.1135/2011, 1146/2011 between M/s. National Agricultural Co-Operative Marketing Federation of India Ltd vs M/s Disha Impex (Pvt). Ltd. decided on 6 th day of January, 2021 before his Lordship Mr.Justice H.P.Sandesh wherein he has drawn the attention of this Court to the observations that;
".....
48. It is pertinent to note that the ..... The complainant also not placed any documentary proof before the Court with regard to the 83 Crl.A.No.171/2019 transaction between the complainant and the accused specifically with regard to Ex.D7. But Ex.D6, is confronted to the witness and whereby elicited the answer that the transaction has been continued till 2008 April.
49. Having taken note of the ..... It is the main contention of the accused that the cheques which were secured by the complainant for security are utilized for filing these complaints. I have already pointed out that though the complainant makes a claim based on the invoice, those invoices are not in existence and the averment of the complaint is also false. That apart, Ex.D7 substantiate the case of the accused The complainant has also not produced nay documentary proof with regard to the liability of the accused and the ..... When such being the case, the accused has rebutted the case of the complainant by adducing the cogent evidence a produced several documents before the Trial Court, confronted the same and elicited the answer from the mouth of P.W.1.
50. I have already point out that the complainant has not stated anything in the complaint about the transaction taken place between the complainant and the accused for more than the credit limit as envisaged in MOU dated 10.0.2004. When the accused has rebutted the evidence of the complainant by the effective cross-84 Crl.A.No.171/2019
examination of PW.1 and elicited important answers from the mouth of the P.W.1, the complainant ought to have produced the statement of accounts and the same has not been done. .....
51. I have already point out that the ...... It is settled law that the Court can reverse the order of acquittal, if the judgment of the Trial Court is perverse and has not been considered the material on record. .....
....."
(i) In the present case on hand, as noted above, the accused is successful in proving that the complainant has failed to establish that he kept the sale consideration amount of Rs.7,20,000/- at Ex.P-7 from 2002 till 2010-11. Thus, the evidence of the complainant that he paid the alleged loan amount to the accused out of the said sale consideration amount cannot be accepted.
(ii) Though as noted above, it is evident on record that there is sufficient landed property, admittedly, the complainant has only his undivided share in it and he has not produced any documents to substantiate the income out of the said properties particularly, his share of income. 85 Crl.A.No.171/2019
(iii) Moreover, as noted above, the dairies at Ex.P-24, 25, 27 and 28 clearly demonstrate that the complainant has lent the money to other persons as well and he in his cross examination, has also admitted the fact of his lending money to the other persons as well.
(iv) Hence, in view of the dictum laid down by the Hon'ble Apex Court in Basalingappa's case supra, when the accused has raised probable defence on the financial capacity of the complainant to lend the alleged quantum of loan amount and is successful in letting probable evidence in that regard i.e., establishing that he/the complainant has failed to show that he kept the sale consideration amount of Rs.7,20,000/- at Ex.P-7 from 2002 till 2010-11 to lend the same to the accused, the burden shifts on the complainant to establish his financial capacity with cogent and corroborative piece of evidence, but, he has failed to establish the same. Thus, the dictum laid down in the above decisions with regard to the financial capacity of the complainant to lend the money tilt in favour of the accused.
86 Crl.A.No.171/2019
(v) However, in view of the admitted fact in the case on hand with regard to the acquaintance of the parties for a long time, that too the complainant knowing well the family members of the accused for a long time, the observations of the Hon'ble High Court of Karnataka in Veeraiah's case supra with regard to lending money without any document is not helpful to the accused.
(vi) So far the dictum laid down by the Hon'ble High Court of Karnataka in L.Raju's case supra with regard to the presumption on legally enforceable debt, it is settled principle of law that there is no presumption as to the existence of debt or liability and thus, the existence of debt and liability is to be established by the complainant by cogent and convincing evidence and on such proof, the presumption under Section 139 of the Act that the said liability is legally enforceable one falls in favour of the complainant.
(vii) But, in view of the complainant failing to establish his financial capacity to lend the alleged quantum of loan amount, he failed to establish the existence of the liability of the accused towards him and 87 Crl.A.No.171/2019 thus, is not entitled for the presumption under Section 139 of the Act in view of the dictum laid down by the Hon'ble High Court of Karnataka in L.Raju's case supra and the Hon'ble Apex Court in Vijay's case supra.
120. Before, the trial Court, the accused has also relied on the decision reported in 2014 (1) DCR 547 (between S.K.Jain Versus Vijay Kalra in Crl.A.1011 of 2013 and Crl.A. 1012 of 2013 decided on 06.03.2013 before his Lordship V.K.Jain, J.), wherein he has drawn the attention of this Court to the observations of the Hon'ble High Court of Delhi that;
"Negotiable Instruments Act, 1881
- ..... Accused in a trial under Section 138 of NI Act can either 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 exist - to rebut the statutory presumption an accused is not expected to prove his defence beyond reasonable doubt.
..... held as under:
"The accused in a trial under Section 138 of the Act ..... To rebut the statutory presumption an accused is not expected to prove 88 Crl.A.No.171/2019 his defence beyond reasonable doubt as is protected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that ..... .....
Hon'ble V.K.Jain, J. (Oral): The appellant in ..... It was further alleged in the complaints that the complainants S.K.Jain and his wife, had given this money out of the funds which they had kept for the marriage of their three daughters and the amount which he had acquired after selling his property in Rohini. It was further stated that ..... .....
4. In his statement under Section 313 of Cr.P.C. ..... which he had taken from the complainant was repaid as per bank statement Ez.DW1/A & DW1/B. During cross examination, he denied the suggestion that aforesaid amount of Rs.1,50 lakh had nothing to do with the complaint filed in the Court. .....
7. The impugned judgment has been ..... During his cross-examination the complainant/appellant did not dispute that the respondent had taken a loan of Rs.1.50 lakhs, though it was claimed that he said loan had nothing to do with the complaint pending before the Court, meaning thereby that the complainants do not dispute that the respondent had actually taken a 89 Crl.A.No.171/2019 loan of Rs.1.50 lakh which he had later repaid.
.....
10. As regards sale of the property, I find that two ..... This is not the case of the complainants that they had withdrawn money from any bank for the purpose of advancing loan to the respondent. Therefore, .....
11. In the case before this Court also admittedly, no agreement or promissory note was executed at the time of the loan of Rs.31.00 lakh is alleged to have been advanced by the complainant to the .....
12. In Jonh K. Joh Vs. Tom Varghese & Anr, .....
.....
In Kumar Exports Vs. Sharma Carpets ..... under :
"The accused in a trial under Section 138 of the Act has two ..... To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the .....
....."
(i) It is settled proposition of law that the accused is not expected to let in the evidence beyond all the reasonable doubts in a criminal trail and he can adduce direct evidence to prove his defence based on the evidence on record.
90 Crl.A.No.171/2019
(ii) In the present case on hand, the accused has let in the evidence to establish that the complainant has failed to establish his financial capacity to lend the alleged quantum of the loan amount. Hence, the principles rendered in the above decision is helpful to the accused.
(iii) The impugned judgment demonstrates that the trial Court has not considered the above decision as well relied on by the accused and thus, the the accused is successful in proving the reason he has assigned at para No.117(g).
121. In support of this appeal, as noted above, the counsel for the accused has also relied on the decisions reported in;
a) 2014(3) DCR 767 (between Bhausaheb S Kumawat Vs Santhosh.M. Vyavhare & Another in Criminal Application No.796 of 2012 with Criminal Application No.7979 of 2012 decided on 07.08.2013 before her Ladyship Smt.Sadhana S. jadhav, J) wherein he has drawn the attention of this Court to the observations of the Hon'ble High Court of Bombay that;
91 Crl.A.No.171/2019
"Negotiable Instruments Act, 1881 - .....
Held: In the present case, ..... the contentions in the complaint are vague. It is not stated in the complaint as to when the demand was made. ..... The complainant has not disclosed the identity of the person in whose presence he had advanced the hand loan to the accused and therefore the complainant cannot rely upon the evidence of PW2 as an eye witness. It is not mentioned in the complaint or the affidavit that the transaction had taken place in presence of PW2. Hence, learned Magistrate has rightly held that PW2 is a got up witness. His presence at the time of transaction is neither stated in the complaint nor in the affidavit of evidence. ..... The Magistrate has also rightly observed that the complainant has failed to prove that on 08.02.2009 he had cash of Rs.65,800/- readily available with him. The complainant has not substantiated his source of income. ..... therefore it cannot be believed that he had the capacity to advance the loan of Rs.65,800/-. ....."
b) ILR 2014 KAR 6572 (between H.Manjunath Vs A.M.Basavaraju in Crl.A.No.952/2009 dated 3 rd day of July, 2012 by his Lordship Jawad Rahim, J. wherein he 92 Crl.A.No.171/2019 has drawn the attention of this Court to the observations of the Hon'ble High Court of Karnataka that;
"NEGOTIABLE INSTRUMENTS ACT, 1881 - As seen from the complaint there is no statement as to when the amount was actually given to the accused. The complainant has merely mentioned the date of issuance of cheque without any material particulars of the transaction. The cheque in question undoubtedly is signed by the accused. The dispute raised is entries made in the cheque are not in his handwriting. It is not the case of the complainant that cheque was issued in blank and filled up later with consent of the accused. .....
.....
3. The records reveal:
The complainant ..... respondent had borrowed Rs.1,50,000/- from him .....
4. The accused ..... He specifically averred that he borrowed Rs.1 lakh, which he repaid to the Complainant by depositing in his account. Thus he would contend that impugned cheque was not enforceable. The last ground that was urged is the impugned cheque was blank when it was issued and the same was misused by the Complainant to fill in Rs.1,50,000/-.
5. In the trial that .......... tendered evidence as DW1 and produced bank pass book.
.....
93 Crl.A.No.171/2019
9. As seen from the complaint there is no statement as to when the amount was actually given to the accused. The complainant has merely mentioned the date of issuance of cheque without any material particulars of the transaction. ..... Entries in Ex.P1 supports to the conditions of the learned counsel for appellant that entries in the cheque are not in the handwriting of the accused. .....
.....
11. Hence, the order of the trial Court acquitting the respondent for the offence punishable under Section 138 of the NI Act is hereby affirmed. Appeal failed and it is dismissed."
(i) In the case on hand, as noted above, of course, the complainant in his cross examination has stated the details of the payments of the alleged loan amount and let relied on some of the relevant entries in the dairies at Ex.P- 24, 25, 27 and 29.
(ii) But, the said dairies and alleged entries pertain to the alleged loan were not disclosed by the complainant in the demand notice, the complaint, the sworn statement and the chief affidavit evidence and they were admittedly, produced after completion of the evidence of the complainant and his wife by getting recalled the 94 Crl.A.No.171/2019 complainant. Thus, the complainant has failed to establish that the entries alleged to pertained to this case are genuine one and he has also failed to establish his financial capacity to lend the alleged quantum of the loan amount.
(iii) Hence, the decision of the Hon'ble High Court of Delhi in Baba Saheb's case supra is also helpful to the accused, but not the principles rendered by the Hon'ble High Court of Karnataka in Manjunath's case supra.
122. At this stage itself, let this Court to go through the decisions relied on by the counsel for the complainant as well. He has relied on the following decisions before the trial Court.
a) The judgment of the Hon'ble Apex Court in Criminal Appeal No.1020 of 2010 arising out of SLP (Crl.) No.407 of 2006 between Rangappa Versus Sri.Mohan decided on 7 May, 2010 before their Lordships P.Sathasivam and M.Panchal JJ.), wherein he has drawn the attention of this Court to the observations of the Hon'ble Apex Court that;
".....95 Crl.A.No.171/2019
7. However, ..... It was held that; "6. Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant. The presumption referred to in Section 139 of the N.I. Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption. What is required to be established by the accused in order to rebut the presumption is different from each case under given circumstances. But the fact remains that a mere plausible explanation is not expected, for the accused it must be more than a plausible explanation by way of rebuttal evidence. In other words, the defence raised by way of rebuttal evidence must be probable and a capable of being accepted by the Court. The defence raised by the accused was that a blank cheque was lost by him, which was made use of by the complainant. Unless this barrier is crossed by the accused, the other defence raised by him whether the cheque was issued towards the hand loan or towards the amount spent by the complainant need not be considered .....
22. Because both Sections 138 and 139 require that the Court 96 Crl.A.No.171/2019 'shall presume' the liability of the drawer of the cheques for the amounts for which the cheques re drawn, ....., it is obligatory on the Court to raise this presumption in every case where the factual basis for raising of the presumption has been established. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on the accused .....
....."
b) 2015(2) DCR 11 (between T.Vasanthakumar Versus Vijaykumari in Criminal Appeal No.728 of 2015 arising out of SLP (Crl.) No.8091 of 2011 decided on 28.04.2015 before their Lordships J.Chalmeswar and Pinaki Candra Ghose, JJ.), wherein he has drawn the attention of this Court to the observations of the Hon'ble Apex Court that;
".....
10. Therefore, in the present case since the cheque as well as signature has been accepted by the accused respondent, the presumption under Section 139 would operate. Thus, the burden was on the accused to disprove the cheque or the existence of legally recoverable debt or liability. To this effect, the accused has come up with a story that the cheque was given to the 97 Crl.A.No.171/2019 complainant long back in 1999 as a security to a loan; the loan was repaid but the complainant did not return the security cheque. ..... ....."
c) 2018(2) Crimes 6 (Bom) (between Datta Sonaji Doiphode versus Deepak Walmik Meshram in Criminal Appeal No.349 of 2006 decided on 16.01.2018 before his Lordship Rohit B. Deo, J.), wherein he has drawn the attention of this Court to the observations of the Hon'ble High Court of Bombay that;
".....
12. The Three Judges Bench ..... thus:
"22. Because both Sections 138 and 139 require ..... On the other hand, in the case of mandatory presumption "the burden resting on the accused person, in such a case could not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is true one. The words 'unless the contrary is proved' which occur in this provision makes it clear that the presumption has to be rebutted by 'proof and not by a bare explanation which is merely 98 Crl.A.No.171/2019 plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provisions cannot be be said to be rebutted.
....."
d) 2018(1) Bankmann 492 (H.P.) (between V.Santu Versus State of Himachal Pradesh and Ors. in Cr.Revision No.4060 of 2013 decided on 22.09.2017 before his Lordship Chander Bhusan Barowalia J.), wherein he has drawn the attention of this Court to the observations of the Hon'ble High Court of Himachal Pradesh that;
".....
15. Hon'ble Apex Court in ..... has held as under:
"6. The High Court in .....
7. We have heard the .....
9. Therefore, in the present case since the cheque as well as the signature has been accepted by the accused - respondent, the presumption under Section 139 would operate. Thus, the burden was on the accused to disprove the cheque or the existence or any legally recoverable debt or liability. To this effect, the accused 99 Crl.A.No.171/2019 has come up with a story that the cheque was given to the complainant long back in 1999 as a security to a loan: the loan was repaid but the complainant did not return the security cheque. According to the accused, it was that very cheque used by the complainant to implicate the accused. ....."
123. On the above principle, the counsel for the complainant in support of his arguments, in this appeal, has relied on the following decisions.
a) The judgment of the Hon'ble Apex Court in Criminal Appeal Nos.230-231 of 2019 (@ SLP(CRL) Nos.9334-35 of 2018 between Bir Singh Vs. Mukesh Kumar decided on February 06, 2019 before their Ladyships R.Banumathi and Indira Banerjee, JJ., wherein he has drawn the attention of this Court to the observations of the Hon'ble Apex Court that;
".....
23. Section 139 introduces an exception to the general rule as to the burden of proof and shifts the onus on the accused. The presumption under Section 139 of the Negotiable Instruments Act is a presumption of law, as distinguished from presumption of facts. Presumptions are rules of evidence and do not conflict with 100 Crl.A.No.171/2019 the presumption of innocence, which requires the prosecution to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumption of law and presumption of facts unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact held in Hiten P.Dala (supra).
.....
37. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 86 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption and the cheque had been issued for payment of a debt or in discharge of liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted.
38. If a signed blank cheuqe is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in 101 Crl.A.No.171/2019 discharge of a debt or liability by adducing evidence.
.....
40. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.
41. The fact that the appellant-
complainant might have been an Income tax practitioner conversant with knowledge of law does not make any difference to the law relating to the dishonor of a cheque. The fact that the loan may not have been advanced by a cheque or demand draft for a receipt might not have been obtained would make no difference. In this context, it would, perhaps, not be out of context to note that the fact that the respondent-
accused should have given or singed blank cheque to the appellant-complainant, as claimed by the respondent-accused, shows that initially there was mutual trust and faith between them.
....."
b) The judgment of the Hon'ble Apex Court in Criminal Appeal No.508 of 2019 arising out of Special Leave Petition (Crl.) 1883 of 2018 between Rohitbai 102 Crl.A.No.171/2019 Jivanlal Patel Vs. State of Gujarat and Another decided on 15th March 2019 before their Lordships Abhay Manohar Sapre and Dinesh Maheswari JJ., wherein he has drawn the attention of this Court to the observations of the Hon'ble Apex Court that;
".....
29. In the opinion of this Court, ..... This Court cannot be obvious of the fact that Section 138 of the Negotiable Instruments Act has been made a penal provision not only for the cheques to give acceptability in the transaction, but it is the economic blood-line of the country and, therefore, the law makers have made the special rules of evidence by introducing Sections 118 and 139 of the Negotiable Instruments Act.
....."
c) 2017(2) AKR 527 (between Arjun v. E.Shekar in Criminal Revision Petition No.431 of 2007 decided on 03.03.2017 before his Lordship Budihal, R.B., J.), wherein he has drawn the attention of this Court to the observations of the Hon'ble High Court of Karnataka that;
" Negotiable Instruments Act (26 of 1881), Ss.138, 139 - Dishonor of cheque - Presumption of lawful consideration - Rebuttal of -103 Crl.A.No.171/2019
Burden of proving that cheque has not been issued for any debt or liability - Is on accused - Mere possible explanation not sufficient to disprove complainant's case. (para 9) .....
9. Looking to the judgment of the trial Court, it has discussed the oral as well as documentary evidence placed on record. It is observed by the trial Court in its judgment, at paragraph 4, that in order to disprove the case of the complainant, the accused filed his affidavit by way of examination-in- chief. In the affidavit, he states that he knows the complainant for the last 10 to 15 years and he was residing adjacent to his business concern as he was doing the kerosene business for the last 15 to 20 years. The trial Court has also observed in the said paragraph about the defence of the accused that during the year 2001, he borrowed a sum of Rs.20,000/- from the complainant by way of hand loan, and at that time, the accused pledged his kerosene license and also issued a blank signed cheque as a security to the complainant. The trial Court has also referred to the contention of the accused that he never issued the cheque of Rs.2.00 lakh for discharge of the debt to the complainant. Therefore, on the basis of the said defence, the trial Court discussed that the accused has admitted his signature on the 104 Crl.A.No.171/2019 cheque issued in favour of the complainant though it may be his contention that it was a blank singed cheque, the burden is on the part of the accused person to rebut the presumption raised in favour of the complainant as per the provision under Section 118 and 139 of the (Negotiable Instruments Act). Further, it has been observed by the trial Court on page No.6 of its judgment that the accused has to rebut the presumption by leading cogent evidence. Mere plausible explanation is not sufficient to disprove the case of the complainant. The trial Court has also made reference to another contention of the accused that complainant himself filled up the entire body of the cheque and he admits the signature Therefore, by making reference to the pleadings, the oral evidence of the complainant as well as the defence of the accused, the trial Court held that the accused has failed to rebut the presumption and the complainant has proved his case. ....."
(i) But, in the present case on hand, though the accused failed to establish the alleged collusion between the complainant, his brother and brother in law and the alleged misuse of the cheque, in view of the accused establishing that the complainant had no financial capacity 105 Crl.A.No.171/2019 to lend the alleged quantum of loan amount and complainant failing to establish his source of income out of the sufficient land holdings on record, the accused is successful in letting in the cogent and corroborative piece of evidence to rebut the presumption under Section 139 of the Act in favour of the complainant.
(ii) Therefore, the dictum laid down in the above decisions is not helpful to the complainant, but the impugned judgment reveals that the trial Court has relied on the dictum laid down in the above decisions in particular Rangappa's case supra. Hence, the reason assigned by the accused at para No.117(g) is also supported by the reliance of trial Court on the above decisions and not having considered the decisions relied on by the accused.
124. The other decisions relied on by the counsel for the complainant before trial Court are;
a) 2015(1) DCR 445 (between Santosh Mittal Versus Sudha Dayal in CRL.A.1262/2013 decided on 02.09.2014 before her ladyship Ms.Sunita Gupta, J.), wherein he has 106 Crl.A.No.171/2019 drawn the attention of this Court to the observations of the Hon'ble High Court of Delhi that;
".....
20. From this vague answer given by the respondent, it cannot be deciphered whether the respondent was denying the service of the legal notice or failure on her part to make the payment despite receipt of this legal notice. Keeping in view the fact that at the earlier juncture when notice under Section 251 Cr.P.C. was served upon the respondent, she had accepted the service of the legal notice, it does not lie in her mouth to allege that the same was not served upon her. As such service of legal notice prior to filing of the complaint upon the respondent was duly proved.
21. Admittedly, no reply to the legal notice was sent by her thereby rebutting the allegations made by the complainant. As far back in the year 1980, in Kaluram v. Sita Ram, 1980 RCR Note 44, it was held by this Court that when serious allegations are made in a notice and defendant failed to sent any reply, then the allegations are deemed to have been admitted. Even in Rangappa's case (supra) relied upon by the learned counsel for the appellant it was observed that failure on the part of the accused to reply to the statutory notice under Section 138 of the Act lead to inference that there 107 Crl.A.No.171/2019 was merit in complainant's versions.
22. As such, failure on the part of the respondent to sent any reply to the legal notice reflects that respondent did not controvert the allegations of the complainant that a loan of Rs. One lakh was given by her. Moreover, there is no statutory requirement for execution of loan agreement before giving any amount of loan. .....
....."
(i) As noted above, the accused has failed to establish his ground on non service of demand notice and in view of the admitted fact that the accused did not reply to the demand notice of the complainant at Ex.P-3, the principles rendered in the above decision is of course in favour of the complainant.
125. In this appeal, other decisions relied on by the counsel for the complainant in support of his arguments, are reported in;
a) LAWS (KAR) 2014 (6) 28 (between Sripad Versus Ramadas M.Shet in Criminal Appeal No.2689/2009 decided on 2014 June 02 before his Lordship K.N.Phaneendra, J.), wherein he has drawn the attention of 108 Crl.A.No.171/2019 this Court to the observations of the Hon'ble High Court of Karnataka at Dharwad that;
".....
B. Of course, ..... When there is sufficient material to establish before the Court that the accused has transacted with the complainant, taken the loan and taken up the specific defence that he has repaid the said amount, in my opinion, on the ground that the complainant has not produced any income tax returns, not explained whether he has got such amount to pay to the accused, all these questions becomes totally irrelevant....
.....
7. Per contra, the learned Counsel for the respondent ..... He further contends that the complainant has not produced any iota of evidence to show that he has such money with him to advance any loan to the accused. .....
.....
9. It is well known principle of law ..... In a decision between S. Govindaraju Vs. State of Karnataka, 2013 AIR Kar R 289 at paragraph 15, the Hon'ble Supreme Court has laid down certain principles i.e., to say:
It is a settled legal proposition that in exceptional circumstance, the appellate Court, for compelling reasons, should not hesitate to reverse a judgment of acquittal passéd by the Court below, if the 109 Crl.A.No.171/2019 findings so recorded by the Court below are found to be perverse, i.e., if the conclusions arrived at by the Court below are contrary to the evidence on record, or if the Court's entire approach with respect to dealing with the evidence is found to be patently illegal, leading to the miscarriage of justice, or if its judgment is unreasonable and is based on an erroneous understanding of the law and of the facts of the case. While doing so, the appellate Court must bear in mind the presumption of innocence in favour of the accused, and also that an acquittal by the Court below bolsters such presumption of innocence.
.....
12. The evidence of the accused DW-1 ..... At least when it has come to his notice that the said cheque was bounced a notice was issued and the same was well within the knowledge. In spite of that he has not taken any action with regard to this, atleast by intimating his Bankers that the said cheque was forged by his brother's son nor he has taken any action against his brother's son. .....
13. One more aspect to be borne in mind that ..... He has stated that he has only taken an amount of Rs.37,000/- from the complainant and he has returned the same by issuing three cheques for Rs.10,000/- each and also paying Rs.10,000/- by cash to the complainant. It is also admitted 110 Crl.A.No.171/2019 that even after discharging his loan earlier he has made further transaction with the complainant and he discharged the said loan also. The above evidence in fact supports the case of the complainant. Even admitting for a movement that the previous transaction under earlier cheque for Rs.50,000/- has been discharged by the accused. But according to his own admission, he has made further transaction, perhaps that may be the reason he has issued a cheque for Rs.45,000/-.
14. ..... The Trial Court has culled out certain unimportant factors into its judgment stating the complainant has not produced any material to show that the complainant has got such an amount of Rs.50,000/- to advance loan to the accused. ..... Of course no-production of the income tax returns, non-explanation by the complainant as to how in what manner, on what dates, he has paid amount to the accused may have some bearing to the case of the complainant, when there is a denial by the accused with regard to the amount taken by him, issuance of cheque. Then only all those factors shall be taken into consideration for the purpose of drawing inference in favour of the accused. .....
....."
111 Crl.A.No.171/2019
(i) In the present case on hand, of course it is the case of the accused himself that he had raised loan from the complainant. But the quantum he pleaded is Rs.50,000/- and the alleged loan amount of Rs.11,00,000/- and the defence is that the complainant had no financial capacity to lend the alleged quantum of loan amount i.e., such a huge amount of Rs.11,00,000/-.
(ii) That apart, as noted above, the accused is successful in establishing that the complainant has failed to prove that he paid the alleged loan amount out of the sale consideration of Rs.7,20,000/- at Ex.P-7 and the complainant has failed to let in the evidence to establish his source of income out of the land holdings on record.
(iii) Moreover, the entries in the dairies at Ex.P-25, 25 and 27 to 29 also demonstrates some other entries between the parties which are not disputed by the accused and thus, they support of the evidence of the complainant that there was/were other money transaction/s between the parties. Accordingly, the dictum laid down in the above case is not helpful to the complainant. 112 Crl.A.No.171/2019
b) AIR 2018 SUPREME COURT 3601 (between T.P.Murugan (Dead) Thr Lrs v.Bojan Posa Nandhi Rep. Thr. POA Holder and T.P. Murgun Vs. Bojan in Criminal Appeals No(s). 950-51 of 2018 (arising out of SLP (Crl.) Nos.10111-10112 of 2014 decided on 31.07.2018 before his Lordship R.F.Nariman J and Ms. Indu Malhotra, J.), wherein he has drawn the attention of this Court to the observations of the Hon'ble Apex Court that;
"Negotiable Instruments Act ......
- Behaviors of accused in allegedly issuing 10 blank cheque in 1995 and never asking their return for 7 years, unnatural - Accused admitting his signature on cheque and pronote, presumption under S.139 would operate against him - ..... 2.7 The respondent contended that the .....
With respect to the two cheques which were dishonored, the respondent contended that these were amongst 10 blank cheques signed and handed over to the appellant-K.Posa Nandhi as security, when he borrowed Rs.5,00,000/- in 1995. That even though this loan was re-paid in 1996 with interest, the cheques were not returned. The respondent further contended that he had issued a letter on 09.11.2002 asking the appellants to return the 10 blank cheques.113 Crl.A.No.171/2019
3.The Trial Court found that the respondent had admitted his signatures both on the Pronote and also on the two cheques for Rs.37,00,000/- and Rs.14,00,000/- respectively. The respondent also admitted that the appellant had invested capital in their concern viz. M/s Maanihada Tea Factory. The Court disbelieved the version of the respondent with respect to the 10 blank cheques issued to the appellant in 1995. The respondent failed to place any material on record to show that he had ever asked for return of the 10 blank cheques allegedly given by him to the respondent, for seven years. .....
8. We have heard .....
In the present case, the respondent has failed to produce any credible evidence to rebut the statutory presumption. This could be evident from the following circumstances:-
.....
(ii) The defence of the respondent that he had allegedly issued 10 blank cheques in 1995 for repayment of a loan, has been disbelieved both by the Trial Court and Session Court, on the ground that the respondent did not ask for return of the cheques for a period of seven years from 1995. This defence was obviously a cover-up, and lacked credibility, and hence was rightly discarded.
....."
114 Crl.A.No.171/2019
(i) But, in the present case on hand, it is the case of the accused that he raised the loan of Rs.50,000/- from the complainant in January-2012; on the next month, he repaid the said amount; the complainant who told that the cheque was misplaced and assured to return the same on tracing it, but misusing the said cheque issued for the security purpose, the complainant has come up with the present case.
(ii) Admittedly, it is the case of the complainant that the cheque is dated 06.03.2013 was issued on 26.02.2013; it was presented on 25.03.2013; returned dishonoured on 26.03.2013; which was intimated to him on 28.03.2013; the demand notice dated 24.04.2013 was sent on 25.04.2013; the same was served on the accused on 26.04.2013; he received the postal acknowledgment on 29.04.2013 and the due date was to be expired on 30.04.2013.
(iii) The record reveals that the complaint was presented on 03.06.2013. Therefore, within no reasonable gap of time for the accused to take any steps in respect of non return of cheque particularly in the background of the 115 Crl.A.No.171/2019 acquaintance between the parties, the present complaint was filed.
(iv) Hence, even for the sake of arguments, it is accepted that the amount deposited under Ex.D-1 i.e., Rs.50,000/- is towards the partial payment of the alleged loan amount, then also, under the above stated facts and circumstances of the case, the principles rendered in the above decision are not helpful to the complainant.
c) 2019(2) Kar.L.R. 717 (SC) (between Uttam Ram Versus Devinder Singh Hudan and Another in Criminal Appeal No.1545 of 2019 arising out of SLP (Crl) No.3452 of 2019 decided on 17.10.2019 before their Lordships L.Nageswara Rao and Hemant Gupta, JJ.), wherein he has drawn the attention of this Court to the observations of the Hon'ble Apex Court that;
"Negotiable Instruments Act, 1881 - Sections 118(a), 138 and 139 - Dishonor of cheque - Statutory presumption - Rebuttal of
- Once the cheque is proved to be issued it carries statutory presumption of consideration -
Then the onus is on the
respondent to disprove the
presumption at which the
respondent has miserably failed -116 Crl.A.No.171/2019
Statement of accused u/S. 313 of Cr.P.C is only to the effect that the cheque has been misused - There is no stand in the statement that the cheque book was Stolen -
Statement of accused u/S. 313 is not a substantive evidence of defence of the accused but only an opportunity to the accused to explain the incriminating circumstances appearing in the prosecution case. - Therefore, there is no evidence to rebut the presumption that the cheque was issued for consideration - The present appeal is allowed, order passed by High Court is set aside - The respondent is held guilt of dishonor of cheque for an offence u/S.138 of the Act.
.....
19. A negotiable instrument including a cheque carried presumption of consideration in terms of Section 118(a) and under Section 139 of the Act. Sections 118(a) and 139 read as under:
.....
20. The trial Court and the High Court proceeded as if, the appellant is to prove a debt before civil Court wherein, the plaintiff is required to prove his claim on the basis of evidence to be led in support of his claim for recovery of the amount due. A dishonor of cheque carries a statutory presumption of consideration. The holder of cheque in due course is required to prove that the cheque was issued by the accused and that when the same 117 Crl.A.No.171/2019 presented, it was not honored.
Since there is a statutory presumption of consideration, the burden is on the accused to rebut the presumption that the cheque was issued not for any debt or other liability.
21. There is a mandate of presumption of consideration in terms of the provisions of the Act.
The onus shift to the accused on proof of issuance of cheque to rebut the presumption that the cheque was issued not for discharge of any debt or liability in terms of Section 138 of the Act which reads as under:
.....
24. In a judgment reported as ..... the Court held as under:
"20. Section 139 introduces an .....
33. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139 makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for a payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted.118 Crl.A.No.171/2019
Xxxxx
36. Even a blank cheque leaf, voluntarily signed and handover by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt".
Xxxxx .....
29. Learned counsel for the respondent has referred to the judgment reported in M.S.Narayana Menon v State of Kerala that the evidence adduced by the complainant can be relied upon to rebut the presumption of consideration. However, said judgment has no applicability to the facts of the present case as the Trial Court has found that the presumption is not rebutted but still the Trial Court dismissed the complaint for the reasons that the appellant has failed to prove the amount mentioned in the cheque as due amount. Once the cheque is proved to be issued it carries statutory presumption of consideration. Then the onus is on the respondent to disprove the presumption at which the respondent as miserably failed.
....."
d) AIR 2016 SUPREME COURT 3173 (between Krishna Rao v. Shankargound in Criminal Appeal No.803 119 Crl.A.No.171/2019 of 2018 arising out of SLP (Cri.)No.10030 of 2016 decided on 02.07.2018 before their Lordships A.K.Sikri J and Ashok Bhushan, J.), wherein he has drawn the attention of this Court to the observations of the Hon'ble Apex Court that;
"Negotiable Instruments Act (26 of 1881), S.138, S.139 - Dishonor of cheque - Presumption as to - Accused issuing cheque of Rs.2 lacs towards repayment of loan to complainant - Said cheque dishonored on account of insufficiency of funds - Complainant proving issuance of cheque having signatures of accused - Accused failing to rebut presumption raised against him and no evidence led by him in his support - Acquittal of the accused by High Court in revisional jurisdiction on ground of doubt in mind of Court with regard to existence of loan, improper- Accused, liable to be convicted. Criminal PC. (2 of 1974), S.401. .....
19. This Court held that the ..... in paragraph 20:
"20. ..... The accused may adduce direct evidence to prove that the pronote in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the Court need not insist in every case that the accused should prove the 120 Crl.A.No.171/2019 on-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should 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 their on-existence as so probable that prudent man would under the circumstances of the case, act upon the plea that they did not exist ....."
e) 2006 CRI.L.J. 1 (between Gorantal Venkateswara Rao v. Kolla Veera Raghava Rao and Anr in Criminal Appeal No.1581 of 1999 and Cri.Revision Case No.312 of 1999 decided on 01.10.2005 before his Lordship Dr.G.Yethirajulu, J.), wherein he has drawn the attention of this Court to the observations of the Hon'ble High Court of Andhra Pradesh that;
".....121 Crl.A.No.171/2019
(B) Negotiable Instruments Act (26 of 1881), S.138 - Dishonor of cheque - Legally enforceable debt -
Failure of accused in giving reply to legal notice issued by complainant - Is one of strong circumstances to draw an inference that accused borrowed amount from complainant and cheque was issued towards part payment of legally enforceable debt. Evidence Act (1 of 1872). S.114.
.....
39. The complainant gave the date of borrowing money by the accused.
He pleaded that the accused executed a demand promissory note for the amount borrowed by him agreeing to repay the same as and when demanded. The accused was in the habit of taking money from P.W.1 and repaying it with interest. The accused could not elicit any information from any of the prosecution witnesses that he gave blank signed cheques either to PW.1 or P.W.4. His defence that when he borrowed Rs.5,000/- from Southern Finance Company, the blank pronote, blank cheques and blank papers with his signatures were taken for a debt of Rs.5,000/-. There was no necessity for anybody to take as many documents regarding the said loan transaction. The accused could not suggest to any of the witnesses whether there were anybody with him at the time of alleged borrowing of Rs.5,000/-. The learned Sessions Judge observed that the complainant failed to 122 Crl.A.No.171/2019 produce the original demand promissory note, there is a doubt regarding the genuineness of the debt allegedly taken by the accused from P.W.1.
40. The mere loss of the demand promissory note or its non-
production by itself would not be sufficient to hold that there was no legally enforceable debt. There are no other probable circumstances placed by the accused in the process of discharge of his burden. The failure of the accused in giving reply to the legal notice issued by P.W.1 is one of the strong circumstance to draw an inference that the accused borrowed the amount from P.W. 1 and the cheque was issued towards part payment of the legally enforceable debt.
....."
(i) In the present case on hand, as noted above, the accused has failed to establish his ground on non service of demand notice. Hence, the principles laid down in the above decision in that regard are in favour of the complainant.
(ii) In the present case on hand also, it is the case of the accused that for the security of the alleged loan of Rs.50,000/-, he gave the blank signed cheque to the 123 Crl.A.No.171/2019 complainant and he has not let in any supportive evidence to substantiate his above case.
(iii) But, as observed above, he is successful in establishing that the complainant has failed to show that he paid the alleged quantum of loan amount out of the sale consideration at Ex.P-7 i.e., Rs.7,20,000/- and the complainant has failed to let in the evidence in respect of his quantum of income out of his share in the landed properties on record. Hence, the observations in the above decision apart from the facts of service of notice and no reply are not helpful to the complainant.
f) 2007 CRI.L.J. (NOC) 520 (KER.) (between Sajeev P.R. v. Thriveni Credit Co-operative, Thoudpuza & Anr in Cri.Rev.Petn.No.1249 of 2005 decided on 28.07.2006 before his Lordship R.Basanth, J.), wherein he has drawn the attention of this Court to the observations of the Hon'ble High Court of Andhra Pradesh that;
".....
(B) Negotiable Instruments Act (26 of 1881), S.138 - Dishonor of cheque - Conviction - Validity -
Signature in cheque is admitted -
Notice of demand though duly 124 Crl.A.No.171/2019 received and acknowledged, did not evoke any reply - though discharge plea was urged, no evidence was adduced to prove that plea - Concurrent finding that complainant has succeeded in proving all ingredients of the offence punishable under S. 138
- Conviction of accused proper.
(i) In the present case on hand, as noted above, though the accused has admitted is signature on the questioned cheque at Ex.P-1, it is his specific defence that he had issued the cheque for the security purpose of the alleged loan of Rs.50,000/- he had borrowed and has successful in establishing his defence that the complainant had no financial capacity to lend the alleged quantum of loan amount. Hence, the dictum laid down in the above decision is not helpful to the complainant.
126. At this stage itself, let this Court to note that it is in the cross examination of the complainant that he is not an income tax assessee and it is evident on record that as per the version of the complainant, he paid the alleged loan amount by cash. Thus, it is necessary to have a look at the principles rendered in the following decisions. 125 Crl.A.No.171/2019
a) The judgment passed by the Hon'ble High Court of Karnataka, Bengaluru in CRIMINAL APPEAL No.173/2016 between Sri.V. Puttaraju Versus Sri.Prasannakumar C., on 23.02.2018 by his Lordship Ravi Malimath J., wherein he has drawn my attention to the observations of the Hon'ble High Court of Karnataka that;
"THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF THE .....
.....
8. Here is a case where a man has an unaccounted cash of Rs.10 lakhs. He has violated the law and is in possession of this unaccounted money. When he has violated the law, he cannot seek protection of law to protect the very same unaccounted cash that he has by violating the law. Therefore, the trial Court was justified in rejecting his compliant and acquitting the accused. .....
....."
b) (2009) 4 Mh.L.J. 155 (between Sanjay Mishra Vs. Kanishka Kappor @ Nikki and another in Criminal Application No.4694 of 2008 decided on 24.02.2009 before his Lordship A.S.Oka, J.) wherein he has drawn my attention to the observations of the Hon'ble High Court of Bombay that;
126 Crl.A.No.171/2019
"(a) Negotiable instruments Act, SS. 138 Explanation and 139
- .....
.....
7. It is true that merely because amount advanced is not shown in Income Tax Return, in every case, one cannot jump to the conclusion that the presumption under Section 139 of the said Act stands rebutted. There may be cases where a small amount less than a sum of Rs.20,000/- is advanced in cash by way of loan which may be repayable within few days or within few months. A complaint may not show the said amount in the Income Tax Return as it is repayable within few days or few months in the same financial year. In such a case the failure to show the amount in the Income Tax Return may not by itself amount to rebuttal of presumption under section 139 of the said Act. If in a given case the amount advanced by the complainant to the accused is a large amount and is not repayable within few months, the failure to disclose the amount in Income-Tax return or Books of Accounts of the complainant may be sufficient to rebut the presumption Under Section 139 of the said Act.
8. In the present case, the amount was allegedly advanced in September, 2004. The amount is a large amount of Rs.15 lakhs. This is a case where not only that there is a failure to disclose the amount of loan in the Income Tax Return of the 127 Crl.A.No.171/2019 applicant till the year 2006 but there is a categorical admission on the part of the applicant that the amount was an "unaccounted"
amount.
.....
15. The Apex Court has held that the laws relating to the said Act are required to be interpreted in the light of the object intended to be achieved by it despite there being deviation from general law............ The provision of section 138 cannot be resorted to for recovery of an unaccounted amount. A cheque issued in discharge of alleged liability of repaying "unaccounted" cash amount cannot be said to be a cheque issued in discharge of a legally enforceable debt or liability within the meaning of explanation of section 138 of the said Act. Such an effort to misuse the provision of Section 138 of the said Act has to be discouraged.
....."
c) (2008) 4 Supreme Court Cases 54 (between Krishna Janardhan Bhat Versus Dattatraya G. Hegde in Criminal Appeal No.58 of 2006 decided on 11.01.2008 before their Lordships S.B.Sinha and H.S.Bedi, JJ.) wherein he has drawn my attention to the observations of the Hon'ble Apex Court that;
"B. Negotiable Instruments Act, 1881 - Ss.138 & 139- Dishonour of 128 Crl.A.No.171/2019 cheque - Presumption against accused - Rebuttal of Mode of -
Necessary considerations by Court............ No indication as to any business transaction between them - Complainant failed to produce any books of accounts or any other proof to show that he got so much money from Bank -
Courts below failed to notice that ordinarily in terms of S.269 - SS, Income Tax Act, any advance taken by way of loan of more than Rs.20,000/- had to be made by an account payee cheque only - considering the peculiar fact a circumstances of the case, held, Courts below approached the matter on wrong application of the legal principles to fact situation of the case. - Hence, conviction and sentence set aside - Criminal trial
- Evidence Act, 1972, SS. 101, 103, 4 and 3.
....."
(i) So, in view of the principles rendered in the above noted first two decisions i.e.,V.Puttaraju's case and Sanjay Mishra's case, prima facie the alleged loan amount if any given by the complainant would be the unaccounted money and when the complainant has violated the law, he cannot seek protection of law to protect the very same unaccounted cash that he has by violating the law and the provision of Section 138 cannot be resorted to for recovery 129 Crl.A.No.171/2019 of an unaccounted amount and the alleged payment of loan amount if any, it would be against to the provisions of Income Tax Act in view of the dictum laid in the third decision i.e., Krishna Janardhana Bhat's case supra.
127. So, in the background of the proposition of law observed above, if the other reasons assigned by the accused in support of his grounds that he has let in cogent and corroborative piece of evidence and rebutted the presumption and the trial Court has passed the impugned judgment of conviction without considering his evidence record noted above at para No.117 are taken into consideration i.e., stated in para No.117(a) that he has rebutted the presumption with regard to Ex.P-1 and 12 by adducing cogent evidence by producing Ex.D-1 to 6 and nothing is contradicted in his cross examination.
128. As noted above, Ex.P-12 is the partition deed of the family of the accused, Ex.D-2 to 6 are the sale deeds and EC which are not connected to this case and there is no dispute with regard to Ex.D-1/the counterfoil in respect of deposit of Rs.50,000/- by the accused to the account of the complainant. However, in view of the above 130 Crl.A.No.171/2019 observations and the settled principles observed above, the accused is successful in rebutting the presumption in respect of the cheque in question at Ex.P-1.
129. So far the other reason i.e., stated in para No.117(b) that though he has entered into witness box and lead his chief evidence by marking Ex.D-1 to 6 and subjected himself to cross examination, the trial Court has not considered the same and only on the basis of 313 statement, opined that mere denial does not sufficient to rebut the presumption, as noted above, the accused has rebutted the presumption in respect of Ex.P-1.
128. The next reasons i.e.,
a) stated at para No.117(c) that merely admitting the issuance and signature on the blank cheque, the trial Court cannot come to a conclusion that the cheque was issued to the complainant towards legally enforceable debt;
b) stated in para No.117(d) that proving of issuing and signing of cheque is only to prove one part. But, on the other part, the complainant has to prove that the said cheque has been issued towards legally enforceable debt; 131 Crl.A.No.171/2019
c) stated in para No.117(e) that the complainant has utterly failed to prove the existence of legally enforceable debt against him and question of drawing presumption under Section 139 of the Act does not arise; and
d) The trial Court erred in not looking into the fact as to, whether there exists legally recoverable debt or not and blindly passed the impugned judgment.
131. In view of the dictum laid down in the decisions relied on by both the sides observed above on the presumptions under Sections 118 and 139, the accused is successful to substantiate the above reasons.
132. Hence, though the accused has failed to establish his grounds of;
a) non service of legal notice; and
b) the alleged collusion between the complainant and his brother and brother in law;
he is successful in establishing his grounds that;
a) the complainant had no financial capacity to lend the alleged quantum of the loan amount;
b) the complainant has failed to prove his case; 132 Crl.A.No.171/2019
c) he has rebutted the presumptions in favour of the complainant by letting in cogent and corroborative piece of evidence; and
d) the trial Court has erred in not considering the evidence he has let in; his written arguments and the decisions he has relied on. Hence, point No.1 is answered in partly affirmative. In view of answering point No.1 in partly affirmative, the impugned judgment of conviction needs interference by this Court. Accordingly, point No.2 answered in affirmative.
133. POINT No.3:- From the above discussions, though point No.1 is answered in partly affirmative, in view of answering point No.2 in affirmative, this Court proceeds to pass following order.
ORDER The Criminal Appeal filed by the appellant under Section 374(3) Cr.P.C. is hereby allowed.
Consequently, the judgment of conviction and sentence passed by the learned XX ACMM, Bengaluru in CC.No.21408/2013 dated 21.12.2018 is hereby set aside.
In the result the accused/the ap-
pellant is hereby acquitted for the 133 Crl.A.No.171/2019 offence punishable under Section 138 of the Negotiable Instruments Act of 1881.
The bail bond and the surety bond executed by and on behalf of the accused/appellant shall be can- celled after the expiry of the appeal period.
Office is directed to send back the TCR forthwith along with a copy of this judgment to the trial Court.
(Dictated to the Judgment Writer directly on computer, corrected by me and then pronounced in the open Court on this the 10th day of August, 2021).
(K. KATHYAYANI ), LXVI Addl.CC & SJ, Bengaluru.
134 Crl.A.No.171/2019Both the parties and their respective counsels are absent.
The Order is pronounced in the open Court (vide separate Order).
ORDER The Criminal Appeal filed by the appellant under Section 374(3) Cr.P.C. is hereby allowed.
Consequently, the judgment of conviction and sentence passed by the learned XX ACMM, Bengaluru in CC.No.21408/2013 dated 21.12.2018 is hereby set aside.
In the result the accused/the appellant is hereby acquitted for the offence punishable under Section 138 of the Negotiable Instruments Act of 1881.
The bail bond and the surety bond executed by and on behalf of the accused/appellant shall be cancelled after the expiry of the appeal period.
Office is directed to send back the TCR forthwith along with a copy of this judgment to the trial Court.
LXVI Addl.CC & SJ, Bangalore.