Complainant appealed against the First Appellate Court's acquittal of the accused in a cheque dishonour case. With neither party appearing despite a final opportunity, the High Court found the accused had rebutted the Section 139 presumption by denying the car sale, and dismissed the appeal, upholding the acquittal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2024:KHC:36362 CRL.A No. 1100 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA CRIMINAL APPEAL NO. 1100 OF 2011 (A)
BETWEEN:
AMJAD KHAN S/O YASIM KHAN, AGED ABOUT 36 YEARS R/AT NO.38, 4TH CROSS N.K. PALYA, SHIVAJINAGAR BANGALORE - 560 051
…APPELLANT
(BY SRI. KEERTHIKAR S., ADVOCATE)
AND:
Digitally signed by SUMA B N Location: High Court of Karnataka
FIROZ PASHA S/O LATE NAWAB JAN, AGED ABOUT 30 YEARS NO.31, 6TH CROSS DEVANGA HOSTEL SAMPANGIRAMANAGAR BANGALORE
…RESPONDENT
(BY SRI. M. GIRISH, ADVOCATE (ABSENT))
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 05.05.2011 PASSED BY THE ADDITIONAL S.J., AND P.O., FTCIII, MAYO HALL UNIT, BENGALURU IN CRL.A.NO.25097/2010 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTION 138 OF N.I. ACT AND ETC.
NC: 2024:KHC:36362 CRL.A No. 1100 of 2011
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS JUSTICE M G UMA
ORAL JUDGMENT
The complainant in C.C.No.29981/2007 on the file of
the learned XIV Addl. Chief Metropolitan Magistrate, Bengaluru, is impugning the judgment dated 05.05.2011 passed in Crl.A.No.25097/2010, on the file of the learned Additional Sessions Judge and Presiding Officer, FTC-III, Mayo Hall Unit, Bengaluru setting aside the judgment dated 03.08.2010 passed by the trial Court and convicting the accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short 'N.I.Act') and thereby acquitting the accused.
has filed the private complaint in PCR.No.3703/2007
NC: 2024:KHC:36362 CRL.A No. 1100 of 2011
against the accused alleging offence punishable under Section 138 of N.I. Act. It is the contention of the complainant that he is the owner of TATA Indica Car bearing registration No.KA-20-MD-952 and accused is his friend. The accused had purchased the said car from the complainant for a sum of Rs.2,40,000/- on 23.09.2006 and towards payment of consideration amount, he had issued post dated cheque No.140742 dated 10.10.2006 and promised to arrange for the same. When the cheque was presented for encashment, the same was dishonoured, as there was no sufficient fund in the account of the accused. The complainant issued legal notice notifying the accused about dishonour of the cheque
and calling upon him to pay the cheque amount. Even though the legal notice is served on the accused, he has not repaid the cheque amount and thereby he has committed offence punishable under Section 138 of N.I.Act. Accordingly, he has requested the trial Court to take cognizance and to issue summons to the accused.
NC: 2024:KHC:36362 CRL.A No. 1100 of 2011
passed the impugned judgment acquitting the accused by setting aside the judgment and order of conviction passed by the trial Court. Being aggrieved by the same, the complainant is before this Court.
neither the appellant nor the respondent have appeared before this Court to address their arguments. The order sheet dated 02.08.2024 reads as under:
"Learned counsel for the appellant is absent. No representation.
It appears that after 28.02.2014, the matter was never listed for over a decade. It is obvious that the appellant is not interested in prosecuting the appeal. However, the afford a final opportunity, list on 14.08.2024."
Inspite of that there is no representation either by the appellant or on behalf of the respondent. I do not find any reason to adjourn the matter. Hence, their arguments are taken as Nil. Perused the materials including the trial Court records.
NC: 2024:KHC:36362 CRL.A No. 1100 of 2011
point that would arise for my consideration is:
“Whether the appellant has made out any grounds to allow the appeal and to convict the accused for the offence punishable under Section 138 of NI Act by reversing the finding recorded by the First Appellate Court."
REASONS
the account of the accused. Inspite of service of notice, accused has not repaid the cheque amount and thereby
committed the offence punishable under Section 138 of N.I. Act. Accused after appearing before the trial Court has cross-examined PW-1 and the tenor of cross-examination discloses that he had taken the specific contention that he never purchased the car from the complainant and also contended that the complainant was never the owner of the car bearing registration No.KA-02/MD-952 nor the vehicle documents were handed over to the accused as contended by the complainant. However, it appears that the accused has not denied issuance of the cheque at Ex.P1. When the accused admits issuance of cheque and his signature, presumption under Section 139 of N.I.Act would arise and initial burden on the complainant gets discharged. The burden shifts on the accused to rebut the presumption.
NC: 2024:KHC:36362 CRL.A No. 1100 of 2011
contended by the complainant. He has disputed the fact that complainant was the owner of the car at any point of time. He also contends that the vehicle documents were never transferred in the name of accused. Even when such specific defence was taken by the accused, complainant has not chosen to produce any documents in support of his contention, nor such documents were tendered to the accused when he was in witness box. When there is specific denial on the part of the accused regarding specific contention taken by the complainant, it is the duty of the complainant to produce cogent material to substantiate his contention by leading positive evidence. But no such attempt was made by the complainant to falsify the defence taken by the accused. If at all the car in question was sold by the complainant in favour of the accused, there would be documents to prove the same. There is absolutely no reason for not producing any such documents. Under such circumstances, it is to be concluded that the accused has rebutted the presumption under Section 139 of N.I. Act by raising a probable
defence. Now, the burden shifts on the complainant to prove the guilt of the accused, but no attempt whatsoever was made by the complainant to prove the guilt of the accused beyond reasonable doubt. Under such circumstances, accused is entitled for acquittal.
ORDER
Criminal appeal is dismissed.
Sd/(M G UMA) JUDGE
RR List No.: 2 Sl No.: 25
2 issues framed by the court
Whether the complainant's appeal could reverse the First Appellate Court's acquittal of the accused under Section 138 NI Act.
Whether the accused rebutted the presumption under Section 139 NI Act by raising a probable defence.
4 provisions across 2 enactments
Amjad Khan S/o Yasim Khan
Firoz Pasha S/o Late Nawab Jan
M G Uma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
