IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL APPEAL No.711 OF 2010 BETWEEN:
Mr. Deepak Aged about 33 years, S/o. G.K.Acharya, Residing at No.93, EWS 1st Stage, 1st Main Road, Basaveshwaranagar, Bengaluru-79. ...Appellant (By Sri. Nagaraj B. Gadekar, Advocate for Sri. P.N.Hegde, Advocate) AND:
Mr. Ranganath D.A S/o. D.R.Anne Gowda, Residing at No.29, 7th Cross, Chickpet Housing Co-Operative Society Extension, Vijayanagar, Bengaluru-40. ...Respondent (By Sri. Aravind D. Upadhye, Advocate for Sri. P.N.Nanja Reddy, Advocate) This Criminal Appeal is filed under Section 378(4) of Cr.P.C praying to set aside the order dated:05.02.2010 passed by the P.O. FTC-V, Bengaluru in Crl.A.No.533/08- acquitting the respondent/accused for the offence punishable under Section 138 of N.I.Act – convicting the accused/respondent in C.C.No.23476/06 dated:18.06.2008 of the file of 16th A.C.M.M., Bengaluru.
This Appeal coming on for Hearing, this day, the Court delivered the following:
JUDGMENT In the complaint filed by the present appellant under Section 200 of Code of Criminal Procedure, against the present respondent, for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as `N.I.Act’), the learned XVI Additional Chief Metropolitan Magistrate, Bengaluru (hereinafter for brevity referred to as `trial Court’), in C.C.No.23476/2006 pronounced the judgment of conviction, convicting the present respondent/accused on 18.06.2008. Against the same, the present respondent, as an accused, preferred Criminal Appeal No.533/2008 before the learned Presiding Officer, Fast Track (Sessions) Judge-V, Bengaluru City (hereinafter for brevity referred to as ‘lower Appellate Court’), which by its impugned judgment dated 05.02.2010 allowed the appeal and set aside the judgment of conviction passed by the trial Court. It is challenging the judgment of acquittal passed by the lower Appellate Court, the appellant/complainant has preferred this appeal.
2. Summary of the case of the complainant in the trial Court is that; father of the complainant entered into a lease agreement with respect to a house belonging to the accused and his brother Ravindranath on 20.08.2003, whereunder the lease amount was `2,00,000/- and an additional amount of `50,000/- was paid on 04.12.2003. After the death of the father of the complainant they vacated the premises. During the stay of the complainant in the said premises the accused became close friend of the complainant and for his business, the accused availed loan of `70,000/- from the complainant in the month of November, 2003. At the demand made by the complainant for the repayment of the said loan amount, the accused issued him a cheque bearing No.290955 dated 01.03.2006 drawn on HDFC Bank, Vijayanagar Club Road, Bengaluru for a sum of `70,000/-. When the said cheque was presented for realisation by the complainant the same came to be dishonoured as “funds insufficient” on 09.03.2006. Thereafter, the complainant issued a demand notice to the accused. Since the accused did not pay the cheque amount, the complainant was constrained to institute a case against him for the offence punishable under Section 138 of the N.I.Act.
3. In order to establish his case, the complainant got himself examined as PW1 and got marked the documents from Exs.P1 to P8. The accused got himself examined as DW1 and no documents were marked from his side as exhibits. The trial Court after hearing both side, by its judgment dated 18.06.2008 convicted the accused for the offence punishable under Section 138 of the N.I.Act and sentenced him accordingly.
Challenging the said judgment of conviction passed by the trial Court, the accused preferred an appeal in the lower appellate Court in Criminal Appeal No.533/2008 which came to be allowed by the judgment dated 05.02.2010 and the accused was acquitted of the alleged offence. It is challenging the said judgment of acquittal the complainant has preferred this appeal.
4. Learned counsel for the appellant in his brief argument submitted that when the issuance of cheque by the accused to the complainant is not disputed, the presumption operates in favour of the complainant. The said presumption was not successfully rebutted. The said aspect was not appreciated properly by the Lower Appellate Court.
5. Learned counsel for the respondent in his argument submitted that though the delivery of the cheque at Ex.P1 is not in dispute, but the accused has convincingly established the circumstances under which the cheque in question was given to the complainant. Further, the evidence of DW1 that the cheque was issued as a security and that there existed no legally enforceable debt or liability has remained undenied, as such, the judgment of the Lower Appellate Court does not warrant any interference at the hands of this Court.
6. The complainant as PW1 in his examination- in-chief has reiterated the contention taken up by him in his complaint. He has also got marked the cheque in question at Ex.P2, the Banker’s endorsements at Exs.P3 and 4, copy of the legal notice at Ex.P5 among other documents. In his cross examination from the accused side, though it was not denied or disputed that the cheque at Ex.P2 pertains to the accused and the same was given to the complainant, but it is the specific contention of the accused that at the time when the complainant vacated the leased premises belonging to the brother of the accused prematurely, till the lease amount was repaid to the complainant the cheque in question was given by the accused to the complainant as a security. The suggestion made to PW1 on the similar lines has not been admitted as true by the witness.
7. The accused as DW1 has reiterated the same contention even in his examination-in-chief also. Thus, the accused has not denied or disputed about he delivering the cheque at Ex.P2 to the complainant. However, his contention is that the said cheque was given to the complainant only as a security. In such a situation, when the issuance of cheque by the accused to the complainant is established, then under Section 139 of the N.I.Act and as per the dictum of Hon’ble Apex Court in Rangappa Vs. Sri Mohan reported in (2010) 11 SCC 441, a presumption about the existence of legally enforceable debt operates in favour of the complainant. However, the said presumption is rebuttable.
8. In the instant case, in order to rebut the said presumption operating in favour of the complainant, the accused in the cross examination of the complainant has putforth his defence specifically. However, the complainant has not admitted those suggestions as true except the fact that father of the complainant was a tenant under the brother of the respondent / accused and that by premature closure of the lease due to the death of the father of the complainant, they vacated the premises before the expiry of the lease period.
9. The accused apart from placing his defence in the mouth of PW1 in his cross examination, has also led his evidence as DW1. In his evidence also he has reiterated the contention that the cheque in question was issued only as a security till the repayment of the lease amount from his brother to the complainant. It is also his specific evidence that his brother has repaid the lease amount to the complainant. However, the complainant did not return the cheque back to the accused, giving the reason that said cheque was misplaced and he would return the same, once the same is traced out by him. The said evidence of DW1 on these lines have not been denied from the complainant side, for the reason that DW1 was not at all cross examined from the complainant side.
10. The accused in the process of rebutting the presumption formed in favour of the complainant has putforth his case in the mouth of the PW1 in the cross examination and also lead his evidence by entering into witness box. The said evidence of DW1 has stood unrebutted. Thus, when the evidence of DW1 about the circumstances under which the cheque in question reached the hands of the complainant has remained unrebutted and undenied, it can be taken that the presumption that was formed in favour of the complainant has been rebutted by the accused successfully.
11. Consequently, the burden of proving the existence of legally enforceable debt shifts back upon the complainant. However, the complainant having not produced any other document or any other corroborative evidence to establish that the accused had borrowed a loan of `70,000/- from him has failed to discharge the said burden, as such, he has failed to prove the alleged guilt against the accused beyond reasonable doubt.
12. The trial Court without appreciating the evidence led before it in its proper perspective and without even noticing the fact that the evidence of PW1 has remained undenied, merely on the basis that the cheque at Ex.P2 was admitted to be issued by the accused proceeded to convict him. However, the Lower Appellate Court reversed the said judgment though by giving different reasons. But it ultimately arrived at a correct finding holding that the accused deserves acquittal from the alleged offence punishable under Section 138 of the N.I.Act. In the said judgment of the Lower Appellate Court, I do not find any reason to interfere with.
Accordingly, the appeal stands dismissed as devoid of merit. The judgment of acquittal passed by the learned Presiding Officer, Fast Track (Sessions) Judge-V, Bengaluru City in Crl.A.No.533/2008 dated 05.02.2010 is confirmed.
Registry to send copy of this judgment along with the lower court records to the Court below without delay.
Sd/- JUDGE GH