Dismissed

Mr Abdul Muner B Y v. Smt Aleema B a

Karnataka HC16 Dec 2021CRL.A/1943/2019

Case brief

AI extract

What is this about?

In this criminal appeal under Section 378 Cr.P.C., the Karnataka High Court considered a case involving a dishonored cheque. The bench held that the complainant failed to prove the existence of a legally enforceable debt and his capacity to lend the alleged sum. The accused successfully rebutted the presumption under Section 139 of the N.I. Act by denying the transaction. Consequently, the appeal

What did the court decide?

The criminal appeal was dismissed, and the impugned acquittal judgment was affirmed.

Mr Abdul Muner B Y Vs Smt Aleema B a — Cheque Dishonour | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF DECEMBER, 2021

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BEFORE:

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THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ

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CRIMINAL APPEAL NO.1943 OF 2019

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BETWEEN

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MR. ABDUL MUNER B.Y S/O LATE YUSUF AGED 29 YEARS R/A 0-0, HALGUNDA VILLAGE KONDANAGERI POST, VIRAJPET TALUK KODAGU DISTRICT – 571 201

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… APPELLANT

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[BY SRI RAJARAM.S, ADVOCATE]

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AND

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SMT. ALEEMA B.A W/O LATE ABDUL REHMAN MAJOR, R/A CHANDRAKALA ROAD GUMMANAKOLLI VILLAGE MULLUSOGE POST, KUSHALNAGAR KODAGU DISTRICT – 571 201

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… RESPONDENT

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[RESPONDENT- SERVED AND UNREPRESENTED]

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT DATED 23.10.2019 PASSED BY THE ADDITIONAL CIVIL JUDGE AND JMFC, MADIKERI IN C.C.NO.464/2018 – ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT.

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THIS CRIMINAL APPEAL COMING ON FOR ADMISSION THROUGH PHYSICAL HEARING/VIDEO CONFERENCE, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Heard the learned counsel for appellant. Respondent

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is served but there is no representation.

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This appeal is preferred by the complainant in C.C.No.464/2018 on the file of the Court of Additional Civil Judge and JMFC at Madikeri, wherein, the learned Magistrate vide order dated 23.10.2019 dismissed the complaint and acquitted the accused/respondent of offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as ‘N.I Act’ for short).

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The brief facts of the case are that the complainant and accused are known to each other since long time. On 23.09.2017, accused visited the house of complainant and borrowed Rs.3,00,000/- for her legal necessity, promising to repay the said amount within three months and issued a post dated cheque for the said amount. The complainant presented the cheque at

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Syndicate Bank, Murnad Branch, on 25.01.2018, which came to be returned with an endorsement “funds insufficient” on 30.01.2018. The complainant issued a legal notice to accused through RPAD on 15.02.2018 calling upon her to make payment of Rs.3,00,000/- within 15 days. The accused, inspite of receipt of the said notice, deliberately refused to receive the notice and therefore, the notice was returned to sender on 26.02.2018 with a shara “not claimed”. The accused thus failed to repay the amount due under the said cheque within the stipulated time and therefore committed an offence punishable under Section 138 of N.I. Act.

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Insofar as service of notice is concerned, the intimation by the postal department was that the notice was not claimed. As such, the trial Court has rightly observed that the said notice issued by the complainant was deemed to be served on the accused.

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The contention of the learned counsel for

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appellant is that the cheque in question as well as signature on it has not been disputed and therefore there is

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a presumption under Section 139 of N.I. Act. He contends that the accused has failed to rebut the said presumption satisfactorily and therefore the trial Court was not proper in acquitting the accused.

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It is well settled that the presumption under Section 139 of N.I. Act is a rebuttable one and it is incumbent upon the accused to rebut the same and he can prove the non-existence of a consideration by raising a probable defence. In case on hand, the accused has denied the transaction between herself and the complainant. She has been examined as DW.1 and she got marked Exs.D1 to D5.

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It is the specific case of the complainant that the accused borrowed a sum of Rs.3,00,000/- which was given by cash on 23.09.2017 and in discharge of the said liability a cheque dated 29.12.2017 was issued, which when presented to the bank got dishonoured on 30.01.2018 for funds insufficient in the account of the accused.

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The trial Court has observed that the

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complainant has failed to prove the acquaintance between himself and accused and he has failed to explain the relationship between them. The complainant is the resident of Kondanageri, Virajpet Taluk, whereas, the accused is from Gummanakolli Village and the distance between the two places is 41 kms. Further, the complainant who is examined as PW.1 has failed to show that both himself and the accused were knowing each other and they used to visit each others house.

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The initial burden lies on the complainant to prove that he had advanced a sum of Rs.3,00,000/- to the accused and there exists a legally enforceable debt. The trial Court has observed that lending of such a huge amount without execution of any document creates doubt. The complainant has failed to prove that he had sufficient income and cash with him on the date when the accused is said to have borrowed a sum of Rs.3,00,000/- from him. The trial Court has taken into consideration that the complainant has admitted that he is not a tax payee and he

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is doing plumbing work and therefore he has not established that he had sufficient source to lend a sum of Rs.3,00,000/- by cash to the accused.

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Accused who is examined as DW.1 has taken a specific contention that there is absolutely no relationship between herself and the complainant. The cheque in question was given to her daughter-in-law one Juberiya, as she had complained to the police against her son and towards maintenance amount the said cheque was given to her, which has been misused. Ex.D1 is the complaint filed by her daughter-in-law – Juberiya, Ex.D2 is the statement of accused given before the police, Ex.D3 is the acknowledgment, Ex.D4 is the statement of one Basheer, son of accused and Ex.D5 is the statement of Juberiya.

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As per Ex.D5, the said Juberiya has stated that at the time of her marriage, a cash of Rs.2,00,000/- and 20 sovereigns of gold was given and as the marriage broke, her mother-in-law and husband requested for time to return it and later handed over the cheques. She has further stated that she will not proceed further with the

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complaint given by her and she will approach the Court in respect of the cheque issued to her.

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The said complaint was withdrawn on

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10.01.2018. The complaint in the present case was filed on 16.03.2018, wherein, the complainant has stated that the accused approached him on 23.09.2017 and borrowed a sum of Rs.3,00,000/- for his legal necessity and issued post dated cheque for the said amount. Hence, the reasons recorded by the trail Court that there is possibility that the said Juberiya has claimed the amount against the accused through the complainant cannot be said to be erroneous.

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In the present case, the complainant has failed to substantiate that he advanced a sum of Rs.3,00,000/- to the accused by cash and towards the said liability the accused issued the cheque in question to him. The complainant has failed to establish that there was any legally enforceable debt or liability by the accused. On the other hand, the accused by leading evidence has rebutted the presumption available in favour of the complainant.

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There are no grounds made out to interfere with the impugned judgment passed by the trial Court. Hence, the following

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ORDER

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Appeal is dismissed.

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I.A.No.1/2021 is disposed of.

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Sd/-

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JUDGE

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HB/-

Mr Abdul Muner B Y v. Smt Aleema B a

Case brief

What is this about?

What did the court decide?

Mr Abdul Muner B Y v. Smt Aleema B a

Case brief

What is this about?

What did the court decide?

What the court decided

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