The High Court dismissed the criminal appeal filed by a complainant challenging an acquittal of the accused in a cheque dishonour case, holding that the trial court did not commit any illegality or perversity in allowing the accused to rebut the presumption.
Criminal appeal dismissed; acquittal of the respondent is upheld.
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.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL APPEAL NO. 165 OF 2023 (A)
BETWEEN:
SMT. THRIPURA VISHWANATH, W/O. P.S. VISHWANATH, AGED ABOUT 82 YEARS, RESIDING AT NO.33, 5TH MAIN, K.P. PUTTANNA CHETTY ROAD, CHAMARAJPET, BANGALORE - 560 018
Digitally signed by SWAPNA V Location: high court of karnataka
(BY SRI. JAIRAJ .G., ADVOCATE)
AND:
…APPELLANT
SRI. M.N. KUMAR, S/O. NANJAPPA, AGED ABOUT 56 YEARS, PROPRIETOR M.N. MOVIES, RESIDING AT NO.2358 /32, 1ST 'C' MAIN ROAD, 1ST CROSS, VIJAYANAGAR II STAGE, BBMP WARD NO.133, BANGALORE - 560 104 ALSO AT NO.526/9, 9TH MAIN, HAMPINAGAR, VIJAYANAGAR II STAGE, BANGALORE - 560 104
…RESPONDENT
(BY SRI. RAJESH .A., ADVOCATE)
THIS CRIMINAL APPEAL IS FILED U/S 378(4) OF CR.PC PRAYING TO SET ASIDE THE JUDGMENT AND ORDER PASSED BY THE LEARNED ADDL. SMALL CAUSE AND 26TH A.C.M.M AT BENGALURU IN C.C.NO.7596/2021 BY ITS JUDGMENT DATED 14.12.2022 AND ALLOW THE APPEAL FILED BY THE APPELLANT/COMPLAINANT BY CONVICTING THE RESPONDENT UNDER SEC.138 OF THE N.I ACT AND AWARD THE SUITABLE COMPENSATION TO THE APPELLANT/COMPLAINANT.
NC: 2024:KHC:30936 CRL.A No. 165 of 2023
THIS CRIMINAL 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.7596/2021 on the file of learned Additional Small Cause (SCCH-9) and 26th A.C.M.M, Bangalore, is impugning the judgment dated 14.12.2022, acquitting the accused for the offences punishable under Sections 138 of Negotiable Instruments Act (for short 'NI Act').
referred to as per their rank and status before the Trial Court.
and Sri Rajesh A, learned counsel for the respondent. Perused the materials including the Trial Court records.
He was having sufficient means and with the help of her husband, the complainant had lent the amount to the accused.
The accused had issued the cheques- Ex-P1 and P2 for Rs.10,00,000/- each, towards repayment of the amount that was due to be paid. On presentation of the cheques, the same were dishonored as there was no sufficient funds in the account of the accused. Legal notice as per Ex-P5 was issued and the same was served on the accused as per Ex-P8 and P9. But the accused had not repaid the cheque amount and thereby committed the offence punishable under Section 138 of NI Act.
ground that the complainant has not proved her financial capacity. When the accused has not specifically denied financial capacity of the complainant, the Trial Court committed error in dismissing the complaint.
7. Per contra, learned counsel for the respondent submits that the Trial Court has taken into consideration all the materials on record and rightly dismissed the complaint and prays for dismissal of the appeal.
1 MANU/KA/0397/2024
learned counsel for both the parties, the point that would arise for my consideration is:
“Whether the impugned judgment of acquittal suffers from perversity or illegality and calls for interference by this court? "
My answer to the above point is in ‘Negative’ for the following:
R E A S O N S
examination, witness stated that the accused had taken the money for a big budget cinema. She had paid it through cash. She pleaded her ignorance, as when exactly she paid the amount. It is pertinent to note that PW-1 has stated that during 2014, she was constructing an apartment in Bengaluru and it took almost 8 years to complete. It is also pertinent to note that PW-1 has specifically stated that since she was facing financial crunch, the construction work was stalled for sometime. When such is the evidence given by PW-1, naturally, the accused will take advantage of the same.
When the complainant specifically states that she was facing financial crunch and construction of the apartment took almost 8 years, it cannot be said that she was having financial capacity to lend such a big amount.
2 (2023) 10 SCC 148
NC: 2024:KHC:30936 CRL.A No. 165 of 2023
taken defence that during 2015 he had availed a loan of Rs.5,00,000/- from the complainant. It is his contention that he had repaid the entire amount of Rs.5,00,000/-. This fact is admitted by PW-1 during cross examination. It is the further contention of the accused that he had issued cheques as per Ex-P1 and P2 as security while availing loan of Rs. 5,00,000/which was subsequently presented for encashment during 2020-2021. When PW-1 admits that the accused had availed loan of Rs. 5,00,000/- during 2015 and had repaid it on 21.10.2015, the accused is successful in probablizing the defence that he had issued cheques in question as security when he availed the loan at first instance. The complainant could have placed any cogent material to disbelieve the version of the accused and to substantiate her contention regarding her financial condition and lending of the huge amount of Rs.20,00,000/-. No such efforts were made by the complainant. Under such circumstances, it could be said that even though the complainant was successful in discharging her initial burden, the accused is successful in rebutting the presumption under Sections 118 and 139 of NI Act and the reverse burden is
on the complainant to establish her contention. When once the accused discharges his burden by rebutting the presumption, the complainant cannot place reliance on the presumption of law which already stands rebutted. Nothing is on record to hold that the complainant independently proved her contention regarding commission of the offence by the accused. Under such circumstances, the accused is entitled for acquittal.
ORDER
The appeal is dismissed.
Sd/(M G UMA) JUDGE
SPV/List No.: 2 Sl No.: 9
2 issues framed by the court
Whether the impugned judgment of acquittal suffers from perversity or illegality and calls for interference by this court?
Whether the complainant successfully discharged the burden of proving financial capacity to lend the amount after the accused rebutted the presumption?
Colour shows how this judgement treated each authority
Smt. T. R. Radhamma v/s Sri MunigowdaReferred¶6
_Smt. T. R. Radhamma v/s Sri Munigowda_ 1 MANU/KA/0397/2024
Rajesh Jain v/s Ajany SinghDistinguished¶12
_Rajesh Jain v/s Ajany Singh_ 2 (2023) 10 SCC 148 · Who else cites this
2 provisions across 1 enactments
Smt. Thripura Vishwanath
Sri. M.N. Kumar
M G UMA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
