A C Sreeram Vs Sumija J

THIS CRL.A. IS FILED UNDER SECTION 378(4) Cr.P.C PRAYING TO SET ASIDE THE ORDER DATED 11.11.14 PASSED BY XXIII ADDL. CMM, BANGALORE CITY, IN C.C.No.50953/2010-ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT AND ETC.,

¶17

2 - NC: 2025:KHC:5162 CRL.A No. 194 of 2015

¶18

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

¶19

CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

¶20

ORAL JUDGMENT

¶21

This appeal is filed by the complainant challenging the judgment of acquittal dated 11.11.2014 passed in C.C.No.50953/2010 by the XXIII Additional Chief Metropolitan Magistrate, Bangalore, where the respondent - accused has been acquitted for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act' for short).

¶22

The case of the appellant - complainant in brief, is as under:

¶23

The respondent - accused is known to the complainant and during the month of September, 2008, the respondent - accused requested the complainant to lend hand loan of Rs.5,00,000/- and agreed to repay the same within six months. On the assurance of the accused, the complainant had paid the hand loan of Rs.5,00,000/-

¶24

3 - NC: 2025:KHC:5162 CRL.A No. 194 of 2015

¶25

(Rupees Five lakhs only) to the accused through cheque bearing No.151089 dated 01.09.2008 drawn on State Bank of Mysore, Madavanagar Branch, Bengaluru. The complainant after lapse of six months, requested the accused to repay the amount borrowed. The respondent - accused has issued a cheque bearing No.570291/1 dated 21.10.2009 for a sum of Rs.5,00,000/- drawn on HDFC Bank Ltd., J.P. Nagar II Phase, Bengaluru in favour of the complainant. The complainant presented the said cheque for encashment and it returned with an endorsement "funds insufficient". The complainant got issued legal notice on 09.11.2009 by RPAD and UCP. The said notice has been served on the respondent - accused on 10.11.2009. As the respondent - accused did not pay the cheque amount the complainant has filed a private complaint against the respondent - accused for offence punishable under Section 138 of the NI Act.

¶26

Learned Magistrate has taken cognizance and registered case in C.C.No.50953/2010 for offence

¶27

4 - NC: 2025:KHC:5162 CRL.A No. 194 of 2015

¶28

punishable under Section 138 of the NI Act against the respondent - accused. The plea of respondent - accused has been recorded. The complainant in order to prove his case has examined his General Power of Attorney Holder (hereinafter referred to as “GPA holder” for brevity) as P.W.1 and got marked documents as Ex.P1 to P12. The statement of respondent -accused came to be recorded under Section 313 of Cr.P.C. The respondent –accused has been examined himself as D.W.1, got examined her husband as D.W.2 and got marked documents as Ex.D1 to D4. Learned Magistrate after hearing arguments on both sides has formulated points for consideration and passed impugned judgment of acquittal. The said judgment of acquittal has been challenged by the complainant in this appeal.

¶29

Heard learned counsel for the appellant and learned counsel for the respondent.

¶30

Learned counsel for the appellant would

¶31

contend that the hand loan of Rs.5,00,000/- has been paid

¶32

5 - NC: 2025:KHC:5162 CRL.A No. 194 of 2015

¶33

by the appellant –complainant to the respondent –accused by cheque No.151089 dated 01.09.2008 and it has been en-cashed by the respondent –accused. The respondent – accused who has been examined as D.W.1 has admitted en-cashment of the said cheque for Rs.5,00,000/-. The respondent –accused has admitted her signature on cheque –Ex.P1. As respondent –accused has admitted her signature on the cheque –Ex.P1, the presumption has to be drawn under Section 139 of N.I Act that the cheque has been issued for discharge of debt. The said presumption has not been rebutted by the respondent –accused. The contra stands have been taken up by D.W.1 and D.W.2 with regard to issuance of cheque –Ex.P1. As the said presumption has not been rebutted, the learned Magistrate ought to have convicted the respondent – accused for offence punishable under Section 138 of the N.I Act. With this, he prays to allow the appeal and convict the respondent –accused for offence punishable under Section 138 of the N.I Act.

¶34

6 -

¶35

NC: 2025:KHC:5162 CRL.A No. 194 of 2015

¶36

Learned counsel for the respondent –accused

¶37

would contend that there was sale transaction between the appellant -complainant and respondent -accused. The accused has executed sale deed dated 26.08.2008 infavour of the appellant -complainant. The said sale deed is at Ex.D1. The cheque dated 01.09.2008 issued by the appellant –complainant infavour of the respondent – accused for Rs.5,00,000/- is towards part of the said sale consideration. The husband of the respondent –accused has undertaken to get the said property sold for higher value and as security for the said undertaking the accused has issued blank signed cheque infavour of the appellant – complainant. The said blank signed cheque has been misused by the appellant –complainant. The appellant – complainant and husband of respondent –accused who has been examined as D.W.2 have traveled together from Bengaluru to Trivandram on 30.11.2010 whereunder sale deed has been executed infavour of one M.K Salim. There was no necessity for the respondent –accused to borrow

¶38

7 - NC: 2025:KHC:5162 CRL.A No. 194 of 2015

¶39

Rs.5,00,000/- as she had sold property and got huge money under the sale deed -Ex.D1. P.W.1 who is GPA holder of the complainant has stated in his cross examination that he has no personal knowledge regarding the transaction between the appellant –complainant and respondent –accused except issuance of cheque –Ex.P1. Therefore, his evidence cannot be relied upon to prove the case of the appellant –complainant. On that point he placed reliance on the decision of the Hon’ble Apex Court in the case of A.C. Narayanan & Another Vs State of Maharastra & Others¹ . If the complainant ought to have been examined the respondent –accused had chance of extracting the real transaction between parties and to avoid that the complainant has set up his GPA holder to give evidence on his behalf. The evidence on record will not establish the case of the complainant. Considering the said aspect, learned Magistrate has rightly acquitted the respondent –accused for offence punishable under Section

¶40

1 Reported in CDJ 2013 SC 805

¶41

8 - NC: 2025:KHC:5162 CRL.A No. 194 of 2015

¶42

138 of the N.I Act. With this he prays for dismissal of the appeal.

¶43

Having heard learned counsels, the Court has perused the impugned judgment and trial Court records. Considering the grounds urged, the point arises for my consideration is

¶44

“Whether learned Magistrate has erred in passing the judgment of acquittal of respondent –accused for offence punishable under Section 138 of N.I. Act.”?

¶45

My answer to the above point is in the negative for the following reasons.

¶46

It is specific case of the appellant –complainant as averred in the complaint that the respondent –accused has borrowed Rs.5,00,000/- as hand loan during September - 2008 and the said amount is paid through cheque dated 01.09.2008 and the said cheque has been en-cashed by

¶47

the respondent –accused. In order to pay the amount borrowed, the respondent said to have issued cheque –

¶48

9 - NC: 2025:KHC:5162 CRL.A No. 194 of 2015

¶49

Ex.P1. The respondent –accused has admitted her signature on Ex.P1 –cheque. Therefore, the presumption arises that cheque has been issued for making payment of debt. The said presumption is rebuttable presumption. The standard of proof for rebutting the said presumption is preponderance of probability.

¶50

P.W.1 –who is GPA holder of the appellant - complainant has stated in his cross examination that he do not know the transaction between the appellant – complainant and respondent –accused and he know only the accused issuing the cheque to the appellant – complainant. The said aspect itself indicates that P.W.1 who is GPA holder of the complainant is not aware of the transaction between the appellant and accused.

¶51

The Hon’ble Apex Court in the case of A.C. Narayanan(supra) has held as under

¶52

“26.(iii) It is required by the complainant to make specific assertion as to the knowledge of the power of attorney holder in the said

¶53

10 - NC: 2025:KHC:5162 CRL.A No. 194 of 2015

¶54

transaction explicitly in the complaint and the power of attorney holder who has no knowledge regarding the transactions cannot be examined as a witness in the case.”

¶55

The complaint has been filed by complainant

¶56

and subsequently at the time of leading the complainant’s evidence, the power of attorney has been executed by the complainant in favour of P.W.1 and it is dated 29.10.2010.

¶57

In the said power of attorney there is no mention that the power of attorney holder is having knowledge of transaction between the appellant –complainant and respondent –accused. Even in the averments of the complaint there is no mention regarding the power of attorney holder is having knowledge of the transaction between the appellant -complainant and respondent - accused. The complainant has to make specific assertion as to the knowledge of the power of attorney holder in the said transaction explicitly in the complaint and the power of attorney holder who has no knowledge regarding the transaction cannot be examined as a witness in the case

¶58

11 -

¶59

NC: 2025:KHC:5162 CRL.A No. 194 of 2015

¶60

as held by the Hon’ble Apex Court in the case of A.C

¶61

Narayanan(Supra).

¶62

It is case of the appellant –complainant that the respondent –accused has borrowed Rs.5,00,000/- as hand loan. Ex.D1 –sale deed indicate that the respondent – accused sold her property to the complainant for sale consideration of Rs.17,00,000/- and it was registered on 26.08.2008. The respondent –accused has received the sale consideration of Rs.17,00,000/- by way of cheque dated 25.08.2008 and she has that money as on the date alleged borrowing i.e. 01.09.2008. For what purpose the respondent-accused has borrowed the said loan of Rs.5,00,000/- from the complainant has not been stated by the complainant either in his complaint or by P.W.1 in his evidence. What was transaction between the appellant –complainant and respondent –accused has also not been stated in the statutory notice which is at Ex.P3 which has been issued demanding payment of cheque amount. The said notice has been issued by the appellant –complainant

¶63

12 - NC: 2025:KHC:5162 CRL.A No. 194 of 2015

¶64

to the respondent –accused. It is case of the respondent –accused that the cheque issued by the complainant for Rs.5,00,000/- on 01.09.2008 which has been en-cashed by the accused is towards sale consideration. It is case of the accused that her property has been sold to the complainant for Rs.22,00,000/- and sale deed has been registered for Rs.17,00,000/- and for making payment of remaining Rs.5,00,000/the said cheque dated 01.09.2008 has been issued. D.W.2 –husband of the respondent –accused and D.W.1 have stated that D.W.2 has undertaken to get sale of the said property purchased by the appellant –complainant from the respondent - accused for higher price and as security, the respondent - accused has issued Ex.P1 –cheque. Ex.D3 is air ticket wherein complainant and D.W.2 -husband of the respondent –accused have traveled from Bengaluru to Trivandram on 30.11.2010. Under Ex.D2 the complainant has sold his property purchased from accused to one M.K Salim and it has been registered on 31.11.2010 i.e. on the

¶65

13 - NC: 2025:KHC:5162 CRL.A No. 194 of 2015

¶66

next day of complainant and D.W.2 traveled from Bengaluru to Trivandram. The said aspect probablises the defence of the respondent –accused. Considering the said aspect, the respondent –accused has rebutted the preemption drawn under Section 139 of the N.I Act. The appellant –complainant has not entered into witness box to prove the alleged transaction of hand loan and issuance of cheque –Ex.P1 for making payment of said debt. As GPA holder of complainant is not having knowledge of the transaction between the appellant and respondent – accused is not competent to give evidence. Considering all these aspects, the appellant –complainant has not proved that the respondent –accused has committed offence punishable under Section 138 of N.I Act.

¶67

In the result, the appeal is dismissed.

¶68

Sd/(SHIVASHANKAR AMARANNAVAR) JUDGE

¶69

KG,DSP List No.: 1 Sl No.: 17

A C Sreeram v. Sumija J

Case brief

What is this about?

What did the court decide?

A C Sreeram v. Sumija J

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Official Liquidator of Vs Dr.Mahesh K Menon

Rangaswamy Vs Sri Purushotham J Naidu

Indiabulls Housing Finance Ltd. Vs Malathi Krishnan

Housing Development Finance Vs Mr Swamy Madangopal

Vinay. H.S Vs N. Nagaraj

Smt. Sunitha K Vs Sri. Nataraj