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2019 Supreme(Kar) 1914
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
B.A. Patil, J.
Sri. H.G.Nagaraja S/o late H.S.Gurushanthappa - Appellant
Versus
Sri H.Suresh Naika S/o Hiriyanaika - Respondent
Criminal Appeal No.301 of 2018
Decided On : 12-09-2019
Advocate Appeared:
For the Petitioner:Sri. Jayaprakash, Advocate for Sri Showri H.R., Advocate
Headnote:
Negotiable Instruments Act - Section 139 – Dishonor of cheque – Imprisonment - Factual matrix of complaint is that complainant and accused were acquainted with each other since several years - Accused has approached complainant in month of March 2015 for financial assistance for household expenses and to discharge his debt - In month of April 2015 complainant lent month of May 2015 and thereafter in month of June 2015 he has paid another all was given to accused - In order to discharge said loan amount accused issued cheque bearing drawn on Vijay Bank Branch - When said cheque was presented for encashment it was returned with share funds insufficient - Complainant got issued legal notice calling upon accused to pay cheque amount within 15 days - Said notice was served to but accused neither replied nor complied with terms of legal notice and as such a private complaint was filed – Held, If really he has not availed loan from complainant and complainant has misused cheque Ex.P1 then under such circumstances immediately after receipt of legal notice as per Ex.P3 he could have given reply stating said fact - Keeping silent over said notice it draw a presumption that he was not having any grievance after receipt of said notice and even after coming to know after receipt of legal notice said cheque has been bounced for insufficient funds then under such circumstances at least he could have filed a complaint alleging that cheque which has been issued as a security to one has been misused - Conduct of accused also does not substantiate his case - When presumption has been drawn under Section 139 of N.I. Act about legally recoverable debt and said presumption has not been rebutted by cogent and acceptable evidence then under such circumstances case of complainant stands proved and accused is liable to be convicted under Section 138 of N.I. Act - Without looking into said fact trial Court only on basis of contention of accused that a huge amount has been advanced and complainant is not having any capacity to lend such huge amount and on that count trial Court has acquitted accused - But as could cross-examination of PW1 in his evidence it has been elicited that per month he is getting a salary and he is working as a Cinema Representative and per day he is running four shows and he has taken the house on a lease by and it has also been elicited that he is having a only son and he is working in Bangalore - All these materials even draw attention of this Court that complainant is having capacity to lend said amount - Be that as it may - When a presumption has been drawn under Section 139 of N.I. Act said presumption is that there exists legally recoverable debt or liability - Then under such circumstances trial court until it is rebutted it ought not to have gone to said facts and ought not to have acquitted accused - Reasons arrived at by Court below are not based upon any cogent and acceptable evidence and as such same is liable to be set aside and accused is liable to be convicted – Order accordingly
JUDGMENT :
This appeal has been preferred by the complainant/appellant being aggrieved by the judgment and order of acquittal passed by JMFC-III Court, Shivamogga, in C.C.No.1317/2016 dated 3.1.2018.
Though this case is listed for hearing on IA, with the consent of the learned counsel appearing for the appellant, the same is taken up for final disposal.
Though notice is served to the respondent he has remained absent and there is no representation.
2. The factual matrix of the complaint is that complainant and accused were acquainted with each other since several years. Accused has approached the complainant in the month of March 2015 for financial assistance for household expenses and to discharge his debt. In the month of April 2015 complainant lent Rs.2,00,000/- and another Rs.1,00,000/- in the month of May 2015 and thereafter in the month of June 2015 he has paid another Rs.1,00,000/-, in all Rs.4,00,000/was given to the accused.
3. In order to discharge the said loan amount, accused issued the cheque bearing No.404009 dated 12.5.2016 drawn on Vijaya Bank, Harnahalli Branch. When the said cheque was presented for encashment on 12.5.2016, it was returned with the shara ‘funds insufficient’ on 17.5.2016. Complainant got issued the legal notice calling upon the accused to pay the cheque amount within 15 days. The said notice was served to the accused on 10.6.2016, but the accused neither replied nor complied with the terms of the legal notice and as such a private complaint was filed. Thereafter, the learned Magistrate took the cognizance after recording the sworn statement and secured the presence of the accused. Thereafter the plea of the accused was recorded and accused pleaded not guilty, he claims to be tried and as such case was posted for trial.
4. In order to prove the case of the complainant, complainant got himself examined as PW1 and got marked the documents Exs.P1 to P5 and after closure of the evidence on the side of the complainant, the statement of the accused was recorded by putting the incriminating material as against the accused. Accused denied the same and he has neither adduced any evidence nor got marked any documents. After hearing the learned counsel appearing for the parties, the impugned judgment of acquittal is passed.
5. It is the submission of the learned counsel for the appellant that the Court below without properly appreciating the facts and circumstances has come to a wrong conclusion. It is his further submission that when once the respondent/accused admits the signature on the cheque and he has specifically contended that the said cheque has been issued to one Sri.Ravindranath, then under such circumstance, the Court below ought to have raised a presumption under Section 139 of the Negotiable Instruments Act (hereinafter referred to as N.I. Act for short) and the burden has been fixed upon the accused to rebut the said presumption. But the accused has neither led any evidence nor brought any records to rebut the said presumption. The trial Court only on the basis of the reference to the complaint and the evidence has come to the wrong conclusion by giving reason that the complainant is not having any capacity to give the loan of the huge amount. When the accused failed to rebut the said presumption, the Court ought to have convicted the accused. He further submitted that the complainant has proved all the ingredients under Section 138 of the N.I. Act and the accused has not replied to the said notice issued under Section 138 of the N.I. Act. Under such circumstances, the Court below ought to have convicted the accused. On these grounds he prayed to allow the appeal and to convict the accused.
6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the appellant and I have also perused the lower court records.
7. As could be seen from the records it is the specific case of the complainant that the accused approached him during 2015 and he has paid the
