Manoj Kumar Jain Vs R Kiran Kumar

MANOJ KUMAR JAIN S/O DARAMACHAND, AGED ABOUT 29 YEARS, MAHAVEER DIAMOND AND JEWELLERS, NO.12, ITI MAIN ROAD, K K LAYOUT, NAGARBHAVI 2^ND STAGE, BENGALURU - 560 072.

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ALSO AT: NO.4, 1^ST FLOOR, K K LAYOUT, 60 FEET ROAD, PAPAREDDYPALYA, Digitally signed by BEHIND DEEP COMPLEX, GEETHAKUMARI SERVICE ROAD, PARLATTAYA S NAGARABHAVI, Location: High BENGALURU - 560 072. Court of Karnataka

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…PETITIONER

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[BY SRI GOPAL SINGH, ADVOCATE]

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AND:

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R.KIRAN KUMAR S/O LATE SRI RAJMAL JAIN, AGED ABOUT 36 YEARS, R/AT NO.28/25,

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NC: 2025:KHC:49111 CRL.RP No. 1063 of 2018

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HC-KAR

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K V LAYOUT, SAPTHAGIRI RESIDENCY, JAYANAGAR 4^TH BLOCK, BENGALURU - 560 011.

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…RESPONDENT

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[BY SRI KUMARA K.G., ADVOCATE]

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THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE ORDER DATED 01.09.2018 IN CRL.A.NO.25/2017 ON THE FILE OF LII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU AS PER ANNEX-A AND ALSO SET ASIDE THE ORDER DATED 07.12.2016 IN C.C.NO.5539/2016 ON THE FILE OF XXII ADDL.C.M.M., BENGALURU AS PER ANNEXURE-B AND TO ACQUIT THE PETITIONER OF THE CHARGE U/S 138 OF N.I. ACT.

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THIS PETITION IS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 04.11.2025, THIS DAY, THE COURT, PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI

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NC: 2025:KHC:49111 CRL.RP No. 1063 of 2018

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HC-KAR

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CAV ORDER

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Challenging judgment dated 01.09.2018 passed by LII Addl. City Civil and Sessions Judge, Bangalore (CCH-53), in Crl.A.no.25/2017 confirming judgment of conviction and order of sentence dated 07.12.2016 passed by XXII Addl. Chief Metropolitan Magistrate, Bangalore, in C.C.no.5539/2016, this revision petition is filed.

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Sri Gopal Singh, learned counsel for petitioner submitted revision petition was by accused against concurrent findings convicting him for offence punishable under Section 138 of Negotiable Instruments Act, 1881, (' NI Act ', for short). It was submitted, respondent (complainant) had filed a private complaint under Section 200 of Code of Criminal Procedure, 1973, (' CrPC ', for short) alleging that complainant was a businessman and his friend Raju Pandit had introduced accused doing jewelry business as 'Sri Mahaveer Jewellers', in June, 2015, who had sought financial assistance of Rs.20,00,000/from complainant, to develop his business. And on 24.06.2015, complainant had lent Rs.18,00,000/- at time of entering into agreement and Rs.2,00,000/- two days later. It was submitted, accused had agreed to return it within three months and on

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demand, issued two cheques bearing nos.406304 and 406295 dated 10.10.2015 and dated 13.10.2015 respectively for Rs.10,00,000/each, drawn on Bank of India, Basaveshwaranagar Branch, Bangalore, which when presented for collection, returned with endorsements dated 12.11.2015 and 19.11.2015 as "funds insufficient" and demand notice dated 10.12.2015 was got issued by complainant, returned on 11.12.2015 with postal shara "door locked and not claimed", which substantiated commission of offence punishable under Section 138 of NI Act.

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On appearance and accused seeking trial, complainant examined himself as PW.1 and got marked Exhibits P1 to P10. On appraisal of incriminating material, which were denied, statement of accused under Section 313 of CrPC was recorded. Thereafter, accused examined himself as DW.1 and got marked Exhibits D1 and D2.

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On consideration, trial Court held accused guilty of offence punishable under Section 138 of NI Act and sentenced him to pay fine of Rs.5,000/and compensation of Rs.5,00,000/- to complainant and in default, accused to

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undergo simple imprisonment for one year. Aggrieved accused filed Crl.A.no.25/2017, which, however due to non-reappreciation of material on record was dismissed, leading to this revision petition.

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It was submitted, accused denied Ex.P10 - hand loan agreement in total. In absence of any of witnesses identifying signature of accused on it, reliance on same to convict accused by trial Court was not justified. It was submitted, accused had borrowed Rs.18,00,000/from complainant, who was a money lender in year 2014 agreeing to repay same by October, 2015. At that time, complainant was aware that one Anand Gowda owed sum of Rs.15,00,000/- to accused. Using his clout with police, Anand Gowda was brought to police station and collected three cheques for Rs.5,00,000/each from him and acknowledged recovery of Rs.15,00,000/-. But, later he approached accused claiming that said Anand Gowda had refused to make payment and forcibly took away 900 gms. of Gold and 09 Kgs. of Silver from shop of accused by threatening him. It was submitted, value of gold/silver taken away was more than Rs.22,80,000/-. PW.1-complainant

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admitted that he was facing charges of dacoity etc. on complaint given by accused and obtained bail. Thereafter, complainant approached accused to withdraw said complaint. In order to mount pressure, he had misused two cheques obtained by him earlier. It was submitted, as per complainant's version, accused had given Exs.P1 and P2 towards repayment, but during cross-examination, he admitted that if accused repays amount, he would return remaining three cheques, which would probablize accused's defence that five cheques were obtained during year 2014 and not issued in year 2015 for repayment of loan as mentioned in Ex.P10-agreement. Apart from above, there is contradiction in deposition of PW.1 about filling up of cheque. Above facts would establish that cheques were not issued towards legally enforceable debt as contended by complainant. Consequently, conviction of accused would not be justified and called for interference.

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On other hand, Sri Kumara KG, learned counsel for complainant opposed petition. It was submitted, both Courts had concurrently convicted accused for offence punishable under Section 138 of NI Act, by arriving at well reasoned

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findings by referring to material on record, leaving no scope for interference in revision petition.

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Heard learned counsel, perused impugned

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judgments and record.

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This revision petition is by accused against concurrent judgments convicting accused for offence punishable under Section 138 of NI Act, on ground that findings of both Courts suffering from perversity.

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One of main grounds of challenge is denial of relationship of creditor and debtor and existence of legally enforceable debt. As noted above, complainant seeks to substantiate legally enforceable debt is by asserting that at time of lending Rs.20,00,000/-, complainant and accused had executed Ex.P10 - agreement and later issued Exs.P1 and 2 - cheques for Rs.10,00,000/- each towards repayment.

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As noted above, complainant stated that accused borrowed Rs.20,00,000/- as hand loan for improvement of business, agreeing to repay within three months and execution of Ex.P.10 - agreement. He also claims that on demand for

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repayment, accused had executed Exs.P1 and P2 - cheques, which when presented had returned dishonored.

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On other hand, accused contended that in year

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2014, he had borrowed loan from complainant, who was a money lender and by October 2015, balance remaining was only Rs.5,00,000/-. He further stated, at time of lending of loan complainant had taken five signed blank cheques and misused two of them for present case. Accused totally denied complainant's version of loan and execution of Ex.P.10 - agreement.

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Complainant examined himself as PW.1 and got

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marked two cheques as Exs.P1 and 2 as well as Ex.P.10 - agreement. He also identified his signature and that of accused on Ex.P.10 as Ex.P10 (a) to (f). Bare comparison of admitted signatures of accused on Exs.P.1 and P2 - cheques with his alleged signature on Ex.P.10 exercising power under Section 73 of Evidence Act, would reveal remarkable difference. Signature on Ex.P.10 not only contains distinct style of writing of name, but also distinct mark, whereas, Exs.P.1 and P2 merely bear distinct style of writing of name, without distinct mark. Apart

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from above, there is indeed, an admission elicited that on repayment of due amount, complainant would return other three cheques.

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For these material inconsistencies, there is no explanation forthcoming from complainant. Further, it is elicited in cross-examination of PW.1 that accused had requested complainant to recover Rs.15,00,000/-, which were due to accused from one Anand Gowda. There is also inconsistency about handwriting on cheques. In addition to above, it is seen that accused had filed complaint against complainant and others for offence of dacoity on 21.10.2015, around same time as issuance of cheque, their presentation and dishonor. These factors would probabilise defence set-up by accused.

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14. Hon'ble Supreme Court in case of Rajesh Jain v.

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Ajay Singh , reported in (2023) 10 SCC 148 , held:

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"44. Therefore, in fine, it can be said that once the accused adduces evidence to the satisfaction of the Court that on a preponderance of probabilities there exists no debt/liability in the manner pleaded in the complaint or the demand notice or the affidavitevidence, the burden shifts to the complainant and the presumption “disappears” and does not haunt the accused any longer. The onus having now shifted to the complainant, he will be obliged to prove the existence of a debt/liability as a matter of

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fact and his failure to prove would result in dismissal of his complaint case. Thereafter, the presumption under Section 139 does not again come to the complainant's rescue. Once both parties have adduced evidence, the Court has to consider the same and the burden of proof loses all its importance. [Basalingappa v. Mudibasappa [Basalingappa v. Mudibasappa, (2019) 5 SCC 418 : (2019) 2 SCC (Cri) 571 : AIR 2019 SC 1983] ; see also, Rangappa v. Sri Mohan [Rangappa v. Sri Mohan, (2010) 11 SCC 441 : (2010) 4 SCC (Civ) 477 : (2011) 1 SCC (Cri) 184 : AIR 2010 SC 1898]"

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Even this Court in Crl.A.no.2784/2012 ( Santosh s/o Nagesh Nayak v. Haribhai Lalji Patel disposed of on 11.11.2020) also held once statutory presumption under Sections 118 and 139 of NI Act are upset, burden would be on complainant to establish commission of offence by accused.

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In instant case, there is failure on part of complainant to examine any of witnesses to Ex.P10. Apart from same, as noted above, there are glaring inconsistencies without explanation amounting to material omissions.

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While passing impugned judgment, trial Court relied on contents of Ex.P10 - hand loan agreement. It also referred to admission by accused about borrowing Rs.18,00,000/- from complainant and its repayment and about his claim of

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Rs.5,00,000/- to be paid only by October, 2015, to convict accused virtually based on admission about being due Rs.5,00,000/-. Appellate Court virtually without re-appreciation passed impugned order confirming judgment of trial Court. Thus, both impugned judgments suffer from perversity as being contrary to record and calling for interference.

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In view of above, revision petition is allowed ; impugned judgment dated 01.09.2018 passed by LII Addl. City Civil and Sessions Judge, Bangalore, (CCH-53), in Crl.A.no.25/2017 confirming judgment of conviction and order of sentence dated 07.12.2016 passed by XXII Addl. Chief Metropolitan Magistrate, Bangalore, in C.C.no.5539/2016, are set aside; and accused is acquitted of offence punishable under Section 138 of NI Act.

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Sd/(RAVI V HOSMANI) JUDGE

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AV/GRD List No.: 1 Sl No.: 100

Manoj Kumar Jain v. R Kiran Kumar

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Manoj Kumar Jain v. R Kiran Kumar

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