Savithri vs J Santhosh Babu on 1 December, 2008

IN THE RISE CQURT OF KARNATRKA A? BANGALGRE
DATED THZ$ $33 1" DAY 99 DECEMBER, 2§Q8

BEFCRE:

THE HGN'BLE MR. JUSTZCE A.s. §AcaaAg$RE[g[:f '

CQZMZNAL APPEAL N0.13é1 Q5 ge3:fj ' 

BETWEEN:

Savithri,

Wfo. Chandra,

Majcz,

Rfat No.K--70, 5" Cross,

Left Side Magadi Road;_" . :_v":' '2

aanga1ore»56e 823. *'T- *_f . ';;,V=_AppaLLAN?X$
{By Sri. Mohandas Sheétyg fldV,j_ Ia

J.San:ho5h'Babu,x'  »  .
Sfo. iate R.JalakafitagNaidu,
Majcr,j" "

,*a{at_§¢.3320;4, &" Cross,
'_6"'Maifi %§ad; R.P.C.Lay@ut,

Vifiayanag§r3V  .
Bangaioi@fE§GVCé0. ... RESPONBENTXS

[By Sri.»M,K;Venkataramana, Adv.}

-ir'~k"§c'

 V ffiis Crl. Appeal i3 filed uXSection 378{4} of

_x _G:I?{C£ against the Judgment ét. 31.08.2091 §as5ed

~._5y ithe XVI Addl. CMM, Bangalore, in C.C.

..  Ne»3é432/2000 acquitting tha respondentfaccused for
'*, 'the offence under Sectian 338 of N.I. fiat.

This Srl. Aggeai caming an for Part Hearé in
Hearing" Mattars, this dayT the Scurt deliverefi tha
following:

 



4,the signature 5f the zespondent 13 admitted and in

"the ,Ci:camstances, a presumption ariseg under

~Affthé'xsubfiit§ that the Trial Court has committed
'*t§i@§aiity' in granting an Order sf acquittal. On
'w,ghié aspect of the mattar, the laarned counsel for

V *. the appellant has relieé upan the deciaian of the

record, the 'trial Court acquitted the respondeat.

Aggxieved by tne acquittal, the apgallantt "as

approached this flaunt in appeal.

3. E hav@ heard the learned cQuns§lttfir.thé .

appellant and alse the res§ond@fit.»t'

é. Tha point that atiséa f0f~my.cbnSidetationr
is;

Whether the 3fidgmefit}3h§nQtder of

acquittai of the_v,rés@cfidefittt"under

Sectian 133,df the Afit is illtgal and

@ezv@¥S@?t, 1,3
5. 7it is théV§ontent;0n of tha learned counsel

for tha apfieiiant.thatu§S3§anCe Qf the cheque under

SéCti?QV1§§_of*the Act. As the respsndent has not

led aty such evidanca to rebut the said prasumption,

Hon'bie Agex Cmurt, reported in AIR 2001 Supreme

 



maintainabie ih,iew.' So far as the oresumption is

i,oohoerne&Q he also relied upon the decision of the

it" CourrgJ1QQ8ii§$narat Barrel and Drum Manufacturing
"fQ%¢ompao "ye; Amie Chand Peyrelei} and also AIR 2601

'"4_s§§:§e§« Court 2895 [K.N.Beema vs. Muniyappan and
i".ienother], wherein the Hon'hie Apex Court dealing

vi*e_ with the provisions of Sections 138 and 139 of the

Court 389? Efiiten P.Daiai Vs. Bratindrenath
Banerfiee], wherein the Apex Court has held that the
presumption under Section 139 of the Act is" the
oresumption of law; which ought to have be§§7§a;§éax
in the said case end that to rebutf the: ea:&*'
presumption, mere plaueibie veXplanationiiie'onot_

sufficient and the proof {of fegpia§a§;§gT5 iii

neceesary. He has also 'reii?d tUPeh. t§e;i§flCiéiOn'Vi

reported in AIR EOGE Supreme Court 3Qi€_Ei2C.B.S.
Ltd. Vs. Beemna Shafieer_aod;another§, wherein the

Hon'ble Apex Court has held tnet even in respect of

e guarantor, ftheviaooueed i3_ responsible and en

ection could be §a%eniunder'Seotion 338 of the Act

and a complaint i»a§3inst the guarantor is

Hoo;hiein§§e2VfC¢urt reported in AER' 199§ Supreme

Act has held that the burden of proving that cheque

had not been issued for any debt or liability is on

 



presumetien nneef"Section 139 of the Act does not

*Variee$

inireeerds her financial capacity to advance the lean
"g§afes-2,se,aea~0e en 95.08.1999. She has not
ii"maintained any account and furthermere, she does not

*.eey as te whether she is an income tax payee er net.

herein that there was a lean transaction of
Rs.3§,GOGwOO and that the comeiaint was refining e
chit business and as the security for the eeeent gt;
lean ef Rs.30,000--GG, the blank cheg§eea§§§§:ngf_i
No.919877 of State Bank of Myeete"wae_iseeee.i?§eI
accused said tflufi: the cheque §§;1§gést:§§tfig, fi%;fiQ
was issued es the complainant stétee'zfia£§§hé has
mispiaced the earlier eheqqe: flTeetefefe; it is his
centention that the biant-ehe§@e;efihich was received
has been misplaced and the biaeks eete tilled in and
he also subeite4t§e:»Ehe=apge$;antm5eing the tenant

was not in ;a%1eositienT«te" afivance the lean of

Rs.2,SOfQOOrOQ end in fine abeence of any materiei on

record to: prove "ner'gfineecial Capacity. The

2.8. Ne#;_aetceeld be seen from the evidence of

?.W.i i.e., the comglainant, nowhere she states as

Therefere, the perusal of her evidence reveals that

 



5.biank~etamp"peperVef Rs.1QS-O0 denominetien ané two

,vhereie we§e ettained referring te the loan amount of
v >_ iQ§H' ef~:§3.§Q,flOQ~OO. This compiaint. came to be
"= tedeeflaegainet the appeiiant herein an 19°S2.2SG§.
' he eeeasal of the copy cf the cemplaint Ex.§5 and
*§fié allegations made therein reveal that they are

ccesistent with the reply given by the accused under

there is fie material to preve that she had the
financiai capacity" ta advance the huge amount of

Rs.2,50,000-O0. It is further relevant to mete teat

EU

a comgiaint came to b lodged by the accu;édt§$&t£§§e
copy of the said cempleint §as__¢eeg""p§ég§§e§.'a;"
Ex.D5, wherein the appellent tbe:e;fiV'ie etheitfifSt
accused ia the said case she it getetsfte the ehite 
business run by her and the fespendefitiheretn filed
the complainant egaieet the: eeeeilant tetein and

others under sections 4G6,. 4jG;".é67¢e"471 and $06

EPC. it is aieeespecifié eliegatgen made against

the a Dellefit 59:51: thét ifi View of the aueit of
pt    1

the fund _to'=gr;enge_°thef payment in the chit
businees,'a_blenk_dn"demefid promissory note with the

signature ef the respendent herein and another and 3

hlefik éeequeé with the signatures ef the respondent

EX.P5, preduced by the comglainant. So, the perusal

54:.

 



10

af the evidenca of P.W.1 in the context of the
fiafencei taken by the accused, 1 do not fiafi. any
material as regardg the ability or figafifiiai
capacityi of tha complainant to advance rfiyiiéréhiéfii
Rs.2,S{},£}GG-~{}£3 on 05.08.1999. :3»,_y;a,es..;'"'::§Tf'_';,2{§:
that the compiaint came to bfir iQd@é$i,$gri§SfifJrh§
appaiiant herein by the reS§Qydefit[r@gaI§i§§_§3:8&1ii
of chit basiness and obtainifi§ the Elarkicréque and
in view' of the fact' ihati fir.§i gééntaifir 'if words
typewritten lends more gfifipérrifigwgfiégfiefence of the

accused.

that P.Wg1;inVh&r*$VidefiC9'states that sincé 8 years

prior to théVcQm§laint;_Efiére are many transactions

of iQan.havifig,beeh advénced ta the accused and this

wfact'iéseif«§roveé"$ati3factoriiy that the appellant

Vwa5.iunnifigimbney leading business and when it is

30} if is ésaentiai for her to hold a msney iemdiag

'iic@nsé."y& Having regard to the loan transacticn

."eérlier between the complainant and the accused, the

x4.éémpi3inant states that on O5.88.i999 she advanced a

"iaéfi of Rs.2,50,GOG~GG, which was repayabie with

~rihtérest at 18%. So, in the cantext of this



_which_ hes. baénxflsupperted by the other decuments

Aypreéuced. by zthe respondent is also sufficient to

Qf%with the zepiy netice Ex.P5.

gfiieeed reliance on the decisien ef the Hen'bie Apex

nufiaurt reported in 2008 AIR SSW 738 [Krishna

11

admisaion in her own chiefwexamination abeui her
meney' lending business siece% 8 years reveals ethat
she is a money lender and therefere it was e$ee$§;el 
fez her te held a license under eke prC§%s§eeete§

the Kareataka Memey Lenders Act;

10. Though the signatureW gee the %¢n@qg§j*;5*
admitted, there is a presumeeien §nd§r.$e§§i5fi"139
of the act as referred to ih {fie éecisie§s"geferred
to Segre. The said presufiptieefieeeeefieable and tfie
fact that fihe epeeliafifi hes §a§e;éq{;$y evidence to

prove her fin3ncieLZCape¢ityf:S one of the grounds.

It is suffLe;ente§ie "rebut "the" presumption raised.
Apart frem'thjs{ the eyidefice of 9.Ws.1 and 2 and

the fact tie: the cempieimt was ledqed as yer Ex.B5,

pfbbabaiiée_ {he éefence of the accuaed i.e.,

respeedent herein. The said defence is consistent

>31. The learned ceunsel for the respondent has

Janardhan Bhat Vs. Dattatraya G.Heg&e} and the

 



12

Hon'bie Aoex Court has held that it is not necessary

for the accused to enter the witness--box and that

the presumption raised can be tebuttee~ on_ tee'

materieie brought on record and that it deeenoe'upee_

the actual material of each eesef" S0,$ioCkieg to

the principles iaid~down and the evidence Eeo,-I7ama

of the opinion that the*,»epoeilantf °§§§"" not'

establiehed the fieeeoiei ,oapaeity' to 'advance the

loan of Rs.2,50,o0Q-dG'i',an'c:t_  evez": if the

presumption i34:atsedgefidet.SeetionJi3§ of the Act,
it stood re§utt@§i;r§e_t§§.fap£V£fié: the appellant
had no fieafigietgoetecitetfiéiaovence the Loan. In
additioe to, the oefeeee_put-forth by the accuseé
i.e., the ,tespoheeot;fi%%Eein is more probable and

therefore{ Iuem of the opinion that the eooueed hag

3 discharged the burden by leading sufficient evidence

to tebut the ereeumption raised finder Section 139 of

the Rot. "S5 far as the burden on the part of the

i*_ua§peliantA:i3 concerned, he aieo relied upon the

"'edeCtSto§ reported by the Hon'bie High Court of

im_"Madta$, repoztedt in "Judgments on Negotiable

tinetrumonts on Dishoeou: of cheques", 514 [P.Jayeraj

Vs. R.Saroja}, wherein taking into coneideration,

the burden to prove the debt or iiability if any for

f

 



 

14

answer the point in negative ané proceed to pass the

failowingz

ORDER

The appeal is dismisse&.

Ksm*