Bangalore District CourtSri M.Ashrith Patel vs S/O.Sri.Munikrishnappa on 30 January, 2021IN THE COURT OF LXXIII ADDL.CITY CIVIL & SESSIONS\n    JUDGE, MAYOHALL UNIT, BANGALURU. (CCH.74)\n\n                       PRESENT:\n       Sri.Yamanappa Bammanagi, B.A., LL.B., (Spl.,)\n         LXXIII Addl.City Civil & Sessions Judge,\n              Mayohall Unit, Bangaluru.\n\n           Dated this the 30th day of January, 2021.\n\n                 Crl.Appeal. No.25162/2018\nAppellant/        Sri M.Ashrith Patel,\nAccused:          S/o.Sri.Munikrishnappa,\n                  aged about 33 yrs,\n                  R/at.No.242, Patel Residency\n                  Ground Floor, Behind IIMB, Bilekahalli,\n                  Bannerghatta Road,\n                  Bengaluru­560 076.\n                  (By Sri.H.Manjunath - Adv.)\n\n                              V/S\nRespondent/       Sri.Mohan.H.S.,\nComplainant:      S/o Sri Seetharamiah,\n                  aged about 36 yrs,\n                  Residing at No.211, 5th Main,\n                  Ravi Kirlosker Layout, Chikkabidarakallu,\n                  Nagasandra Post,\n                  Bengaluru­ 560 073.\n                  (By Sri.Kemparaju - Adv.)\n\n                           JUDGMENTBeing aggrieved by the judgment and sentence, passed\n\nby   the   learned   XIV   ACMM,    Bengaluru,   in    CC   No.2Crl.A. No.25162/2018\n\n\n52795/2018,                dated 09.08.2018,    convicting   the\n\nappellant for the offence punishable under Section 138 of\n\nN.I.Act, sentencing him to pay fine of Rs.5,25,000/­, with\n\ndefault clause of 7 Months simple imprisonment and out of\n\ncompensation amount appellants shall pay Rs.5,000/­ to the\n\nstate.     Challenging the legality and correctness of judgment\n\nand sentence of trial court the appellant is before the court.2. Brief facts of the case:The respondent herein filed complaintu/S 200of\n\nCr.P.C ofCr.P.C., against the accused for the offence\n\npunishableu/s 138of the N.I. Act.        It is alleged on the\n\ncomplaint        that     the    complainant/Respondent      and\n\nappellant/accused are well known to each other for one\n\nyear, the Accused had approached to the complainant for\n\nfinancial help of Rs. 4,50,000/­ to improve his business, the\n\ncomplainant had given hand loan of Rs. 4,50,000/­ to the\n\nAccused on 25.09.2016, Accused assured to repay the same3Crl.A. No.25162/2018\n\n\nwithin six months. In order to repay the same, the accused\n\nhas paid Rs. 26,000/­ to the complainant in the month of\n\nJanuary 2017, by cash and for remaining amount the accused\n\nhas issued two cheques bearing No. 642860, for sum of Rs.2,31,000/­, dated 13.05.2017 and cheque bearing No.\n\n6428602, for sum of Rs. 1,93,000 dated: 20.05.2017, both\n\ncheques drawn on Vijaya Bank, Bilekahalli, Bengalore, said\n\ncheques were present for encashment on 10.08.2017 and\n\nanother cheque on 16.08.2017, same was dishonored and\n\nreturned to the complainant with Bank endorsement as\n\n"PAYMENT STOPPED BY DRAWER" on 14.08.2017 and\n\n18.08.2017 due to dishonor of cheques, the complainant\n\nissued notice to the accused through RPAD on 12.09.2017,\n\ncalling upon the accused persons to pay the cheques amount,\n\nsame was served on the accused, Accused replied to the\n\nnotice and denied the due. Hence, the complaint for the\n\noffense punishable U/s 138 of theN.I. Act.4Crl.A. No.25162/20183. Being satisfied with the material placed before it,\n\nthe trial court recorded sworn statement, took the cognizance\n\nof the offence punishableu/s 138of the N.I. Act. Against the\n\naccused and complainant is examined as C.W. 1 and issued\n\nthe summonsu/s 204of Cr.P.C           to    the accused.     In\n\npursuance to summons, the accused appeared through his\n\ncounsel, filed bail application and accused enlarged on bail\n\nand during the trial before trial court the accused was on bail,\n\nplea was recorded on 13.06.2018, the accused not plead\n\nguilty and claimed to be tried.4. The complainant was examined as C.W. 1 and got\n\nmarked Ex. P. 1 to 8, C.W. 1 was cross­examined by the\n\nLearned Counsel for the accused and closed his evidence on\n\n28.06.2018, accused statement u/s 313 of Cr. P.C was\n\nrecorded by the trial court.          The accused got himself\n\nexamined as D.W. 1 and got marked Ex.D.1 to 6, D.W. 1 was\n\ncross examined by the Learned Counsel for the complainant.5Crl.A. No.25162/2018\n\n\nTrial court       heard    the argument     of   the   Learned\n\nCounsel for the complainant and the accused. After hearing\n\nargument on both side, the trial court has recorded the order\n\nof conviction, convicting the accused for the offence\n\npunishableu/s 138of N.I. Act, with fine of Rs. 5,25,000/­,\n\nwith default     clause, in default   of payment of fine the\n\naccused shall under go simple imprisonment for period of\n\nseven months. Further, ordered that out of fine amount, the\n\naccused shall pay      Rs. 5,20,000/­ to the complainant as\n\ncompensation and remaining Rs. 5,000/­ shall be paid to the\n\nstate being aggrieved by the same, the accused is before this\n\ncourt challenging the correctness and legality of the trial\n\ncourt judgment      and    order of conviction of the on the\n\nfollowing:­\n\n                          "GROUNDS1. The trial court failed to consider\n              the existence of legally recoverable\n              debt to issue two cheques, the6Crl.A. No.25162/2018\n\n\n  financial               capacity of the\n  complainant      and        admission     of\n  PW1 in cross­examination. In view\n  of the fact that, the complainant\n  did    not     stated       his    financial\n  capacity,    this       fact      was   not\n  considered by the trial court. Thus\n  the finding of the trial court is\n  liable to be set­aside.2. No documents were produced by\n  the complainant before the trial\n  court for payment of loan to the\n  accused, the transaction is hit bysection 25of the Indian Contract\n  Act.   The trial court failed to\n  appreciate rebuttal evidence led by\n  the accused.3. The trial court failed appreciate\n  the material placed before it, which\n  are not sufficient to constitute the\n  offence punishable U/Sec.138of\n  the N.I. Act, the complainant has\n  misused the cheque against the7Crl.A. No.25162/2018\n\n\n  accused.              No       loan has taken\n  by       the         accused         from       the\n  complainant.4. The      Notice           issued       by      the\n  complainant does not bears the\n  signatures of the accused or his\n  Advocate. So, incomplete Notice.5. The complainant being a mediator\n  to obtain Bank loan, fraudulently\n  taken cheque from the accused\n  saying that Bank is required blank\n  cheques for security of the loan.Believing the words of complainant\n  that, he will submit the cheques to\n  the bank, the accused has handed\n  over the cheque in question to the\n  complainant,              on       enquiry     with\n  bank,      it        is    found       that     the\n  complainant did not produced the\n  said cheque before the Bank and\n  retained cheque with him and\n  misused against the accused by\n  filing         the         complaint,          thus8Crl.A. No.25162/2018\n\n\n          complainantt         and     Ravindra\n          Babu had colluded and misused the\n          cheques. The complainant failed to\n          examine Ravindra Babu.6. The complainant has filed the\n          complaint after 6 days delay. The\n          trial    court,    without   enquiry,\n          allowed      the   application     and\n          condoned the delay.7. Application filed by the accused to\n          recall PW1 and DW1 were not\n          considered by the trial court, No\n          opportunities was given by the trial\n          court.5. After admitting the appeal, this court has passed the\n\norder on the application filed U/s 389(1) of C.R.P.C       and\n\nstayed the operation and execution of trial court order on\n\n10.09.2018, on condition that the accused shall        deposit\n\n20% of cheque      amount, and fine amount of Rs. 5,000/­\n\nwithin one month from the date of order. and issued the\n\nnotice to the Respondent/Complainant, the Respondent9Crl.A. No.25162/2018\n\n\nappeared         through      his counsel        on     05.10.2028,\n\nposted for LCR, LCR received on 26.02.2019, posted for\n\nargument, on 29.04.2019, heard argument of the Learned\n\nCounsel    for    appellant   and       the   Learned Counsel    for\n\nRespondent.6. In support of argument, the Learned Counsel for the\n\nappellant relied on the judgment of Hon'ble Apex Court\n\npassed in Criminal Appeal No. 636/19 in case of\n\nBasalingappa V/s Mudibasappa and decision reported ini) AIR    2003      Supreme Court 182, ii) 20019(1) KCCR\n\n212,iii) 2008 (1) KCCR 334, iv) 2012 (3) KCCR 2057, v)\n\n2008 (4) KCCR 2477, vi) ILR 2009 KAR 172, vii) 2015 AIR\n\nSCW 541, viii) 2013 (3) KCCR 1940, viii) AIR 2009 NOC\n\n2327 (BOM) , ix) 2010 (5) KCCR 3397, x) LAWS (BOM)\n\n2016 9 43, xi)AIR 2019 Supreme Court 942, xii) ILR 1990\n\nKAR 1064 and xiii) (2007) 2 Supreme Court Cases 258.10Crl.A. No.25162/20187. I have perused the grounds        of     appeal,   re­\nappreciated oral and documentary evidence, led by the\ncomplainant and     the accused and perused the material\nplaced before the court and considered the arguments of the\nLearned Counsel for the Appellant and Complainant/\nRespondent.   On perusal of the same, the points that would\narise for my consideration are as follows:­1. Whether      the      appellant/\n              accused made out grounds to\n              show that the order of\n              conviction     and      sentence\n              recorded by the trial court in\n              CC     No.52795/2018,       dtd.09.08.2018, deserves to be set\n              aside, and thereby call for the\n              interference of this court?2. What order or decree?8. My answer to the above points are as follows:­\n\n           Point No.1: In the Affirmative,\n\n           Point No.2: As per the final order,\n                       for the following:­\n\n                         REASONS9.    POINT No.1: The Complainant has filed the\n\ncomplaint u/s 200 Cr. P.C, against the accused, for the11Crl.A. No.25162/2018\n\n\noffense punishableu/s 138of the N.I. Act, it is contended\n\nin the complaint that accused and complainant are known to\n\neach other for one year prior to alleged transaction and the\n\naccused had approached the complainant     for financial help\n\nof Rs. 4,50,000/­ and complainant paid the said amount to\n\nthe accused. So the accused has taken hand loan from the\n\ncomplainant in order to re­pay the same, the accused has\n\nissued two cheques which were presented for encashment,\n\nbut returned with Bank endorsement "PAYMENT STOPPED\n\nBY DRAWER". Hence, the Respondent/Complainant has filed\n\nthe complaint before the trial court against the accused for\n\nthe offence punishableu/s 138of the N.I. Act and issued\n\nsummons to the accusedu/s 204of Cr.P.C and accused\n\nappeared before the trial court and accused is enlarged on\n\nbail, plea recorded and the complainant got examined himself\n\nas PW.1 and cross examined by the learned counsel for\n\naccused, thereafter, accused statementu/s 313of Cr.P.C was12Crl.A. No.25162/2018\n\n\nrecorded and accused got examined himself as D.W. 1\n\nand got marked Ex. D.1 to 6, after hearing argument of the\n\nLearned Counsel for the parties the trial court has recorded\n\nthe conviction order convicting the accused for the offence\n\npunishableu/s 138of the N.I. Act , holding that accused\n\nfailed to rebut the presumption availableu/s 139of the N.I.\n\nAct.10. Now the question before the court is as to whether\n\nthe material available before the trial court are sufficient to\n\nhold that the accused has not rebutted the presumption\n\navailable to the complainant and complainant        proved the\n\ncase against the accused.11. In order to answer this question it is necessary to\n\nre­appreciate the entire oral and documentary evidence, led\n\nby both the parties with reference to facts on issues.12. To hold guilty undersection 138of the N.I. Act,\n\ndrawer has to issues cheque with the knowledge that he has13Crl.A. No.25162/2018\n\n\nnot   maintained      sufficient amount in his account to\n\nhonour the cheques as requiredu/s 138of N.I. Act.13. Secondly, legally recoverable debt due to the\n\ncomplainant. Thirdly, cheque were dishonored for the\n\nreasons mentioned in the Bank Memo, Forthly accused failed\n\nto pay the cheque amount after notice, fifthly the\n\ncomplainant served the notice to the accused prior to filing\n\nof the complainant.14. The defence of the accused is that the accused\n\nbeing contractor, doing business of Building Construction\n\nwork in the name and style as "Patel Consturctions" one\n\nMahadevswamy was known                 to the accused and said\n\nMahadevswamy       has    given        mobile    number     of   the\n\ncomplainant, the accused toled to the complainant that he\n\nwas under need of money.               So, the complainant has\n\nintroduced one Ravindra Babu           to the accused, since said\n\nRavindra Babu having contact with Banks, and further,14Crl.A. No.25162/2018\n\n\ncomplainant    told   to   the accused that he can help the\n\naccused in availing the loan from the Bank, after two days the\n\naccused had met said Ravindra Babu at Kanak Hotel\n\nBengalore, and accused has told to Ravindra Babu about his\n\nfinancial need, and said Ravindra Babu verified the\n\ndocuments and agreed to made avail the loan from Hinduja\n\nLeyland Finance and the accused told to Mr. Ravindra Babu\n\nthat he was under need of Rs. one Crore and accused has\n\ntaken loan of Rs. One crore from Hinduja Leyland Finance.15. So, the accused has taken loan of Rs. 1,00,00,000/­\n\nfrom the Hinduja Leyland Finance, through said Ravindra.\n\nFurther, it is the case of the accused that since accused has\n\ntaken loan of Rs. 1,00,00,000/­ through Ravindra Babu and\n\ncomplainant,     because complaint had introduced Mr.\n\nRavindra Babu to the accused. Hence, they demanded 4\n\ncheques for the security of Rs. One crore loan amount the\n\naccused has handed over 4 Vijay Bank cheques to15Crl.A. No.25162/2018\n\n\ncomplainant as security for the      said      loan   of   Rs.\n\n1,00,00,000/­ cheques No. 642859 to 642862. Thereafter,\n\naccused has enquired with the bank about the cheque as to\n\nwhether Hinduja Leyland Finance, Bank has received 4\n\ncheque for security of loan amount, on inquiry with Bank, the\n\nBank informed to the accused that the Bank did not required\n\ncheques for security because Bank has taken sale deeds as\n\nsecurity for the said loan.   Hence, the accused has filed\n\nrequisition to his Bank to stop the payment.16. So, the complainant and said Ravindra acting as\n\nmediator for the loan, have taken cheques from the accused\n\ncolluding with the said Ravindra, has misused the said\n\ncheques by presenting the same and filed false complainant.17. Now it is relevant to appreciate the documentary\n\nevidence produced by the appellant/accused Ex. D.1 to 6. Ex.\n\nD 2 is the account statement of the accused which shows that\n\nthe accused has taken loan of Rs. 10624933/­ from the16Crl.A. No.25162/2018\n\n\nHindujja Leyland Finance, which is not in dispute. So, on\n\nappreciation of this document it is clear that the accused\n\nbeing contractor, was under need of money more then one\n\ncrore. So, if a person who is under need of money, taken\n\nloan of Rs. more than crore, can takes or asked for help of\n\nRs.4,50,000/­, one can understand        that if accused was\n\nunder need of Rs. 5 to 10 lakhs, then he can taken such\n\namount of Rs. 4,50,000/­ for his necessary.18. Trial court, at its judgment, page No. 19 at lost\n\nlines wrongly understood and hold that in Ex.D.2 there is a\n\nclear reference as to security for the loan. As per Ex. D. 2 the\n\naccused has taken loan of Rs. One crore from the Hindujja\n\nLeyland Finance, is not in dispute and it is specific case of\n\nthe accused that he has taken loan of Rupees One crore from\n\nthe said finance and     for said loan the    complainant and\n\nRavindra Babu were the mediator, they demanded cheques\n\nfor security of said loan taken from the Bank, cheques were17Crl.A. No.25162/2018\n\n\nhanded     over    to    the complainant,            because\n\ncomplaint and Ravindra Babu are the mediator for the loan,\n\nHence the accused believed the complianant and Ravindra\n\nBabu. The complainant and said Ravindra Babu have\n\ndemanded cheques as security for the loan, after issuing the\n\nsaid cheques the accused has enquired with Bank          and\n\nrealized that the Bank did not demanded any cheques for\n\nthe said loan but it is for the complainant and said Ravindra\n\nBabu who had mis leaded the accused and taken cheques\n\nfrom the accused. When accused came to know that the Bank\n\nhas not required any cheques       for security, suddenly the\n\naccused has submitted representation to stop the payment\n\ncheques.19. Now it is relevant appreciate fact that the accused\n\nhas issued 4 cheques bearing Nos. 642859 to 642862, cheque\n\nNo. 642859 and 642860, dated 09.05.2017, but two cheque\n\nNo .642859, dated 25.05.2017 and cheque No. 642860 dated18Crl.A. No.25162/2018\n\n\n13.05.2017, are long dated of             cheques       hence,    the\n\ncomplainant has        demanded the cheques, hence accused\n\nissued cheque bearing No. 642861 dated 13.05.2017 and\n\ncheques No. 642862 dated 20.05.2017 of               Vijay Bank for\n\nsecurity for loan taken from Hindujja Leyland Finance.20. Ex. D.3 is the complaint lodged by the accused\n\nagainst the present Respondent/Complainant, the relevant\n\nportion of the Ex.D.3, reads thus:"5. ಸಸರರಶನರ ಉದದದದಶಶ\n                   ಈ     ರದರನ      ಸಸರಸಸಶವದದನದಸರರದ\n            ಪರಸರರದದಸರರಗದ ಮದಹನ‍ಕದಮಸರ ರವರದ\n            ನಮಗದ       ಬಸನದಸ‍     ಮಸಡಲದ     ಹಸರದಜಸ\n            ಲದಲಲಸಲಸಡ‍ ಪದಲನಸನನನ ಲಮಟದಡ‍ನಲಲ ಲದದದನ‍\n            ಕದದಡಸದವವದಸಗ       ಹದದಳ ನನನ ಬಳ        ಇರದವ\n            ದಸಖಸಲಸತಗಳಳ ಹಸಗದ ವಜಯ ಬಸಲಸಕ‍ನಲಲ\n            ನನನ ಹದಸರನಲಲರದವ        ನಸಲದಲ   ಚದಕ‍ ನಸ .\n            642859 , 642860 , 642861, 642862\n            ಗಳನದನ ಪಡದರದ 1 ಕದದದಟ 6 ಲಕ ರದಗಳನದನ\n            ಲದದದನ‍ ?ಕದದಡಸರದದ ಇದಸರ ನಸತರ ಮದಹನ‍\n            ಕದಮಸರ      ರವರದ      ನನನಸರ    ಪಡದರ    ಚದಕ\n            ಬಸಲಸಕಗದ      ನದಡದದ    ತಮಮ     ಬಳಯಲಲಯದ19Crl.A. No.25162/2018\n\n\n           ಇಟದಟಕದದಸಡದ ನನನ ಬಳ   ಬಸರದ ನನಗದ ನಸನದ\n           ಸಸಲವಸಗ ನದಡರ 4 ಲಕರ 24 ಸಸವರ ರದ\n           ಹಣವನದನ     ವಸಪಸ‍      ಕದದಡದ    ಎಸರದ\n           ಕದದಳಳತತರದತಸತರದ ನಸನದ ಅವರಗದ ರಸವವದದದ\n           ಹಣವನದನ        ಕದದಡಬದದಕಸಗಲಲ    ಆರದರಸರ\n           ಸರರಯನದನ ಠಸಣದಗದ ಕರದಯಸ ಸದಕತ ತಳಳವಳಕದ\n           ನದಡ ಬಸದದದದಬಸತ ? ಮಸಡಕದದಡಬದದಕದಸರದ\n           ನದಡರ ರದರದ ಇತಸಲದ."21. Ex. D.2 is the sanction letter issued by the Hindujja\n\nLeyland Finance Ltd,which reflects fact that the accused has\n\ntaken loan of Rs. 1,06,24,933/­ and EMI of Rs. 1,64,970/­,\n\nwhich is not in dispute. When these facts are not in dispute\n\nby the complainant, extract EX.D. 2 sanction letter   detail of\n\nloan I am of the opinion that the appellant has rebutted the\n\npresumption underSection 139of N.I. Act. In support of my\n\nopinion I have appreciated that Bank endorsement Ex. P.3\n\nand P4 produced by the complainant.22. Ex.P.3 is the endorsement issued by the Bank shows\n\nthe reasons for which the cheques bearing No.642862 was20Crl.A. No.25162/2018\n\n\ndishonors   on   18.08.2017, according Bank the cheque\n\nbearing No. 642862 was as dishonor as "PAYMENT\n\nSTOPPED BY DRAWER"Ex. P.4 is also Bank endorsement which reflects that\n\ncheque bearing No. 642860 dishonoured for reasons of\n\n"PAYMENT STOPPED BY DRAWER" on 14.08.2017.23. On perusal of the Bank endorsement some of the\n\nfacts are true, one is the cheque issued by the accused is\n\nbelongs to his account, secondly the reasons for which cheque\n\nwas dishonoured. Whether it was dishonoured for insufficient\n\nfund in the account of accused, if it is found that the cheque\n\nwas dishonoured for fund is not sufficient then the intention\n\nof the accused can be inferred that accused has issued cheque\n\nwith knowledge that he had not Maintained Balance in the\n\naccount to honour the cheques.24. If the cheque was dishonoured for payment\n\nstopped by drawer, then the accused had issued cheques21Crl.A. No.25162/2018\n\n\nwithout any menserea, but the subsequent facts which\n\nforced the accused to stop the payment.     So, accused has\n\nrebutted the presumption availableu/s 138of NI Act. On\n\nbasis of reason for dishonour of cheques the intention of the\n\naccused to commit crime was absolutely absent. The cheques\n\nwere dishonoured for stop payment by the drawer, the facts\n\nwhich was forced the accused to stop the payment was that\n\nthe complainant colluding with the said Ravindra Babu, had\n\nobtained the cheques from the accused by saying that\n\nHinduja Lyland Finance has sanctioned loan of Rupees more\n\nthan one crore, hence the Bank demanded security cheques\n\nfor the said loan. Believing the complainant and reasons as\n\nthe complainant and Ravindra Babu are mediator for the said\n\nloan and issued the cheque. The accused had enquired with\n\nBank and realized that Bank did not demanded any cheques\n\nfor security from the accused for the said loan. The facts\n\nwhich mis leaded by the complainant forced the accused to22Crl.A. No.25162/2018\n\n\nstop the payment to avoid further fraud. To substantial\n\nthis facts it is relevant to appreciate the cross of C.W. 1 at\n\npage 6 para 2 which reads thus:"ಬದಸಗಳಳರನ      ರವದಸರದಬಸಬದ      ಎನದನವವರದ\n           ನನಗದ ಪರಚಯರವರದ ಎಸರರದ ಸರ. ಸರರ\n           ರವದಸರದಬಸಬದರವರದ ಹಸರದಜಸ ಲದಲಲಸಲಸಡ‍\n           ಫದಲನಸನನ         ಲಮಟಡ‍ನ              ಪರವಸಗ\n           ಪಡದರದಕದದಳಳಲದ     ಗಸದಹಕರಗದ           ಸಹಸಯ\n           ಮಸಡದತಸತರದ ಎಸರರದ ಸರ. ನಸನದ ಆರದದದಪಗದ\n           ಸರರ       ರವದಸರದಬಸಬದರವರನದನ          ಪರಚಯ\n           ಮಸಡಸಕದದಟಟದದದ          ಎಸರರದ   ಸರ.    ಸರರ\n           ರವದಸರದಬಸಬದರವರದ ಆರದದದಪಗದ         ಹಸರದಜಸ\n           ಲದಲಲಸಲಸಡ‍ ಫದಲನಸನನ ಲಮಟದಡ‍ನಲಲ           ಸಸಲ\n           ಮಸಡಸಕದದಟಟರದರದ ಎಸರರದ ಸರ.             ಆ ರದತ\n           ರವದಸರದಬಸಬದರವರದ ದನಸಸಕ 14.06.2017\n           ರಸರದ ಒಸರದ        ಕದದದಟ ಆರದ ಲಕ ರದಪಸಯ\n           ಸಸಲ ಮಸಜದರದ ಮಸಡಸಕದದಟಟರದರದ ಎಸರರದ\n           ಇರಬಹದರದ.       ನನಗದ    ದನಸಸಕ    ಸರರಸಗ\n           ಗದದತತಲಲ . ನಸನದ ರವದಸರದಬಸಬದರವರದದಸದಗದ\n           ಸದದರಕದದಸಡದ            ನಸನದ            ಮತದತ\n           ರವದಸರದಬಸಬದರವರದ         ಮದಸದಸಳತತ      ವಹಸ\n           ಆರದದದಪಗದ     ಹಸರದಜಸ ಲದಲಲಸಲಸಡ‍ ಫದಲನಸನನ\n           ನಸರ       ಸಸಲ ಮಸಡಸಕದದಟಟದದದವವ        ಎಸರರದ23Crl.A. No.25162/2018\n\n\n           ಸರಯಲಲ.ರವದಸರದಬಸಬದರವರದ        ಆರದದದಪಯ       ಪರ\n           ಮಸಡದತತರದ     ಎಲಸಲ     ಕದಲಸಗಳಳ   ನನಗದ\n           ತಳದರದತತವದ    ಎಸರರದ     ಸರಯಲಲ.    ಸಸಕಸತಇಚದಚಯರ ಹದದದಳಳತಸತರದ. ಕದಲವಮಮ ಅವರದ\n           ನನಗದ ವಚಸರಗಳನದನ ಹದದಳಳತತರದರದ ಎಸರದ."25. This portion of evidence of the complainant clearly\n\nshows that complainant and Ravindra Babu have acted as\n\nmediator in having loan of Rs.1,06,00,000/­, the accused has\n\nbelieved the words of complainant and the said Ravindra\n\nBabu. So the evidence of the complainant is sufficient to\n\nhold that the accused has rebutted the presumption available\n\nto the complainant. Now it is relevant to extractsec. 139of\n\nthe N.I. Act which reads thus:"Sec. 139.      Presumption in\n           favour of the holder. ­It is shall be\n           presumed, unless the contrary is\n           proved that holder of a cheque\n           received the cheque of the nature\n           referred to inSec. 138fro the24Crl.A. No.25162/2018\n\n\n                discharge,          in   whole     or   in\n                part, of any deft or other liability."26. In the case on hand the complainant has admitted\n\nthat he has introduced Ravindra Babu of Bangalore to the\n\naccused for having loan from the Hindujja Leyland Finance\n\nLtd and it is also clear from the evidence of complainant as\n\nwell     as     accused      that    accused      has   taken   loan   of\n\nRs.1,06,24,933/­, from Hindujja Leyland Finance Ltd, and\n\nthe complainant and said Ravindra Babu are the mediator for\n\nhaving said loan. Under such circumstance the question of\n\ntaking loan from the complainant by the accused does not\n\narise.        Offcourse, the complainant has pleaded in the\n\ncomplainant that he has advanced the loan of Rs. 4,50,000/­\n\nto the accused on 25.09.2016.                 But, the accused has taken\n\nloan more then one crores from the Bank 2.5.2017 as per\n\nthe sanction letter Ex.D2 . But, there is no considerable gap\n\nbetween loan taken by the accused from the Bank and alleged25Crl.A. No.25162/2018\n\n\nloan of Rs. 4,50,000/­ from the complainant.           So, the\n\naccused being contractor admittedly, was under need of\n\nmoney more then one crore for his business. It is also case of\n\nthe   complainant    that   accused   has     approached    the\n\ncomplainant for loan of Rs. 4,50,000/­ for improving the\n\nbusiness of the accused. If the alleged loan of Rs. 4,50,000/­\n\nis appreciated from the angle of improving the business of the\n\naccused, then it cannot be accepted. The accused being the\n\ncontractor taken loan Rs. 1,06,24,933/­ from the Bank.\n\nLooking to the nature of business of the accused a prudent\n\nmen can believe and acted upon that a person being\n\ncontractor can take loan of Rs. 1,06,24,933/­for improving\n\nhis business   but no prudent men can believe that the\n\nbusiness men of contractor can improve his business in such a\n\namount of Rs. 4,50,000/­ looking to the surrounding\n\ncircumstance of the fact, admittedly, that the complainant\n\nand said Ravindra Babu has played Role in having a loan of26Crl.A. No.25162/2018\n\n\nRs. 1,06,24,933/­ from the Bank.          It      is   also   the\n\ncircumstances which made the accused to believe the\n\ncomplainant to give a blank cheques to         the complainant\n\nsince, complainant is the person who has made an\n\nopportunity to have a loan of such a huge amount of Rs.\n\n1,06,24,933/­. Under these circumstances it can be safely\n\nheld that accused has rebutted the presumptions available to\n\nthe complainant.27. In support of my findings I relied on the judgment\n\nreported in (1973) to SCC 808 in case of Kali Ram v/s\n\nstate of Himachal Pradesh. The lordship have held in the\n\njudgment at Para 23, which reads thus:"One of the cardinal principles\n           which has always to be kept in view\n           in our system of administration of\n           justice for criminal cases is that a\n           person arraigned as an accused is\n           presumed to be innocent unless that\n           presumption is rebutted by the27Crl.A. No.25162/2018\n\n\nprosecution     by     production      of\nevidence as may show him to be\nguilty of the offence with which he\nis charged. The burden of proving\nthe guilt of the accused is upon the\nprosecution and unless it relieves\nitself of that burden, the courts\ncannot record      a    finding of the\nguilt of the accused. There are\ncertain cases in       which statutory\npresumptions arise regarding the\nguilt of the accused, but the burden\neven in those cases is upon the\nprosecution to prove the existence\nof facts which have to be present\nbefore the presumption         can be\ndrawn. Once those facts are shown\nby the prosecution to exist, the\ncourt   can   raise     the   statutory\npresumption and it would, in such\nan event, be for the accused to rebut\nthe presumption. The onus even in\nsuch cases upon the accused is not\nas heavy as is normally upon the28Crl.A. No.25162/2018\n\n\n           prosecution      to   prove the guilt\n           of the accused. If some material is\n           brought on the record consistent\n           with the innocent of the accused\n           which may reasonably be true, even\n           though it is not positively proved to\n           be true, the accused would be\n           entitled to acquittal."28. It is specific defense of the accused that the\n\ncomplainant has no source of income to give loan of Rs.\n\n4,50,000/­ to the accused even in the cross of PW.1 the\n\nLearned Counsel for the accused has specifically suggested to\n\nPW.1 at page 7 first para of cross examination of P.W.1,\n\nwhich reads thus:"ಸದಪದಟಸಬರ 2016 ರಲಲ ಆರದದದಪಗದ\n           ನಸಲದಲವರದ ಲಕ ರದಪಸಯಗಳನದನ ಕದದಡದವ\n           ಆರರಕ ಸಸಮಥಲವದದ ನನಗದ ಇರಲಲಲ . ಎಸರರದ\n           ನಸನದ ಆದಸಯ ತದರಗದ ಪಸವತದಸರನಲಲ ."29. I have perused the contents of the complainant and\n\ndeposition of P.W.1 on perusal of the same it is clear that,29Crl.A. No.25162/2018\n\n\nthe complainant no where stated in the complaint or in\n\nthe chief examination about his financial capacity and source\n\nof income to advanced the loan. Even the complainant did\n\nnot produced any single document to show that he was\n\nhaving financial capacity and source of income to advance\n\nthe said loan of Rs.4,50,000/­. Now it is relevant extract the\n\nchief examination of PW.1 at page 5, last lines which\n\ncontinued to page No.6, which reads thus:"ನಸನದ ನನನ ರದರನಲಸಲಗಲದ ನನನ ಮದಖಲ\n           ವಚಸರಣದಯ ಪದಮಸಣಪತದರಲಸಲಗಲದ ನಸನದ\n           ಎನದ ಕದಲಸ ಮಸಡದತತದದದದನದ, ನನಗದ ಎಲಲಸರ\n           ರದಡದಡ   ಬಸತದ ಎಸಬದರನದನ ಹದದಳಲಲ ಎಸಬ\n           ಸಲಹದಯನದನ     ಆರದದದಪಯ       ಪರ   ವಕದಲರದ\n           ಸಸಕಗದ ಹದದಳ‍ತತದಸದರದ.    ಸರರ      ಅಸಶವವ\n           ಫರಸರದದಸರರ ರದರನಲಲ ಮತದತ           ಪದಮಸಣ\n           ಪತದರ       ಅಸಶರಲಲಯದ         ನಮದದಸದದದ\n           ಇರದದರರಸರ ಸರರ ಸಜದಶನ‍ ಸದಕತವಲಲವದಸರದ\n           ಪರಗಣಸ ಅರನದನ ನರಸಕರಸಲಸಯತದ ."30. Now it is relevant extract law laid down by the\n\nHon'ble Appex Court in criminal appeal No. 636/2019. In30Crl.A. No.25162/2018\n\n\ncase of Basalingappa V/s                Mudibasappa.             The lordship\n\nhave held in the decision at Para 24 at Page 30 of the\n\njudgment, which reads thus:"During        his     cross­examination,\n             when financial capacity to pay Rs. 6\n             lakhs     to         the      accused        was\n             questioned,           there       was         no\n             satisfactory     reply        given    by     the\n             complainant.           The evidence on\n             record, thus, is a probable defence\n             on behalf of the accused, which\n             shifted    the         burden         on      the\n             complainant to prove his financial\n             capacity and other facts."31. Further, the Learned Counsel for the appellate\n\nrelied on    the decision reported in 2019(1) KCCR 212 in\n\ncase ofB.P. Venkatesulu v/s K.P. Maninayar. He lordship\n\nheld thus:"CODE OF CRIMINAL PROCEDURE,\n             1974­Sections          397       and        401­31Crl.A. No.25162/2018\n\n\nNEGOTIABLE                  INSTRUMENTS\nACT. 1981­Sections 138and139­\nPresumption that the holder of a\ncheque received the cheque for the\ndischarge, in whole or in part, of\nany debt or liability­Presumption\nrebuttable and may get displaced by\nthe very prosecution material on\nrecord     or     through         independent\nevidence led by the accused or from\nsuspicious       circumstance          clouding\nthe prosecution case and damaging\nit.Held: That under the facts\nand   circumstances              of   the    case\narising    out       of    alleged      a   loan\nagreement            dated            14.8.1987\nexecuted        in        favour       of     thecomplainant and dated 14.12.1990\nfor   repayment of           the       principal\namount          referred         to    in     the\nagreement,           even        though       the\nagreement        stipulated           repayment\nwithin 4 years from the date of the32Crl.A. No.25162/2018\n\n\n           agreement        with     interest at 12%\n           p.a., together with erasure and\n           retyping of the month "12" in the\n           agreement and complainant himself\n           not having        been shown to have\n           been      financially     capable           of\n           advancing        Rs.1,50,000/­      to     the\n           accused as on the date of the alleged\n           agreement, the presumption undersection         139stood      rebutted.\n           Therefore, the Sessions Judge was\n           right in setting aside the conviction\n           of the accused by the Magistrate\n           and acquitting him."32. Further, the Learned Counsel for the appellant\n\nrelied on the decision reported in 2012 (3) KCCR 2057 in\n\ncase ofVeerayya v/s G.K. Madivalar."Criminal         Revision petition No.\n           1571       of     2010,        decided     on\n           30.11.2011\n           A.     NEGOTIABLE          INSTURMENTS\n           ACT,      1881­section          138­Offence33Crl.A. No.25162/2018\n\n\nunder­Revision     against\nconviction and sentenceu/s 397and401of Cr.P.C­Complainanant's\ncase that he had lent Rs. 2,00,000/­\ntp accused and that the cheque was\nissued in discharge of debt­ Axcept\nCheque    no     other   document­\nComplainant running a Tailoring\nshop on foot path with a tin shed­\nAT no point of time had a bank\nbalance of more than Rs.50,000/­\nNo proof as to other source of\nincome from land­No evidence that\nhe had a Bank balance of Rs. 2\nlakhs on the day he has alleged to\nhave advanced the loan­His Civil\nSuit was dismissed as not proved­\naccused's contention that cheque\ngiven to his counsel was misused by\ncomplainant and his advocate.Held, mere issuance of cheque\nis not sufficient unless it is shown\nthat said cheque was issued towards\ndischarge of a legally recoverable34Crl.A. No.25162/2018\n\n\n          debt­when           the    financial\n          capacity       of         complainant      is\n          questioned, the complainant has to\n          establish    his     financial     capacity­\n          Judgments of courts below were set\n          aside­ petitioner was acquitted of\n          offenceu/s 139of N.I. Act."33. Further,     the Learned Counsel for the appellant\n\nrelied on the decision reported in 2008 (4) KCCR 2477 in\n\ncase of Shivamurthy v/s Amruthraj.Criminal Revision Petition No. 1507 of 2005, decided\n\non 27.06.2008\n\n          "NEGOTIABLE INSTRUMENTS ACT,\n          181­Sections 138and142­ Cheque\n          Bouncing­Concurrent             findings   of\n          conviction challenged in revision­\n          accused        revision           petitioner\n          convicted for having a dishonored\n          a     cheque        for     Rs.    75,000/­\n          Complainant alleging hand loan­\n          question of payment made towards35Crl.A. No.25162/2018\n\n\nlegally                    enforceable\ndebt­presumption arisingu/s 139­\nWhether         rebutted­case       of      the\naccused was that two blank cheques\nwere stolen by his employee, and\none       was      misused         by       the\ncomplainant­ct as well as the first\nappellant court on the admission\nthat the cheque was admitted to\nhave the signature           of the accused\nconvicted the accused.In      revision        Held:      Even\naccording to the complainant there\nwas no documentary evidence to\nprove lending of money of Rs.75,000/­ to the accused and accused\nhas not executed any document\nevidencing receipt              of money as\nloan.Apart from his oral evidence,\nthe complainant has not placed any\nother evidence to prove the existence\nof    legally    enforceable        debt     or\nliability. AS noticed above, there is36Crl.A. No.25162/2018\n\n\n             no documentary       evidence       in\n             proof of lending of Rs. 75,000/­\n                   It is only after satisfying that\n             the   complainant         has   proved\n             existence of legally enforceable debt\n             or liability, the Court could have\n             proceeded to draw presumptionu/s\n             139plaintiff theN.I. Actand\n             thereafter find out as to whether or\n             not the accused    has rebutted the\n             said presumption."34. Further, the Learned Counsel for the appellant\n\nrelied on the decision reported in ILR 2009 KAR 172 in\n\ncase ofSri A.V. Vishwanath Pai v/s Sri. Vivekanand S.\n\nBhat."NEGOTIABLE INSTRUMENTS ACT,\n             1881 ­SECTION 138­ offence under­\n             Conviction­Appealed against        and\n             sentence - Conviction and sentence\n             confirmed­revision against ­Section\n             139­Presumption            under­Held,\n             Existence ofg legally recoverable37Crl.A. No.25162/2018\n\n\ndebt   is   not     a     matter            of\npresumption undersection 139of\nthe Act; as,section 139merely\nraises a presumption in favour of\nthe complainant that the cheque\nwas issued for discharge of any debt\nand other liability­ Both the Courts\nexamined the case of the accused on\nthe       assumption           that        the\npresumption undersection 139of\nthe    Negotiable       Instruments        Act\nextends not only to the issuing of\nthe said cheque towards existing\nlegally recoverable debt but also to\nthe existence of legally enforceable\ndebt as on the date of its issue. ON\nFACTS,HELD,         the     accused       has\nsuccessfully established his defence\nversion     by    adducing       his      own\nevidence and also by eliciting in the\ncross­examination         of PW.1, and\nalso   by    producing         Ex.D.1,     the\nstatement of his accounts with his\nBanker. Therefore, it is quite clear38Crl.A. No.25162/2018\n\n\n           that as on the        date     of     the\n           cheque in question, bearing No.\n           973199,     which     came      to     be\n           presented during the year 2004,\n           there did not exist any legally\n           enforceable debt payable        by the\n           accused to the complainant. Hence,\n           Conviction and sentence passed by\n           the trial court/affirmed by the\n           Appellant Court is not sustainable\n           in law."35. Further,     the Learned Counsel for the appellant\n\nrelied on the decision reported in 2013 (3) KCCR 1940 in\n\ncase ofSmt. Lakshmi Subramanya v/s B.V. Nagesh. The\n\nlordship have held at Head Note­C thus:"C.    NEGOTIABLE      INSTRUMENTS\n           Act,   1981­Section    138­Acquittal­Factum of lending­ Complainant\n           nor reflecting in his IT        return­\n           Acccused borrowing         Rs. 5 lakhs­\n           Documentary         evidence showing\n           payment of that amount and Rs. 339Crl.A. No.25162/2018\n\n\n            lakhs       towards   interest­\n            Complainant's allegation of lending\n            Rs. 8 lakhs cannot be sustained­\n            After    appreciation      of   evidence\n            Magistrate Justified in acquitting\n            accused."36. The specific case of the complainant is that accused\nis Civil Contractor by profession and he was under need of\nmoney for improvement of his business.              In the month of\nSeptember    2016       the   accused       had     approached    the\ncomplainant for financial assistance of Rs.4,50,000/­. On the\nrequest of the accused, complainant had advanced the loan of\nRs.4,50,000/­.      In order to repay the said amount, the\naccused had paid sum of Rs.26,000/­ on 12.1.2017 and\nissued cheque in question for remaining amount, same was\ndishonoured. After compliance of provisions ofSection 138of N.I. Act, the complainant has filed complaint. In support\nof his claim the complainant produced as many as 8\ndocuments, which have been marked at Ex.P.1 to P.8.Ex.P.1 is the original cheque dated 20.5.2017, which\nbears the signature of accused. Ex.P.2 is the original cheque\ndated 13.5.2017 for the amount of Rs.1,93,000/­ and\nRs.2,31,000/­ respectively and Ex.P.3 and P.4 are the bank40Crl.A. No.25162/2018\n\n\nendorsements. Ex.P.5 is the legal notice and Ex.P.6 and\nP.7 are the postal receipts and acknowledgement. Ex.P.8 is\nthe reply notice.On perusal of the oral and documentary evidence led by\nthe parties, it is clear that issuance of the cheque and\nsignature is not in dispute. Thus, the trial court has given\ninitial benefits ofSection 139of N.I. Act.     Ofcourse, the\naccused has admitted signature on the cheque such admission\nare entitle for prosecution as per the lawlaid down inRangappa case.      But,   it is a rebuttal presumption. If the\naccused rebutted the presumption by producing documentary\nevidence or by eliciting from the complainant in the cross\nexamination then again burden of proof        of complainant's\ncase shift on the complainant to prove his case. In the case\non hand, on perusal of the oral and documentary evidence as\ndiscussed, the accused has rebutted presumption available to\nthe complainant but, complainant failed to prove his case\nafter rebutting the presumption.37. I have gone through the impugned judgment it is\nseen that, trial court has relied on the admission of the\naccused that    the accused has admitted the signature and\nissuance of cheque hence, the complainant has proved the\ningredients of section of 138 ofN.I. Act. The findings of the41Crl.A. No.25162/2018\n\n\ntrial court is not correct for the reason that though it is a\nsettle principal of law that on admission of signature on the\ncheque is sufficient to hold that the complainant is entitle to\nhave a shelteru/s 139of N.I. Act but, that is not the proof of\ncase of the complainant,section 139of the N.I. Act shifts the\nburden of the proof on the accused.           If, the accused\nsucceeded in rebutting the presumption then again it is for\nthe complainant to prove his case independently, if the\ncomplainant failed to prove his case after rebuttal of the\npresumption then the accused is entitled for the acquittal.\nSo, accused has rebutted the presumption by producing the\ndocumentary evidence. In the case hand trial court did not\nconsider the evidence of accused and documents produce by\nthe accused at Ex. D.1 to D.6. Ex. D.2 is the document which\nclearly establishes that the accused has taken loan of Rs.\n1,06,24,933/­. Further Ex. D.2 gives the details of the loan\ntaken by the accused in the Hindujja Leyland Finance Ltd,\nto substantiate this fact the complainant has clearly admitted\nthat complainant and Ravindra Babu had acted has a\nmediator in availing loan from Hindujja Leyland Finance Ltd.38. When the accused proves that the complainant was\nnot having source of income to advanced the loan. Even\ncomplainant did not stated the fact that he was financially fit42Crl.A. No.25162/2018\n\n\nfor advancing the loan. The trial court has totally ignored\nthe evidence of accused with reference to financial capacity of\nthe complainant.39.Section 139of the N.I Act shifts the burden on the\naccused to prove the fact which rebuttes the presumption\ntaken by the complainant.Section 139of the N.I. Act is only\nshifts the burden of proof but it does not provides that the\ncomplainant has proved the ingredients ofsection 139of N.I.\nAct if in case complainant was provided shelteru/s 139of\nN.I. Act.40. On perusal of the entire material placed before the\n\ncourt and on re­appreciation of oral and documentary\n\nevidence it is clearly established that the accused has rebutted\n\nthe presumption available to the complainant by proving the\n\nfact that complainant was not having financial capacity to\n\nadvance the loan, On the other hand, the complainant failed\n\nto prove his financial capacity         after    rebutting the\n\npresumption. Further by proving the fact that the complaint\n\nwas acted as mediator to have loan from the Bank.43Crl.A. No.25162/201841.    Further,     the complainant failed to prove\nthe existence of legally recoverable debt since, there is no\ndocument to show that he has paid the loan amount of Rs.\n4,50,000/­ to the accused. It is admitted by the complainant\nthat    when accused approached to the complainant for\nfinancial help at that time he has introduced Ravindrakumar\nBabu who had contact with the banks and he can help the\naccused in availing the loan for the accused. This fact clearly\nestablishes that the accused was not financially fit to advance\nthe loan to the accused. Further,it is admitted in the cross­\nexamination that said Ravindra Babu has introduced the\naccused to the Hindujja Leyland Finance Ltd and the\naccused has taken loan from the said finance more then one\ncrore through said Ravindra Babu, which corroborates\nEx.D.2 . On these admitted facts it can be safely held that\nthe complainant was not financially fit for advancing the loan\nto the accused and there was no legally recoverable debt. In\nsupport of my finding I relied on the decision reported in\n(2015)1 Supreme Court cases 99 in case of K. Subramani\nV/s K. Damodhara Naidu. The lordships have held that:"Debt, Financial and Monetary Laws-Negotiable Instruments Act, 1881-\n             Ss. 138, 118 and 139 - Dishonour of44Crl.A. No.25162/2018\n\n\ncheque - Legally     recoverable debt\nnot proved as complainant could not\nprove source of income from which\nalleged loan was made to appellant­\naccused - Presumption in favour of\nholder of cheque, hence, held, stood\nrebutted - Acquittal restored.­ Accused took a loan of Rs.14\nlakhs in cash from complainant,\npromising to repay with 3% interest\nper month and issued post­dated\ncheque - Cheque was dishonoured\nwith      an    endorsement      "funds\ninsufficient" ­ Trial court acquitted\nappellant for want of proof of\nlegally recoverable debt payable by\naccused - High Court set aside\nacquittal and remanded the case for\nretrial finding that presumption\nunderS. 139of NI Act accrues to\nbenefit    of   complainant      unless\naccused rebuts that presumption -\nSource of loan amount claimed by\ncomplainant to be savings from his45Crl.A. No.25162/2018\n\n\nsalary     and    an     amount of Rs.5\nlakhs derived by him from sale of\nSite No.45 belonging to him - There\nis no averment with regard to said\nsale in complaint             or in chief­\nexamination of complainant or in\nhis      income        tax        return     -Complainant obtained a loan of\nRs.1,49,205/­ from LIC in year\n1997 when alleged loan of Rs.14\nlakhs is claimed to have been\ndisbursed to appellant - Wife of\ncomplainant in another criminal\ncase stated that present accused had\nnot    taken     any    loan      from     her\nhusband - Held, trial court rightly\ncame        to     conclusion              that\ncomplainant       had        no   source     of\nincome to lend a sum of Rs.14 lakhs\nto accused and he failed to prove\nthat     there     was        any     legally\nrecoverable debt payable by accused\nto him."46Crl.A. No.25162/201842.     I   relied    on decision reported in (2014)2\n\nSCC 236, In case of John K. Avraham V/s Simon C.\n\nAvraham,and another. The          Hon'ble Supreme Court held\n\nthus:"Debt, financial and monetary laws­\n              negotiable instrument Act, 1881­Ss.\n              118, 139 and 138­dishonour of\n              cheque­drawing presumptionsu/s\n              118r/wsection 139­Pre requisites\n              for, when cheque is repayment of a\n              loan/advanced            money­proof\n              required on the part complainant­\n              Held, in order to draw presumption\n              u/s 118 r/wsection 139, burden\n              lies on complainant to show:(i) that he had the requisite funds\n              for advancing the sum of money/\n              loan in question to accused, (ii)\n              that the issuance of cheque by\n              accused in support of repayment of\n              money advanced was true, and iii)\n              that the accused was       bound to\n              make payment as had been averred47Crl.A. No.25162/2018\n\n\nwhile      issuing     cheque       in\nfavour of complainant­in present\ncase complainant not aware of the\ndate when substantial amount of\nRs.1,50,000/­ was advanced by him\nto      appellant­accused­Respondent\ncomplainant failed          to produce\nrelevant documents in support of\nthe alleged source for advancing\nmoney to accused­complainant also\nnot aware as to be when and where\ntransaction took place for which\ncheque in question was issued to\nhim by accused­complainant also\nnot sure as to who wrote the\ncheque and making contradictory\nstatements in this regard­in view of\nthe said serious defects/lacunae in\nevidence of complainant, judgment\nof High Court reversing acquittal\naccused by trial court, held, was\nperverse and could not sustained­\nacquittal restored."48Crl.A. No.25162/201843. Further, I relied on the judgment passed by the\n\nHon'ble High Court, Mumbai in C/A No.4694/2008\n\ndecided on 24.2.2009(Bombay) in case of Sanjay Mishra/s\n\nKanishka Kapoor @ Nikki and another. The lordships have\n\nheld that:"(a)Negotiable Instruments Act,\n             SS.    138   Explanation     and   139­\n             Dishnonour of cheque­Respondenty\n             acquitted    of    offence   punishable\n             undersection     138,    Negotiable\n             Instruments Act­amount allegedly\n             advanced to the respondent was\n             unaccounted        cash­ applicant had\n             not disclosed the same to the\n             income tax department           at the\n             relevant time and therefore it was\n             an unaccounted amount­it could\n             not be said that liability to rep[ay\n             unaccounted       cash amount was a\n             legally enforceable debt within the\n             meaning of explanation tosection\n             138of the Act­ Order of trial court49Crl.A. No.25162/2018\n\n\nacquitting      the    respondent was\nproper application rejected(Paras\n11 to 13)(b) Negotiable Instruments Acts,\nSS. 138 and 139­ Presumption\nunder ­in order to attractsection\n138, the debt or liability has to be a\n"legally    recoverable"           debt     or\nliability.(para12)(c)   Negotiable Instruments Acts,S.\n138­Applicability­provision                 ofsection 138cannot be resorted to\nfor    recovery       of        unaccounted\namount­A       cheque           issued      in\ndischarge of alleged liability of\nrepaying      "unaccounted"               cash\namount cannot be said to be a\ncheque issued in discharge of a\nlegally enforceable debt or liability\nwithin the meaning of explanation\ntosection 138of the Act­Such an\neffort to misuse the provision ofsection 138has to be discouraged.50Crl.A. No.25162/2018(d)     negotiable   Instruments\nAct,S.139­   Presumption    under­\nRebuttal of ­Considerations.It is true that merely because\namount advanced is not shown in\nIncome Tax Return, in every case,\none cannot jump to be conclusion\nthat the presumption undersection\n139of the Negotiable Instruments\nAct stands rebutted. There may be\ncases where a small amount less\nthan    sum     of   Rs.   20,000/­is\nadvanced in cash by way of loan\nwhich not shown the said amount\nin the Income Tax Return as it is\nrepayable within few days or few\nmonths in the Income Tax Return as\nit is repayable within few days or\nfew months in the same financial\nyear. In such a case the failure   to\nshow the amount in the Income Tax\nReturn not by itself amount to\nrebuttal   of   presumption    undersection 139of the said Act. If in a51Crl.A. No.25162/2018\n\n\ngiven     case    the    amount\nadvanced by the complainant to the\naccused      is a large amount in\nIncome Tax return or Books of\nAccounts of the complainant may be\nsufficient to rebut the presumption\nundersection 139of the Act. (para7)(e)     Negotiable Instruments Acts,\nSS. And 138­ Presumption under\n­fro    rebutting       the        presumption\nundersection       139,       it    is     not\nnecessary in every case for the\naccused to step into the witness box­\nstandard of proof on the part of the\naccused and that of prosecution in a\ncriminal         case         is        different­\nProsecution has to prove so as to\nprove a defense is "preponderance\nof      probability"      ­Inference             of\npreponderance of probabilities can\nbe drawn even by reference to\ncircumstantials.(para)1152Crl.A. No.25162/2018(f)Negotiable      Instruments\n             Act,S.138­ Object of ­is to ensure\n             that commercial and mercantile\n             activities are conducted in smooth\n             and healthy manner­ Explanation\n             tosection 138clearly provides the\n             debt or other liability referred to in\n             section means a legally enforceable\n             debt or other liability­if liability to\n             repay unaccounted cash amount is\n             held to be a legally recoverable\n             debt, it will render the explanation\n             tosection 138nugatory. (Para15)"44.In support of my finding I relied on the decision\n\nreported in 2016(5) KCCR 1341 in case ofSmt. Threja v/s\n\nSmt. Jayalaxmi, The Hon'ble High Court of Katakana held\n\nthus:"Criminal Revision Petition No. 662of    2010,    decided    on    6.4.2016.Negotiable Instruments Act, 1881­Sections      138,139and118­\n             Acquittal­ Legally recoverable debt­53Crl.A. No.25162/2018\n\n\n          Burden        lies   on    complainant to\n          prove­         Source       of       income­\n          complainant          not   producing       any\n          bank account details to support her\n          claim­ also admitting that there\n          was      no      monetary         transaction\n          between her and accused­Check's\n          issued by complainant to accused\n          not forthcoming­ accused pleading\n          that cheque in question was not\n          issued for a vialing money from\n          complainant­Courts                        below\n          attaching        much      importance        to\n          presumption undersections 118and139without        looking    into\n          categorical admission elicited from\n          complainant­judgment of conviction\n          set aside."45. In support my finding I relied on the decision\n\nreported in ILR 2007 KAR 2709 in case of M. Senguttuvan\n\nv/s Mahadev Swamy. The lordships have held that:54Crl.A. No.25162/2018\n\n\n"NEGOTIABLE             INSTRUMENTS\nACT,    1881­SECTION           138­Offence\nunder­Section        139­Presumption\nunder­Rebuttal          of­Order         of\nacquittal­Appealed        against­HELD,\nThat the presumption underSection\n139of the Act need not be rebutted\nonly by leading defence evidence\nand the said presumption can be\nrebutted even on the basis of the\nfacts     elicited   in        the   cross­\nexamination of the complainant as\nhas been done in the present case­\nJudgment of acquittal is justified."In support my finding I relied on the\ndecision reported in ILR 2007 KAR\n2709 in case of M. Senguttuvan\nv/s     Mahadev      Swamy.            The\nlordships have held that:"NEGOTIABLE INSTRUMENTS ACT,\n1881­SECTION 138­Offence under­Section     139­Presumption          under­\nRebuttal     of­Order     of     acquittal­\nAppealed against­HELD, That the55Crl.A. No.25162/2018\n\n\n           presumption          underSection\n           139of the Act need not be rebutted\n           only by leading defence evidence\n           and the said presumption can be\n           rebutted even on the basis of the\n           facts    elicited   in     the    cross­\n           examination of the complainant as\n           has been done in the present case­\n           Judgment of acquittal is justified."on admitted fact and the evidence\n           led by the accused it can be safely\n           held    that   accused    rebutted   the\n           presumptionu/s 139of N.I.Act."46.     On appreciating the oral and documentary\n\nevidence led by both the parties and material placed before\n\nthe court and reasons assigned and relying on the decision\n\nreferred above, the observation of the          trial court in the\n\njudgment of conviction, recorded by the trial court, in CC\n\nNo. 52795/2018, dated: 09.08.2018, is not correct under the\n\nlaw and fact interference of this court required.        Hence, I\n\nanswer this point in the Affirmative.56Crl.A. No.25162/201847.    POINT No.2: In view of the discussion made\n\non point No.1, I proceed to pass the following:­\n\n                          ORDER\n\n                  The appeal preferred by the\n           Appellant/Accused, U/S 374 of\n           theCr.P.C. is hereby allowed.Consequently, the           judgment of\n           conviction and sentence recorded\n           by the learned XIV ACMM Court,\n           Mayohall Unit, Bengalore, in CC\n           No         52795/2018,                dated\n           09.08.2018,          convicting         the\n           Appellant/Accused for the offence\n           punishable U/s 138 of theN.I.\n           Act, is hereby set­aside and the\n           Appellant/Accused           is    hereby\n           acquitted      for     the       offences\n           punishable     U/s      138      of     the\n           N.I.Act.Further, the trial court is\n           hereby directed to       release 20%\n           of    cheque   amount        with      fine57Crl.A. No.25162/2018\n\n\n          amount of Rs.        5000/­ in thename of the Appellant/Accused,\n          after proper identification if the\n          accused/appellant          deposited\n          20% of the cheques amount with\n          fine amount Rs. 5000/­ in order\n          to       comply     with the order\n          passed     by     this    court     on\n          10.09.2018, after appeal period.Remit the LCR to the trial\n          court, along with the copy of the\n          judgment.No order as to costs.(Dictated to the Stenographer, on computer, after\ncomputerization, corrected and pronounced by me the Open\nCourt, this the 30th day of January, 2021.)\n\n\n\n                            (Yamanappa Bammanagi)\n                          LXXIII Addl. CC & SJ, M.H. Unit,\n                                  B'luru.(CCH­74)\n 58\n     Crl.A. No.25162/2018