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2023 Supreme(Online)(KAR) 22973
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CRL.A No. 1221 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE P.N.DESAI
CRIMINAL APPEAL NO.1221 OF 2011 (A)
BETWEEN:
MAHADEVA,
S/O LATE PUTTALINGAIAH,
AGED ABOUT 41 YEARS,
RESIDING AT DOOR NO. 3995,
1ST MAIN ROAD,
GANDHINAGAR, MYSORE.
…APPELLANT
(BY SRI. P. MAHESHA., ADVOCATE)
AND:
NAGENDRASWAMY,
S/O N.P MARIBASAPPA,
AGED ABOUT 48 YEARS,
WORKING AS POLICE HEAD CONSTABLE,
POLICE CONTROL ROOM,
CHAMRAJNAGAR,
RESIDING AT NO 285/F5,
UTHARADI MUTT ROAD,
5TH WEST CROSS,
FORT MOHALLA,
MYSORE -4.
…RESPONDENT
(BY SRI. P.NATARAJU.,ADVOCATE)
Digitally signed by
NAGARATHNA M
Location: HIGH
COURT OF
KARNATAKA
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CRL.A No. 1221 of 2011
THIS APPEAL IS FILED U/S. 378(4) CR.P.C BY THE ADV., FOR
THE APPELLANT PRAYING TO SET ASIDE THE ORDER DT:30.09.11
PASSED BY THE II ADDL.S.J., MYSORE IN CRL.A.NO.34/11 -
ACQUITTING
THE
RESPONDENT/ACCUSED
FOR
THE
OFFENCE
PUNISHABLE UNDER SECTION 138 OF N.I. ACT AND CONFIRM THE
ORDER DATED:14.2.11 PASSED BY THE III ADDL. FIRST CIVIL
JUDGE AND JMFC, MYSORE IN C.C.NO.2735/08 AND ETC.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
The initial burden of proving the ingredients of an offence under Section 138 of the NI Act lies on the complainant, and the accused can rebut the presumption under Section 139 of the NI Act by cross-examining the complainant or by leading defence evidence.
Headnote:
NEGOTIABLE INSTRUMENTS ACT, 1881 - SECTION 138 - DISHONOUR OF CHEQUE - BURDEN OF PROOF - PRESUMPTION UNDER SECTION 139 - REBUTTAL OF PRESUMPTION - INITIAL BURDEN ON COMPLAINANT TO PROVE INGREDIENTS OF OFFENCE - FAILURE TO PROVE INITIAL BURDEN - ACQUITTAL OF ACCUSED UPHELD
Fact of the Case:
The appellant, a police constable, filed a complaint against the respondent, also a police constable, for dishonoring a cheque for Rs. 80,000/- issued in discharge of a loan of Rs. 30,000/- borrowed by the respondent in 2005. The trial court convicted the respondent under Section 138 of the Negotiable Instruments Act, 1881 (NI Act), but the Sessions Judge acquitted him on appeal, holding that the appellant had failed to prove his initial burden of proving the ingredients of the offence.
Finding of the Court:
The High Court upheld the acquittal, finding that the appellant had failed to prove his initial burden of proving the ingredients of the offence under Section 138 of the NI Act. The Court held that the appellant's evidence was contradictory and that he had failed to show that he had the financial capacity to lend the amount of Rs. 80,000/- to the respondent.
Issues: 1. Whether the appellant had discharged his initial burden of proving the ingredients of the offence under Section 138 of the NI Act?2. Whether the respondent had successfully rebutted the presumption under Section 139 of the NI Act?
Ratio Decidendi: 1. The initial burden of proving the ingredients of an offence under Section 138 of the NI Act lies on the complainant.2. The presumption under Section 139 of the NI Act arises only if the complainant is able to prove the ingredients of the offence by legally admissible evidence.3. The accused can rebut the presumption under Section 139 of the NI Act either by cross-examining the complainant or by leading defence evidence.4. If the accused successfully rebuts the presumption, the onus of proof shifts back to the complainant.
Final Decision: The appeal was dismissed, and the acquittal of the respondent was confirmed.
This appeal arises out of the judgment of acquittal dated
30.09.2011 passed in Crl.A.No.34/2011 by learned II Addl.
Sessions Judge, Mysore, wherein the learned Sessions Judge
set-aside the judgment of the trial court, whereunder the
respondent was convicted for the offence punishable under
section 138 of N.I. Act and was imposed punishment of fine of
Rs.1,60,000/- and in default to undergo imprisonment for one
year.
2. The appellant is the 'complainant' and the respondent
is the 'accused' before the trial court. They will be referred as
per their rankings before the trial court.
3. Heard learned counsel for the appellant and learned
counsel for the respondent. I have perused the records and
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also the judgment of the Sessions Judge and also evidence on
record.
4. The learned counsel for the appellant has contended
that the judgment passed by the learned Sessions Judge is
erroneous and not maintainable. The finding of the learned
Sessions Judge that the complainant has failed to prove the
capacity to pay Rs.80,000/- is wrongly appreciated. The
learned Sessions Judge has erred in reversing the judgment of
conviction. Learned Sessions Judge has not considered the
presumption under section 139 of the Negotiable Instruments
Act, 1881(for short hereinafter referred as 'N.I. Act'). The
evidence is not properly appreciated. Therefore, the said
judgment needs to be set-aside.
5. Learned counsel for the appellant argued that the
notice is issued to proper address. Therefore, when notice
served is returned with a shara, 'notice not claimed', then, it is
deemed that notice is served. Further, Ex-P1(a) signature on
cheque is admitted. Therefore, presumption arises under
section 138 of N.I. Act. Learned counsel also argued that the
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accused has not led any defence evidence so as to rebut the
presumption. Hence, he prayed to set-aside the conviction.
6. Against this, learned counsel for the respondent argued
there is clear evidence on the part of the complainant that Ex-
P1 cheque was issued for discharge of amount of Rs.30,000/-
borrowed by the accused in the year 2005. The complainant
has also admitted that he had no financial capacity to pay the
said amount. The evidence of the complainant and the written
complaint are not corroborating with each other. On the other
hand, there is nothing on record or evidence as to when the
amount was given to the accused. Therefore, the learned
Sessions Judge after considering the evidence has rightly come
to the conclusion that the appellant/complainant has failed to
prove his initial burden and hence has rightly acquitted the
accused.
7. It is evident from the records that the complainant has
stated that the amount was given by him in the year 2006,
ofcourse, there is no mention of month or date as to when the
amount is given. On the other hand, he has stated that the
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amount was given by him in March 2007, may be 3rd March.
So the contents of the complaint and his oral evidence are
contradictory to each other. It is also evident that the
complainant is working as a police constable on court duty for
the last six years. The accused is also a police constable. The
complainant has stated that in order to give amount of
Rs.80,000/- to the accused he was not having the cheque. He
has admitted that from 2005 to 2007, he never had amount of
Rs.80,000/-. So this admission shows that the complainant did
not have money so as to lend the amount of Rs.80,000/- by
cash. There is also admission that there is deductions in his
salary and he was getting Rs.7,000/ and odd per month and he
is having two acres of land in his grandfather's name and his
grandfather is having three children and his father has also got
three children. Therefore, it appears that even the agricultural
income will be very much less. He stated that in the year 2007,
the accused has borrowed the amount for the education of his
daughter, but, in the Ex-P3 notice issued dated 17.04.200
