Sri T Prakash Vs Smt Drakshayeni

THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT DATED 12.07.2023 IN C.C.NO.25/2022 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC AT MALUR AND CONSEQUENTLY ALLOW THE COMPLIANT.

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THIS APPEAL, COMING ON FOR HEARING ON INTERLOCUTORY APPLICATION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE G BASAVARAJA

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ORAL JUDGMENT

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The appellant/complainant has preferred this appeal against the judgment of acquittal passed by the Prl. Civil Judge and JMFC at Malur in CC No.25/2022 dated 12.07.2023.

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For the sake of convenience, the parties herein are referred to as per their status before the trial Court.

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Brief facts leading to this appeal are that t he appellant has filed complaint under Section 138 of NI Act. It is alleged by the complainant that, during the 1^st week of September-2021, the accused has borrowed a loan of Rs.10,00,000/- for payment of her father's hospital expenses and for her family necessities. She agreed to repay the said loan within three months and towards repayment, the accused has issued a cheque bearing No.877480 on 06.11.2021 drawn on State Bank of India, Malur Branch. When the said cheque was presented by the complainant for encashment before Karnataka Gramina Bank, Kudiyanur Branch, same returned with endorsement "Funds Insufficient". Thereafter, the complainant issued legal notice dated 01.12.2021 to the accused through RPAD and the same was duly served on

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08.12.2021. Inspite of legal notice, accused did not pay the cheque amount. Hence, the complainant has lodged the complaint. After filing the complaint, the case was registered in PCR No.1/2022. After taking cognizance case was registered in CC No.25/2022.

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The summons was issued to the accused. In response to summons, the accused appeared before the trial Court and enlarged on bail. The substance of plea was recorded. Having understood the same, the accused pleaded not guilty and claimed to be tried.

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To prove the guilt of the accused, the complainant examined himself as PW1 and 7 documents were marked as Exhibits P1 to P7. On the other-hand, the accused examined herself as DW1 and marked 4 documents as Exhibits D1 to D4. On closure of complainant side evidence, statement under Section 313 of Code of Criminal Procedure was recorded. Accused has totally denied the evidence of PW1.

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Having heard the arguments on both sides, the trial Court has acquitted the accused. Being aggrieved by this

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judgment of acquittal, complainant/appellant has preferred this appeal.

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The learned counsel for the appellant would submit that, the trial Court erred in not considering that when the signature and issuance of cheque is admitted, the presumption is that there is a legally enforceable debt. It is for the accused to rebut presumption. In the instant case, the trial Court has imposed burden on complainant to prove that there is legally recoverable debt by overlooking the concept of presumption contemplated under the provisions of Negotiable Instruments Act. The trial Court has committed an error in giving contrary finding that, respondent has not disputed that she has no knowledge about the issuance of notice as per Exhibit P3. Same was duly served on the respondent and she has not issued any reply to the demand notice. When this being the fact, presumption in favour of the appellant that the respondent has admitted that legally enforceable debt is available. The respondent did not reply to the demand notice issued by the appellant. Exhibits D1 to D3 do not support the case of the respondent since the said documents are not accompanied by Section 65B of the Indian Evidence Act. The accused has not

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produced any materials to rebut the presumption under the Negotiable Instruments Act.

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The trial Court has not properly appreciated the evidence on record in its proper perspective. Further, it is also submitted that the accused have taken defence that the signed cheque was misused by the complainant. But the accused has not taken any legal steps against this complainant till this day. However, the trial Court has acquitted the accused. On all these grounds, it is sought for allowing this appeal.

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As against this, the learned counsel for the respondent would submit that, the trial Court has properly appreciated the evidence on record and acquitted the accused and there is no ground for interference. Accordingly, sought for dismissal of this complaint.

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Having heard the arguments on both sides and on perusal of the materials placed before this Court, the following points would arise for my consideration:

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Whether the trial Court has committed an error

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in acquitting the accused?

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What order?

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Regarding Point No.1:

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Before appreciation of evidence and record, it is necessary to mention here as to the recent judgment of the Apex Court in the Case of CONSTABLE 907 SURENDRA SINGH AND ANOTHER v. STATE OF UTTARAKHAND passed in Criminal Appeal No.355 of 2013 connected with Criminal Appeal No.788 of 2013 decided on 28^th January, 2025. In the said judgment, relying on the decisions in the case of BABU SAHEBGOUDA RUDRAGOUDAR AND OTHERS v. STATE OF KARNATAKA reported in (2024)8 SCC 149; in the case of CHANDRAPPA v. STATE OF KARNATAKA reported in (2007)4 SCC 415; and in the case of H.D. SUNDARA v. STATE OF KARNATAKA reported in (2023)9 SCC 581, the Apex Court has summarized the principles governing exercise of appellate jurisdiction while dealing with an appeal against judgment of acquittal under section 378 of Code of Criminal Procedure. The same are as under:

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“8. …8.1. The acquittal of the accused further strengthens the presumption of innocence;

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8.2. The appellate court, while hearing an appeal against acquittal, is entitled to re-appreciate the oral and documentary evidence;

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8.3. The appellate court, while deciding an appeal against acquittal, after re-appreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;

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8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.”

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41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate court for reversing the judgment of acquittal recorded by the trial court in favour of the accused has to be exercised within the four corners of the following principles:

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41.1. That the judgment of acquittal suffers from patent perversity;

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41.2. That the same is based on a misreading/omission to consider material evidence on record; and

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41.3. That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.”

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I have examined the materials placed before this

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Court. It is the specific case of the complainant that the accused approached the complainant for hand loan of Rs.10,00,000/- for family problems to discharge their hand loans and her father's hospital expenses and agreed to repay the same within three months. Towards repayment, the accused has issued a post dated cheque bearing No.877480 dated 06.11.2021 drawn on State Bank of India, Malur branch for Rs.10,00,000/-. But when same was presented for encashment, it was returned with endorsement "Funds Insufficient". Appreciating the evidence on record, in Para Nos. 25 to 31 of the judgment of the trial Court reads as under:

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"25. The complainant in his cross-examination dated 29.06.2022 admits that: DgÉÆÃ¦UÉ 2019 jAzÀ ºÀtªÀ£ÀÄß PÉÆqÀÄwÛzÉÝÃ£É ಅದು ಅವರು �ಾಪಸು� �ೊ��ರುವ��ಲ� . �ಾ��ಂ�ನ�� 3 ಲ� �ೊ��ರು�ೆ� . ತದನಂತರ 5 ಲ� £ÀAvÀgÀ 2 ªÀgÉ ªÀÄvÀÄÛ 1 ªÀgÉ ªÀÄvÀÄÛ ¥sÉÊ£À¯ï ఆ�� 80 ¸Á«gÀ �ಾವ �ಾವ ��ಾಂಕದಂದು ಎ"ೆ�ಷು� �ೊ��ರು�ೆ�ೕ�ೆ ಎಂದು %ೇಳಲು ಆಗುವ��ಲ� . ಸದ) ಎಾ� ಹಣವನು- £ÀªÀÄä ಮ�ೆಯ�� ೊ��ರು�ೆ�ೕ�ೆ . ಆ0ೋ12ೆ ಹಣವನು- �ೊ3ಾ�ಗ ರೂ .1000. ರೂ .500 ಮತು� ರೂ .2000 ಮುಖ5ೆೆಯ �ೋಟುಗಳ7 ಇತು� . When the

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accused has not returned the lent amount to the complainant then how could he have lent multiple times and on what basis the complainant has given such a huge amount to the amount without a guarantee of its repayment. No prudent in normal course has given such huge amount without any guarantee of its repayment. It must be noted that the denomination of Rs. 1000/- was not in existence in the year 2022. This is also one of the circumstances to create doubt of alleged transaction.

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26. The complainant though know about the fact that the accused is the house wife and as no income of her, how he could give such huge amount without guarantee of its repayment as no prudent man would do such thing under any circumstances.

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27. He further deposed that: DgÉÆÃ¦AiÀÄÄ ¤¦-1 ZÉPÀÌ£ÀÄß ಬ0ೆದು�ೊ��ರು�ಾ�0ೆ. . �ಾನು ಹಣವನು- �ೊ3ಾ�ಗ ಮೂರು ;ಕು<ಗಳನು�ೊ��ರು�ಾ�0ೆ _._ �ಾ�ಂ= >ೇಪ? ಮತು� ಆ@ಾ? �ಾಡB ಮತು� ಇ - �ಾ�ಂ= ನು- ಬ0ೆದು�ೊ��ರು�ಾ�0ೆ . C1 -1 DೆE �ೊಟು� ಸುFಾರು 3 ಆ�ರಬಹುದು . ಆ0ೋ1ಯ ಮಗನ Gೕ*ೆ %ಾHರುವ ;H<ನಲೂ� ಸಹ ಅ@ೇ ಬರವI2ೆ ಇ@ೆ ಎಂದ0ೆ ಸ) . ಈ ಪKಕರಣವನು- %ಾಕುವ Lದಲು ಆ0ೋ1ಯ ಮಗC2ೆ �ಾM� ಆN ನ�� ಒಂದು ;ಕ<ನು- ಕಳ7PQರು�ೆ�ೕ�ೆ ಎಂದ0ೆ %ೌದು . On careful reading of above said deposition, the complainant himself stated that the accused has

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issued 3 cheques, one stamp paper and aadhar card. The same was not whispered by the complainant in his compliant or notice or in chief affidavit. He had failed to produce promissory note executed by the accused. It is also one of the circumstances to rebut the presumption.

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28. Further, during the cross-examination dated 21.10.2022 he stated that; DgÉÆÃ¦UÉ 2021 £ÉÃ ¸É¥ÉÖA§gï MAzÀ£ÉÃ �ಾರದ��ಹತು� ಲ�ಹಣವನು- ಒಂ@ೇ �ಾ) �ೊ��@ೆSೕ�ೆ . During the cross-examination dated 29.06.2022 he has stated that: ¸ÁÖnAV£À°è 3 ಲ� �ೊ��ರು�ೆ� . ತದನಂತರ 5 ಲ� .

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ನಂತರ 2 ವ0ೆ ಮತು� 1 ವ0ೆ ಲ� ಮತು� >ೈನU ಆ� 80 �ಾVರ �ೊ��ರು�ೆ�ೕ�ೆ . �ಾವ �ಾವ ��ಾಂಕದಂದು ಎ"ೆ�ಷು� �ೊ��ರು�ೆ�ೕ�ೆ ಎಂದು %ೇಳಲು ಆಗುವ��ಲ� . On reading of the cross-examination

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dated 29.06.2022 and 21.10.2022, the averments elicited from the mouth of PW1 dated 29.06.2022 and the averments elicited from the mouth of PW1 dated 21.10.2022 are contrary to each other. If the accused has paid the loan amount of Rs 10,00,000/in the month September 2021 then why he has stated that he lent the amount to the accused in parts as 3 lakhs, 5 lakhs, 2½ lakhs, 1½ lakhs and finally 80,000/-. If the complainant has paid the alleged loan in the month of September 2021, then what prevented him to stated the same in his cross-

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examination? PW.1 deposed each stage at different version about payment of loan amount. Therefore, it creates doubt about the case of the complainant and genuine of alleged loan amount by the complainant.

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29. Though the accused got marked Ex.D1 to D3 photographs and CD. Wherein the conversation between the accused's son and the complainant was recorded the said documents cannot be considered for defence of the accused as the said documents are not accompanied by Sec.65B certificate mandates under Indian Evidence Act.

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30. In all cases under section 138 of N.I Act, there is no obligation prove the financial capacity of the complainant. However, the accused challenges the financial capacity of the complainant to advance the loan amount. The complainant has the obligation to prove his financial capacity or the source of the money allegedly lent by him to the accused. The complainant has no initial burden to prove his financial capacity or the source of the money. The obligation in the regard would arise only when his capacity to advance the money is challenged by the accused.

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31. In the present case on hand, the accused has challenged the financial capacity of the complainant to lend an amount of Rs.10,00,000/- In

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view of denial of transactions in question and issuance of the cheque by the accused for legally enforceable debt or liability. It is Incumbent on the complainant to establish his financial capacity to advance of Rs.10,00,000/- and issuance of cheque by the accused. In the case of Basalinappa Vs Mudibasappa (2019)5 SCC 418, Apex court observed that a complainant is bound to explain his financial capacity when the same is questioned by the accused. The complainant has stated that he has financial capacity to pay the huge amount to the accused by way of cash, but he did not produce sufficient material before the court. Therefore, the complainant has failed to prove his financial capacity and source of income to lent Rs.10.00.000/- during the relevant point of time. Hence the contention of the complainant that he has lent a Rs. 10,00,000/to the accused by way of cash appears to be unbelievable one, In the absence of any documentary evidence regarding his source of income. Therefore, the accused by raising probable defence has rebutted the statutory presumption envisaged U/s.118 and 139 of N.I Act".

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