Karnataka High Court
Sri. D.V. Ramamurthy vs Sri. M. Venugopal S/O Late Manikya ... on 24 March, 2010
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 24TH DAY OF MARCH 2010
BEFORE
THE HONBLE MR. JUSTICE K.N.KESHAvANA§zAYAm A'
CRIMINAL APPEAL NO. 74/2010*-_: O'
MISC.CRL.354.,I'201C« «_
BETWEEN: »A i
SR1. D.V. RAMAMURTHY
S /O LATE DAVANAM VENKATAIAH _
AGED ABOUT 74 YEARS, _ V
NO.12, RISALDARPET; 11 "MAIN, . ~
PLAT FARM ROAD CROSS, - "
BANGALORE--560020. _ ., ..
4 .j ' .. A{PPELLANT«.1Or~1,_ cRL,x;.NO.74/ 10 as:
* g':2L1CANT"iN MIS9;cRL.354/2010
[BY SR1;K;OR.z§SHOK 'i«::'LI':é.r1,g!'x1Iz, Aj)'v;-1":
AND: 1 _ _ V . .
SR1. M. vxE:'~Jf§jOOPAL*'.. "
S / O LATE MANIKYA MQXNTHRI
AGED ABOUT 57"YEA.17~1S,
. 'PAR'.TNER--RAMAKRISHNA NURSING HOME,
' 1.,5"-=41.' 'Af cRQSS.._
GAYA'1'§:{RI 'OE;vI.~~PARK EXTENSION,
OPP-,FT'I'D' QFEECE, VYALIKAVAL
EA1§_GAJ4O_R:s:-560 003 3:
R/A p;O;.3, RACE COURSE ROADA
' MADE-IAVANAGAR,
A V' ' ' V, BAN._C:ALORE--56000 1.
...RESPONDENT IN BOTH
CRL.A.NO.74/10 & MISC.CRL.354/2010 % '"[I3Y M/S. S. BALAN & ASSOCIATES, ADVSJ fly/S the"'respondent/accused of the Charge Leir:e11ed..4:_agjaéTT1st him for the offence punishable under
-- ' short Act}.
Vt .._SeCtiOn 200 Of Cr.P.C. read with Section 142 Of the Act ') .5.
THIS CRIMINAL APPEAL AND MISC.CRL.354/2010 ARE FILED U/S 378{4) CR.P.C PRAYING TO SET ASIDE THE ORDER OF ACQUITTAL PASSED BY THE xX--ADDL.C_HIER METROPOLITAN MAGISTRATE, BANGALORE IN Cv.'C';.NO. 18711 / 2007 BY ITS ORDER DATED 27.11.2009-THEREBY ACQUITTING THE RESPONDENT/ACCUSED OFFENCE P/U/S 138 OF N.I.ACT AND ROR.j_ SPECIAL LEAVE TO PRESENT TTIIS_, AT§PEAI,;' » "
RESPECTIVELY. ' A THIS CRIMINAL APPEALt°'«V_ CAQMINCI ON. "
ADMISSION ALONG WITH A:~ID___ MISC,_CRL.3#34A,r120_V10 THIS I DAY. THE COURT DELIVERED I«*OLI,OwINv_G:"~-IV ' Q.;J.J,,.1;.>,.(2;..1'v'i' t This appeal filedfl (4) of Cr.P.C.
by v--_t1iTe0ted5against the judgment and t31_'d€'-i' passed by the 20"' Additional «T.C.M,'M_.,V A1E}aTI"galOre in C.C.No.187I1/2007, Seetien the Negotiable Instruments Act, 1881 [for
2. The appellant filed private Complaint under :'peifiod the law, as such he has committed A under Section 138 of the N3. Act.
theéoffenfce alleged in the complaint, after recording the 'mom statement of the complainant, issued summons alleging offence punishable under Section 138 cf___>Act against the respondent/accused inter--a1ia that the accused borrowed a loan of him on 12.3.2006 for the purposfe':'o*f._vI'1ti's land developing and rnanu_fact1;re'of' discharge of the principal ' seven post dated cheques in all for Rs.10 lakhsi When presented for encashrnent were returned unpaid 'insufficient funds':
in spite _on.VVthe respondent/ accused, calling upon. amount covered under the chegues, he tofipay the same Within the statutory learned Magistrate who took cognizance of l3 upon which he relies. In this decision, it has been.-also held that it is not necessary for the acctise"dj--.p:in prosecution under Section 138 of the H himself for proving his defence. 'He"is use of the circumstance >brouél1_t:1"'Aout contend that the have V been rebutted and the*b_urden_ drawee of the cheque to prove the
14. 'i'l1is..__ Shivamurthy Vs. Amruthr£§.r:epor;Ee:gl.w 20{)8._I'liAR 4629 following the judgment" Bhafs case has held that iipresumption under Section 138 "'~.__of it duty of the Court to see as to Whlether:'t3Ei'e:Tcomplainant has proved the existence of enforceable debt or liability. A perusal of the judgrnen: under appeal indicates that the learned "'l:V'_'Ma§gistrate referring to all these decisions cited at the bar and referring to various circumstances brought out 14 on record in the cross--examination of PW.1, has found that the accused has rebutted the statutory presumptions under Sections 118 and 139 of and the complainant has faiied to prove of .
the debt and the cheques in question "' for discharge of any debt.
15. According to the co'1npiainant.,_ lent a substantial amount ofi__.Rs. 1('_)Sd accused. It is not his case that thewwas.' by means of cheque. .01: to the complainant, the anriount of cash. Section 269 (ss] of the Inco1nefI'ax 'A_ct'..VrSnandates that any transaction in Rs.2uO,'0@Qi/'-- should be by an account payee case on hand, the complainant has girovisions of Section 269{ss) of the Income Actfi it 16. The reading of cross--examination of PW.1 "clearly indicates that he had no money of his own to 15 lend Rs.1O lakhs as even according to him he in order to lend Rs.10 iakhs to the accused, borrowed Rs.6 lakhs from his son, Rs.2 lakhs from his wife and Rs3.2. from one Ashok Kumar. However no ~ evidence is produced to show that he nu amount from his wife, son and one7.ZXshok'-Kurnar;v highly difficult to beiieve a ihpersonl»'~in":..:o'I'de19 to " V advance ioan of Rs.10 _1a_khst-'to--..'an'other, vv'ou1.d'3venture to borrow money fromddothedrs, 'it even without getting any document from .sue'n_Vgbo'r1~ower. It is an admitted fac'tdv:',tha?t.V'th.e"'c9mp1ainant is a business. No prudent'b_u'sinessrn.an:_Wouid lend substantial amount to the tune uof. _ iakhs without obtaining any "'docii1nent_uevidencing such transaction. There is no "'SatisfaCtory vdetridence on record that there was any agre-em--entv "for payment of interest. Once again. it is it highly Vvdifficult to believe that any prudent business would lend substantial amount of Rs.1O lakhs Wivithout there being any agreement for payment of 18 document relating to Shreyas Finance Company. Before this Court, the learned counsel for the appellantjsohughtp to contend that when the complainant ceased M partner of the firm he could not produce the; had no control or power over the ' then firm.
1'7. As noticed had admitted that fwasithe' firm, it is for him to itiolbellpartner of the said firm by the complainant has not Therfore, it has to be presumed thVat__hl'c_ coritinued to be the partner of the 'in--.----«that capacity he ought to have "documents as directed by the learned 'Since the complainant has failed to produce the documents, learned Magistrate has rightly drawn an ,,/.'_'AaC1Va¢;?se inference against the complainant for non- __'g3roduction of those documents. The production of "3 l9 those documents would have shown as to Whethernthe defence of the accused is true or not. No contended by the learned counsel for the C' respondent accused had not produced. to; show that he had borrowedyyloaniilforinll Company. Nevertheless, "his.l.specifc'.= C that he had borrowied A.Shrey§tSii.»~i¢a*inance Company in the year with the said loan he" cheques. If really the any amount from production of the documents' "Shreyas Finance Company would have 2indicated'the same in which event, the court lidwoyuld 2"i.l7;'Tol":vl¢l"lDeen a position to hold that the defence "is not acceptable. On the other hand, the fa.ilure<fo.n* part of the complainant to produce the documents relating to Shreyas Finance Company has lmade the Court to believe that the defence of the ,9'?
it 'accused is highly probable and acceptable. This is more a 20 so having regard to fact that the complainant himself had no money to lend Rs.10 lakhs and he produced any documentary evidence to 8' borrowed Rs. 10 lakhs from others.
18. No doubt from th_e"--evidence VorLV:lret:ordV noticed that the accused - notice issued by the comp1ain.atnt.'l--. the part of the accused notice cannot be a sole has admitted the case» As already observed earlie1:;._the' Sections 118 and 139 of the Act areilonly -reAb_utt.:a'b1e presumptions and accused is ..e:i:tif;1éd.,h_to relypn' any circumstance brought out on that the presumption drawn against him arelllrebuttedf In the case on hand, the circumstances brought"; out on record clearly establish that the presumption under Sections 118 and 139 of the Act ___have been rebutted and the complainant has failed to 21 prove the case of lending substantial amount. Therefore, the fact that the accused did not reply the notice consequence on his defence.
19. in this View of the ri*},atter,. committed by the learned M_agistrat.e in the accused. The judgment of tyh.ev:p'lea':a_v1ed"Magistrate does not suffer from any interference by this Court is L_lot_.'ca}:ie'd" illegality or irregularity learhed Magistrate in acquitting appellant --
complainant has hot "ground for grant of special leave to appeal, A both the application and the . V appeal" ' V sax;
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