Dismissed

Sri Venkataramaiah v. Sri Puttaswamy

Karnataka HC10 Oct 2023CRL.A/128/2012

Case brief

AI extract

What is this about?

The complainant filed a criminal appeal against the acquittal of the accused in a cheque bounce case under Section 138 NI Act. The High Court examined whether the prosecution proved the existence of the debt and the unauthorized bouncing of the cheque. It found that the accused successfully rebutted the statutory presumption by proving the cheque was lost and payment stopped, failing the prosecuti

What did the court decide?

The criminal appeal filed by the complainant under Section 378(4) Cr.P.C. was dismissed. The impugned judgment and order acquitting the accused was confirmed, and the trial court records were remanded

Sri Venkataramaiah Vs Sri Puttaswamy — Cheque Dishonour | Karnataka HC (2023)

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CRL.A.NO.128 OF 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MS.JUSTICE J.M.KHAZI

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CRIMINAL APPEAL NO.128 OF 2012

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BETWEEN:

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SRI VENKATARAMAIAH, S/O LATE JAVARAIAH, MAJOR, RESIDENT OF HOSAKERE, AMRUTHUR HOBLI, KUNIGAL TALUK TUMKUR DISTRICT.

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…APPELLANT

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(BY SRI. A.C.BALARAJ, ADVOCATE)

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AND:

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SRI PUTTASWAMY, S/O NANJEGOWDA, MAJOR, WORKING AT CANARA BANK, RAJAJINAGAR BRANCH, 3^RD BLOCK, BENGALURU - 560 010.

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(BY SMT.VIDYA S., ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CODE OF CRIMINAL PROCEDURE PRAYING TO a) SET ASIDE THE IMPUGNED JUDGMENT PASSED BY THE LEARNED SECOND FAST TRACK (ADDITIONAL SESSIONS) JUDGE, TUMKUR IN CRIMINAL APPEAL NO.19/2011 DATED 23/08/2011 AND DISMISS THE CRIMINAL APPEAL FILED BY THE RESPONDENT; b) CONFIRM THE JUDGMENT AND SENTENCE PASSED BY THE LEARNED ADDITIONAL CIVIL JUDGE (JR.DN.) & JMFC AT KUNIGAL IN C.C.NO.45/2005 DATED 09.02.2011 AND ALLOW THE ABOVE APPEAL BY

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CRL.A.NO.128 OF 2012

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GRANTING THE RELIEFS AS PRAYED FOR AND ALLOW THE SAME WITH COSTS, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED ON 12.07.2023, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal filed under Section 378(4) of Code of Criminal Procedure (for short, ‘Cr.P.C.’) is by the complainant, challenging the impugned judgment and order dated 23.08.2011 passed by the II Addl.Fast Track Court, Tumakuru in Crl.A.No.19/2011, whereby the judgment and order of the trial Court convicting and sentencing the accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short, ‘N.I.Act’) came to be set aside and accused is acquitted.

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For the sake of convenience, the parties are referred to by their rank before the trial Court.

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It is the case of the complainant that towards

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repayment of hand loan of Rs.50,000/- taken from the

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CRL.A.NO.128 OF 2012

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complainant for his legal necessity and on demand by him, accused issued cheque bearing No.441464 dated 05.06.2003, drawn on Canara Bank, Amruthur. Accused assured prompt encashment. However, when complainant presented it on the same day through the Bank, it was returned with an endorsement 'cheque reportedly lost payment stopped'. When it was brought to the notice of accused, he apologized and requested him to represent. However on second time also it was dishonoured for the same reason. Complainant got issued legal notice dated 02.09.2003 and it is duly served on him on 05.09.2003. However, accused has neither paid the amount due nor sent any reply and hence, the complaint.

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After due service of notice, accused has appeared before the trial Court and contested the matter. He pleaded not guilty and claimed trial.

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In support of his case, complainant examined himself as PW-1 and one witness as PW-2 and got marked Exs.P1 to 7.

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CRL.A.NO.128 OF 2012

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During the course of his statement under

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Section 313 Cr.P.C, accused has denied the incriminating evidence.

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In fact accused has led defence evidence by

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examining four witnesses as DWs-1 to 4. No documents are marked on his behalf.

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Vide the judgment and order dated

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09.02.2011, the trial Court convicted the accused and sentenced him to pay fine of Rs.55,000/- in default to undergo simple imprisonment for six months.

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Accused challenged the same before the Fast Track Court in Crl.A.No.19.2011. Vide the impugned judgment and order, it was allowed and accused was acquitted.

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Being aggrieved by the same, the complainant is before this Court contending that the Fast Track Court has grossly erred in reversing the well reasoned judgment of the trial Court and acquitting the accused. No justifiable reasons are assigned for interfering with

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CRL.A.NO.128 OF 2012

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the judgment and order of the trial Court. The Fast Track Court has not only failed to draw the presumption under Sections 118 and 139 of the N.I.Act and also wrongly placed the burden on the complainant. The Fast Track Court has failed to appreciate the inherent contradictions in the defence taken by the accused. The Fast Track Court has also failed to appreciate the fact that as an employee of the Bank the accused has stopped payment of the cheque and thereby committed the offence punishable under Section 138 of N.I.Act and prays to allow the appeal, set aside the judgment and order and restore the judgment and order of the trial Court.

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In support of his argument, learned counsel

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for complainant has relied upon the following decisions:

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i. Kalamani Tex and another V/s P.Balasubramanian (Kalamani Tex)¹

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ii. D.K.Chandel V/s WOCKHARDT Limited and another (D.K.Chandel)²

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1 (2021) 5 SCC 283

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2 (2020) 13 SCC 471

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CRL.A.NO.128 OF 2012

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iii. K.S.Ranganatha V/s Vittal Shetty (K.S.Ranganatha)³

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iv. APS Forex Services Private Limited V/s Shakti International Fashion Linkers and others (APS Forex)⁴

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v. Triyambak S.Hegde V/s Sripad (Triyambak)⁵

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On the other hand, learned counsel appearing

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for the accused has supported the impugned judgment and order contending that on re-appreciation of oral and documentary evidence, the Fast Track Court has come to a correct conclusion in acquitting the accused and prays to dismiss the appeal.

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Heard elaborate arguments of both sides and perused the record.

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Thus, accused is being prosecuted by the

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complainant on the allegations that towards repayment of hand loan of Rs.50,000/-, accused issued the subject

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cheque and when presented it is dishonoured on the

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3 2021 SCC OnLine SC 1191

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4 (2020) 12 SCC 724

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5 (2022) 1 SCC 742

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CRL.A.NO.128 OF 2012

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ground that the cheque is reportedly lost and therefore payment is stopped. Infact, accused who is an employee of bank has taken up a specific defence that when he was ill, he had sent DW4-Jagadish with the cheque to the bank and he lost it and therefore, he instructed the bank to stop payment. He has disputed that he had any financial transaction with the complainant and had issued the subject cheque towards repayment of the said liability.

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Having regard to the fact that the cheque in question is drawn on the account of accused maintained with his banker and it bears his signature, as held in Kalamani Tex, D.K.Chandel, K.S.Ranganatha, APS

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Forex and Triyambak , presumption u/sec.118 and 139 of N.I.Act is required to be drawn to the effect that it was issued towards repayment of any legally recoverable debt or liability and therefore, the burden is on the accused to rebut the presumption and to prove the circumstances in which the cheque has reached the hands of complainant. While disputing the allegations that he has issued the

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CRL.A.NO.128 OF 2012

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subject cheque to the complainant, the accused has also taken a specific defence disputing the financial capacity of the complainant. In the light of the same, it is necessary to examine whether the trial Court was justified in convicting the accused and the Fast Track Court is justified in reversing the same.

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As noted earlier having regard to the fact that the cheque is drawn on the account of the accused maintained with his banker and it bears the signature, presumption is in favour of the complainant. In order to rebut the presumption, the accused has relied upon the evidence of DW1 to 4. Their evidence is to the effect that when accused lodged a complaint with the police alleging that he has lost the cheque and misusing the same complainant has filed case against him, complainant was summoned at the P.S. and he admitted the fact of having found the cheque, but he refused to return it saying that already complaint is filed.

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Infact, complainant is cross-examined at

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length on this aspect, wherein he has admitted that after

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CRL.A.NO.128 OF 2012

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he issued notice, accused lodged a complaint stating that the cheque is lost. When he went to the Police Station, the police advised him to settle the matter, but he refused to do so saying that case is pending before the Court. He has claimed that at the P.S. his signature was taken to a blank paper, but he do not know how it was utilized. He has admitted that the cheque was returned unpaid on the ground that there is stop payment instructions as the cheque is lost.

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Through the material placed on record by the accused, it is proved that the cheque in question was lost and immediately he gave instructions to stop payment and in fact the complainant was summoned to the police station and the concerned police tried to work out a settlement. By this evidence, the accused has rebutted the presumption shifting the burden on the complainant to prove his case.

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At the outset it is relevant to note that in the complaint or during the course of his evidence, the complainant has not pleaded and deposed as to what was

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CRL.A.NO.128 OF 2012

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the transaction between him and the accused. He has not stated in specific terms as to in what connection cheque was issued and whether accused borrowed any hand loan from him. He has simply stated that the cheque in question is issued towards repayment of amount due to the complaint to the tune of Rs.50,000/-.

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Infact, in addition to claiming that the cheque in question was lost, which he has proved through the evidence placed on record, the accused has challenged the financial capacity of complainant and cross-examined him. In this regard, complainant has stated that he is an agriculturist and also doing business. However he has stated that he do not deal specifically in any particular item. He is unable to state what exactly is his income. He has admitted that in all 15-20 cheque bounce cases are pending before the Courts at Kunigal. He has also stated that he has filed several cases based on mortgage, charge, purchase and agreement.

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Infact, at page No.7 of his cross-examination, the complainant has claimed that when accused

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CRL.A.NO.128 OF 2012

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requested for money, he withdrew it from his account and paid to him. However the complainant has not chosen to produce account extract to evidence the said fact. Infact PW2 who is the Manager of the Canara Bank, Amruthur Branch has deposed that while giving stop payment instructions, the accused has issued a letter stating that the cheque in question was lost by his brother-in-law and its payment should be stopped. In the light of testimony of PW2, DWs1 to 4 as well as the admission given by the complainant i.e. PW1, this Court is of the considered opinion that after the rebuttal of presumption by the accused on preponderance of probabilities, the complainant has failed to discharge the burden placed on him beyond reasonable doubt.

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Taking into consideration the oral as well as documentary evidence placed on record, the Fast Track Court has come to a correct conclusion that the charge leveled against the accused is not proved and reverse the judgment and order of the trial Court and acquitted the accused. In the light of the same, there are no justifiable

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CRL.A.NO.128 OF 2012

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grounds made out by the complainant to interfere with the impugned judgment and order. In the result, the appeal fails and accordingly, the following:

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ORDER

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Appeal filed by the complainant

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u/sec.378(4) Cr.P.C. is dismissed.

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The impugned judgment and order of the II Addl. Fast Track Court, Tumakuru in Crl.A.No.19/2011 dated 23.08.2011 reversing the conviction and sentence of accused in C.C.No.45/2005 dated 09.02.2011 on the file of Addl.Civil Judge (Jr.Dn.) and J.M.F.C., Kunigal is hereby confirmed.

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Registry is directed to send back the trial Court records along with copy of this judgment

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forthwith.

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Sd/JUDGE

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RR/CLK

Sri Venkataramaiah v. Sri Puttaswamy

Case brief

What is this about?

What did the court decide?

Sri Venkataramaiah v. Sri Puttaswamy

Case brief

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What did the court decide?

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