Sri Kiran Kumar v R Vs Sri T H Umesh

SRI T H UMESH AGED ABOUT 40 YEARS S/O HORAKERAPPA R/AT THIMMANAHALLI VILLAGE THIMMANAHALLI POST KANDIKERE HOBLI CHIKKANAYAKANAHALLI TALUK TUMKUR DISTRICT – 572 214.

¶14

…RESPONDENT

¶15

(BY SRI THYAGARAJA S, ADVOCATE)

¶16

THIS CRL.A. IS FILED UNDER SECTION 378(4) Cr.P.C PRAYING TO SET ASIDE THE ORDER DATED:2.6.14 PASSED BY THE XXII ADDL.C.M.M., BANGALORE CITY IN C.C.No.18566/12 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT AND ETC.,

¶17

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

¶18

2 - NC: 2025:KHC:1169 CRL.A No. 703 of 2014

¶19

CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

¶20

ORAL JUDGMENT

¶21

This appeal is filed by the appellant – complainant praying to set-aside the judgment of acquittal dated 02.06.2014 passed in C.C.No.18566/2012 by the XXII Additional Chief Metropolitan Magistrate, Bengaluru, whereunder, the respondent – accused has been acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short hereinafter referred to as ‘N.I.Act’).

¶22

The brief facts of the complainant’s case is that;

¶23

The appellant – complainant and the respondent – accused were known to each other. The respondent – accused had approached the appellant – complainant seeking hand loan and the appellant – complainant had lent Rs.1,00,000/- to the respondent – accused as hand loan during the last week of June, 2011. The respondent – accused had agreed to repay the said hand loan within three months and he did not repay the same within three

¶24

3 - NC: 2025:KHC:1169 CRL.A No. 703 of 2014

¶25

months. The appellant – complainant insisted the respondent – accused to repay the hand loan amount and therefore, he had issued a cheque bearing No.715814 dated 01.02.2012 drawn on Canara Bank for a sum of Rs.1,00,000/- in favour of the appellant – complainant. The appellant – complainant presented the said cheque for collection and the same came to be returned with an endorsement - “insufficient funds” . The appellant – complainant got issued the legal notice to the respondent – accused on 14.02.2012, calling upon him to pay the cheque amount. Notice has been served on the respondent – accused. The respondent – accused did not repay the cheque amount nor given any reply to the said legal notice. The appellant – complainant initiated the proceedings against the respondent – accused for the offence under Section 138 of the N.I.Act. The learned Magistrate, after recording the sworn statement, took cognizance of the offence under Section 138 of the N.A.Act against the respondent – accused and registered C.C.No.18566/2012. The respondent – accused appeared

¶26

4 - NC: 2025:KHC:1169 CRL.A No. 703 of 2014

¶27

in the said case and plea has been recorded. The appellant

¶28

– complainant in order to prove his case, examined himself as PW1 and got marked Exs.P1 to P6. The respondent – accused has been examined himself as DW1 and no documents were marked on his side. The statement of the respondent – accused came to be recorded under Section 313 of Cr.P.C. The learned Magistrate, 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.

¶29

Heard learned counsel for the appellant – complainant and learned counsel for the respondent – accused.

¶30

Learned counsel for the appellant – complainant would contend that DW1, in the cross examination has admitted the signature on the cheque and therefore, a presumption arises under Section 139 of the N.I.Act, that

¶31

5 - NC: 2025:KHC:1169 CRL.A No. 703 of 2014

¶32

the cheque has been issued for making payment of legally enforceable liability. He further submits that the respondent – accused who has putforth his defence that cheque – Ex.P1 has been issued as a security for the chit transaction run by one Sri.Ramdas who is father of the appellant – complainant and it has been misused. He further submits that the respondent – accused in order to establish his defence has not examined any witness. PW1 has denied all the suggestions regarding the defence of the respondent – accused. Without considering all these aspects, the learned Magistrate has erred in passing the impugned judgment of acquittal. Learned counsel for the appellant – complainant has placed reliance on the following decisions:

¶33

“1. M/s. Maheshwari Constructions Private Limited Vs. M/s. Lords Palace and Resorts, reported in 2007(2) KCCR 1199.

¶34

2. Sri N Hasainar Vs. Sri M Hasainar, reported in 2008 (4) KCCR 2414.

¶35

3.L Mohan Vs. V Mohan Naidu, reported in 2004 (3) KCCR 1816. 4. Sri N Hasainar Vs. Sri M Hasainar, reported in ILR 2008 KAR 4361.

¶36

6 -

¶37

NC: 2025:KHC:1169 CRL.A No. 703 of 2014

¶38

5. M/s Gowri Containers Vs. S C Shetty and Another, reported in ILR 2007 KAR 4586.

¶39

6. J Rajanna Setty Vs. Sri Patel Thimmegowda, reported in ILR 1998 KAR 1825.

¶40

7. K Narayana Reddy Vs. N M Muniyappa, reported in ILR 1999 KAR 3200.”

¶41

Learned counsel for the respondent – accused would contend that PW1 in his cross examination has admitted that he has completed his diploma in the year 2013 and that itself would indicate that he had no capacity to lend the loan of Rs.1,00,000/- to the respondent – accused in the year 2011. The ink used for filling up the contents of the cheque namely the amount, name of the payee and the date are different than that of the ink used for signature of the drawer. Considering all these aspects, the learned Magistrate has rightly acquitted the respondent – accused. With this, he prayed to dismiss the appeal.

¶42

Having heard the learned counsels, the Court has perused the impugned judgment and the Trial Court records.

¶43

7 -

¶44

NC: 2025:KHC:1169 CRL.A No. 703 of 2014

¶45

7. Considering the grounds raised and urged, the following point arises for consideration;

¶46

“whether the Trial Court has erred in acquitting the respondent – accused of the offence punishable under Section 138 of the N.I.Act”

¶47

My answer to the above point is in the affirmative, for the following reasons;

¶48

It is the specific case of the appellant – complainant that he had lent Rs.1,00,000/- to the respondent – accused and in order to repay the same, he had issued Ex.P1 – cheque for Rs.1,00,000/- and the same came to be dishonoured for want of funds. The respondent – accused who has been examined as DW1 has admitted in the cross examination that the signature on the cheque is of himself and he has issued the said cheque. When the respondent – accused has admitted that the cheque – Ex.P1 has been issued by him, a presumption arises under Section 139 of the N.I.Act, that the cheque has been issued for making payment of legally enforceable debt /

¶49

8 - NC: 2025:KHC:1169 CRL.A No. 703 of 2014

¶50

liability. The said presumption under Section 139 of the N.I.Act is a rebuttable presumption. The respondent – accused has to rebut the said presumption either by cross examination of the appellant – complainant and his witnesses and by leading evidence also. It is the defence of the respondent – accused that one Sri.Ramdas was running the chit transaction and the respondent – accused who was a member in the chit transaction had issued a blank signed cheque – Ex.P1 as a security. The said defence of the respondent – accused has been denied by PW1 in his cross examination. It is for the appellant – complainant to prove that one Sri.Ramdas was running the chit transaction and he is related to the appellant – complainant and the respondent – accused had issued Ex.P1 – cheque to the said Sri.Ramdas as a security for the said chit transaction. PW1, in his cross examination had denied that one Sri.Ramdas was running the chit transaction and Ex.P1 has been issued as a security to the said Sri.Ramdas and it has been misused. In order to prove that Sri.Ramdas was running the said chit

¶51

9 - NC: 2025:KHC:1169 CRL.A No. 703 of 2014

¶52

transaction and this respondent – accused has given Ex.P1

¶53

– signed cheque to him as a security, the respondent –

¶54

accused has not examined any members of the said chit transaction. The respondent – accused has made an application under Section 311 of Cr.P.C seeking issuance of witness summons to two witnesses namely

¶55

Sri.Manjunath T.N and Sri.Ramakrishna. The said application of the respondent – accused came to be rejected by the Trial Court by order dated 07.05.2014. The said order has not been challenged by the respondent – accused and it became final. Even in the application filed by the respondent – accused under Section 311 of Cr.P.C, it is not stated that those two witnesses are the members of the chit transaction run by Sri.Ramdas. Considering the said aspect , it is clear that the respondent

¶56

– accused has failed to rebut the presumption raised under Section 139 of the N.I.Act. Merely because the appellant – complainant has not proved his capacity to lend money, it will not rebut the presumption raised under Section 139 of the N.I.Act. Merely because the appellant – complainant

¶57

NC: 2025:KHC:1169 CRL.A No. 703 of 2014

¶58

10 -

¶59

has completed his Diploma course in the year 2013, it cannot be said that in the year 2011, he had no capacity to lend money, since his age had not been ascertained in the cross examination.

¶60

The co-ordinate Bench of this Court in the case of N.Hasainar, (2008) 4 KCCR 2414 supra , has held that proving of capacity to lend money is not warranted when the presumption under Section 139 of the N.I.Act is raised and issuance of cheque is admitted. The Co-ordinate Bench of this Court in the case of M/s.Maheshwari Constructions Private Limited,

¶61

2007(2) KCCR 1199, supra, has held that filling up of the date in the cheque by the complainant does not invalidate the cheque and the complaint for the offence under Section 138 of the N.I.Act, is maintainable. The Trial Court without proper appreciation of the evidence on record has passed the impugned judgment of acquittal. The appellant – complainant has proved all the ingredients of the offence under Section 138 of the N.I.Act. Even the

¶62

11 - NC: 2025:KHC:1169 CRL.A No. 703 of 2014

¶63

respondent – accused, inspite of receipt of legal notice after dishonour of the cheque has not chosen to give any reply to the legal notice, putting forth his defence. In view of the above, the following;

¶64

ORDER

¶65

The appeal is allowed . The impugned judgment of acquittal dated 02.06.2014 passed in C.C.No.18566/2012 by the XXII Additional Chief Metropolitan Magistrate, Benglauru is set-aside. The respondent – accused is convicted for the offence under Section 138 of the N.I.Act and he is sentenced to pay fine of Rs.1,50,000/- and in default of payment of fine, to undergo simple imprisonment for a period of six months. Out of the fine amount, a sum of Rs.1,40,000/- is ordered to be paid to the appellant – complainant as compensation.

¶66

Sd/(SHIVASHANKAR AMARANNAVAR) JUDGE

¶67

GH List No.: 1 Sl No.: 42

Sri Kiran Kumar v. R v Sri T H Umesh

Case brief

What is this about?

What did the court decide?

Sri Kiran Kumar v. R v Sri T H Umesh

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Hemalatha Niranjan Vs M a Shanmuka

Ramesha Vs Smt. Lakshmamma T

Sri Ananthapadmanabha Naidu Vs Sri S S Venkatesha Babu

Smt Roopa B R Vs Thimmegowda

B S Ujjinappa Vs M v Megharaj

Niren R Mehta (Huf) Vs M/S Vijay Steel Tubes and Fittings Private Ltd.