Dismissed

Sri Rodde Gowda v. Sri Eshwar Singh

Karnataka HC12 Sept 2023CRL.A/948/2012

Case brief

AI extract

What is this about?

Appellant challenged the acquittal of respondent for cheque bounce under Section 138 N.I.Act and false implication. Court held accused rebutted presumption by proving cheque issued for Rs.50k debt. Complainant failed to prove financial capacity to lend Rs.5 lakhs. Appeal dismissed; trial court acquitted respondent.

What did the court decide?

Appeal dismissed; impugned judgment of acquittal confirmed.

Sri Rodde Gowda Vs Sri Eshwar Singh — Cheque Dishonour | Karnataka HC (2023)

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CRL. A NO.948 OF 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF SEPTEMBER, 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.948 OF 2012

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BETWEEN:

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SRI. RODDE GOWDA, S/O LATE SRI. MARIYANNA, AGED ABOUT 70 YEARS, R/AT NO.86, HADRIPURA VILLAGE, DODDABALLAPURA TALUK, BENGALURU DISTRICT.

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…APPELLANT

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(BY SRI. B.KESHAVA MURTHY, ADVOCATE) AND:

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SRI. ESHWAR SINGH, MAJOR IN AGE, R/AT NO.1040, 6^TH CROSS, ADARSHA / MARUTHI LAYOUT, OPP: OLD SUB REGISTRAR OFFICE, BASAVESHWARANAGAR, BENGALURU - 560 079.

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…..RESPONDENT (BY SRI. K.P.BHUVAN, ADVOCATE)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO (A) SET ASIDE THE JUDGMENT DATED 17/07/2012 PASSED BY THE XIII ADDL. CHIEF METROPOLITAN MAGISTRATE, BANGALORE IN C.C.NO.28373/2009 AND ALLOW THE APPEAL BY CONVICTING THE RESPONDENT HEREIN FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I.ACT AND AWARD MAXIMUM COMPENSATION TO THE APPELLANT HEREIN; (B) AND PASS SUCH OTHER ORDER/S AS THIS HON'BLE COURT DEEMS FIT IN THE CIRCUMSTANCES OF THE CASE IN THE INTEREST OF JUSTICE AND EQUITY.

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CRL. A NO.948 OF 2012

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THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED ON 20.06.2023, 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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Being aggrieved by the dismissal of complaint filed

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by him against respondent accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘N.I. Act’), appellant who is complainant has filed this appeal under Section 378(4) of the Code of Criminal Procedure (for short, ‘Cr.P.C.).

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

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It is the case of the complainant that he and

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accused are known to each other. On 12.11.2008, accused borrowed a sum of Rs.5 lakhs for development of his business. Towards repayment of the same, accused issued a cheque No.244154 for Rs.5 lakhs drawn on State Bank of Mysore, Gangenahalli Branch, Bangalore-32. On presentation, it was dishonoured for

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CRL. A NO.948 OF 2012

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want of sufficient funds. Complainant got issued legal notice. Accused has not received it intentionally. He has not sent any reply and he has also not repaid the amount due under the cheque. Hence, the complaint.

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After due service of summons, accused

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appeared before the trial court and contested the matter. He pleaded not guilty and claimed trial.

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In order to prove his case, complainant examined himself as PW1, one witness as PW2. He relied upon Exs.P1 to 22.

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During the course of his statement,

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complainant denied the incriminating evidence led by the complainant.

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Accused examined himself as DW1. He relied upon Ex.D1.

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Vide the impugned judgment and order, the trial court dismissed the complaint by holding that the complainant has failed to prove that accused borrowed

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Rs.5 lakhs from him and that he had the financial

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CRL. A NO.948 OF 2012

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capacity to lend the said amount. On the other hand by preponderance of probabilities, the accused has proved that the cheque in question was issued by the accused to the son-in-law of complainant by name Harish in respect of loan of Rs.50,000/- borrowed by his son-in-law Chandrashekhar Singh from Harish. Though the said loan was repaid, the cheque was not returned, and through the complainant, he has got filed a false complaint to make unlawful gain.

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Aggrieved by the impugned judgment and order, complainant has filed this appeal contending that it is passed without application of mind. It is patently erroneous and appears to be partially dealt and passed hurriedly. The trial court has erred in holding that the complainant has failed to prove his financial capacity and that PW2-Chika Siddaiah was not the person present when the loan was advanced. The trial court has also erred in not accepting the case of the complainant that he was having the money acquired by the sale of property through Ex.P1. Though the complainant has

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proved his case beyond reasonable doubt, the trial court

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has erred in dismissing the complaint and prays to allow the appeal, set aside the impugned judgment and order, convicted the accused and sentenced him in accordance with law.

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In support of his arguments, the learned counsel for complainant has relied upon the following decisions.

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i. T.Vasanthakumar V/s Vijayakumari (Vasanthakumar)¹

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ii. T.P.Murugan (dead) through legal representatives V/s Bojan (Murugan)²

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iii. Kishan Rao V/s Shankargouda (Kishan Rao)³

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iv. Rohitbhai Jivanlal Patel V/s State of Gujarat and another (Rohitbhai)⁴

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v. Bir Singh V/s Mukesh Kumar (Bir Singh)⁵

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1 (2015) 8 SCC 378

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2 (2018) 8 SCC 469

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3 AIR 2018 SCC 3173

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4 AIR 2019 SC 1876

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5 (2019) 4 SCC 197

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CRL. A NO.948 OF 2012

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vi. Kalamani Tex and another V/s P.Balasubramanian (Kalamani Tex)⁶

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On the other hand, learned counsel for

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accused has supported the impugned judgment and order and sought for dismissal of the appeal also.

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In support of his arguments, learned counsel for accused has relied upon the following decisions.

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i. Murtuja V/s Zakeer (Murtuja)⁷

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ii. Jayalakshmi B. V/s Neelakantappa (Jayalakshmi)⁸

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iii. Ravichandra V. V/s Rosi Line Reena Rani (Ravichandra)⁹

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iv. Kantha Raj V/s Sham Shudin (Kantha Raj)¹⁰

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v. M/s Paxal Surgicals, Bengaluru V/s Ashok Kumar (Paxal Surgicals)¹¹

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6 (2021) 5 SCC 283

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7 2022(1) KCCR 316

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8 2022(2) KCCR 1813

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9 2022(2) KCCR 1277

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10 2022(3) KCCR 2239

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11 2022(3) KCCR 2029

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CRL. A NO.948 OF 2012

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Heard elaborate arguments of both sides and

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perused the record.

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Though the accused admitted that the cheque in question belongs to him and drawn on his account maintained with his banker and it bears his signature, he has disputed that he borrowed loan from the complainant and towards repayment of the same issued it. He has set up a defence that his son-in-law Chandrashekar Singh had borrowed Rs.50,000/- from the son-in-law of complainant by name Harish and the cheque in question was issued towards security of the same. Misusing it, a complaint is filed. The accused has also disputed the financial capacity of complainant to lend loan of Rs.5 lakhs.

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Having regard to the fact that accused admitted that the cheque in question is drawn on his account maintained with his banker and it bears his signature, as held in Vasanthakumar, Kishan Rao, Bir Singh and Kalamani Tex , presumption under Section 118 and 139 of the N.I.Act is attracted and operating in

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favour of the complainant that the cheque was issued towards any legally recoverable debt or liability. Therefore, the burden is on the accused to rebut the presumption. If the accused is able to rebut the presumption, then the burden is shifts on the complainant not only to prove that accused has borrowed Rs.5 lakhs from him, but also that he had the capacity to lend the said amount. In Kishan Rao and Rohitbhai , on facts, it was held that the presumption was not rebutted by the accused.

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The legal notice sent to the accused is not served on him. It is returned with an endorsement that the door was locked and intimation is delivered. However, before returning the postal envelop back to the sender, the postman has not visited the address for seven days as is usual practice. On the other hand, only after one visit, he has chosen to return the envelop containing the notice to the sender by endorsing that door was locked. Anyhow, even where it is held that the accused has intentionally not chosen to receive the

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notice and thereby failed to send reply, disclosing his defence at the earliest available opportunity, at the trial, he has taken up a specific defence that complainant had no financial capacity to lend such a huge sum.

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In fact, during the course of his evidence, the accused has produced the account extract of his son-inlaw at Ex.D1 to show that a sum of Rs.50,000/borrowed from complainant's son-in-law, Harish was repaid in two installments of Rs.25,000/- each. The complainant disputed that such a transaction was there between the respective son-in-laws of complainant and accused. However he has no explanation with regard to transfer of Rs.25,000/- each on two occasions from the account of son-in-law of accused to the account of sonin-law of complainant.

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However during the cross-examination of PW1, the complainant has chosen to make a suggestion that the transaction between the son-in-law of complainant and accused are different and it has nothing to do with the cheque in question. Apart from making the

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said suggestion, the complainant was required to place on record some more evidence as to what was the transaction between them. He could have examined his son-in-law to explain the circumstances wherein the sonin-law of accused has transferred Rs.50,000/- to his account. In the absence of the same, this Court is of the considered opinion that by preponderance of probabilities, the accused has rebutted the presumption under Section 139 of N.I. Act and thereby shifting the burden on the complainant.

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As noted earlier, the accused has challenged the financial capacity of complainant to lend Rs.5 lakhs to him and thereby called upon the complainant to prove the same. In order to prove his financial capacity, the complainant has relied upon Exs.P7 to 20 which are RTCs. Though these documents prove the fact that the family of complainant is having agricultural lands, as rightly observed by the trial court, the complainant has not led any further evidence to show what actually is the agricultural income derived by the family. Through the

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cross-examination of complainant, the accused has demonstrated that the family of complainant is joint and the lands in question does not belong to the complainant exclusively. Even otherwise, in the absence of proof of exact income, these documents would not come to the aid of complainant to prove his financial capacity.

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The complainant has also relied upon Ex.P21, through which she has sold some agricultural land for a sum of Rs.2,52,000/- on 10.11.2004. According to the complainant in the present transaction is held during November 2008. At any stretch of imagination, it cannot be accepted that complainant was in possession of Rs.2,52,000/-, especially when in the sale deed, it is stated that for financial crunch, he is selling the said property. Considering the same, the trial court has rightly Rejected the contention of complainant that he was in possession of Rs.2,52,000/-. Even where the case of complainant that he was in possession of the sale consideration received through Ex.P21 is accepted, he

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has not proved how he was able to pay the remaining sum of Rs.2,50,000/-.

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Taking into consideration the oral and

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documentary evidence placed on record, the trial court has come to a correct conclusion that the complainant has failed to prove his financial capacity and also that for his necessity, accused has borrowed a sum of Rs.5 lakhs from him and issued the subject cheque towards the payment of it. On the other hand through preponderance of probabilities, the accused has proved that the cheque was issued by accused as a security to the loan of Rs.50,000/- taken by his son-in-law from the son-in-law of complainant, and despite repayment of the same, the son-in-law of accused complainant did not return the said cheque and through the complainant he got filed a false

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case. So far as the decisions relied upon by the respondent is concerned, they are decided on facts.

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Taking into consideration the oral and documentary evidence placed on record, the trial court has come to a correct conclusion that the charges leveled

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against the accused are not proved beyond reasonable doubt and acquitted him. On reappreciation of the oral and documentary evidence placed on record, this court finds no justifiable grounds to interfere with the well reasoned judgment and order of the trial court. In the result, the appeal fails and accordingly the following:

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ORDER

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(i) The appeal filed by the complainant is dismissed.

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(ii) The impugned judgment and order of the trial court is confirmed.

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(iii) Registry is directed to send back the trial court records along with copy of this judgment.

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Sd/JUDGE

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RR/CLK

Sri Rodde Gowda v. Sri Eshwar Singh

Case brief

What is this about?

What did the court decide?

Sri Rodde Gowda v. Sri Eshwar Singh

Case brief

What is this about?

What did the court decide?

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