Dismissed

C P Prasanna S/O Prabhakaran v. M Rajan S/O Kuttappan

Karnataka HC4 Sept 2024CRL.A/248/2013

Case brief

AI extract

What is this about?

In this criminal appeal against an acquittal for cheque dishonour under Section 138 of the Negotiable Instruments Act, the High Court held that the accused successfully rebutted the legal presumption by showing the cheque was a blank cheque misused by the complainant. The court found no perversity in the appellate court's acquittal and dismissed the appeal.

What did the court decide?

Criminal Appeal dismissed maintaining the judgment of acquittal.

C P Prasanna S/O Prabhakaran Vs M Rajan S/O Kuttappan — Cheque Dishonour | Karnataka HC (2024)

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1 - NC: 2024:KHC:36044 CRL.A No. 248 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE M G UMA

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CRIMINAL APPEAL NO. 248 OF 2013 (A)

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BETWEEN:

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Digitally signed by NANDINI B G

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Location: high court of karnataka

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C.P. PRASANNA S/O PRABHAKARAN, AGE: 43 YEARS OCC: AGRICULTURIST, R/O CHULLIKATTU HOUSE, NEAR YADEHALLI CIRCLE ANANDAPURAM, SAGAR TALUK, SHIMOGA DISTRICT (COMPLAINANT BEFORE TRAIL COURT AND RESPONDENT BEFORE THE SESSIONS COURT) …APPELLANT

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(BY SRI. HARISH B.S., FOR SRI. B.S. PRASAD, ADVOCATES)

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AND:

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M. RAJAN, S/O KUTTAPPAN AGE: 53 YEARS R/O HOUSE NO. 38/2255 EDAKKANDY, THAZHAN, PARAMBA EDAKKAD POST, CALICUT - 673 005 KERALA STATE. (ACCUSED BEFORE TRIAL COURT AND APPELLANT BEFORE SESSIONS COURT) …RESPONDENT

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(BY SRI. K. VISHWANTHA, FOR SRI. V.S. HEGDE, ADVOCATES)

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NC: 2024:KHC:36044 CRL.A No. 248 of 2013

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THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO SET - ASIDE THE ORDER OF ACQUITTAL DATED 22.11.2008 PASSED BY THE DIST. JUDGE, F.T.C.-I, SHIMOGA IN CRL.A.NO.98/2005 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I.ACT. - RESTORE THE ORDER OF CONVICTION DATED 07.10.2005 PASSED BY THE ADDL. C.J. (JR. DN.) & J.M.F.C., SAGAR IN C.C.NO.304/2000.

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THIS CRL.A., COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE M G UMA

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ORAL JUDGMENT

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The complainant in CC No.304/2000 on the file of the learned Additional JMFC, Sagar, is impugning the judgment dated 22.11.2008, passed in Crl.A.No.98/2005 on the file of the learned District Judge and I Fast Track Court, Shimoga, acquitting the accused for the offence punishable under Section 138 of Negotiable Instruments Act (for short 'the NI Act') by setting aside the judgment of conviction and order of sentence passed by the Trial court vide judgment dated 07.10.2005.

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For the sake of convenience, the parties shall be referred to as per their rank and status before the Trial Court.

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NC: 2024:KHC:36044 CRL.A No. 248 of 2013

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Brief facts of the case are that, the complainant

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filed the private complaint in PCR No. 299/1999 before the Trial Court against the accused, alleging commission of the offence punishable under Section 138 of NI Act. It is the contention of the complainant in the private complaint that he was knowing the accused and on 15.02.1998, the accused had approached him and borrowed loan of Rs.75,000/- to meet his financial needs. He promised to repay the same within a month. In spite of repeated demands, the accused had not repaid the same but, finally issued the cheque bearing No.0117251 dated 16.08.1999 for the said amount, drawn on Vijaya Bank towards repayment of the loan that was due to the complainant. When the cheque was presented for encashment, the same was dishonored as account closed on 20.09.1999. The complainant issued the legal notice notifying the accused about dishonor of the cheque and calling upon to repay the cheque amount. The notice was served on the accused and he has issued an untenable reply instead of repaying the amount. Thereby, he has committed offence under Section 138 of NI Act. Accordingly, the complainant requested the Trial court to take cognizance of the offence and to initiate legal action.

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NC: 2024:KHC:36044 CRL.A No. 248 of 2013

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The Trial Court took cognizance of the offence and summoned the accused. The accused appeared before the Trial Court and pleaded not guilty. The complainant examined himself as PW-1 and got marked Ex.P-1 to P-5 in support of his contention. The accused has denied all the incriminating materials available on record in his statement recorded under Section 313 of Cr.PC, examined himself as DW-1 and got marked Ex.D-1 to D-6 in support of his defence. The Trial Court after taking into consideration all these materials on record came to the conclusion that the complainant is successful in proving the guilt of the accused beyond reasonable doubt and hence, convicted and sentenced the accused for the offence punishable under Section 138 of NI Act.

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Being aggrieved by the same, the accused has preferred Crl.A.No.98/2005. The First Appellate Court on re-appreciation of the materials on record, came to the conclusion that the accused was successful in rebutting the presumption under Section 139 of NI Act, but the complainant has not discharged his burden of proving lending of amount and existence of legally recoverable debt. Accordingly, impugned judgment was passed acquitting the accused for the above said

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5 - NC: 2024:KHC:36044 CRL.A No. 248 of 2013

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offence. Being aggrieved by the same, the complainant is before this Court.

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Heard Sri Harish B.S, learned counsel for Sri. B.S. Prasad, learned counsel for the appellant and Sri. K.Vishwanatha, learned counsel for Sri. V.S.Hegde, learned counsel for respondent. Perused the materials including the Trial Court records.

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In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is:

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"Whether the impugned judgment of acquittal passed by the Trial Court suffers from perversity or illegality and calls for interference by this Court?"

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My answer to the above point is in the 'Negative' and pass the following:

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REASONS

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It is the specific contention of the complainant that the accused had borrowed a sum of Rs.75,000/- from him on 15.02.1998 and towards repayment of the same, issued cheque - Ex.P-1 bearing No.0117251 dated 16.08.1999. On

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6 - NC: 2024:KHC:36044 CRL.A No. 248 of 2013

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presentation, the same was dishonored as account closed. When the legal notice was issued, the accused had issued a reply notice, but had not repaid the cheque amount. Thereby, he has committed the offence under Section 138 of NI Act.

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The complainant examined himself as PW-1 had produced Exs.P-1 to P-5. Admittedly, Ex.P-5 is the reply notice issued by the accused. In Ex.P-5, the accused has taken the defence that he had borrowed an amount from one P. Ramachandran and had given blank cheques including the cheque in question i.e., Ex.P-1, as security. Even after repayment of the loan amount to P.Ramachandran he had not returned the cheque and therefore, suit O.S.No.33/1997 came to be filed against said P.Ramachandran, seeking direction to return the blank cheques. In spite of that, the same were not retuned. Instead the said P.Ramachandran handed over the cheques to the complainant, which was misused by the complainant.

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The accused has cross examined PW-1 and stepped into the witness box as DW-1. Ex.D-1 is the certified copy of the plaint in O.S.No.33/1997 on the file of the learned Munsiff

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7 - NC: 2024:KHC:36044 CRL.A No. 248 of 2013

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Court, Kozhikode. The accused is plaintiff therein and suit was filed against P.Ramachandran referred to in the reply notice. In the suit, it is the contention of the accused as plaintiff that he had borrowed an amount of Rs.15,000/- from P.Ramachandran and at the time of borrowing, he had issued 3 blank cheque leaves. Even when he repaid the loan amount with interest, the said P.Ramachandran had not returned the blank cheque leaves. Per contra , the said P.Ramachandran had borrowed an amount of Rs.1,50,000/- from the accused and had issued cheque bearing No.0909070 dated 06.11.1996. When the said cheque was presented for encashment, the same was dishonored as funds insufficient. He had not repaid the cheque amount and therefore, the accused had filed the complaint under Section 138 of NI Act.

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It is pertinent to note that in Ex.D-1 i.e., the plaint in O.S.33/1997, which was filed during Nov-1996, there is reference to 3 blank cheque issued by the accused in favour of P. Ramachandran and it is also pertinent to note that the plaint -

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A Schedule appended to the plaint refers to the cheque bearing No. 0117252 and the other blank cheques. It is also relevant to refer to Ex.P-1 bearing No. 0117251, which is first in the series,

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8 - NC: 2024:KHC:36044 CRL.A No. 248 of 2013

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which is specifically referred to in the plaint A - Schedule. By producing Ex.D-1 also deposing as DW-1, the accused is successful in probabalizing his defence that he had issued blank cheques in favour of one P. Ramachandran and had filed the suit O.S.No.33/1997 by referring to the cheque bearing No.0117252 and 2 other blank cheques. Since Ex.P-1 is bearing No. 0117251, it could be concluded that the accused was successful in probabalizing his defence. When the accused probabalizes his defence, he has successfully rebutted the legal presumption under Section 139 of NI Act and the reverse burden shifted on the complainant to prove lending of the amount and existence of legally recoverable debt.

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The complainant contended that he had lent an amount of Rs.75,000/- to the accused on 16.08.1999. According to the complainant, the said amount was paid in cash. So there is absolutely no material to substantiate lending of the amount or to prove existence of legally recoverable debt. Under such circumstances, the accused is entitled for acquittal.

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Even though, the Trial Court convicted the accused by holding that the complainant is successful in proving the guilt

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9 - NC: 2024:KHC:36044 CRL.A No. 248 of 2013

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of the accused beyond reasonable doubt, the First Appellate Court on re-appreciation of the materials on record formed a different opinion holding that the accused is successful in rebutting the presumption by producing Ex.D-1. I do not find any perversity or illegality in the finding recorded by the First Appellate Court. It is the settled position of law that even if another opinion could be formed based on oral and documentary evidence that are placed before the Court than the one formed by First Appellate Court, it is not justifiable for this Court to set aside the judgment of acquittal, by forming the other opinion. Under such circumstances, I do not find any reason to interfere with the impugned judgment of acquittal passed by the First Appellate Court. Accordingly, I answer the above point in the negative and proceed to pass the following:

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ORDER

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The Criminal Appeal is dismissed.

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Sd/(M G UMA) JUDGE

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SPV

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List No.: 2 Sl No.: 26

C P Prasanna S/O Prabhakaran v. M Rajan S/O Kuttappan

Case brief

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What did the court decide?

C P Prasanna S/O Prabhakaran v. M Rajan S/O Kuttappan

Case brief

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