Complainant appealed against acquittal of the accused in a cheque dishonour case under Section 138 NI Act after the First Appellate Court set aside conviction. The High Court found inconsistencies in the complainant's claims about the loan and held he failed to prove a legally enforceable debt.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL APPEAL NO. 157 OF 2013 (A)
BETWEEN:
K MANIKANDAN, S/O SRIL SHEKARAN NAIR, AGED ABOUT 50 YEARS, R/AT # 55, 1ST CROSS, R P LAYOUT, VIJINAPURA, DORRAVANINAGAR, BANGALORE - 560 016
…APPELLANT
(BY SRI. J. PRAKASH, ADVOCATE)
Digitally signed by NANDINI B G Location: high court of karnataka
AND:
SMT. SUBHASHINI, W/O LATE SRI PADMANABHAN, AGED ABOUT 38 YEARS, NO.172/3, 2ND CROSS, VIVEKANANDA NAGAR, BSK III STAGE, BANGALORE - 560 085
…RESPONDENT
(BY SRI. C. PATTABI RAMAN, ADVOCATE)
THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 06.09.2012 PASSED BY THE ADDL. S.J., P.O., F.T.C.-III, MAYO HALL, BANGALORE IN CRL.A.NO.25167/2011 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I.ACT AND CONFIRM THE ORDER DATED 25.08.2011 PASSED BY THE V ADDL. JUDGE COURT OF SMALL CAUSES & 24TH ACMM., BANGALORE IN C.C.NO.28153/2006.
NC: 2024:KHC:49267 CRL.A No. 157 of 2013
THIS CRL.A., COMING ON FOR HEARING - INTERLOCUTORY APPLN, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS JUSTICE M G UMA
ORAL JUDGMENT
The complainant in CC No.28153/2006 on the file of the learned V Additional Judge Court of Small Causes and 24th ACMM, Bangalore (for short 'the Trial Court'), who was the respondent in Crl.A.No.25167/2011 on the file of the learned Additional Sessions Judge and PO, FTC III Mayo Hall, Bengaluru (for short 'the First Appellate Court) is impugning the judgment of the First Appellate Court dated 06.09.2012 allowing the appeal and acquitting the accused by setting aside the judgment dated 25.08.2011 passed by the Trial Court convicting the accused for the offences punishable under Section 138 of Negotiable Instruments Act, 1881 (for short 'NI Act').
Section 138 of NI Act. The complainant contended that the accused is running chit business and the complainant was introduced to the accused by his friends. During 2004, the accused requested the complainant to lend an amount of Rs.6,00,000/- assuring to repay the same during February 2005. Accordingly, the complainant had lent an amount of Rs.6,00,000/-. When the complainant demanded to repay the loan amount, the accused had issued cheque dated 10.04.2005 for Rs.6,00,000/-, towards discharge of the legally enforceable debt. When the cheque was presented for encashment, the same was dishonored as funds insufficient. When this fact was brought to the notice of the accused, he requested for representing the cheque. Accordingly, the cheque was represented, but again the cheque was dishonored as there was insufficient funds, in the account of the accused. Legal notice was issued calling upon the accused to repay the cheque amount. The accused managed to evade the service of notice and returned it with an endorsement as addressee left. Thereby, the accused has committed an 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.
complainant has not proved lending of amount and therefore, the accused is entitled for acquittal. Accordingly, the appeal was allowed. The impugned judgment of conviction passed by the trial Court was set aside. The accused was acquitted. Being aggrieved by the same, the complainant is before this Court.
such endorsement after knowing its contents. The notice in question was issued to the last known address and the very
same address is mentioned in the complaint and the accused is duly served with summons. Therefore, it is clear that the accused had evaded service of legal notice.
categorically admitted cheque Ex.P.1 belongs to her and it bears her signature. When the accused admits issuance of cheque, the legal presumption will arise and burden shifts on the accused to rebut the legal presumption. Even though the accused has stepped into the witness box and deposed before the Court, she is not successful in rebutting the presumption. Under such circumstance, the Trial Court was right in convicting the accused. But the First appellate Court on re-appreciation of material on record, acquitted the accused on flimsy grounds. Therefore, he prays for allowing the appeal.
NC: 2024:KHC:49267 CRL.A No. 157 of 2013
referring to an amount which is due to him as Rs.1,20,000/from the accused. The complainant has deposed in CC No.22922/2005 as PW1 and stated that an amount of Rs.5,25,000/- was due from the accused. But during cross examination, the complainant in the present case as PW1 states that an amount of Rs.3,75,000/-was due to be paid by the accused. There is inconsistency in the contention taken by the complainant. Moreover, there is no reason for not referring to the loan lent during 2004 in any of the documents. Under such circumstances, the First Appellate Court was right in acquitting the accused. There are no reasons to interfere with the said judgment. Accordingly, he prays for dismissal of the appeal.
"Whether the impugned judgment of acquittal passed by the First Appellatel Court suffers from perversity or illegality and calls for interference by this Court?"
NC: 2024:KHC:49267 CRL.A No. 157 of 2013
My answer to the above point is in the 'negative' and pass the following:
REASONS
NC: 2024:KHC:49267 CRL.A No. 157 of 2013
find any reason for the complainant in not mentioning the loan amount of Rs.6,00,000/- which was said to have been lent during 2004, in the complaint Ex.D2 dated 10.01.2005, which was just about 3 months earlier to issuance of the cheque Ex.P1 which is dated 10.04.2005. When the complainant refers to as many as 23 other persons to contend that various amounts are due to all of them and an amount of Rs.1,20,000/only was due to him, I do not find any justification for not mentioning the loan amount of Rs.6,00,000/-.
cash. The date and month of lending is not forth coming in the complaint nor it is found in reference either in Ex.D2 or D3 under such circumstances, it is held that the complainant had not proved lending of the amount and the existence of legally enforceable debt. Under such circumstances, the accused is entitled for acquittal.
ORDER
The appeal is dismissed.
Registry to send back the Trial Court records with the copy of this judgment.
Sd/(M G UMA) JUDGE
BH: List No.: 2 Sl No.: 1
1 issue framed by the court
Whether the First Appellate Court's judgment of acquittal suffered from perversity or illegality warranting interference by the High Court?
3 provisions across 2 enactments
K Manikandan
Smt. Subhashini
M G Uma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
