Rajashekar S/O Shanmukhappa Tenginakai, Vs Kutubuddin S/O Jafarsab Dandoti

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (4) OF CR.P.C., SEEKING TO CALL FOR THE RECORDS AND SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 28.10.2016 PASSED BY THE LEARNED LD. V ADDL. DISTRICT AND SESSIONS JUDGE HUBBALLI IN CRIMINAL APPEAL NO. 71/2014 AND CONSEQUENTLY RESTORE THE JUDGMENT AND ORDER OF CONVICTION DATED 10.09.2014 PASSED BY THE LD. JMFC II COURT HUBBALLI IN CC NO. 1325 OF 2007 AGAINST THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT. PASS ANY ORDER AS THIS HON’BLE COURT DEEMS FIT UNDER THE CIRCUMSTANCES OF THE CASE IN THE INTEREST OF JUSTICE.

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THIS CRIMINAL APPEAL, COMING ON FOR ADMISSION, THIS DAY JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

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ORAL JUDGMENT

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This appeal is filed by the appellant-complainant praying to set aside the judgement of acquittal dated 28.10.2016 passed in Crl.A. No.71/2014 by the V- Additional District and Sessions Judge, Dharwad [sitting at Hubballi] and restore the judgement of conviction dated 10.09.2014 passed in CC No.1325/2007 by JMFC-II Court, Hubballi for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 [ hereinafter referred to as ‘N.I. Act for short ].

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The case of the appellant-complainant is as

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under;

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The respondent-accused is a known person to the appellant-complainant and in March-2005 for the business necessity, respondent-accused took a loan of ₹4,50,000/-. ₹1,65,000 was paid through cheque bearing No.307524

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and the remaining amount was given in cash. The

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respondent-accused has assured to repay the same within a period of six [6] months. The respondent-accused in order to repay the said amount borrowed, has issued a cheque bearing No.154579 dated 27.01.2007 for ₹4,50,000/drawn on HDFC Bank, Hubballi. The appellant-complainant presented the said cheque for encashment and it came to be dishonoured with a reason “ Account closed ” with a Bank memo dated 29.01.2007. The appellant-complainant got issued a legal notice on 20.02.2007 and it has been served on the respondentaccused. The respondent-accused has not paid the cheque amount and therefore, the appellant-complainant has filed a private complaint against the respondent-accused for offence punishable under Section 138 of N.I. Act. The learned Magistrate has taken cognizance and registered CC No.1325/2007 against the respondent-accused for offence punishable under Section 138 of N.I. Act. The plea of the accused has been recorded.

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The appellant-complainant in order to prove his

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case, examined himself as PW.1 and got marked six [6] documents at Ex.P-1 to P-6. The statement of the respondent-accused has been recorded under Section 313 of Cr.P.C. The respondent-accused examined himself as DW.1 and got marked four [4] documents at Ex.D-1 to D- 4. The learned Magistrate after hearing the arguments of both sides, has formulated the points for consideration and convicted the respondent-accused for offence punishable under Section 138 of N.I. Act by judgement dated 10.09.2014. The respondent-accused challenged the said judgement of conviction in an appeal before the Sessions Court in Crl.A.No.71/2014. The appellate Court after hearing the arguments of both sides has allowed the appeal and reversed the judgement of conviction and acquitted the respondent-accused. The said judgement passed by the appellate Court has been challenged by the appellant-complainant in this present appeal.

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Heard learned counsel for the appellant and

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learned counsel for the respondent.

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Learned counsel for the appellant –complainant would contend that the respondent –accused has admitted his signature on cheque –Ex.P1. As the respondent – accused has admitted his signature on the cheque –Ex.P1, the presumption has to be drawn under Section 139 of the N.I Act. The said presumption has not been rebutted by the respondent –accused. Considering the said aspect, learned trial Court has rightly convicted the respondent – accused for offence punishable under Section 138 of the N.I Act. The Appellate Court even though has come to the conclusion that the said presumption is not rebutted by the respondent –accused but considering the capacity of the appellant -complainant to lend huge amount has reversed the judgment of conviction. He contends that when the presumption is not rebutted, there is no necessity for the appellant -complainant to establish the

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lending and his capacity to lend amount. He placed

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reliance on the following decisions:

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1) Tedhi Singh Vs Narayan Dass Mahant¹ 2) D.K. Chandel Vs M/s Wockhardt Ltd. & Anr² 3)Rejesh Jain Bs Ajay Singh³

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On these grounds he prays to allow the appeal and restore the judgment of conviction passed by the trial Court.

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Learned counsel for the respondent –accused

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would contend that the respondent –accused has taken up his defence at initial stage in his reply notice –Ex.D1. The said defence put forth in the cross examination of P.W.1. The respondent –accused has also stated his defence in his evidence. The documents produced by the appellant – complainant will not establish his capacity to lend amount of Rs.4,50,000/- (rupees Four Lakhs Fifty Thousand only). Considering the same, the Appellate Court has rightly acquitted the respondent –accused for offence punishable

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1 Reported in (2022) 6 SCC 735

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2 Rendered in Crl.A.No.132/2020 dated 20.01.2020

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3 Reported in (2023) 10 SCC 148

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under Section 138 of the N.I Act. With these, he prays for dismissal of the appeal.

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Having heard learned counsels, this Court has

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perused the impugned judgment and trial Court records. Considering the grounds urged, the following point arises for my consideration:

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“Whether the Appellate Court has erred in reversing the judgment of conviction passed by the trial and acquitting the respondent -accused for offence under Section 138 of N.I. Act?”

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My answer to the above point is in the ‘affirmative’ for the following reasons:

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It is the specific case of the appellant -complainant that during March -2005, the respondent –accused has borrowed Rs.4,50,000/(rupees Four Lakhs Fifty Thousand only) agreeing to repay the same within six months. Out of that (Rs.4,50,000/-), Rs.1,65,000/- has been paid though cheque and remaining amount is paid by

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cash. The respondent –accused has admitted his signature on cheque –Ex.P1. As respondent –accused has admitted his signature on cheque –Ex.P1, the presumption has to be drawn under Section 139 of the N.I Act that the cheque has been issued for discharge of debt. The said presumption is rebuttable presumption. The standard of proof for rebutting the said presumption is preponderance of probability.

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The respondent –accused has taken up his defence that he is illiterate and he carrying scarp business and the appellant –complainant use to assist him in scarp business in filling up application and making payment etc and for that he has issued blank signed cheque to the appellant –complainant and he has misused the same. The said evidence has been put forth by the respondent – accused in his reply notice –Ex.D1 dated 12.03.2007. The said defence has been put to P.W.1 in his cross examination and he has denied the same. The respondent –accused who has been examined as D.W.1 has stated the

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same in his chief examination. The said evidence has been denied by the appellant –complainant in his cross examination. D.W.1 in his cross examination has stated that there were other four friends who were assisting him in filling tender forms and applications. Considering the evidence of P.W.1 and D.W.1, defence of the respondent – accused remained un-established. Therefore, the presumption drawn under Section 139 of the N.I Act has not been rebutted by the respondent –accused. As statutory ingredients of offence punishable under Section 138 of the N.I Act have been established, the trial Court has rightly convicted the respondent –accused for offence punishable under Section 138 of the N.I Act.

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The Appellate Court considering the evidence

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and re-appreciating the evidence on record has observed in para No.18 of the judgment as under

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“The complainant no doubt has not admitted for assisting the accused in completing the tender formalities. Therefore, an inference may also be drawn for issuing such cheques for

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the discharge of debt only. However, in view of the rival contention raised by the accused, the burden of the complainant to establish the ability to lend the amount cannot be left unexamined.”

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Considering above observation of the Appellate

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Court, it is clear that the Appellate Court has also given finding that the respondent –accused has not rebutted the presumption drawn under Section 139 of the N.I Act. The Appellate Court even after giving said finding has gone to deal the capacity of the appellant –complainant to lend huge amount. If the presumption is remained unrebutted, the appellant –complainant need not to prove lending of the amount by him to the respondent –accused and his capacity to lend huge amount. More so Ex.P5 -Bank Account statement of the appellant –complainant will show

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that he has capacity to lend huge amount as credit balance in his account is more than eight lakhs as on the

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date of lending money. Apart from that the fact of payment of Rs.1,65,000/- (rupees One Lakh Sixty

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Thousand only) by the appellant –complainant to the respondent –accused by cheque No.37524 and it is encashed by the respondent –accused has been established as there is entry to that effect dated 05.03.2005. The respondent –accused neither in his reply notice nor in the cross examination, nor in his evidence has stated anything regarding payment of Rs.1,65,000/(rupees One Lakh Sixty Thousand only) by cheque by the appellant –complainant to the respondent –accused. Considering the above aspects, the findings given by the Appellate Court on reversing the judgment of conviction passed by the trial Court is erroneous. The trial Court has rightly appreciated the evidence on record and rightly held that the appellant –complainant has proved that the respondent –accused has committed offence punishable under Section 138 of the N.I Act.

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In the result, the following

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ORDER

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i. The appeal is allowed .

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ii. The impugned judgment of acquittal dated 28.10.2016 passed in Crl.A.No.71/2014 by the V Additional District and Sessions Judge, Dharwad sitting at Hubballi is set aside.

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iii. The judgment of conviction of respondent – accused for offence punishable under Section 138 of the N.I Act passed in C.C.No.1325/2007 dated 10.09.2014 by the J.M.F.C II Court, Hubballi is restored.

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iv. The sentence imposed by the trial Court is modified as under:

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a) The respondent -accused is sentenced to pay fine of Rs.4,60,000/- (rupees Four Lakhs Sixty Thousand only) and in default to undergo simple imprisonment for six

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