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2023 DIGILAW 1263 (KAR)

G. v. Shashikala VS Giriyappa

2023-11-02

S.RACHAIAH

body2023
JUDGMENT 1. This appeal is filed by the appellant / complainant being aggrieved by the judgment and order of acquittal dtd. 3/2/2017 in Crl.A.No.1248/2016 on the file of LXVII Additional City Civil and Sessions Judge at Bengaluru. 2. The rank of the parties in the Trial Court henceforth will be considered accordingly for convenience. Brief facts of the case are as under:- 3. The accused was introduced to the complainant through her brother Sri G.V.Jagadish and one of her family members namely Sri.Seetharam. It is stated that, the accused had borrowed Rs.2, 50, 000.00 from the complainant and agreed to repay the said amount within one month and issued a cheque dtd. 10/6/2013 as a security. When the stipulated time was over, the complainant informed the accused and demanded the amount. However, the accused instructed the complainant to present the said cheque for encashment in the third week of August, 2013. Considering the request, the cheque was presented on 22/8/2013. However, the said cheque was dishonoured with a shara as 'Funds insufficient'. Immediately, the fact was made known to the accused. Again the accused requested the complainant to present it again. Accordingly, the cheque was presented on 6/9/2013. However, the said cheque was dishonoured with the same shara as it was received earlier. A notice was issued to the accused on 17/9/2013. Notice was served to the accused on 17/10/2013. Thereafter, the accused requested the complainant and issued fresh cheque dtd. 21/9/2013 for the said amount. Again, the second cheque was presented for encashment on the same day, however, it was also dishonoured with a shara 'funds insufficient' and the complainant has received Bank Memo on 23/9/2013. Hence, notice was issued on 5/10/2013 and it was served on 17/10/2013. In spite of receipt of legal notice, the accused did not reply or comply the notice. Hence, complaint has been lodged before the jurisdictional Magistrate for the offence under Sec. 138 of the Negotiable Instruments Act (for short 'N.I. Act'). The jurisdictional Magistrate took cognizance of the offence and proceeded with the case. 4. To prove the case of the complainant, the complainant examined himself as PW.1 and got marked 8 documents as Exs.P1 to P8. On the other hand, the respondent examined himself as DW.1 and got marked 12 documents as Ex.D1 to D12. The Trial Court after considering oral and documentary evidence on record, recorded the conviction. 4. To prove the case of the complainant, the complainant examined himself as PW.1 and got marked 8 documents as Exs.P1 to P8. On the other hand, the respondent examined himself as DW.1 and got marked 12 documents as Ex.D1 to D12. The Trial Court after considering oral and documentary evidence on record, recorded the conviction. However, in the appeal, the judgment of conviction was set aside. 5. Heard Sri.M.K.Venkatramana, learned counsel for the appellant and Sri.C.N.Naganna, learned counsel for respondent. 6. It is submission of learned counsel for the appellant that the findings of the Appellate Court in recording the acquittal is against the evidence and law, therefore, the same is liable to be set aside. 7. It is further submitted that the findings of the Appellate Court in recording the acquittal are not acceptable for the reason that, the issuance of the cheque and signature both have been admitted by the accused. The accused has not led any rebuttable evidence to rebut the presumption. The contention of the accused is that, he was working as Secretary at Mantapa Gram Panchayath, Anekal Taluk and his wife was running business in the name and style as M/s Shambhavi Home Products. In addition to the work as a Secretary, he stated to have running Diary Farm and also having 15 acres of land at Gubbi Taluk. The Trial Court after considering the evidence of DW.1 and opined that even though, the accused is having sufficient means, the issuance of the cheque to the complainant other than the legally enforceable debt or liability has not been proved. However, the Appellate Court failed to take note of the same and recorded the acquittal which is erroneous and perverse and therefore, the same is liable to be set aside. 8. It is further submitted that the Trial Court has failed to raise a presumption which is envisaged under Sec. 139 of the N.I. Act. Once the cheque and the signature have been admitted, the Trial Court should have raised the presumption that the cheques have been issued for the legally recoverable debt or liability. The said aspect is absent in the findings recorded by the Trial Court. Hence, the learned counsel prays this Court to interfere in this matter and also prays to allow this appeal. 9. The said aspect is absent in the findings recorded by the Trial Court. Hence, the learned counsel prays this Court to interfere in this matter and also prays to allow this appeal. 9. Per contra, learned counsel for the respondent vehemently contended and justified the judgment and order of acquittal passed by the Appellate Court and submitted that the contention of the accused is that he had issued cheques to his friend Sri.Seetharam and the cheques which were issued to Sri.Seetharam have been misused by the complainant. It is further submitted that the complainant is a stranger to the accused and no transaction had taken place between the complainant and the accused. It is further submitted that the Trial Court after appreciating the oral and documentary evidence on record rightly recorded the acquittal which requires no interference. Having submitted thus, the learned counsel for the respondent prays to dismiss the appeal. 10. Having heard learned counsel for the respective parties and also perused the findings of the Appellate Court, now, it is relevant to refer to the judgment of the Hon'ble Supreme Court in the case of BASALINGAPPA v. MUDIBASAPPA, (2019) 5 SCC 418 . para No.25 reads thus: "25. We having noticed the ratio laid down by this Court in the above cases on Ss. 118(a) and 139, we now summarise the principles enumerated by this Court in following manner: 25.1. Once the execution of cheque is admitted Sec. 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. 25.2. The presumption under Sec. 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof a for rebutting the presumption is that of preponderance of probabilities. 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. 25.4. That it is not necessary for the accused to come in the witness box in support of his defence, Sec. 139 imposed an evidentiary burden and not a persuasive burden. 25.5. 25.4. That it is not necessary for the accused to come in the witness box in support of his defence, Sec. 139 imposed an evidentiary burden and not a persuasive burden. 25.5. It is not necessary for the accused to come in the witness box to support his defence." 11. On careful reading of the dictum of Hon'ble Supreme Court, the initial burden to rebut the presumption lies on the accused. Therefore, now it is relevant to refer to the evidence of DW.1. DW.1 contended in his evidence that there was no occasion for him to borrow loan from anybody and he had sufficient means not only from his employment, but also from other various sources. In his cross-examination, he has denied that notice was received by him. Even though, the accused has contended that the cheques which are in dispute were given to Sri.Seetharam, who is his friend, the cheques were given to said Sri.Seetharam as a security in respect of Milk Diary transaction, the same have been given to the present complainant and presented the complaint through the complainant. The said contention cannot be accepted for the reason that the accused neither produced any document to show that the cheques were issued to Sri.Seetharam nor got examined the said Sri.Seetharam to substantiate his contention. Mere denial of the transaction and mere stating that cheques were issued to some other person and those cheques have been misused by the complainant cannot be accepted as true and such contention is unsustainable. 12. To rebut the presumption, there must be some cogent evidence which required to be produced either oral or documentary. In the absence of cogent evidence, it cannot be construed that presumption has been rebutted. Unless the presumption envisaged under Sec. 139 of N.I Act is rebutted and burden shifted on the complainant to prove his case, it cannot be said that the presumption stood rebutted. 13. Now it is relevant to refer to the cross-examination of PW.1. In her cross-examination, PW.1 has stated that, she was a housewife and she knew the accused since three years. Since both the complainant and the accused known to each other, taking advantage of the said acquaintance, the accused requested her to pay loan of Rs.2, 50, 000.00. As per the request of the accused, the complainant lent the said loan. In her cross-examination, PW.1 has stated that, she was a housewife and she knew the accused since three years. Since both the complainant and the accused known to each other, taking advantage of the said acquaintance, the accused requested her to pay loan of Rs.2, 50, 000.00. As per the request of the accused, the complainant lent the said loan. She further stated in her cross-examination that she had amount of Rs.1, 00, 000.00 as her savings and also borrowed Rs.1, 50, 000.00 from her husband who was retired from the service of the State Government. On perusal of the evidence of PW.1, it appears that PW.1 has proved the lending capacity and also proved that the cheques in question had been issued for the legally enforceable debt or liability. Therefore, it can be said that the Appellate Court failed to take note of this aspect and also failed to raise the presumption properly, resulted in passing the impugned judgment and order which is unsustainable and the same is liable to be set aside. On perusal of the findings of the Trial Court it appears that there is no error committed by the Trial Court in recording the conviction. Hence, the same is required to be confirmed. 14. In the light of the observations made above, I proceed to pass the following:- ORDER (i) The criminal appeal is allowed. (ii) The judgment and order dtd. 3/2/2017 passed in Crl.A.No.1248/2016 by the LXVII Additional City Civil and Sessions Judge at Bengaluru is set aside. (iii) The judgment and order dtd. 16/9/2016 passed in CC No.5623/2015 by the XXII Additional Chief Metropolitan Magistrate, Bengaluru City is confirmed. (iv) The Registry is directed to send the records along with copy of this order to the Trial Court for execution of sentence.