IN THE COURT OF THE LXII ADDL.

CITY CIVIL &

SESSIONS JUDGE (CCH-63), BENGALURU.

DATED: THIS THE 30th DAY OF APRIL, 2015

PRESENT

SRI. S. SHANTHAVEER B.A., LL.B. (Spl.)

LXII Addl. City Civil & Sessions Judge,
Bengaluru

CRIMINAL APPEAL No.1238 OF 2014

APPELLANT SRI. HULLURE GOWDA

S/O MARE GOWDA
AGED ABOUT 62 YEARS,
RESIDING AT AMBARISH
COMPLEX, KALIDASA STREET,
NEAR S.B.M., H.D. KOTE,
MYSORE DISTRICT – 571 114.

(By Sri. K.S. Praveen Kumar,

Advocate)

Versus

RESPONDENT SRI. JESUDS

S/O BELAVANDERAN
AGED ABOUT 50 YEARS,
RESIDING AT NO. 11,
RAYAPURAM MAIN ROAD,
JAGAJEEVANRAMANAGAR,
BANGALORE – 560 0108.

(By Sri.D.R. Anandeeswara,

Advocate)

JUDGMENT

Aggrieved by the conviction judgment passed by the

learned XIII Addl. Chief Metropolitan Magistrate,

 2 Crl.A.1238 /2014

Bengaluru in C.C.No.17977 / 2011 dated 14.10.2014,

the appellant/accused is before this court with this

criminal appeal U/s 374(3) of Cr.P.C.

2. For the sake of convenience, the appellant and

respondent of the present case will be referred by their

original status before the Trial Court. The appellant is

the accused and respondent is the complainant before

the trial court.

3. The brief facts of the case are as under:

The complainant had filed a complaint against the

accused before the trial court contending that the

complainant and the accused are known to each other

since long. The complainant is a registered PWD

contractor. The accused is doing business in the name

and style of M/s Harish Traders. During last week of

December 2008, the accused barrowed loan of Rs.3 lakhs

from the complainant for improvement of his business.

Towards the repayment of the said loan the accused had

issued cheque for Rs. 3 lakhs dated 05.09.2010. When

the complainant presented the cheque for encashment

the same was returned dishonoured with an

 3 Crl.A.1238 /2014

endorsement ‘EXCEEDS ARRANGEMENT’ by a memo

dated 08.10.2010. Hence, the complainant got issued

demand notice to the accused. The notice was duly

served on the accused, but the accused gave evasive

reply and not repaid the cheque amount. Hence, the

complainant filed a complaint against the accused

alleging offence punishable under Section 138 of N.I. Act.

4. Thereafter, the trial court has taken cognizance of

the offence and recorded sworn-statement of the

complainant. The trial court after finding a prima-facie

case against the accused registered the case in Register

No. III and issued process. The accused on service of

summons appeared before the Trial Court and was

enlarged on bail. A plea was read over and explained to

the accused. Accused pleaded not guilty and claimed to

be tired. The case was posted for trial of the accused.

5. In order to bring home the guilt of the accused,

complainant examined himself as PW1 and got marked

documents at Ex.P1 to Ex.P6. After closure of the

evidence of the complainant, the statement of the

accused under section 313 of Cr.P.C., was recorded. The

 4 Crl.A.1238 /2014

accused has denied the incriminating evidence that was

read over to him. The accused led his defence evidence as

DW.1 and got marked documents at Ex.D1 to Ex.D.13.

6. After appreciating the oral and documentary

evidence on record and after hearing both the parties, the

learned magistrate has convicted the accused/appellant

for the offence punishable under section 138 of N.I Act

and sentenced him to pay a fine of Rs.3,05,000/- and in

default of payment of fine to undergo S.I. for 6 months.

It is further ordered that a sum of Rs.3,00,000/- be paid

to the complainant as compensation.

7. Aggrieved by the impugned Judgment of the trial

Court, the appellant/accused is before this court with

this appeal. The accused contended that the Judgment of

the trial court is perverse, capricious, illegal and un-

sustainable under law. The trial Court has failed to

consider the defence set up by the accused. The trial

Court has not appreciated the cross-examination of the

complainant. The trial Court has simply drawn the

presumption in favour of the complainant U/s.139 N.I.

Act. The trial Court has mechanically convicted the

 5 Crl.A.1238 /2014

accused. Hence the Judgment of the trial Court is un-

sustainable. There is necessity to intervene in the

judgment of the trial court and prays to allow the

criminal appeal to set aside judgment of the trial court by

acquitting the accused.

8. Lower Court records and the complainant were

procured before this Court.

9. Heard both the sides. Perused the records.

10. The following points arise for the consideration of

the court :-

1) Whether the complainant has proved that the

accused has committed an offence punishable
under Section 138 of N.I.Act?

2) Whether the Judgment of the trial court is un-

sustainable under law?

3) Is there any necessity to intervene in the order

of the trial court?

4) What order?

11. The findings of the court on the aforesaid points are

as under:

Point No.1:- In the Negative

Point No.2:- In the Affirmative,
Point No.3:- In the Affirmative,
Point No.4:- As per final order for the following:
 6 Crl.A.1238 /2014

REASONS
POINTS NO.1 TO 3:

12. As points No.1 to 3 are interrelated with each other,

they are taken up together for discussion to avoid

repetition.

13. The specific case of the complainant is that, himself

and the accused are known to each other since long. The

accused barrowed loan of Rs. 3 lakhs from the

complainant during December 2008 for improvement of

his business, agreeing to repay the same within specified

period. In order to repay the loan he had issued cheque.

But the said cheque was returned dishonoured with an

endorsement ‘Exceeds Arrangement’. Hence, the

complainant got issued demand notice to the accused.

The accused had received the demand notice and gave

evasive reply. Hence, he was constrained to file the

complaint as the accused had failed to pay the cheque

amount. The complainant has reiterated the averments of

the complaint in the chief examination as PW 1. He has

produced cheque at Ex.P1, Endorsement of the Bank at

 7 Crl.A.1238 /2014

Ex.P2, office copy of the demand notice at Ex.P3, postal

AD card at Ex.P5 and reply notice at Ex.P6.

14. No doubt a perusal of these documents makes out

a case that the accused issued cheque towards discharge

of legally recoverable debt to the complainant and the

same was returned dishonoured with an endorsement

“EXCEEDS ARRANGEMENT” and in spite of issuance of

demand notice, the accused has failed to repay the loan

to the complainant. Hence, prima facie case under

Section 138 of NI Act is made out. But during the course

of cross examination of PW 1 admitted that ink of the

signature on the cheque Ex.P1 is different form the ink of

other contents of the cheque. Further, PW 1 in his cross

examination has admitted that the accused was

introduced by one of his friends. But he is unable to

examine the said friend as he is not in contact with him

since long and he has not disclosed the name of his

friend.

15. The accused has specifically contended that he has

not at all barrowed any loan from the complainant. He is

financially sound, doing business and he is the owner of

 8 Crl.A.1238 /2014

the garden land having sufficient income. The accused

has specifically contended that his son has lost the

cheque in question some where on 20.08.2010. In that

regard he had intimated his Banker regarding the same

that he had issued the blank cheque to his son on or

about 20.08.2010, but he has lost the same at Mysore.

Hence he has intimated his Banker not to honour the

said cheqdue on 21.08.2010. In that regard the accused

has produced copy of the letter addressed to the Banker

at Ex.D4.

16. Perusal of Ex.D4 goes to show that on 21.08.2010

accused informed his Banker not to honour the cheque

bearing No. 986662 i.e. the cheque in question as his son

has lost the same at Mysuru. The trial court though has

considered the said letter at Ex.D4, but came to the

conclusion that though date is mentioned that

21.08.2010 in the letter, but the Bank has received the

same on 04.08.2010 that is even prior to the loosing of

the cheque.
 9 Crl.A.1238 /2014

17. But this court is of the opinion that a careful

perusal of Ex.D4 goes to show that the Bank has received

the said letter on 21.08.2010. The trial court has come

to the conclusion that letter was received by the Bank on

04.08.2010 and not on 21.08.2010. But this court is of

the opinion that the complainant has not made any

efforts to ascertain the same by summoning the Branch

Manager to depose regarding the same. When the

accused has lost his cheque on 20.08.2010 and informed

the same to the Bank on 21.08.2010 the question of

issuing cheque to the complainant towards discharge of

legally recoverable debt does not arise. Hence the

observation of the trial court in this regard is not proper.

18. Further, in view of the judgment laid down by the

Hon’ble Supreme Court of India, in the case of

RANGAPPA Vs. MOHAN, the statutory presumption

U/Sec.139 of N.I.Act needs to be drawn in favour of the

complainant. But in the same judgment the Hon’ble

Supreme court has categorically contended that the said

presumption is a rebuttal presumption and accused can

rebut the same by setting up of probable defence. In this

 10 Crl.A.1238 /2014

case the accused has set up probable defense regarding

missing of the cheque. When that is so the burden shifts

on the complainant to prove that there was monetary

transaction between himself and the accused. Hence, the

accused issued the cheque towards discharge of legally

recoverable debt. Considering the same, this court is of

the opinion that the complainant ought to have led

cogent and corroborative evidence to prove that the

accused is known to him since long and he has advanced

loan of Rs. 3 lakhs to the complainant during December

2008. But the complainant has not at all produced any

evidence.

19. As already discussed above the complainant has

admitted that he is unable to disclose the name of the

mutual friend who introduced the accused to him. The

complainant has not produced any documentary

evidence to show that he had Rs. 3,00,000/-, as on the

date of advancing the loan to the complainant. The

complainant has admitted in his cross examination that

he had advanced loan out of the sale proceeds of his

property. But he has not disclosed or revealed the

 11 Crl.A.1238 /2014

property which he sold before advancing the loan nor

date of sale and consideration amount.

20. Hence this court is of the opinion that the accused

has successful rebutted the statutory presumption

available to the complainant under Section 139 of N.I.

Act. Whereas the complainant had failed to prove that

the accused committed offence punishable under Section

138 of N.I. Act. Considering the same, this court is of the

opinion that the trial court has erred in convicting the

accused. Hence, the judgment of the trial court can be

termed as perverse, capricious and un-sustainable under

law. Hence there is necessity to intervene in the order of

the trial court. Hence, point No.1 is answered in

NEGATIVE and points No.2 and 3 in the AFFIRMATIVE.

POINT NO.4:

21. For the aforesaid reasons the following.

ORDER

The Criminal Appeal preferred by the appellant /

accused U/Sec.374 (3) of Cr.P.C is hereby allowed.

 12 Crl.A.1238 /2014

The judgment of conviction and sentence passed

by the learned XIII Addl. Chief Metropolitan

Magistrate, Bengaluru dated 14.10.2014 in

C.C.No.17977 / 2011 is hereby set aside.

The accused is acquitted of the offence

punishable under section – 138 of NI Act and his bail

bond and surety bond stands cancelled, after appeal

period.

Send back the lower court records along with

copy of this order to the trial court forthwith.

(Dictated to the Judgment, transcribed by him, corrected

by me and then pronounced in open court on this the
30TH day of APRIL 2015)

(S.SHANTAVEER)
LXII Addl.City Civil &
Sessions Judge, (CCH-63),
Bengaluru
13 Crl.A.1238 /2014