Smt. Sakamma Vs Sri N. Srinivas

SRI. N. SRINIVAS S/O NARASAIAH AGED ABOUT 55 YEARS NO. 406, 1^ST MAIN ROAD 2^ND CROSS, MALLATHAHALI VISVESWARAIAH LAYOUT 9^TH BLOCK, BANGALORE-560 056

¶14

ALSO AT WORKING AS ATTENDER PUBLIC EDUCATION DEPARTMENT BANGALORE ZILLA PANCHAYATH BANGALORE SOUTH-2 POORNAIAH CHATRA, BALEPET THULSI THOTA BANGALORE-560 053

¶15

…RESPONDENT

¶16

(BY SRI. MOHAN KUMAR D, ADVOCATE)

¶17

2 -

¶18

NC: 2025:KHC:6183 CRL.A No. 797 of 2015

¶19

THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO SET-ASIDE THE ORDER DATED 08.05.2015 PASSED BY THE XXII ACMM, BANGALORE, IN C.C.NO.26578/2014 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT.

¶20

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

¶21

CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

¶22

ORAL JUDGMENT

¶23

This appeal is filed by the appellant – complainant challenging the judgment of acquittal dated 08.05.2015 passed in C.C.No.26578/2014 by the XXII Additional Chief Metropolitan Magistrate, Bengaluru, whereunder, the respondent – accused has been acquitted of the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short hereinafter referred to as “N.I.Act”) .

¶24

Case of the appellant – complainant in brief is as under;

¶25

The appellant – complainant and the respondent - accused are the distant relatives and the respondent -

¶26

3 - NC: 2025:KHC:6183 CRL.A No. 797 of 2015

¶27

accused who is working as an Attender in the Education Department had approached the appellant - complainant for hand loan of Rs.1,20,000/- for his urgent family necessities. The appellant - complainant had lent Rs.1,20,000/- to the respondent - accused by cash during June, 2013. The respondent - accused did not repay the said money borrowed, within one year as agreed. On insistence by the appellant – complainant, the respondent - accused issued a cheque bearing No.004937 dated 28.07.2014 for Rs.1,20,000/- drawn on Axis Bank, Nagarabhavi Branch, Bengaluru for making payment of the amount borrowed. The appellant – complainant had presented the said cheque for encashment. The cheque returned dishonoured on 30.07.2014, with an endorsement “funds insufficient” in the bank account of the respondent - accused. The appellant - complainant got issued the legal notice to the respondent - accused demanding to pay the cheque amount. The said notice had been issued to two addresses of the respondent - accused. The notice issued to one address has been returned and

¶28

4 -

¶29

NC: 2025:KHC:6183 CRL.A No. 797 of 2015

¶30

the notice issued to the other address has been served on the respondent - accused. Inspite of legal notice, the respondent - accused neither replied nor paid the cheque amount. 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 case in C.C.No.26578/2014 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 her case, got examined herself as PW1 and got marked Exs.P1 to P6. The statement of the respondent – accused has been recorded under Section 313 of Cr.P.C. The respondent – accused examined himself as DW1 and no documents are marked on the defence side. The learned Magistrate after hearing the arguments on both sides, has formulated the points for consideration and passed the impugned judgment of acquittal. The said judgment of acquittal has

¶31

5 - NC: 2025:KHC:6183 CRL.A No. 797 of 2015

¶32

been challenged by the appellant - complainant in this appeal.

¶33

Heard learned counsel for the appellant – complainant. Learned counsel for the respondent – accused did not chose to argue the appeal stating that his party is not in contact with him.

¶34

Learned counsel for the appellant – complainant would contend that the respondent - accused has not disputed his signature on the cheque and therefore, a presumption arises under Section 139 of the N.I.Act that the cheque is issued for discharging of the debt. The said presumption has not been rebutted. The respondent - accused has taken up the defence that his cheque has been stolen. In order to establish the said defence, the respondent - accused has not placed on record any document regarding he filing any complaint for loss of his cheque. As the presumption is not rebutted, the respondent - accused requires to be convicted for the offence under Section 138 of the N.I.Act. Without

¶35

6 - NC: 2025:KHC:6183 CRL.A No. 797 of 2015

¶36

considering these aspects, the learned Magistrate has erred in passing the judgment of acquittal. With this, he prayed to allow the appeal.

¶37

Having heard the learned counsel for the appellant - complainant, the Court has perused the impugned judgment and the Trial Court records. Considering the grounds urged, the following point arises for consideration;

¶38

“Whether the Trial Court has erred in acquitting the respondent - accused of the offence under Section 138 of the N.I.Act ? ”

¶39

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

¶40

It is the specific case of the appellant - complainant that the respondent - accused had borrowed Rs.1,20,000/during June, 2013 for his urgent family necessities and agreed to repay the said loan amount within one year. In order to repay the said amount borrowed, the respondent

¶41

accused had issued a cheque – Ex.P1. The respondent -

¶42

7 - NC: 2025:KHC:6183 CRL.A No. 797 of 2015

¶43

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

¶44

The respondent - accused has taken up the defence that he had kept the signed cheque in his house for the purpose of family expenses and it has been kept on the T.V. stand and the same has been lost. Even though the respondent - accused who has been examined as DW1 has stated that he had given the complaint in Gnanabharathi Police Station during December, 2014, but he has not produced a copy of the said complaint. DW1 in his further cross examination dated 22.04.2015 has stated that he has not filed any police complaint regarding loss of the cheque – Ex.P1. DW1 has admitted that his wife is

¶45

8 - NC: 2025:KHC:6183 CRL.A No. 797 of 2015

¶46

suffering from heart disease. The defence of the respondent - accused that he had lost the signed cheque has not been established. The appellant - complainant and the respondent - accused are the relatives and the amount borrowed is for family necessities. Wife of the respondent - accused is suffering from heart disease. Considering all these aspects, the respondent - accused has not rebutted the presumption drawn under Section 139 of the N.I.Act. As the presumption is not rebutted, the cheque – Ex.P1 has been issued for making payment of the amount borrowed. The Hon’ble Apex Court in the case of Rajesh

¶47

Jain Vs Ajay Singh reported in AIR Online 2023 SC

¶48

807 has observed thus;

¶49

“55. As rightly contended by the appellant, there is a fundamental flaw in the way both the Courts below have proceeded to appreciate the evidence on record. Once the presumption under Section 139 was given effect to, the Courts ought to have proceeded on the premise that the cheque was, indeed, issued in discharge of a debt/liability. The entire focus would then necessarily have to shift on the case set up by the accused, since the activation of the presumption

¶50

9 - NC: 2025:KHC:6183 CRL.A No. 797 of 2015

¶51

has the effect of shifting the evidential burden on the accused. The nature of inquiry would then be to see whether the accused has discharged his onus of rebutting the presumption. If he fails to do so, the Court can straightaway proceed to convict him, subject to satisfaction of the other ingredients of Section 138. If the Court finds that the evidential burden placed on the accused has been discharged, the complainant would be expected to prove the said fact independently, without taking aid of the presumption. The Court would then take an overall view based on the evidence on record and decide accordingly.”

¶52

The respondent - accused has failed to discharge his onus of rebutting the presumption. Therefore, he has to be convicted for the offence under Section 138 of the N.I.Act, if the other ingredients of the offence under Section 138 of the N.I.Act are satisfied. The cheque – Ex.P1 came to be dishonoured with the bank endorsement ‘funds insufficient’ which is at Ex.P2 dated 30.07.2014. The statutory notice has been issued on 04.08.2014 to the respondent – accused to his two addresses. Ex.P3 is the said legal notice dated 04.08.2014 and it has been issued

¶53

10 - NC: 2025:KHC:6183 CRL.A No. 797 of 2015

¶54

by R.P.A.D and Exs.P4 and P5 are the postal receipts. Ex.P6 is the postal acknowledgment containing signature of the respondent - accused and it is served on 06.08.2014. The respondent - accused has denied the service of notice on him. The respondent - accused has not denied that he is working as an Attender in the Education Department, Bengaluru, Zilla Panchayath, Bengaluru South. On the said address, the demand notice has been sent and it has been served on him. Therefore, the said statutory notice has been served on the respondent - accused on 06.08.2014. The respondent - accused has not paid the cheque amount within fifteen days from the date of service of notice. The complaint filed by the respondent - accused is within the statutory period of thirty days from the date of cause of action. Therefore, all the ingredients of the offence under Section 138 of the N.I.Act are made out. Without considering these aspects, the learned Magistrate has erred in acquitting the respondent – accused for the offence under Section 138 of the N.I.Act. In the result, the following;

¶55

11 - NC: 2025:KHC:6183 CRL.A No. 797 of 2015

¶56

ORDER

¶57

The appeal is allowed . The impugned judgment dated 08.05.2015 passed in C.C.No.26578/2014 by the XXII Additional Chief Metropolitan Magistrate, Bengaluru is set-aside. The respondent - accused is convicted for the offence under Section 138 of the N.I.Act and sentenced to pay fine of Rs.1,30,000/- and in default of payment of the said fine amount, to undergo simple imprisonment for a period of six months. Out of the fine amount, Rs.1,20,000/- is ordered to be paid to the appellant - complainant as compensation. The respondent - accused shall deposit the said fine amount within two months from this day.

¶58

Sd/-

¶59

(SHIVASHANKAR AMARANNAVAR) JUDGE

¶60

GH

¶61

List No.: 1 Sl No.: 20

Smt. Sakamma v. Sri N. Srinivas

Case brief

What is this about?

What did the court decide?

Smt. Sakamma v. Sri N. Srinivas

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

J Savithramma Vs M S Ramachandra

V.K.Jayanthi Vs Hoysala

Sri Gurupadappa Sunkad Vs Smt S Shobha

Mrs. Bhawani Anand Vs Mr. B.J. Vikas Kumar

G. T. Ramaswamy Vs Sri. M. N. Mahesh

Janakram Kota Vs Sri. Jatinder Angaria