These two appeals are filed by complainant challenging the acquittal of respondent/accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short 'N.I. Act'), by dismissing the complaint filed by her under Section 200 Cr.P.C.

2. In both appeals, complainant is common whereas accused are wife and husband. The facts leading to the filing of complaints and the defence taken by the accused are similar. The evidence lead by both parties are identical. Therefore, these two appeals are clubbed together and decided by a common judgment.

3. For the sake of convenience, while complainant is referred to as complainant, accused are referred to by their name prefix by the term accused.

4. It is the case of complainant that she and accused Savitha are known to each other since many years. In the light of said acquaintance, both accused borrowed hand loan from her.

5. So far as the complaint filed against accused Munirathnam is concerned, it is contended by the complainant that to meet his financial difficulties, he requested for financial assistance and during August 2012 he borrowed Rs.4,00,000/-. In November 2012, he borrowed Rs.6,50,000/-, during December 2012, he availed hand loan of Rs.1,00,000/- and once again during the end of December 2012, he took hand loan of Rs.1,00,000/-. Thus, in all he borrowed hand loan of Rs.12,50,000/- with a promise to repay the same at the earliest. When he failed to repay the same, on repeated request and demand, he paid a sum of Rs.1,75,000/- on 17.09.2012 and Rs.1,00,000/- on 26.12.2012. So far as balance is concerned, he issued four cheques for a sum of Rs.2,00,000/-, Rs.2,00,000/-, Rs.2,00,000/- and Rs.3,75,000/- with an assurance that it would be honoured on presentation.

6. So far as accused Savitha is concerned, it is contended by the complainant that during December 2012, she requested for and availed hand loan of Rs.1,06,000/- with a promise to repay the same with interest. When she failed to keep up with her promise, on request and demand she issued two cheques i.e., for a sum of Rs.1,00,000/- and Rs.6,000/- with the assurance that they would be encashed on presentation.

7. However, when the cheques issued by both accused were presented for realization, they were dishonoured on the ground “Insufficient Funds”. When complainant got issued legal notice to both accused, they were returned with endorsement “Insufficient Address” and hence the complaint.

8. After service of summons, both accused appeared and contested the matter. They pleaded not guilty and claimed trial.

9. In order to prove the allegations against accused, complainant got herself examined as PW-1 in both cases. In C.C.No.51750/2013 which is the case filed against the husband, the complainant has got marked Ex.P1 to 30. In C.C.No.51749/2013, which is the case filed against the wife, the complainant has got marked Ex.P1 to 7.

10. During the course of the statement under Section 313 Cr.P.C, the accused have denied the incriminating evidence led by the complainant.

11. In fact, in both cases, accused have examined themselves as DW-1. They have also examined one common witness C. Yallappa as DW-2.

12. In C.C.No.51749/2013, the accused has got marked Ex.D1 to 6.

13. In C.C.No.51750/2013, the accused has got marked Ex.D1 to 5.

14. Vide separate impugned judgments and orders dated 01.10.2018, the trial Court dismissed both complaints.

15. Aggrieved by the same, the complainant has filed two separate appeals, contending that the impugned judgments and orders of trial Court are illegal, arbitrary and against the material evidence placed on record and the probability of the case. The trial Court has failed to appreciate the evidence placed on record in right perspective and thereby came to a wrong conclusion. They are not supported by sound reasoning. They suffer from serious illegality, infirmities and as such liable to be set aside. The trial Court has come to a wrong conclusion that since there was previous case against the accused Munirathnam, which ended in conviction and the appeal and Criminal Revision Petition filed by him were dismissed and Crl.Misc.No.24/2013 was pending and as such there was no fresh transaction between the complainant and accused. The trial Court has also erred in holding that accused have rebutted the Statutory presumption. Viewed from any angle, the impugned Judgments and orders of the trial Court are not sustainable in law and pray to allow the appeals, convict the accused and sentence them in accordance with law.

16. In support of his arguments, learned counsel for complainant has relied upon the following decisions:

"(i) Rangappa Vs. Sri Mohan (Rangappa) ((2010) 11 SCC 441)

(ii) Jain P Jose Vs. Santhosh & Anr. (Jain P.Jose) (SLP (Crl)No.5241/2016)"

17. On the other hand, learned counsel representing the accused has supported the impugned judgments and orders and sought for dismissal of the appeals. 18. In support of his arguments, learned counsel for accused has relied upon the following decisions:

"(i) H.D. Sundara and Ors Vs. State of Karnataka (H.D.Sundara) ((2023) 9 SCC 581)

(ii) Selveraj Vs. State of Tamil Nadu (Selveraj) ((1976) 4 SCC 343)

(iii) Basalingappa Vs. Mudibasappa (Basalingappa) ((2019) 5 SCC 418)

(iv) Noor Aga Vs. State of Punjab and Anr. (Noor Aga) ((2008) 16 SCC 417)

(v) Neeraj Dutta Vs. State (Govt. of NCT of Delhi (Neeraj Dutta) ((2023) 4 SCC 731: AIR 2023 SC 330)"

19. Heard elaborate arguments of both sides and perused the record.

20. Thus, it is the definite case of complainant, that accused of both cases, who are husband and wife have borrowed hand loan from her and towards repayment of the same issued cheques, but when presented for realization, they were dishonoured for want of sufficient funds and after issuing legal notice and on the failure of accused to pay the amount due under the cheques, complaints are filed.

21. Accused admit that the cheques in question belongs to them, drawn on their account maintained with their bankers and they bear their signatures. Consequently, the presumption under Section 139 of N.I. Act comes into play to the effect that the cheques are issued towards repayment of any legally recoverable debt or liability. The accused have also not disputed the financial capacity of complainant. It is pertinent to note that the legal notice sent to the accused is returned unserved on account of insufficient address. However, in the complaint the accused are served on the same address. In fact, the accused have not disputed the fact of notice being sent to them. In the circumstances, it is to be held that the legal notice is duly served on them.

22. However, the accused have denied and disputed the very fact of borrowing loan from the complainant and that the cheques were issued towards repayment of the same. On other hand, they have taken up a specific defence that in respect of dishonour of cheque, a complaint was filed by the complainant against accused Munirathnam in C.C.No.28309/2007 and he was convicted on 31.05.2008. The appeal as well as the criminal revision petition filed by him against the said judgment and order were dismissed and in fact, Crl.Misc.No.24/2013 was pending for execution of the said order and such being the case, the question of complainant once again granting hand loans in lakhs of rupees would not arise. The accused have taken up a specific defence that during the execution of the said case, accused Munirathnam was taken to police station and on the intervention of the police, the subject cheques were collected by the complainant and filling up the same, they were presented and on their dishonour, these two complaints are filed.

23. In the light of the admitted facts and the specific defence taken by the accused, it is necessary to examine whether the accused have rebutted the presumption under Section 139 and in which event, the burden would shift on the complainant to prove that the cheques in question are issued towards repayment of loan extended by her.

24. It is an undisputed/admitted fact that having allegedly borrowed hand loan in a sum of Rs.5 lakhs and failed to repay the same, complainant prosecuted accused Munirathnam in C.C.No.28309/2007 and he was convicted and sentenced vide order dated 31.05.2008 for the offence punishable under Section 138 of N.I Act. Against the same, accused Munirathnam filed Crl.A.No.25036/2008 and it was dismissed on 28.10.2009, by confirming the conviction and sentence rendered by the trial Court. Accused unsuccessfully challenged the same in Crl.RP.No.1062/2009 and vide order dated 28.08.2012, this Court dismissed the same. Thus, when complainant has allegedly extended hand loan in lakhs of rupees to the accused, the conviction secured by her was starring the accused on their face and it creates doubt as to whether in such circumstances accused would approach complainant for further loan and she would grant the same.

25. The accused have examined DW-2 C.Yellappa stated to be a politician. He has given evidence to the effect that in connection with the pendency of criminal miscellaneous petition against the accused Munirathnam for enforcement of the conviction secured against him, he accompanied accused Munirathnam to the police station. On the intervention of the police, complainant collected blank cheques from the accused and they are utilised to file the subsequent complaints. In fact, during her cross-examination complainant has admitted that the cheques in question are filled in the handwriting of her husband, which also supports the defence of the accused that the cheques were blank when issued by them.

26. When the complainant has prosecuted accused Munirathnam, on the allegations that he failed to fulfill his promise of repaying the debt taken from her by allowing the cheque to be dishonoured, when the criminal revision petition filed by the accused Munirathnam was pending before the High Court, it is highly improbable that complainant lend them lakhs of rupees as hand loan. Accused Munirathnam has paid Rs.1,75,000/-, Rs.1,00,000/- on 26.12.2012, Rs.1,00,000/- on 05.10.2012. When he was produced before the trial Court in Crl.Misc.No.24/2013 through warrant and FLW, he has paid Rs.88,750/-, Rs.75,750/-, Rs.50,500/- by depositing in the Court. When such drastic steps were taken against accused Munirathnam for recovery of the money due from him, at any stretch of imagination it cannot be believed that complainant advanced further loan to both accused, especially when the track record of accused Munirathnam with regard to payment of cheque is doubtful.

27. After examining the oral and documentary evidence placed on record in the right perspective, the trial Court has acquitted both accused. This Court finds no justifiable grounds to interfere with the conclusions arrived at by the trial Court. In the result, the appeal fails and accordingly the following:

ORDER

(i) Both appeals are dismissed.

(ii) The judgments and orders dated 01.10.2018 in C.C.No.51750/2013 and C.C.No.51749/2013 on the file of LVII ACMM, Bengaluru are confirmed.

(iii) The Registry is directed to send back the trial Court records along with copy of this order forthwith.