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B. Sunil Baliga v/s Sudir


Company & Directors' Information:- SUNIL & CO PVT LTD [Active] CIN = U32109WB1984PTC037810

    Criminal Appeal No. 1260 of 2010

    Decided On, 19 December 2019

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE ASHOK S. KINAGI

    For the Appellant: P.B. Umesh, R.B. Deshpande, Advocates. For the Respondent: H. Malatesh, Advocate.



Judgment Text


(Prayer: This Criminal Appeal is filed under Section 378(4) of Cr.P.C. praying to set aside the order of acquittal dated 11.10.2010 passed by the JMFC (IV Court), Mangalore in C.C.No.3679/2008 acquitting the respondent/accused for the offence punishable under Section 138 of N.I.Act.)

1. This appeal is filed by the appellant-complainant, aggrieved by the judgment dated 11.10.2010, passed in C.C.No.3679/2008 by the JMFC (IV Court), Mangaluru.

2. Brief facts of the case are as under:

The respondent-accused has obtained a loan of Rs.1,75,000/- from the appellant in the month of January, 2005 and agreed to repay the amount. On demand, the respondent issued a cheque bearing No.021188 dated 21.09.2006, for a sum of Rs.1,75,000/- drawn on Bank of India, Mangaluru. The appellant has presented the said cheque for encashment. The said cheque was returned dishounoured with an endorsement “funds insufficient” on 01.12.2006. After receipt of the endorsement issued by the bank, the appellant got issued a legal notice dated 07.12.2006, through RPAD and under Certificate of Posting calling upon the respondent to pay the amount mentioned in the cheque. The said notice was served on the respondent and the respondent replied to the said notice on 16.12.2006. Since the respondent has not paid the cheuqe amount within the stipulated period mentioned in the legal notice, the appellant has filed a complaint under Section 200 of Cr.P.C. The trial Court recorded the sworn statement of the appellant and took cognizance of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “the N.I.Act’ for short) and issued summons to the respondent, in pursuance of the summons issued by the trial Court, the respondent appeared and obtained a bail and did not feel guilty and came to be tried. The trial Court posted the matter for trial. The appellant in support of his complaint examined himself as PW-1 and got marked documents from Ex.P-1 to Ex.P-9. The trial Court recorded the statement of the respondent under Section 313 of Cr.P.C. The respondent in support of his defence, examined himself as DW-1 and has not produced any documents. The trial Court after considering the entire material on record, held that the appellant has failed to prove that he has got financial capacity to advance a loan of Rs.1,75,000/- and acquitted the respondent for the offence punishable under Section 138 of the N.I.Act. The appellant, aggrieved by the judgment passed in C.C.No.3679/2008, has filed this appeal.

3. Heard the learned counsel for the parties.

4. Learned counsel appearing for the appellant submits that the respondent has admitted the issuance of cheque and the signature appearing at Ex.P-1. Learned counsel further submits that the trial Court could have drawn presumption under Sections 118 and 139 of the N.I.Act and he further contends that the appellant has proved that he has got the financial capacity to advance loan to the respondent and further respondent has taken inconsistent stand, that in the reply notice, the respondent has taken a contention that cheque was issued to Donald and when a suggestion was put to PW-1 in the cross-examination, he submitted that the cheque was issued to the appellant towards security for the loan of Rs.10,000/- obtained by the respondent. He further submits that respondent has not taken any steps to stop the payment as he has taken defence that cheque was lost.

5. Per contra, learned counsel for the respondent submits that the appellant has no financial capacity to lend the amount and he submits that respondent has borrowed a sum of Rs.10,000/- and repaid the said amount. He further submitted that appellant has not examined his brother in order to prove that the appellant has obtained Rs.1,00,000/- from his brother. He further submits that the complainant has not produced any records to show that he has lent the amount of Rs.1,75,000/- to the respondent. Hence he sought for dismissal of the appeal.

6. It is the specific case of the appellant that the appellant has advanced a loan of Rs.1,75,000/- to the respondent in the month of January, 2015 and accordingly, he agreed to repay the said amount and on demand, the said cheque was issued towards the discharge of debt and the same was presented and returned dishonoured with an endorsement “funds insufficient”. The appellant got issued legal notice and the respondent replied to the said legal notice. Hence, the appellant filed the complaint.

7. From perusal of Ex.P3-legal notice and the complaint, it is evident that the complainant has not stated the date as to when the loan amount has been advanced to the respondent. The respondent replied to the said legal notice, wherein he has denied that the appellant has the financial capacity to lend such a huge amount. The appellant, in order to prove that he has got the financial capacity, has not produced any records to show that as on the date of advancing the alleged loan amount, he had the financial capacity to lend a sum of Rs.1,75,000/-.

8. From the perusal of cross-examination of PW-1, it is seen that PW-1 admits in the cross-examination, that he has got annual income of Rs.70,000/- to Rs.80,000/- and he has not placed any material on record to show as to what is his salary. However, he admits that he has not secured the records with regard to the alleged loan transaction. Though the respondent has denied the alleged loan transaction in the reply notice, as well as the financial capacity of the appellant, the respondent admits that he has obtained a loan of Rs.10,000/- and denies the extent of amount shown in the cheque, legal notice and even in the complaint. Initially, the burden lies on the complainant to discharge that he has paid the amount. In the year 2005, as per the case of the appellant, he had made a payment of Rs.1,75,000/-. During his cross-examination, when his financial capacity to pay Rs.1,75,000/- was questioned, there was no satisfactory reply given by the appellant. The evidence on record, thus, is probable defence on behalf of the respondent, which shifted the burden on the appellant to prove the financial capacity and other facts.

9. Learned counsel for the appellant has relied upon the judgment of Hon’ble Apex Court in the case of RANGAPPA (supra) and argued that since the respondent has admitted regarding issuance of cheque and also the signature appearing on the cheque, the trial Court should have drawn a presumption under Sections 118 and 139 of the N.I.Act. However, in the said judgment, the Hon’ble Apex Court has observed that the presumption is rebuttal in nature and onus is on the accused to raise a probable defence. Relevant portion of the said judgment reads as under:

“The High Court in its order noted that in the course of the trial proceedings, the accused had admitted that the signature on the impugned cheque (No. 886322, dated 8-2-2001) was indeed his own. Once this fact has been acknowledged, Section 139 of the Act mandates a presumption that the cheque pertained to a legally enforceable debt or liability. This presumption is of a rebuttal nature and the onus is then on the accused to raise a probable defence. With regard to the present facts, the High Court found that the defence raised by the accused was not probable.”

10. The Hon’ble Apex court held that the presumption mandated by Section 139 of the N.I.Act does, not indeed, include the existence of legally enforceable debt or liability, which, of course is in the nature of rebuttable presumption. The Hon’ble Apex Court in the said judgment in para-26 has laid down that in light of this extract, “we are in agreement with the respondent-claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in KIRISHNA JANARDHAN BHAT VS. DATTATREYA G. HEGDE reported in (2008) 4 SCC 54, may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant.”

11. Keeping that in view, it is settled position that when an accused has to rebut the presumption under Section 139, a standard proof for doing so is that of “preponderance of probabilities”. Therefore if the accused is able to raise a probable defence which creates doubt about the existence of legally enforceable debt or liability, the presumption can fail. As clarified in the citation, the accused or respondent can rely on the material submitted by the complainant in order to raise such a defence and it is convincible that in some cases, the accused or respondent may not need to adduce evidence of his or her own.

12. On the year 2005, as per the case of the appellant, he had made a payment of Rs.1,75,000/-. During the course of his cross-examination, when his financial capacity to lend the said amount was questioned, there was no satisfactory reply given by the appellant. The evidence on record, thus is a probable defence on behalf of the respondent, which shifted the burden on the appellant to prove his financial capacity and other facts. There is one more aspect which also needs to be noticed in the legal notice issued by the appellant and also complaint filed by the appellant, as well as in the examination-in-chief, the appellant has not mentioned as to on which date the loan of Rs.1,75,000/- was given to the respondent. Admittedly, when the alleged cheque dated 21.09.2006, was deposited for encashment, the same returned dishonoured with an endorsement ‘funds insufficient’. When the evidence was led before the trial Court to the effect that loan of Rs.1,75,000/- was given by the appellant and his financial capacity was being questioned, it was incumbent on the appellant to have explained his financial capacity and the court cannot insist a person to lead negative evidence. In the present case, though the appellant has stated that he has borrowed a sum of Rs.1,00,000/- from his brother, no records has been produced to that effect and he has not even mentioned the date on which he has borrowed the said amount from his brother.

13. The learned counsel for the appellant submits that the appellant’s brother died on 26.07.2007, and he has produced the death certificate which is marked at Ex.P9. The said fact cannot be considered for the simple reason that the appellant has not stated that he has borrowed an amount of Rs.1,00,000/- from his brother in the legal notice as well as in the complaint. The said fact is sufficient to hold that the appellant has no financial capacity to lend the amount as he has failed to prove that he has borrowed loan of Rs.1,00,000/- from his brother. The trial Court has rightly held that the appellant has no financial capacity to lend the amount.

14. The learned counsel for the appellant has relied upon the judgment of the Hon’ble Apex Court in ROHITBHAI JIVANLAL PATEL VS. STATE OF GUJARAT & ANR. Reported in LAWS (SC) 2019 3113. The Hon’ble Apex Court has reiterated and summarized the principles relating to the presumption under Sections 118 and 139 of the N.I.Act in RANGAPPA VS. MOHAN reported in (2010) 11 SCC 441. The Hon’ble Apex Court in the case of BASALINGAPPA VS. MUDIBASAPPA reported in AIR 2019 SC 1983, has considered the judgment of RANGAPPA (supra) and has held that presumption both under Sections 118(a), 138 and 139 of the N.I.Act, are rebuttable in nature. Explaining the expressions “may presume” and “shall presume” referring to an earlier judgment, following was held in the case of M.S. NARAYANA MENON @ MANI VS. STATE OF KERALA & ANR., reported in (2006) 6 SCC 39 (AIR 2006 SC 3366), at paragraph No.28:

28. What would be the effect of the expressions “may presume”, “shall presume” and “conclusive proof” has been considered by this Court in Union of India vs. Pramod Gupta (2005) 12 SCC 1, in the following terms at paragraph 52 (AIR 2005 SC 3708 at paragraph 53):

“It is true that the legislature used two different phraseologies ‘shall be presumed’ and ‘may be presumed’ in Section 42 of the Punjab Land Revenue Ac

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t and furthermore although provided for the mode and manner of rebuttal of such presumption as regards the right to mines and minerals said to be vested in the Government vis--vis the absence thereof in relation to the lands presumed to be retained by the landowners but the same would not mean that the words ‘shall presume’ would be conclusive. The meaning of the expressions ‘may presume’ and ‘shall presume’ have been explained in Section 4 of the Evidence Act, 1872, from a perusal whereof it would be evident that whenever it is directed that the court shall presume a fact it shall regard such fact as proved unless disproved. In terms of the said provision, thus, the expression ‘shall presume’ cannot be held to be synonymous with conclusive proof.” The Hon’ble Apex Court has considered the judgment of RANGAPPA (supra) and the same is reiterated in ROHITBHAI JIVANLAL PATEL (supra). The trial Court, after considering the entire materials on record, has held that the appellant has failed to prove that he has got the financial capacity to advance the loan amount. Furthermore, the scope of interference in the appeal against the acquittal recorded by the trial Court be rare and in exceptional circumstances. I do not find any exceptional circumstances in the present case on hand. Hence, I proceed to pass the following: ORDER The appeal is dismissed.
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