Complainant appealed against acquittal in a cheque dishonour case. The court found the accused rebutted the Section 139 presumption through cross-examination showing the cheque was security issued to a third party; complainant failed to prove actual lending. Appeal dismissed.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA CRIMINAL APPEAL NO. 1440 OF 2017
BETWEEN:
SRI. SURESH D.M., S/O SRI. MONNAPPA, R/AT NO.3, SURYANARAYANA ASHRAM, GUNDAPPA MATT ROAD, LINGARAJAPURA, BANGALORE-560 094.
…APPELLANT
(BY SRI. B.N. ANJAN KUMAR, ADVOCATE)
AND:
SMT. SUMITHRA, Digitally AGED ABOUT 52 YEARS, signed by R/AT NO.118/1, KAVYA R HANUMANTHAPPA BUILDING, Location: COX TOWN, JEEVANAHALLI, High Court of Karnataka BANGALORE-560 005.
AND ALSO AT: GODAGHALLY VILLAGE, BOODHIKOTE POST, BANGARPET TALUK, KOLAR DISTRICT - 71
…RESPONDENT
(BY SRI. CHANDAN, ADVOCATE (ABSENT))
THIS CRL.A. IS FILED U/S.378(4) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 30.06.2017 PASSED BY THE LVII ADDL.C.M.M., BENGALURU IN C.C.NO.52470/2015 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE M G UMA
ORAL JUDGMENT
The appellant being the complainant in C.C. No.52470/2015, on the file of the learned LVII Additional Chief Metropolitan Magistrate, Mayo Hall Unit, Bengaluru is impugning the judgment dated 30.06.2017, acquitting the accused for the offence punishable under Section-138 of Negotiable Instruments Act (for short 'N.I. Act').
had promised to repay the same within three months. Towards repayment of the said amount, the accused had issued the cheque bearing No.405805, dated 19.03.2015 for a sum of Rs.5,45,000/-. When the cheque was presented for encashment, the same was dishonored as 'funds insufficient'. He issued a legal notice intimating the accused about the dishonor of cheque and calling upon her to repay the cheque amount. Inspite of service of notice on the accused, she has not paid the cheque amount and thereby she has committed the offence punishable under Section-138 of NI Act. Accordingly, the complainant requested the trial court to take cognizance of the offence and to initiate legal action against the accused.
the cross-examination of PW-1, he has categorically stated that the accused had issued a 'on demand promissory note', while availing the loan. But strangely, the said document is not produced before the Court, for the reasons best known to the complainant. The trial court after taking into consideration, the materials on record, came to the conclusion that the complainant is not successful in proving the guilt of the accused beyond reasonable doubt. Accordingly, the complaint was rejected and the accused was acquitted for the offence punishable under Section-138 of N.I. Act. Being aggrieved by the same, the complainant is before this Court.
"Whether the impugned judgment of acquittal passed by the Trial Court suffers from perversity or illegality and calls for interference by this Court?"
My answer to the above point is in the 'Negative' and pass the following:
REASONS
and P8(a) are the legal notices that were sent to the address of the accused as well, which were returned unserved as not claimed.
NC: 2024:KHC:46460 CRL.A No. 1440 of 2017
presumption under Section-139 of N.I. Act, would arise and the burden shifts on the accused to rebut the presumption by probablising her defence.
complainant. It could be presumed that he is doing business of money lending. But has not maintained any books of accounts to evidence the same. Even though the complainant states that the accused had issued an on demand promissory note', the same is not produced before the court.
coupled with Exhibit-P1 copy of the sale deed produced by the complainant himself probalbalises the defence taken by the accused. When the complainant has failed to prove actual lending and existence of legally recoverable debt for the accused to issue the cheque in question, the accused is entitled for acquittal.
ORDER
The appeal is dismissed.
Sd/(M G UMA) JUDGE
JJ List No.: 2 Sl No.: 55
1 issue framed by the court
Whether the acquittal under Section 138 NI Act was perverse or illegal and warranted interference by the High Court?
3 provisions across 2 enactments
Sri. Suresh D.M.
Smt. Sumithra
M G Uma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
