Bangalore District Court
Hemanth Kumar Bharathi vs Manjunath J on 21 December, 2017
IN THE COURT OF THE LXIV ADDL.CITY CIVIL & SESSIONS JUDGE
(CCH-65) AT BENGALURU.
Dated this 21st day of December 2017
-: P R E S E N T :-
Sri. MADHUSUDHAN B.,
B.Com, LL.B (Spl.),
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
CCH-65, BENGALURU CITY.
CRIMINAL APPEAL No.1451/2015
BETWEEN:-
APPELLANT/ Hemanth Kumar Bharathi,
S/o. Kenchappa,
(ACCUSED - IN
Aged about 63 years,
LOWER COURT) :
R/at. No.8/991,
Green View Building,
TINI Main Road,
Gokul 1st Stage,
Bengaluru-560 054.
(By Sri. M/s.Jaypee Associates,
Advocates)
Vs.
RESPONDENT/ Manjunath J.,
S/o. Panchappa,
(COMPLAINANT - IN Aged about 52 years,
LOWER COURT) : R/at. Halau Village,
Huvina Hadagali Taluk-583 217.
(By Sri. Lokesh, Advocate)
2 Crl.A.No.1451/2015
JUDG MENT
On 19.9.2013 complainant filed this complaint U/s.200 of
Cr.P.C., in the court of J.M.F.C., Hoovinahadagali. Thereafter,
Learned Magistrate passed orders for return of complaint to the
complainant to re-present the same before competent court. On
14.10.2014 Learned Magistrate returned this complaint to the
complainant, in view of the order passed by Learned Magistrate
on 30.9.2014. After return of complaint to the complainant, on
27.10.2014, this complaint is presented before Learned XIII-
Addl.Metropolitan Magistrate, Bengaluru and same is registered
as C.C.No.28615/2014.
2. Appellant being aggrieved by the judgment of conviction
and order of sentence dated 9.11.2015 passed in
C.C.No.28615/2014 on the file of XIII-A.C.M.M., Bengaluru,
preferred this appeal U/s. 374(3) of Cr.P.C., in which he has
challenged the legality and correctness of the impugned
judgment. Thus, prayed for setting aside impugned judgment and
3 Crl.A.No.1451/2015
prayed for his acquittal for the offence punishable U/s.138 of
N.I.Act.
3. Parties to this appeal shall be referred to as per their
ranking before the trial court for the purpose of convenience and
for better appreciation of their contentions.
4. Brief facts of this case may be stated as under;
Complainant and accused are known to each other, since
they hails from same area. Accused wanted to contest assembly
election scheduled to be held in the month of May 2013. Thus, to
meet his financial crisis and meet his urgent domestic needs, he
was in need of finance. Therefore, he approached complainant
and requested him to advance hand loan of Rs.13,50,000/-.
Considering the request of accused, on 3.3.2013 complainant
advanced an amount of Rs.13,50,000/-. At that time only,
accused agreed to repay said sum within two months. Since,
accused has not kept his promise, complainant demanded to
repay the said sum. Thus, accused issued cheque bearing
No.777883 dated 7.5.2013 for a sum of Rs.13,50,000/- drawn on
4 Crl.A.No.1451/2015
Corporation Bank, Malleshwaram, 18th Cross, Bengaluru, in order
to discharge his liability. Said cheque was presented for
encashment on 2.7.2013 through Syndicate Bank, Hadagali
Branch. Said cheque was returned with endorsement as
"Payment stopped by the drawer". Thereafter on 5.8.2013
complainant issued statutory notice to the accused calling upon
him to pay cheque amount of Rs.13,50,000/-. Such notice is
served on 10.8.2013. On 20.8.2013 accused sent reply notice with
false allegations. Thus, it is contended that, even after service of
such notice, accused has not come forward to pay cheque
amount, thus, complainant constrained to file complaint U/s.200
of Cr.P.C., against accused for trial of offence punishable U/s.138
of N.I.Act.
5. Learned Magistrate took cognizance of the offence
and thereafter, recorded sworn statement of complainant and
passed orders for registration of one criminal case in
C.C.No.28615/2014 against accused, thus issued summons to
accused, who appeared before trial court and obtained bail. Plea
5 Crl.A.No.1451/2015
of accused was recorded, which he denied, hence, claimed to be
tried.
6. In order to prove the guilt of the accused,
complainant led his evidence as Pw.1 and on his behalf examined
another witness as Pw.2. In altogether complainant got exhibited
25 documents marked at Ex.P.1 to P.25. Thereafter, Learned
Magistrate examined accused U/s.313 of Cr.P.C., during which he
has recorded statement of accused. Thereafter accused also led
his defence evidence by examining himself as Dw.1 and got
exhibited as many as 24 documents marked at Ex.D.1 to Ex.D.24.
7. Learned Magistrate after hearing arguments and
upon appreciation of material on record, passed judgment
convicting accused for the offence punishable U/s.138 of N.I.Act.
Thus, imposed sentence of fine of Rs.14,50,000/-, in default to
serve simple imprisonment for six months. Out of fine amount, an
amount of Rs.14,40,000/- is ordered to be paid to the
complainant as compensation.
6 Crl.A.No.1451/2015
8. This Judgment of conviction and order of sentence is
challenged by the accused/appellant on the following;
Main Grounds of Appeal
Learned Magistrate without proper appreciation of
material on record, passed impugned judgment, which is neither
sustainable in law nor on facts. Learned Magistrate failed to
consider that cheque was delivered to one Mr. Mahendrappa
Jyothi for the purpose of celebrating or organizing victory function
in anticipation of victory of the accused in the said elections. But
this aspect has not been considered by trial court. Learned
Magistrate has not considered the contradictions in the evidence
of Pw.1 and Pw.2, thus, wrongly come to the conclusion that,
accused is guilty of the offence punishable U/s.138 of N.I.Act,
which is illegal. Learned Magistrate wrongly interpreted the
provisions of Sections 114 and 139 of N.I.Act with regard to the
presumptions available to the complainant, in spite of principle
laid down in the Hon'ble Apex Court as well as principle laid down
by Hon'ble High Court of Karnataka, Bengaluru in various
7 Crl.A.No.1451/2015
judgments. Appellant/accused has sufficiently established his
defence. But this aspect has not been considered by Learned
Magistrate which has resulted in miscarriage of justice.
Complainant though led evidence, but failed to substantiate that,
on 3.3.2013 he was possessed amount in cash to the extent of
Rs.13,50,000/-. Thus, ignoring all these aspects, Learned
Magistrate wrongly come to the conclusion that, complainant has
proved the ingredients of the offence punishable U/s.138 of
N.I.Act. Reasons recorded by Learned Magistrate are on the basis
of mere assumptions thus, wrongly come to the conclusion in
convicting the accused. Learned Magistrate failed to appreciate
the evidence and the documents produced by the
accused/appellant in which the burden is shifted on the
complainant to establish legally recoverable debt, which is main
element to be considered before passing impugned judgment of
conviction. Learned Magistrate has misread the entire evidence,
thus, come the wrong conclusion that, cheque was drawn for
valid consideration without there being sufficient evidence.
8 Crl.A.No.1451/2015
Appellant/accused sufficiently rebutted the presumption available
U/s.139 of N.I.Act. Pw.2 made canvass on behalf of
accused/appellant, but contrary to this, Pw.2 in his cross-
examination stated that, he is not in politics and not worked for
appellant in the said elections, which clearly falsifies the entire
evidence of Pw.2. But this aspect has not been considered by
Learned Magistrate. Appellant/accused led documentary evidence,
which includes bank account statements, Pass Books and other
documents contents of which sufficient to rebut the case of
complainant/respondent that, appellant/accused was in need of
funds to meet his domestic needs. Learned Magistrate has not at
all properly considered the contents of legal notice marked at
Ex.P.4, which in fact is the foundation for initiation legal
proceedings, but the observation of Learned Magistrate is wrong,
which has resulted in miscarriage of justice. Accused/appellant
has produced documents to prove his financial status. On the
other hand, magistrate has considered the contents of Record of
Rights to hold that, complainant is capable of paying or advancing
9 Crl.A.No.1451/2015
an amount of Rs.13,50,000/- as hand loan to the
accused/appellant, which observation is also not correct, in view
of very contents of such documents like Record of Rights.
Complainant has not explained as to what prevented him from
presenting the cheque, if really there was consideration paid on
the due date of cheque and delay is unexplained and presented
the said cheque only after Mahendrappa Jyothi came to know
that, payment was stopped by the accused/appellant. Therefore,
with these among other grounds, appellant prayed for allowing
this appeal by setting aside the impugned judgment and sentence
and also prayed for his acquittal.
9. Notices of this appeal memo were ordered to be
issued to the respondent, who appeared through his counsel.
10. L.C.R., were called for, for reference in this appeal.
11. Heard arguments. Even parties have submitted their
written arguments with citations. Counsel appearing for
appellant/accused relied upon following decisions;
1. 2008 Crl.L.J. Page No.2405 (B)
10 Crl.A.No.1451/2015
2. 2008 Crl.L.J. (Noc) 409 (KER)
3. ILR 2009 Karnataka Page 1633
4. ILR 2007 KAR page No.2709
5. AIR 2010 SC 1898
6. Criminal L.P.No.478/2011 on the file of
Hon'ble Delhi High Court in a case of Rangappa
V/s. Mohan.
12. Counsel appearing for respondent/complainant has
relied upon following decisions;
1. AIR 2010 SC Page 1898
2. AIR 1998 SC Page 1057
3. ILR 2000 KAR 1570
4. 2002 SCC (Cri) 14
5. 2006(4) KCCR 2685
13. On the material placed before this court, following
are the points for my consideration:
1. Whether complainant proved that,
accused committed offence punishable
U/s.138 of N.I.Act?
11 Crl.A.No.1451/2015
2. Whether in the light of evidence and
material brought before the court,
Learned Magistrate is justified in
convicting accused/appellant for the
offence punishable U/s.138 of N.I.Act
and sentencing him for the said offence?
3. Whether impugned judgment and order
of sentence call for interference in this
appeal?
4. What Order?
14. My findings on the aforesaid points are held as under:-
Point No.1: In Negative
Point No.2: In Negative
Point No.3: In Affirmative
Point No.4: As per final order below,
for the following:-
REASONS
15. POINTS NO. 1 to 3:- In view of the grounds urged
in appeal memo, as well as raised during course of arguments
and in view of contentions raised in written arguments, I feel it
necessary to re-appreciate entire evidence on record.
12 Crl.A.No.1451/2015
16. Admittedly, case instituted by complainant is U/s.138
of N.I.Act. In the instant case, though appellant/accused denied
the entire case of prosecution, but he has admitted that,
Ex.P.1/cheque belongs to his account. Therefore, in view of
Section 139 of N.I.Act, presumption is in favour of complainant.
The presumption mandated by Section 139 of N.I.Act includes
presumption that there exists a legally enforceable debt or
liability. Ofcourse said presumption is in the nature of rebuttal
presumption. Thus, it is opened to accused to raise a probable
defence, where the existence of legally enforceable debt or
liability can be disproved. To disprove the presumption or to
prove his probable defence, accused need not establish and he
need not prove his defence beyond reasonable doubt. Accused
can prove his defence on the basis of preponderance of
probability. It is also well settled principle that, to rebut
presumption accused need not enter into witness box and he can
rebut the presumption even on the evidence led in by
complainant. With these accepted principles, now I will deal with
13 Crl.A.No.1451/2015
the defence of accused, which he has taken in this case and also
case as put forth by the complainant.
17. Therefore, I have to assess whether accused has
rebutted presumption available U/s.139 of N.I.Act. It is not in
dispute that, Ex.P.1/cheque dated 7.5.2013 belongs to accused
account. Even signature appearing on Ex.P.1 is that of accused.
On perusal of Ex.P.2 and Ex.P.3, said cheque was returned with
endorsement as payment stopped by the drawer. Thereafter,
legal notice as per Ex.P.4 is issued and this fact is also admitted.
Even fact of issuing reply notice is also admitted. In this case,
cheque is not dishonoured due to insufficient of funds as per
contents of Ex.P.2 and Ex.P.3. On the other hand, same is
returned as payment stopped by the drawer. It is well established
principle that, penal provision of Section 138 of N.I.Act will
attract even in cases where cheque is returned unpaid or
dishonoured due to stop payment instructions sent by the
accused to his bank. Therefore, necessarily presumption U/s.139
of N.I.Act is to be extended to the complainant. Thus, it is for the
14 Crl.A.No.1451/2015
accused to rebut the presumption then only onus of burden
would shift on the complainant to prove that, he advanced an
amount of Rs.13,50,000/- and Ex.P.1/cheque was issued by
accused to discharge his debt or liability. To disprove the
presumption accused is mainly relying upon his testimony with
documents produced by him. Entire defence of the accused is
based on Ex.D.24. It is not in dispute that, accused contested in
M.L.A. Election, which held during the month of May 2013, as a
candidate for B.S.R. Congress Party for Hoovinahadagali
constituency. It is also admitted fact that, in the election, he was
defeated. Prior to issuance of statutory notice, on 17.6.2013
accused issued instructions for stop payment of the said cheque
to the Branch Manager, Corporation Bank, Malleshwaram Branch,
Bengaluru, copy of which is marked at Ex.D.24, this is first
documentary evidence in this case except Ex.P.1 dated 7.5.2013.
The reasons for stop payment is indicated in Ex.D.24. On plain
reading of Ex.D.24, it is very much clear that, accused indicated
in Ex.D.24 that, he had issued cheque for arrangement of
15 Crl.A.No.1451/2015
facilitation and victory function and same was issued in the name
of complainant -Manjunath Jyothi, as insisted by Mahendra
Jyothi (Pw.2). If contents of Ex.D.24 is considered, cheque in
question was issued not for repayment of existing debt or
liability. In Ex.D.24, it is also recited that, after announcement of
election results, some fiction was arisen with this person.
Therefore, said Mahendra Jyothi not returned cheque even after
request of accused. Thus, plain reading of contents of Ex.D.24,
makes it abundant clear that, accused issued cheque for
Rs.13,50,000/- towards to meet out the expenses for facilitation
and victory function and such cheque was issued in the name of
complainant at the instance of Mahendra Jyothi, who was looking
after election campaigning on behalf of accused. Therefore,
evidence of Mahendra Jyothi is very much relevant and important
to appreciate the defence, which accused taken in this case.
Thus, at this juncture, I feel it necessary to asses the evidence of
Dw.1 coupled with oral evidence of Pw.2 and documents on which
accused relying.
16 Crl.A.No.1451/2015
18. Now, I have to analyze the evidence and to find out
whether accused has established a probable defence, so as to
disprove the presumption available U/s.139 of N.I.Act. In this
connection, I have gone through the documentary evidence along
with oral evidence of Dw.1/accused. Before issuance of statutory
notice, accused sent intimation, copy of which is marked at
Ex.D.24, to the drawee bank for stop payment. Ex.D.24 dated
17.6.2013 in which accused has disclosed the reasons for stop
payment. In Ex.D.24, it is categorically referred the name of
Mahendra Jyothi to whom cheque was issued in the name of
complainant. Defence, which accused has taken in this case well
before sending reply notice as well as well before appearing
before trial court. In Ex.P.5, which is reply to the statutory notice
also, accused has disclosed in detail under which circumstance,
cheque was issued in the name of complainant. If I compare the
contents of legal notice dated 5.8.2013, which is sent by
complainant, it is very much clear that, there is no mentioning
fact of contesting of this accused for ensuring M.L.A., Election.
17 Crl.A.No.1451/2015
What all contended in Ex.P.4 is that, accused obtained hand loan
of Rs.13,50,000/- to meet his domestic expenses. So to say, no
where in Ex.P.4, it is contended that, accused availed loan to
meet out election expenses. Thus it is first time in the complaint,
complainant contended that, accused availed loan to meet out
the election expenses. This material fact has not been indicted in
the legal notice. Thus, complainant in his statutory notice has not
shown this reason for availment of hand loan, which in my
opinion is nothing but improvement after he received reply
notice from the accused. If really complainant advanced loan of
Rs.13,50,000/- to the accused to meet out his election expenses,
then in the statutory notice, reasons for availment of hand loan
by accused would have been clearly disclosed as accused in
order to meet out his election expenses has availed hand loan.
Even on going through the contents of Ex.D.11, which is
Notification issued by Chief Election Commissioner of State
Election Commission, it is clear that Notification for conducting
M.L.A., Election are issued on 25.3.2013, which means only after
18 Crl.A.No.1451/2015
3.3.2013. In Ex.D.11, Calendar of Events of election is published
and date of counting is 8.5.2013, thus, cheque under dispute is
dated 7.5.2013. If this circumstance is considered, contention of
accused that, he issued cheque in the name of complainant at the
instance of Pw.2 to meet out expenses of victory functions
appears to be more probable.
19. Even a step ahead, on perusal of Ex.D.13, which is 'B'
Form issued by President of B.S.R. Congress Party and it is dated
10.4.2013. Ex.D.14 is Identity Card with Photo issued by Election
Officer. Therefore, if at all accused had intention of contesting
election, his intention has been materialized only after obtaining
'B' form dated 10.4.2013 marked at Ex.D.13. Then only he would
have prepare finance to meet out his election expenses. In
addition to this, there is no records to indicate that, accused has
spent more amount than the limit what is fixed for campaigning,
since no proceedings are initiated by Election Commission for
having accused spent more amount than the limit fixed for
M.L.A. election expenses. If these circumstances are considered,
19 Crl.A.No.1451/2015
it is highly improbable to accept the say of complainant that on
3.3.2013 accused received an amount of Rs.13,50,000/- as hand
loan with promise to repay within short period of two months. If I
considered the evidence of Dw.1, he has clearly stated that, he
has not at all availed any loan much less hand loan of
Rs.13,50,000/- as contended by complainant. Even if it is held
that, land of accused and land of complainant are adjacent or
accused hails from the village, which is near to the village of
complainant, then also a serious doubt has arisen about the
contention of complainant that, he has advanced an amount of
Rs.13,50,000/- to the accused. Because as per the say of
complainant, Pw.2 accompanied at the time of advancement of
loan of Rs.13,50,000/-. Involvement of name of Pw.2 in respect of
cheque in question came to know to the complainant only after
receipt of reply notice. Therefore, complainant thought it better
to include name of Pw.2 in witness list, which is enclosed with
the complaint. Hence, I have to analyze evidence in which
circumstance Pw.2 is connected to this case. It is specific
20 Crl.A.No.1451/2015
contention of accused that, Pw.2 took major role in election
campaign, though he is not Office Bearer or the President of BSR
Congress Party. In the evidence what all Dw.1 stated, reads as
under;
" D ¸ÀAzÀ¨ÀsðzÀ°è £Á£ÀÄ C¨Àsåyð JAzÀÄ
WÉÆõÀuÉ DzÀ £ÀAvÀgÀ £À£ÀUÉ ¥Áæ¸Á 2
ªÀĺÉÃAzÀæ eÉÆåÃw JA§ÄªÀªÀgÀ£ÀÄß J¸ï
¸ÀĪÀÄAvÀ¥Àà JA§ÄªÀªÀgÀÄ £À£ÀUÉ ¥ÀjZÀAiÀÄ
ªÀiÁr¹gÀÄvÁÛgÉ. D ¸ÀªÀÄAiÀÄzÀ°è ªÀĺÉÃAzÀæ
eÉÆåÃw JA§ÄªÀªÀgÀÄ ©.eÉ.¦. ¥ÀPÀëPÉÌ ¸ÉÃ¥ÀðqÉ
DVzÀÝgÀÄ £Á£ÀÄ ¸ÀºÀ ©.J¸ï.Dgï. ¥ÀPÀëzÀ
C¨ÀsåyðAiÀiÁV ZÀÄ£ÁªÀuÉUÉ ¸Àà¢ð¹zÉÝ. ¸ÀzÀj
ªÀĺÉÃAzÀæ eÉÆåÃw ¸ÀܽÃAiÀÄ ©.eÉ.¦. WÀlPÀzÀ
ªÀiÁf CzÀsåPÀëgÁzÀ »£É߯ÉAiÀÄ°è CªÀjUÉ ¸ÀÄvÀÛ
ªÀÄÄvÀÛ® ªÀåQÛUÀ¼À ¥ÀjZÀAiÀÄ«gÀÄvÀÛzÉ JAzÀÄ £À£ÀUÉ
¥ÀjZÀ¬Ä¸À¯ÁVgÀÄvÀÛzÉ. £Á£ÀÄ gÁdQÃAiÀÄPÉÌ ªÀÄvÀÄÛ
PÉëÃvÀæPÀÆÌ ºÉƸÀ§£ÁzÀ PÁgÀt CªÀgÀ £ÉÃvÀÈvÀézÀ°è
£Á£ÀÄ ZÀÄ£ÁªÀuÉUÉ ¸Àà¢ðü ¹zÉÝ. CªÀgÀÄ £À£ÉÆßA¢UÉ
DwäÃAiÀÄvɬÄAzÀ EzÀÝgÀÄ ªÀÄvÀÄÛ ¥Àæw
21 Crl.A.No.1451/2015
ºÀ½îAiÀÄ°èAiÀÄÆ £À£ÀߣÀÄß PÀgÉzÀÄPÉÆAqÀÄ
¥ÀjZÀ¬Ä¸ÀÄwÛzÀÝgÀÄ."
But on perusal of the cross-examination of Dw.1,
absolutely, there is no cross-examination by complainant side on
this aspect. Therefore, evidence of Dw.1 as indicated above
remained unchallenged and stands unrebutted, since no
suggestion is made to Dw.1 denying this portion of evidence. At
this juncture itself, I feel it proper to refer the evidence of Pw.2.
Though Pw.2 in his examination-in-chief states that, he known
complainant and accused since childhood. But on going through
his cross-examination, it appears to me that, he tried to hide the
real facts. Because in his examination-in-chief, he never stated
that, he has not accompanied accused in election campaign. If
really, he has not accompanied accused in election campaign,
this fact would have been stated by Pw.2 in his examination-in-
chief itself. It is only during course of cross-examination, this
material aspect has been suggested to Pw.2 and at that time, he
has denied that suggestion. But in my opinion, in his examination-
22 Crl.A.No.1451/2015
in-chief is itself, he ought to have stated that, he never
canvassed on befalf of accused in the said election. Though
Pw.2 has denied the fact of his participation in election
campaigning and canvassing in support of accused, but on
perusal of Ex.D.15, which is Bharani Kannada fortnight News
Paper, he himself has published one article and this Kannada
fortnight news paper dated 7.5.2013, which means Pw.2 has
published one article in favour of accused, only after acceptance
of nomination of accused as candidate for B.S.R.Congress Party.
In Ex.P.15, not only name of Pw.2 is indicated, but also his photo
and another photo in which Pw.2 accompanied accused in
election campaign. In the evidence, Dw.1 stated as under;
" ¸ÀzÀj ZÀÄ£ÁuÉUÉ ¸ÀA§A¢¹zÀAvÉ ¥ÀwæPÁ
¥ÀæPÀluÉ. £ÀA.© £À£Àß ¨Á§ÄÛ C¨ÀsåyðAiÀÄ UÀÄgÀÄw£À
aÃn. £À£Àß §UÉÎ ªÀĺÉÃAzÀæ eÉÆåÃw CªÀgÀÄ
ZÀÄ£ÁªÀtÁ ¥ÀæZÁgÀ ªÀiÁrzÀÝgÀÄ JAzÀÄ vÉÆÃj¸À®Ä
¥ÀwæPÁ ¥ÀæPÀluÉ."
23 Crl.A.No.1451/2015
If this portion of evidence is read with contents of Ex.D.15,
say of Pw.2 that, he has not worked in the election on behalf of
accused and he has not took part in the election campaign on
behalf of accused appears to be false. Even a step ahead, this
portion of evidence as indicated above has not been denied by
putting a suggestion to Dw.1 during in his cross-examination.
20. Further, during course of cross-examination of Dw.1,
truthfulness of contents of Ex.D.15 has not been denied. If
contents of Ex.D.15, is considered, it is Pw.2, who wrote this
article in which he has appealed to the entire voters of
Hoovinahadagali M.L.A., Constituency to elect accused in the said
election. When contents of Ex.D.15 is not denied by putting a
suggestion to that effect, then I have no compelling reasons to
suspect truthfulness of article written by Pw.2, which is
published in the said news paper. Therefore, say of Pw.2 that,
he has not taken part in election campaign of accused No.2
appears to be false.
24 Crl.A.No.1451/2015
21. If I compared the contents of para No.4 of the
complaint with evidence of Pw.1, for delaying in presenting the
cheque for encashment, then a serious doubt has arisen in my
mind about truthfulness of contention of complaint that, accused
availed hand loan of Rs.13,50,000/-. In para No.4 of the
complaint, it is clearly contended as under;
"It is submitted that, accused promised
complainant that, there is sufficient
funds in his account and cheque will be
honoured on the presentation."
But contrary to this very vital contents of complaint, Pw.1
in his evidence states as under;
"DgÉÆæ zÀÄqÀÄØ PÉÆlÄÖ ZÉPï ªÁ¥À¸ï
vÉUÉzÀÄPÉƼÀÄîvÉÛãÉAzÀÄ ºÉýzÀÝ PÁgÀt £Á£ÀÄ
¢B7.5.2013 gÀAzÀÄ ZÉPï£ÀÄß £ÀUÀ¢ÃPÀgÀtPÉÌ
¨ÁåAPïUÉ ºÁdgÀÄ ¥Àr¹®è."
Therefore, if I compare the contents of complaint and
evidence of Pw.1, there is glaring discrepancies between version
of Pw.1 and to contents of complaint, on the aspect of non-
25 Crl.A.No.1451/2015
presentation of cheque for encashment, either on 7.5.2013 or on
8.5.2013.
22. If really there is money transaction between him
and accused as contended by him and if really complainant
intended to get his money back, he would not have waited nearly
about two months, without presenting cheque for encashment.
This circumstance clearly indicates that, complainant just to give
some explanations for delay in presentation of cheque, he has
stated that, accused promised to pay amount and will take back
the cheque. Such explanation cannot be accepted, since such
explanation, neither disclosed in the complaint nor stated in his
examination-in-chief. On the contrary in para No.3 of his
examination-in-chief, he states that, accused promised that, there
is sufficient funds in his account and cheque will be honoured on
presentation, which cannot be believed, since during course of his
cross-examination, he has deposed contrary to the contents of
complaint and his own statement as stated in his examination-
in-chief. Thus, it appears that, complainant just to over come the
26 Crl.A.No.1451/2015
delay in presentation of cheque for encashment, such
explanation is stated, which cannot be accepted or believed.
23. Further, accused in order to substantiate that, there
was no necessity for him to avail domestic loan from accused and
also to establish that on 3.3.2013 he had sufficient funds to meet
out his domestic expenses or to meet out ensuring election
expenses, he has produced documents, which includes his
Income Tax Returns for the assessment for the year 2013-2014
and also statement of his affairs as on 31.3.2008, 31.3.2011,
31.3.2012 and 31.3.2013, which are marked as Ex.D.16. On going
through the Income Tax Returns for the assessment year 2012-
2013, it is clear that, accused in altogether paid income tax of
Rs.2,45,433/-. Ex.D.19 Passbook of Bank Account of accused.
Ex.D.20 is Passbook of Bank Account of wife of accused. On
perusal of entries in these passbooks, it is clear that, accused and
his wife are having their Bank accounts with Corporation Bank,
Canara Bank with sufficient balance in Corporation Bank, Canara
Bank and Janatha Co-operative Bank Limited. Ex.D.21 is
27 Crl.A.No.1451/2015
Statement of Fixed Deposit Account for the period from 1.3.2013
to 3.7.2015. This document is issued by the Janatha Co-operative
Bank Limited, Malleshwaram, Bengaluru. Contention of this
document indicates that, during the month of March 2013,
accused had fixed deposit account to the extent of
Rs.45,00,000/-. Ex.D.22 is particulars of Fixed Deposit account
with Canara Bank. On perusal of this document, it infers that,
during the month of February 2013 and 31st March 2013, accused
is having fixed deposit amount of rupees more than
Rs.15,00,000/- with Canara Bank of Malleshwaram Branch,
Bengaluru. Further, wife of accused by name Vijayalakshmamma
is also having fixed deposit accounts with the Janatha Co-
operative Bank Limited during the month of March 2013 and July
2015 to the extent of more than Rs.24,00,000/-. Apart from fixed
deposit of more than Rs.9,00,000/- in the name of wife of
accused in Mahila Co-operative Bank Limited Sheshadripuram,
Bengaluru. Even wife of accused is also having Savings Bank
Account and having deposit in Mahila Nidhi Deposits in Mahila
28 Crl.A.No.1451/2015
Co-operative Bank Limited, Sheshadripuram, Bengaluru with total
deposit of Rs.6,47,146/-. Ex.D.23 is details of deposits as on
31.3.2013 and on perusal of this document, it is clear that,
accused is having total deposits of more than Rs.19,43,927/- with
Corporation Bank in the name of his wife/Vijayalakshmamma. If I
consider the entries in the passbooks of bank accounts of accused
and his wife, as well as fixed deposit with different banks as
mentioned above, during month of March 2013 accused was
having sufficient balance in his name as well as in his wife's
account and even if any domestic needs to the accused, there
was no necessity for him to avail hand loan of Rs.13,50,000/- to
meet out domestic purpose. Therefore, having regard to the
defence which accused has taken in his reply notice and for
having produced the numerous document to substantiate that,
he had sufficient funds with him during the month of March
2013, there was no need for him to avail hand loan from
complainant, who is not resident of Bengaluru. Therefore,
evidence, which accused led in is considered, I have no hesitation
29 Crl.A.No.1451/2015
in coming to the conclusion that, probable defence, which
accused has taken in this case is sufficient to disprove the
presumption, thereby accused has rebutted statutory
presumption on the basis of preponderance of probability. Even
as per the observations made by Hon'ble Apex court, in decisions
reported in AIR 2010 Supreme Court page 1898, and also in view
of principle laid down in the decision reported in ILR 2009 KAR
1633, I am of the opinion that, accused disproved the existence
of legally enforceable debt or liability, by raising probable
defence. Further, it is well established principle that, non-
existence of debt or liability need not be proved beyond
reasonable doubt. Therefore, onus will now shifts to the
complainant, who will be obliged to prove that the cheque was
issued by accused in discharge of debt or liability. With this
background, now I have to analyze the evidence of complainant
to find out whether complainant has proved the money
transaction as contended by him.
30 Crl.A.No.1451/2015
24. Once again I have gone through the evidence of
Pw.1 and Pw.2. At the cost of repetition, while issuance of
statutory notice, no where it is contended by the complainant
that, accused availed loan to meet out his election expenses. It is
only after receiving reply notice, complainant in the complaint
contended that, " his domestic needs and election expenses",
which clearly, after thought, which again creates a serious doubt
about the alleged loan transaction between him and accused.
25. If I perused the oral evidence, again it creates
serious doubt in my mind about the alleged loan transaction as
contended in the complaint, because except agricultural
establishment, complainant never disclosed other source of his
income. Except his self serving statement that, on 3.3.2013 he
possessed amount in cash to the extent of Rs.13,50,000/-, no
other acceptable evidence on record. Though in the evidence he
states that, he is having savings bank account with State Bank of
India, apart from his agricultural loan account, but he has not
produced statement of his savings bank account or passbook
31 Crl.A.No.1451/2015
pertaining to his savings bank account. Ex.P.25 is pass book, but
it is not bank account pass book of complainant, on the other
hand, it is bank account pass book of accused. Non-production
of statement of his savings bank account and savings bank
account pass book again creates doubt in my mind about the
possessing such huge amount of Rs.13,50,000/-, in hand to
advance loan to accused. In his cross-examination, he states as
under;
" £À£ÀUÉ §¼ÁîjAiÀÄ ºÉƼÀ®Æ UÁæªÀÄzÀ J¸ï©JA
±ÁSÉAiÀÄ°è ªÀiÁvÀæ ¨ÁåAPï SÁvÉ EgÀÄvÉÛ. 2012-13 ªÀµÀðzÀ
ªÀiÁZïð 31 gÀAzÀÄ JµÀÄÖ ªÁ¶ðPÀ ªÀgÀªÀiÁ£À«vÉÛAzÀÄ
vÉÆÃj¸À®Ä £À£Àß §½ zÁR¯É E®è. £À£ÀUÉ ªÀåªÀ¸ÁAiÀÄzÀ
¨É¼ÉUÀ¼À°è RZÀÄð ªÀUÉÊgÉ PÀ¼ÉzÀÄ ªÁ¶ðPÀ gÀÆ.150,000-
QÌAvÀ ºÉZÀÄÑ ªÀgÀªÀiÁ£À E®è JAzÀÄ ºÉüÀĪÀÅzÀÄ ¸ÀjAiÀÄ®è.
ªÉÄÃ¯É ºÉýzÀ J¸ï©JA £À°è £À£ÀUÉ G½vÁAiÀÄzÀ SÁvÉ
ªÀÄvÀÄÛ ¸Á®zÀ SÁvÉ EzÉ."
If really he had document to show that, he possessed an
amount of Rs.13,50,000/- in his hand, he would have produced
such document to substantiate his statement. Therefore, non-
production of document like statement of his bank account, and
his savings bank account pass book creates doubt in my mind
32 Crl.A.No.1451/2015
about the loan transaction as contended by complainant. Under
these circumstances, necessarily an adverse inference should be
drawn that, if such documents are produced, contents of same
would have been gone against his contention that, he possessed
sufficient funds in his hand to advance loan amount of
Rs.13,50,000/- to the accused. In his further cross-examination
he has clearly stated that, he has no documentary evidence to
show that, during the year 2013-2014, he had sufficient income
so as to lend money to accused.
26. I have also gone through the evidence of Pw.2, who
appears to be star witnesses for complainant. Though in his
examination-in-chief, he states that, he was also present when
complainant advanced an amount of Rs.13,50,000/- to the
accused, and though he states the purpose for which accused
availed loan from complainant, but during course of his cross-
examination, he has gone to the extent of saying that, he does
not know the purpose for which accused availed loan from
33 Crl.A.No.1451/2015
complainant. I feel it necessary to reproduce cross-examination of
Pw.1, which reads thus;
" DgÉÆæ AiÀiÁªÀ GzÉÝñÀPÁÌV ¦gÁåzÀÄzÁgÀjAzÀ
¸Á® ¥ÀqÉ¢zÀÝgÀÄ JAzÀÄ UÉÆwÛ®è."
In para No.2 of his examination-in-chief he has deposed
that, accused requested the complainant for hand loan for the
purpose of meeting financial crisis. In his examination-in-chief, he
never stated that, accused availed loan to meet out his domestic
needs and also for election expenses as stated by Pw.1.
Therefore, there is contradictory statements by Pw.1 and Pw.2
in respect of purpose for which loan said to have been availed by
accused. Complainant tried to prove his financial capacity and
source of his income, to advance loan of Rs.13,50,000/- by
producing Record of Rights and some certificates issued by Village
Accountants. But on going through the contents of Record of
Rights, which are marked at Ex.P.8 to Ex.P.16, it is clear that, in
Record of Rights pertaining to the lands of complainant and his
family members situated at Holalu and Dombarahalli village, name
34 Crl.A.No.1451/2015
of crops which were grown in the said lands are not indicated.
Further, in the Record of Rights, it is clearly mentioned that, no
crops were grown. Thus, contents of certified copies of Record of
Rights to prove his income is not sufficient. Except agricultural
income, complainant has no other source of income. Further, on
going through the contents of Ex.P.18 to Ex.P.21, it indicates that,
Village Accountants have issued some certificates, which have no
evidentiary value in the eye of law and more over, Village
Accounts are not authorized to issue such certificates.
Considering the date, on which Ex.P.18 to Ex.P.21 are obtained
by complainant, it is very much clear that, such Certificates have
been obtained only after filing this complaint, just to make it
believe that he has sufficient agricultural income in the year
2012-2013. More over, in the evidence complainant never
deposed that, he has raised commercial crops in the said lands
and even he has not disclosed the sale proceeds of crops grown
in the said lands. In Ex.P.18 to Ex.P.21, it is indicated that, in
those lands pomegranate, maize crops and cotton crops were
35 Crl.A.No.1451/2015
grown, but growing of such crops have not been indicated in the
Record of Rights. In addition to this, genuineness of contents of
Ex.P.18 to Ex.P.21 are denied by accused, during course of cross-
examination of Pw.1, by putting a suggestion to that effect. Thus,
it is clear that, except oral evidence, there is no documentary
evidence, conclusively to hold that, he has sufficient funds in his
hand to advance cash of Rs.13,50,000/- to the accused. On the
other hand, accused has specifically denied for having availed
loan of Rs.13,50,000/-. Cumulative effect of entire material on
record would clearly suggests that, accused not only rebutted
statutory presumption on the basis of preponderance of
probability by raising probable defence, but also successfully
established the incapacity of the complainant to give hard cash to
the accused as loan of Rs.13,50,000/- on 3.3.2013. On the other
hand, complainant has failed to prove the money transaction.
Contention of complainant that, on 3.3.2013, he advanced loan of
Rs.13,50,000/- to the accused appears to be highly improbable.
Therefore, I have not placed any reliance either on the evidence
36 Crl.A.No.1451/2015
of Pw1 or on evidence of Pw.2. On the other hand, evidence led
in by defence, with documentary evidence, sufficiently disproved
the case as put forth by complainant.
27. Principles laid down in a decision reported in AIR
1998 Supreme Court page 1053, which is relied upon by
respondent is applicable to the case on hand. In this case also,
cheque was returned due to stop payment instructions given by
accused to the Bank. Thus, complainant is entitled to initiate
proceedings against accused for the offence punishable U/s.138
of N.I.Act. In this case, accused has proved by cogent evidence
that, there was no debt or liability. Thus, even if principles laid
down in decision reported in AIR 2010 SC page 1898 and another
decision reported in 2002 SCC (Crimes) page 14 are applied to
the case on hand, same are not helpful to the complainant, since
accused disprove the presumption by raising probable defence
and by proof of such defence on the basis of preponderance of
probability. Thus, even principles laid down in a decision
reported in ILR 2000 KAR 1570 and 2006(4) KCCR 2685, which
37 Crl.A.No.1451/2015
are relied upon by complainant are not applicable to the facts
and circumstances of this case.
28. In view of my above discussion and in the result, I
am of the firm opinion that, complainant failed to prove the main
ingredients of the offence punishable U/s.138 of N.I.Act. Hence,
accused found not guilty of offence punishable U/s.138 of N.I.Act.
29. Coming back to impugned judgment. I have gone
through the impugned judgment in which Learned Magistrate has
recorded her reasonings for disbelieving the defence theory. It
appears to me that, Learned Magistrate either not gone through
the entire material on record or has not properly understood the
principles laid down by Hon'ble Apex Court and Hon'ble High
Court of Karnataka, in the matter of disproving the presumption
available U/s.139 of N.I.Act. Principel laid down in dictums
reported in ILR 2009 KAR 1633 in case of Kumar Exports
V/s. Sharma Carpets as well as in the decision reported in
AIR 2010 SUPREME COURT page 1898 in a case of
38 Crl.A.No.1451/2015
Rangappa V/s. Mohan. Hon'ble Apex court has clearly
observed and laid down the principle, as to how much material
has to be brought on the record by the accused in order to
disprove the presumption available U/s.139 of N.I.Act. But
ignoring these principles, Learned Magistrate has recorded her
reasonings as if it is a case instituted by the accused. Because it is
observed by Learned Magistrate that, accused has not examined
Mahendra Jyothi as his witness. It is also observed by Learned
Magistrate said Mahendra Jyothi has been examined by the
complainant. In a criminal trial, accused is entitled to lead
defence evidence only after closure of evidence of prosecution.
In this case, when complainant has examined Mahendra Jyothi as
his witness, then there is no occasion for accused to lead
evidence of Mahendra Jyothi as his witness. Thus, I failed to
understand how such observation is made by Learned Magistrate
is justified. In addition to this, along with complaint, complainant
has furnished list of witnesses in which complainant has proposed
said Mahendra Jyothi as his witness in which case how can
39 Crl.A.No.1451/2015
accused summoned said Mahendra Jyothi as his witness even
before concluding the evidence of complainant. So observations
made in para No.20 of the judgment, contrary to the material on
record. Her reasonings on this aspect would have been accepted,
had complainant not examined said Mahendra Jyothi as his
witness and in that circumstance, if accused has not examined
him as his witness then, such observations of Learned Magistrate
on this aspect would have appreciated.
30. Further, in para 22 of the judgment, Learned
Magistrate has recorded her reasonings for disbelieving
publication of one article, which is marked at Ex.D.15. It is
criminal trial. Accused has to lead his evidence, including
documentary evidence, only after closure of prosecution side.
Even during course of cross-examination of Dw.1, no where it
is suggested to Dw.1 denying the genuineness of such
publication of article written by Pw.2. Thus, observations of
Learned Magistrate that, article published in Bharani News
Paper has not been proved by accused appears to be not
40 Crl.A.No.1451/2015
sound observation. In the cross-examination of Dw.1, no
suggestions are made denying the genuineness and
truthfulness of publication of article written by Pw.2 in the
said Bharani news paper marked at Ex.D.15. In addition to
this, though Dw.1 in his evidence has stated that, Pw.2
accompanied him in campaigning, but this portion of evidence
has not been denied by Pw.2 in his examination-in-chief. Thus,
absolutely no cross-examination on Dw.1 on the document
marked at Ex.D.15. Thus, merely because Ex.D.15 is not
confronted during cross-examination of Pw.2, it does not lead
to the conclusion that, Ex.D.15 is got up document. Thus,
contents of Ex.D.15 cannot be doubted. Such being the case,
reasonings recorded by Learned Magistrate to disbelieve the
contents of Ex.D.15 are not sound reasonings. Through out
the judgment what Learned Magistrate has observed is that
accused has not brought on the record sufficient material to
disprove the presumption available U/s.139 of N.I.Act. But in
view of my findings and reasonings as recorded above,
41 Crl.A.No.1451/2015
accused not only denied the very money transaction, but he
has also substantiated his defence by producing documents to
infer that, on 3.3.2013 he had sufficient funds with him,
thereby there was no necessity for him to avail hand loan of
Rs.13,50,000/-. Thus, ignoring the very defence as indicated
in Ex.D.14, and in reply notice marked at Ex.P.5 in which
accused has disclosed his detail defence and has indicated the
circumstances under which Ex.P.1/cheque was handed over to
Pw.2, which is in the name of complainant, Learned Magistrate
disbelieved the defence theory, without recording proper and
sound reasonings. Therefore, observation of Learned
Magistrate that accused has not proved his defence. in order
to disprove the presumption available U/s.139 of N.I.Act
cannot be sustainable in law.
31. Yet another aspect which again indicates that,
Learned Magistrate has not properly appreciated the defence
of accused, is in respect of contents of Ex.P.4, which is legal
notice and the averments or the contents of complaint with
42 Crl.A.No.1451/2015
regard to purpose for which accused availed loan. As already
observed in my foregoing paras of this judgment that , it is
only in his complaint, it is contended that, accused in order to
meet his "election expenses", he availed loan of
Rs.13,50,000/-. In the statutory notice, main purpose of which
accused availed loan, according to complainant is only for
domestic expenses. Thus, in the notice marked at Ex.P.4, no
where it is contended by the complainant that, accused
availed loan to meet out his election expenses. But reason for
availment of loan to meet out election expenses has taken by
the complainant at first instance in the complaint, only after
receipt of reply notice sent by accused, in which accused has
disclosed all material facts, which constitute his probable
defence. Therefore, to over come that lacuna, complainant in
his complaint contended that, accused availed loan to meet his
domestic expenses and as well as for election expenses. For
such variance about the purpose for which, accused has
availed loan, Learned Magistrate has observed that strict
43 Crl.A.No.1451/2015
procedure of proceedings cannot be expected as like in civil
procedure code as in case filed under provision of N.I.Act. It is
surprise to note this observation, because, it is a criminal trial
U/s.139 of N.I.Act, for which all material facts which
constitute money transaction and the purpose for which
money was availed or advanced has to be indicated in the
statutory notice issued U/s.138 of N.I.Act. Because, criminal
law set into motion by issuance of statutory notice which is
main and vital document to initiate criminal action against
accused. But in the instant case as already observed purpose
for availment of loan as contended by complainant in this case
has not been disclosed in the statutory notice. Therefore, there
is glaring discrepancies between the contents of legal notice
and averments of complaint, so for as the purpose for which,
accused said to have availed loan of Rs.13,50,000/-.
Therefore, resongins recorded by Learned Magistrate, on this
aspect does not appears to be sound reasonings.
44 Crl.A.No.1451/2015
32. Throughout in para Nos.24 to 26 of judgment,
Learned Magistrate without proper analyzing the oral
evidence, blindly accepted the say of Pw.1 and Pw.2, thus has
come to the wrong conclusion that, complainant advanced an
amount of Rs.13,50,000/- to the accused. But in view of my
observations and reasonings for discarding the testimony of
Pw.2, observations of Learned Magistrate that, accused has
not produced documents to disprove the presumption available
U/s.139 of N.I.Act cannot be accepted. Observations of
Learned Magistrate in para No.27 of the impugned judgment
is on mere assumptions, without there being any evidence on
record. Finance capacity of the complainant to lend money
has been blindly accepted by Learned Magistrate. Learned
Magistrate has relied much on contents of Ex.P.8 to Ex.P.10
and Ex.P.18 to Ex.P.21 to arrive at conclusion that,
complainant has capacity or he had sufficient funds to
advance loan of Rs.13,50,000/-. But in my opinion, reasonings
recorded by Learned Magistrate on this aspect is also contrary
45 Crl.A.No.1451/2015
to the evidence on record, because genuineness and
truthfulness of contents of Ex.P.18 to Ex.21 are specifically
denied by defence by putting a suggestion to Pw.1, which
reads thus;
"£Á£ÀÄ AiÀiÁªÀÅzÉà ¨É¼É ¨É¼ÉAiÀÄ¢zÀÝgÀÆ ¤¦-18 jAzÀ
21gÀªÀgÉV£À zÁR¯ÉUÀ¼À£ÀÄß ¸ÀA§AzÀs¥ÀlÖ
C¢üPÁjUÀ¼ÉÆA¢UÉ ±Á«Ä¯ï Dj ¸ÀļÀÄî zÁR¯ÉUÀ¼À£ÀÄß
¸ÀȶֹzÉÝÃ£É JAzÀÄ ºÉüÀĪÀÅzÀÄ ¸ÀjAiÀÄ®è."
Thus, it is very much clear that, during course of cross-
examination of Pw.1, it is specifically suggested to Pw.1 that,
Ex.P.18 to Ex.P.21 are not genuine document, on the other
hand, they are got up document. This portion of important
evidence has been ignored by Learned Magistrate. More over,
it is very much clear that, Village Accountants are not
authorized to issue such certificates marked at Ex.P.18 to
Ex.P.21. Thus, no reliance could be placed on the contents of
Ex.P.18 to Ex.P.21. More over, Ex.P.18 to Ex.P.21 are obtained
only after filing of complaint U/s.200 of Cr.P.C., before Learned
Magistrate at Hoovinahadagali on 19.9.2013 and more over,
46 Crl.A.No.1451/2015
along with complaint, documents like Ex.P.18 to Ex.P.21 were
not filed. This aspect has not been considered by Learned
Magistrate. Thus, it is very much clear that, Learned
Magistrate without proper appreciation of defence, which
accused has taken to rebut the presumption available U/s.139
of N.I.Act, mechanically accepted the case as put forth by the
complainant, which has resulted in miscarriage of justice. In
that view of the matter and in view of my above findings
impugned judgment is perverse, thus, not sustainable in law.
Therefore, interference of this court is necessitated.
Accordingly, I answer points No.1 and 2 in Negative and point
No.3 in affirmative.
33. POINT NO.4 :- In view of my findings on the above
points No.1 to 3, grounds urged in appeal memo are sustainable.
Appeal is deserves to be allowed by setting aside the impugned
judgment of conviction and order of sentence. Accordingly,
accused is to be acquitted. With these observations and being of
that opinion, I proceed to pass the following:
47 Crl.A.No.1451/2015
ORDER
Criminal Appeal filed U/s. 374(3) is hereby allowed.
Consequently, impugned judgment of conviction and order of sentence dated 9.11.2015 passed in C.C.No.28615/2014 on the file of XIII- A.C.M.M., Bengaluru, is hereby set aside.
Accordingly, appellant/accused is acquitted of the offence punishable U/s.138 of N.I.Act.
Further, if security deposit amount or fine amount is deposited, same is order to be returned to the accused/appellant.
Office is hereby directed to send back L.C.R. along with certified copy of Judgment, forthwith.
(Dictated to the Judgment Writer, script typed by her and corrected, signed and then pronounced by me in the open court on this 21st day of December, 2017.) (MADHUSUDHAN B.) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.