The High Court dismissed the complainant's appeal against the acquittal of the accused in a cheque dishonour case, holding that the presumption under Section 139 was rebutted by the accused's evidence and the complainant failed to prove the lending of the alleged debt.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL APPEAL No. 353 OF 2014
BETWEEN:
SRI P VINOD KUMAR S/O LATE N.B. PURUSHOTHAMA RAO AGED ABOUT 49 YEARS RESIDING AT No.150 VEERAPILLAI STREET SHIVAJINAGAR BANGALORE - 560 001.
…APPELLANT
Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA
(BY SRI ASHOKA E, ADVOCATE)
AND:
SRI ABDUL SATTAR S/O LATE YOUSUF SIDDIQ SAIT AGED ABOTU 63 YEARS RESIDING AT No.21 VITTAL MALYA ROAD VIK GARDEN LAVELLY MARK, FLAT No.217 RAJANI GANDHA APARTMENT (NEAR SHELL PETROL BUNK ) BANGALORE – 560 068.
…RESPONDENT
(BY SRI A C PATIL, ADVOCATE)
THIS CRL.A IS FILED UNDER SECTION 374(3) Cr.P.C PRAYING TO SET ASIDE THE JUDGMENT OF ACQUITTAL DATED 11.02.2014 IN C.C.No.27572/2011 PASSED BY THE XIV ADDL. CHIEF METROPOLITAN MAGISTRATE, BANGALORE - ACQUITTING
THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I.ACT AND ETC.,
THIS APPEAL COMING ON FOR ARGUMENTS THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL JUDGMENT
The appellant – complainant and the respondent – accused were known to each other since several years and the respondent – accused had approached the appellant – complainant and borrowed a sum of Rs.8,30,000/- for the purpose of discharging his debt, agreeing to repay the same with interest and issued a crossed cheque bearing
No.085236 dated 27.06.2011 for Rs.8,30,000/- drawn on Union Bank of India, Hains Road Branch, Bengaluru towards discharge of the hand loan. The said cheque came to be presented by the appellant – complainant for encashment through the Corporation Bank, Cantonment Branch, Bengaluru and the same has been returned on 28.06.2011 with endorsement – “funds insufficient” . The appellant – complainant got issued the legal notice dated 06.07.2011 to the respondent – accused demanding to pay the cheque amount. The said notice has been served on the respondent – accused. The respondent – accused has not paid the cheque amount, but has sent a false reply. The appellant – complainant filed a private complaint against the respondent – accused for the offence under Section 138 of the N.I.Act. The learned Magistrate took cognizance and registered a criminal case in C.C.No.27572/2011 against the respondent – accused for the offence under Section 138 of the N.I.Act. The plea of the respondent – accused has been recorded. The appellant – complainant in order to prove his case, has examined himself as PW1 and got
examined one Sri.P.Ravi Kumar as PW2 and got marked Exs.P1 to P7. The statement of the respondent – accused came to be recorded under Section 313 of Cr.P.C. The respondent – accused has been examined as DW1 and got marked Ex.D1. The Trial Court after hearing the arguments on both sides, has formulated the points for consideration and thereafter, passed the impugned judgment of acquittal. The said judgment of acquittal has been challenged by the appellant – complainant in the present appeal.
and learned counsel for the respondent – accused.
said presumption. Without considering all these aspects, the learned Magistrate has erred in acquitting the respondent – accused. On these grounds, he prayed for allowing the appeal and convicting the respondent – accused for the offence under Section 138 of the N.I.Act.
cross examination of DW1 with regard to the said Ex.D1. He submits that Ex.P1 – cheque is of the year prior to 2000 and the same has been admitted by PW1 in his cross examination. He submits that even on perusal of Ex.P1, it is clear that the print year contains the numerical “19”, which itself would indicate that the cheque had been issued prior to the year 2000. The respondent – accused in his reply has denied the alleged borrowing and issuance of cheque – Ex.P1 to the appellant – complainant. The date of borrowing is not mentioned in Ex.P4 – legal notice, complaint and the evidence of PWs.1 and 2. The capacity of PW1 to lend huge amount of Rs.8,30,000/- has not been established. He submits that there was another cheque dishonour case filed by the present appellant – complainant against Sri.Nissar Ahmed, wherein also the appellant – complainant contended that he had lent Rs.8,30,000/- and the cheque had been issued on 27.06.2011. He submits that the said aspect itself would show that the alleged lending by the appellant – complainant is Rs.8,30,000 + Rs.8,30,000 = Rs.16,60,000/-. The appellant –
complainant has not placed on record his capacity to lend the said huge amount. He submits that in the sworn statement of PW1, the appellant – complainant had stated that he had lent money on 27.06.2011 to the respondent – accused and on the same date, the respondent – accused had issued a cheque – Ex.P1 for Rs.8,30,000/- and it was presented on the same day and it was dishonoured on 28.06.2011. The said aspect is contradictory to the contents of Ex.P4 – legal notice and the averments of the complaint. The respondent – accused had taken up the defence that Ex.P1 – cheque was signed by the respondent – accused which was blank, has been given to one Sri.Nissar Ahmed as a security to get the loan and it reached one Sri.Ravi Kumar who has misused the same through this respondent – accused. The said presumption under Section 139 of the N.I.Act has been rebutted by the respondent – accused by preponderance of probability and therefore, the onus has been shifted to the respondent – accused to prove the alleged borrowing and issuance of cheque towards legally enforceable debt. Even the date of
borrowing has not been stated in the legal notice, complaint
and the evidence of PWs.1 and 2. He has placed reliance on several decisions on his contentions. He submits that considering all these aspects, the learned Magistrate has rightly passed the judgment of acquittal. With this, he prayed for dismissal of the appeal.
“Whether the Trial Court has erred in passing the judgment of acquittal, acquitting the respondent – accused of the offence punishable under Section 138 of the N.I.Act?”
It is the case of the appellant – complainant that the respondent – accused had borrowed Rs.8,30,000/- from the appellant – complainant. The date of borrowing the said amount has not been stated in Ex.P4 – legal notice, averments of the complaint and in the evidence of PWs.1 and 2.
19.07.1988. The said cheque No.085236 is the cheque which is at Ex.P1. The said Ex.P1 has been marked in the evidence of DW1. There is no cross examination with respect to the said document ie., Ex.D1 by the appellant – complainant. All these aspects fortifies the defence of the respondent – accused that the cheque – Ex.P1 had been issued by him to Sri.Nissar Ahmed and it has been misused.
the financial capacity to lend Rs.8,30,000/- has not placed any evidence on record. As the respondent – accused has rebutted the presumption raised under Section 139 of the N.I.Act, the onus shifts on the appellant – complainant to establish the alleged lending and issuance of cheque towards the legally enforceable debt. The appellant – complainant has not proved the said lending to the respondent – accused. Considering all these aspects, the learned Magistrate has rightly passed the impugned judgment of acquittal, acquitting the respondent – accused for the offence under Section 138 of the N.I.Act. There are
NC: 2025:KHC:1684 CRL.A No. 353 of 2014
no grounds made out for setting aside the impugned judgment of acquittal. In the result, the following;
ORDER
The appeal is dismissed .
Sd/(SHIVASHANKAR AMARANNAVAR) JUDGE
GH
List No.: 1 Sl No.: 43
1 issue framed by the court
Whether the Trial Court erred in acquitting the accused under Section 138 of the N.I.Act?
3 provisions across 2 enactments
Sri P Vinod Kumar
Sri Abdul Sattar
Shivashankar Amaranavar
As recorded by the court registry
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