IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL APPEAL NO.22/2019 BETWEEN:
Mrs. Savitha M.S. W/o D.Subramanya Aged about 70 years R/at No.26, LIG-I, 2nd Stage, Bogadi, Mysuru-570 026.
(By Sri Sanath Kumar Shetty K., Advocate) AND:
Mr. V. Nagesh S/o Vishwanath Aged about 58 years R/at No.116, 1st Cross, Gayathripuram Mysuru-570 024.
…Appellant …Respondent (By Sri Prakash R. Garasangi, Advocate-Absent) This Criminal Appeal is filed under Section 378(4) of Cr.P.C praying to set aside the judgment dated 16.11.2018 passed by the III Additional I Civil Judge and JMFC, Mysuru in C.C.No.1202/2015 acquitting the respondent/accused for the offence punishable under Section 138 of Negotiable Instruments Act.
This Criminal Appeal coming on for admission, this day the Court delivered the following:-
JUDGMENT The present appeal has been preferred by the appellant-complainant being aggrieved of the judgment of acquittal passed by III Additional I Civil Judge and JMFC, Mysuru, in C.C.No.1202/2015 dated 16.11.2018.
2. I have heard the learned counsel appearing for the appellant. The learned counsel for the respondent remained absent. Though the present appeal has been listed for admission, with the consent of the learned counsel appearing for the appellant, the same is taken up for final disposal.
3. The factual matrix of the case in brief is that accused had approached the complainant and borrowed a sum of Rs.6,80,000/- for the purpose of his children’s education and has executed On Demand Promissory Note and Consideration receipt in favour of the complainant on 29.7.2011 and he had agreed to repay the same with interest at 1½ % per month. It is further contended that accused has issued a cheque bearing No.173449 dated 1.9.2013 drawn on Vijaya Bank. Though the accused assured for repayment, he did not pay and as per the assurance of the accused, complainant presented the said cheque for encashment, the same was returned on 7.9.2013 with a shara ‘insufficient funds’. Thereafter, a legal notice was issued on 11.9.2013 and in spite of service of notice, the amount has not been paid by the accused- respondent and as such a complaint was registered under Section 138 of the Negotiable Instruments Act. Thereafter, the trial Court took the cognizance and secured the presence of the accused and after recording the plea, the complainant got examined herself as PW1 and got marked documents Exs.P1 to P9 and thereafter the accused came to be examined under Section 313 of Cr.P.C. The accused got examined himself as DW1 and got marked documents Exs.D1 to D4. After hearing the learned counsel, the impugned order came to be passed.
4. It is the submission of the learned counsel for the appellant that though the respondent-accused has admitted the execution of Exs.P1 to P4, without considering the said document and not drawing a presumption as contemplated under the law, erroneously has passed the judgment of acquittal. It is his further submission that when once the accused admits the signature, the Court is duty bound to draw a presumption under Section 139 of the Negotiable Instruments Act and thereafter the burden shifts upon the respondent-accused to rebut the said presumption on preponderance of probabilities and no such rebuttal evidence has been produced to hold that the said cheque has been issued as a security for the chit fund transaction existing between the complainant and the wife of the accused. It is his further submission that without proper appreciation of the documents and evidence, the trial Court has erroneously acquitted the accused. On these grounds he prayed to allow the appeal and set aside the impugned judgment of acquittal.
5. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the appellant and perused the records including the lower Court records.
6. In order to prove the case of the complainant, complainant got examined herself as PW1 and got marked the documents Exs.P1 to P9 and accused got examined himself as DW1 and got marked the documents Exs.D1 to D4. On close reading of the evidence of PW1 in her evidence she has reiterated the contents of the complaint and during the course of cross-examination it has been suggested that the said cheque has been issued as a security and the said suggestion has been denied and in the evidence DW1 during the course of cross-examination he has admitted that Ex.P1 – cheque and Ex.P1(a) signature belongs to him and in Ex.P3(a) and (b) there is his signature and Ex.P4 also bears his signature. When all these facts have been admitted, then under such circumstances the Court below ought to have drawn the presumption as contemplated under Section 139 of the Negotiable Instruments Act and it could have held that there exists a legally enforceable debt or liability.
7. This Court is conscious of the fact that it is of- course in the nature of rebutable presumption and it is open to the accused to raise a defence wherein the existence of legally enforceable debt or liability can be contested. But as could be seen from the judgment of the trial Court, without looking into the law laid down by the Hon’ble Apex Court in the case of Rangappa Vs. Sri.Mohan reported in (2010) 11 SCC 441, and subsequently in the case of Bir Singh v. Mukesh Kumar reported in (2019) 4 SCC 197, it has passed the impugned order. The trial Court has not appreciated the documents produced and why the said documents have not been relied upon and without there being any rebuttal evidence erroneously has passed the impugned order. Under the said facts and circumstances, I feel that the trial Court without application of mind has committed a glaring illegality in passing the said order. Under the facts and circumstances I feel that if the judgment of the trial Court if it is set aside and the matter is remitted back to the Court below with a direction to reconsider all the evidence and documents produced and thereafter to pass the appropriate judgment in accordance with law, it is going to meet the ends of justice.
8. Accordingly, this appeal is allowed and the judgment passed by III Additional I Civil Judge and JMFC, Mysuru, in C.C.No.1202/2015 dated 16.11.2018 is set aside and the matter is remitted to the trial Court with a direction to dispose of the case as observed above.
Registry is also directed to send back the trial Court records forthwith.
Both the parties are hereby directed to appear before the trial Court without further notice on 4.11.2019.
*AP/-
Sd/- JUDGE