Criminal Appeal No. 303 of 2013 · The High Court
Case Details
- 1 - NC: 2025:KHC:4164 CRL.A No. 303 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL APPEAL No. 303 OF 2013 BETWEEN: …APPELLANT Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA SMT. K MEENAKSHI W/O SRI VENKATAPPA C AGED ABOUT 43 YEARS R/A No.22/1, 11TH ‘A’ CROSS SHIVANAGAR, RAJAJINAGAR BANGALORE – 560 010. (BY SRI K GOVINDARAJ, ADVOCATE FOR SRI P NEHRU, ADVOCATE) AND: SMT. S SHANTHY BHASKAR OLD No.101, NEW No.1, 5 1ST MAIN ROAD, S.V.G. NAGAR NEAR SYNDICATE BANK COLONY MOODALAPALYA BANGALORE – 560 072. PRESENTLY RESIDING AT No.13, 1 FLOOR, 3RD CROSS PONNIAMMAN, KOIL STREET SAINATHAPURAM VELLORE – 632 001. …RESPONDENT (BY SRI KEMPARAJU, ADVOCATE) THIS CRL.A. IS FILED UNDER SECTION 378(4) Cr.P.C PRAYING TO SET ASIDE THE IMPUGNED ORDER AND - 2 - NC: 2025:KHC:4164 CRL.A No. 303 of 2013 JUDGMENT OF ACQUITTAL DATED 01.02.2013 PASSED BY THE XIII A.C.M.M., BANGALORE - ACQUITTING THE RESPONDENT - ACCUSED FOR OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I.ACT AND ETC., IN C.C.No.12422/2005 THIS APPEAL COMING ON FOR HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR ORAL JUDGMENT 1. This appeal is filed by the complainant challenging the judgment of acquittal dated 01.02.2013 passed in C.C. No. 12422/2005 by the XIII Additional Chief Metropolitan Magistrate, Bengaluru, whereunder the respondent - accused has been acquitted for offence Section 138 of Negotiable Instruments Act (hereinafter for the sake of brevity referred to as the `N.I. Act’). 2. Case of the complainant in brief is, that the complainant had lent Rs.5.00 lakhs during February 2004 to the respondent - accused. In order to repay the same, the respondent - accused had issued cheque bearing No. 146644 dated 15.07.2004 for a sum of Rs.5.00 lakhs. The complainant presented the said cheque for encashment and it has been dishonoured for want of sufficient funds in - 3 - NC: 2025:KHC:4164 CRL.A No. 303 of 2013 the account of the respondent - accused. The complainant got issued legal notice to the respondent – accused. The respondent – accused, inspite of service of notice, has not repaid the cheque amount. Therefore, the complainant filed a private complaint against the respondent - accused for offence under Section 138 of the N.I. Act. Learned Magistrate has taken cognizance and registered C.C. No. 12422/2005 against the respondent - accused for offence under Section 138 of N.I. Act. Plea of the respondent - accused has been recorded. The complainant, in order to prove her case, has examined herself as P.W.1 and got marked Ex.P.1 to Ex.P.13. Statement of the respondent - accused has been recorded under Section 313 of Cr.P.C. The respondent - accused examined herself as D.W.1 and examined 3 witnesses as D.W.2 to D.W.4 and got marked Ex.D.1 to Ex.D.7. Learned Magistrate, after hearing arguments on both sides, has formulated points for consideration and passed the impugned judgment of
Legal Reasoning
acquittal. Said judgment of acquittal has been challenged by the complainant in this appeal. - 4 - NC: 2025:KHC:4164 CRL.A No. 303 of 2013 3. Heard learned counsel for appellant –
Legal Reasoning
complainant and learned counsel for respondent - accused. 4. Learned counsel for appellant – complainant would contend that the appellant had lent Rs.5.00 lakhs during February, 2004 to the respondent - accused and in order to repay the same, cheque – Ex.P.1 had been issued and the same came to be dishonoured. He further submits that signature on the cheque – Ex.P.1 has been admitted by the respondent - accused. Therefore, a presumption under Section 139 of the N.I. Act has to be drawn. He further submits that the complainant has established her source of amount for lending stating that she has saved said money for marriage of her daughter and she got income from her agricultural lands. The respondent - accused who contended that the cheque – Ex.P.1 was stolen had filed a complaint and it was referred for investigation and the Police have filed B report and the said B report has not been challenged by the respondent - accused. The respondent - accused has failed to prove that the cheque – Ex.P.1 has been stolen by the appellant – - 5 - NC: 2025:KHC:4164 CRL.A No. 303 of 2013 complainant. The respondent - accused has not taken any contra defence that she had given the said cheque to the appellant – complainant when she went to meet her ailing mother on 10.07.2004 asking her to look after her business and it has been misused by the complainant. Said contention has not been established and it is contrary to the contention taken up by the respondent - accused. Without considering all these aspects learned Magistrate has erred in passing judgment of acquittal. With this, he prayed for allowing the appeal and convicting the respondent - accused for offence under Section 138 of the N.I. Act. 5. Learned counsel for respondent – accused would contend that it is the specific defence of the respondent - accused that the complainant was working under the accused in her real estate business and when the respondent - accused received information about ill health of her mother on 10.07.2004, she asked the complainant to look after her real estate business and handed over signed cheque. Said signed cheque has been - 6 - NC: 2025:KHC:4164 CRL.A No. 303 of 2013 misused by the complainant. He further submits that the evidence of D.W.2 to D.W.4 will establish the said contention of respondent - accused. He contends that on perusal of cross-examination of P.W.1 it is clear that she has no financial capacity. The complainant has not produced any document to show that she owns agricultural property and she gets income from that property. Considering all these aspects the respondent - accused has rebutted the presumption. The complainant has not proved the alleged lending and issuance of cheque for making payment of legally enforceable debt. Considering the said aspect learned Magistrate has rightly passed judgment of acquittal. With this he prayed for dismissal of the appeal. 6. Having heard the learned counsel for the parties this Court has perused the impugned judgment and trial Court records. 7. Considering the grounds urged, the following point arises for my consideration in this appeal: - 7 - NC: 2025:KHC:4164 CRL.A No. 303 of 2013 Whether the learned Magistrate has erred in acquitting the respondent – accused for offence under Section 138 of N.I. Act? 8. My answer to the above question is in the negative for the following reasons: It is the case of the appellant – complainant that Ex.P.1 – cheque has been issued by the respondent - accused for repayment of the amount borrowed. The respondent - accused has admitted her signature on cheuqe – Ex.P.1. As the signature on the cheque is admitted, a presumption has to be drawn under Section 139 of the N.I. Act that the cheque has been issued for making payment of legally enforceable debt. Said presumption is a rebuttable presumption. 9. It is the defence of the respondent - accused that the appellant – complainant was working under her in her real estate business. On 10.07.2004 when she received information about the ill health of her mother she handed over signed cheque to the complainant and went - 8 - NC: 2025:KHC:4164 CRL.A No. 303 of 2013 to her native place asking the complainant to look after her business and the complainant has misused the said cheque. The accused who has been examined as D.W.1 in her evidence has stated about she giving signed cheque to the complainant on 10.07.2004 asking her to look after her real estate business and it has been misused by the complainant. Said aspect has not been specifically denied in the cross-examination of D.W.1. D.W.2 in his evidence has stated regarding the complainant working under the accused as her husband was suffering from illness. D.W.3 also deposed regarding the complainant working under the respondent - accused in her real estate business and that she has no capacity to lend the money to the accused. D.W.4 has specifically deposed regarding the accused giving signed blank cheque to the complainant in his presence on 10.07.2004 asking her to draw some amount from her account towards maintenance of her business and she went to Vellore. Considering all these evidence the respondent - accused has established her defence and rebutted the presumption that cheque – Ex.P.1 has been - 9 - NC: 2025:KHC:4164 CRL.A No. 303 of 2013 issued for making payment of the amount borrowed. As presumption raised under Section 139 has been rebutted by the respondent - accused, onus shifts on the complainant to prove the lending of Rs.5.00 lakhs and issuance of cheque – Ex.P.1 for making payment of the debt. 10. The respondent - accused has challenged the capacity of the complainant to lend Rs.5.00 lakhs. To establish the same except the oral evidence, the complainant has not produced any document. P.W.1 in her cross-examination has admitted that her husband was running a workshop and it was closed and she sold the said workshop to meet the medical expenses of her husband. P.W.1 in her cross-examination has also admitted that she was not doing any work and she was a house wife. Son of P.W.1 was working and was getting salary of Rs.3,000/- per month and her elder daughter was getting salary of Rs.2,500/- per month. Considering the said aspect it is clear that the appellant – complainant had no source of income to lend huge amount of - 10 - NC: 2025:KHC:4164 CRL.A No. 303 of 2013 Rs.5.00 lakhs to the respondent - accused. The appellant – complainant contended that she is owning agricultural land and getting income from that land, but, no documents are produced to establish that agricultural lands were standing in the name of the complainant and she was getting income from those lands. Considering all these aspects learned Magistrate has rightly held that the appellant – complainant has failed to prove that the respondent - accused has committed offence under Section 138 of the N.I. Act. The appellant – complainant has not made out any grounds for setting aside the impugned judgment.
Decision
11. In the result, the appeal is dismissed. Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE LRS List No.: 1 Sl No.: 53