Criminal Appeal No. 856 of 2013 · The High Court
Case Details
- 1 - NC: 2025:KHC:11806 CRL.A No. 856 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH CRIMINAL APPEAL NO.856 OF 2013 BETWEEN: 1. SMT. VIDYA RAMESH, W/O SHRI. K. RAMESH, AGED ABOUT 46 YEARS, R/AT FLAT NO.104, UDAY APARTMENTS, SUBHASH NAGAR, MANGALORE-04. (BY SRI. CYRIL PRASAD PAIS, ADVOCATE) …APPELLANT AND: Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA 1. SMT. ANURADHA A.R., W/O SRI. ARUN RANJAN, AGED ABOUT 42 YEARS, RESIDING AT WANANJUR, MANGALORE. ALSO AT E.D. ADYAR POST OFFICE, ADYAR, MANGALORE-52. (BY SMT. ARCHANA K.M., AMICUS CURIAE VIDE ORDER DATED 10.02.2025) …RESPONDENT THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 10.05.2013 PASSED BY THE I ADDL. CIVIL JUDGE AND JMFC, MANGALORE, D.K., IN C.C.NO.1616/2010 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT. - 2 - NC: 2025:KHC:11806 CRL.A No. 856 of 2013 THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
Legal Reasoning
Having considered the evidence of P.W.1 and D.W.1 and also the pleadings of the parties, this Court has already pointed out that in the complaint not stated anything about for what purpose the amount was availed by the accused. During the course of cross-examination, P.W.1 admits that she does not know for what purpose the amount was availed by the accused, but only says that the accused had expressed that she is having problem and even could not remember the date of lending of money, but only says that it may be in the month of March 2009. Having perused the reasoning of the Trial Court, the Trial Court comes to the conclusion that nothing is stated in the complaint about the reply notice. The very contention of the learned counsel for the appellant is that the reply notice was received on the very next date of filing of the complaint and hence the very reasoning of the Trial Court may not be proper. But the very case of the complainant has not been denied through out in the cross-examination of D.W.1 that lent the - 10 - NC: 2025:KHC:11806 CRL.A No. 856 of 2013 money and executed the cheque. Even did not deny anything about having received the reply notice belatedly. In the cross- examination of D.W.1 nothing is suggested to the witness and the same is taken note of by the Trial Court while giving the reason that no suggestion was made to the witness that the complainant was not selling the clothes for installments and she had not taken the blank stamp paper and blank signed cheque as security when the definite defence was set out by the accused. The Trial Court rightly made an observation in paragraph Nos.15 and 16 that the defence of the accused is not denied by the complainant in the cross-examination. D.W.1 says that she demanded the cheque two to three times and even no suggestion to the said evidence that no such demand was made to return the cheque. No doubt, there is an admission on the part of D.W.1, but she has not given any complaint to the police, but the Court has to take note of whether any probable defence has been raised by the accused. 10. The fact that both of them are having acquaintance with each other in connection with tailoring shop and also the accused was visiting the shop is not in dispute and there is no dispute with regard to purchasing of dress material by the accused on credit basis. D.W.1 categorically deposed that the - 11 - NC: 2025:KHC:11806 CRL.A No. 856 of 2013 balance amount of dress material was repaid. Even not suggested that no credit basis business between both of them and made any payment when D.W.1 categorically deposed the same. The Trial Court while coming to the conclusion that the complainant has not proved the case and the accused has proved the case by lending cogent evidence and also probable defence, rightly comes to the conclusion in paragraph No.15 that the burden shifts on the complainant to prove that there was a legally recoverable debt and to that effect also not placed any material. The relationship between the complainant and the accused is also not stated in the complaint and even not stated anything about the reason for lending of money. It is emerged in the evidence that the accused is not the relative or neighbour of the complainant except having acquaintance in connection with tailoring. Apart from that, no document was collected by the complainant as on the date of lending of Rs.50,000/-, but admits that the cheque was issued after one month. There is no explanation on the part of the complainant for lending money without obtaining any document and also there was no any earlier transaction of loan between the complainant and the accused at any point of time except stating that the accused was owing Rs.50,000/-. Hence, I do not find any error committed by - 12 - NC: 2025:KHC:11806 CRL.A No. 856 of 2013 the Trial Court and the Trial Court assigned the reason while acquitting the accused. The Trial Court in detail discussed in paragraph Nos.15 and 16 with regard to the very pleading as well as the evidence available on record, particularly the evidence of D.W.1 and P.W.1 and unless the material available on record is not considered by the Trial Court, the question of interfering does not arise. Hence, I do not find any ground to reverse the finding of the Trial Court by exercising the appellate jurisdiction. Hence, I answer the point in the negative. Point No.(ii): 11. In view of the discussions made above, I pass the following:
Arguments
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT Heard the learned counsel for the appellant and the learned amicus curiae for the respondent appointed by this Court. 2. The factual matrix of the case of the complainant before the Trial Court is that the accused was owing a sum of Rs.50,000/- to the complainant and in discharge of the said debt, the accused had issued a cheque and when the same was presented, it was dishonoured with an endorsement “insufficient funds”. Hence, notice was given and reply was also given and complaint was filed in view of the non-payment of the amount. The Trial Court took the cognizance and secured the accused and the accused did not plead guilty and claimed trial. Hence, the complainant examined herself as P.W.1 and got marked the documents at Exs.P.1 to 5. The accused was subjected to 313 statement and also led defence evidence before the Trial Court. The Trial Court having considered the case of the complainant and also the case of the accused, accepted the contention of the accused regarding defence as probable defence since there was a relationship between the complainant and the accused - 3 - NC: 2025:KHC:11806 CRL.A No. 856 of 2013 regarding purchasing of dress material as the complainant was running tailoring shop and selling the dress material. The fact that the complainant was selling the dress material is not disputed by the complainant and the defence of the accused is that when she used to purchase the dress material, she has given the cheque and the same was misused. The contention of the complainant that she has lent the money of Rs.50,000/- to the accused and the accused has issued the subject matter of the cheque was not accepted by the Trial Court and acquitted the accused. 3. Being aggrieved by the acquittal order of the Trial Court, the present appeal is filed by the complainant before this Court. 4. The main contention of the learned counsel for the appellant is that the learned Magistrate has gravely erred in coming to the conclusion that the reply issued by the accused to the legal notice was not mentioned in the complaint. The reasoning assigned by the Trial Court is erroneous. The learned counsel contend that 15 days period will get over on 31.08.2009 and the complaint was filed on 07.09.2009. The reply was issued on 06.09.2009 and the same was received by the complainant on 08.09.2009 and hence the same was not stated - 4 - NC: 2025:KHC:11806 CRL.A No. 856 of 2013 either in the complaint or in the chief evidence. The learned counsel contend that the Trial Court magnonified the same for acquittal of the accused and the said observation is erroneous. The other observation that the complainant not met the defence of the accused either in the chief evidence or in the cross- examination of D.W.1 is also erroneous. The learned counsel contend that in the cross-examination of D.W.1, it is elicited that no complaint was given when the cheque was misused by the complainant. The Trial Court committed an error in accepting the defence of the accused in not properly appreciating the evidence available on record. The learned counsel contend that after issuance of the cheque, the accused contend that she has made the payment of Rs.7,000/- to Rs.8,000/- and in order to prove the same, nothing is placed on record. In the absence of any material for having made the payment of Rs.7,000/- to Rs.8,000/-, the Trial Court ought not to have accepted the defence of the accused. Hence, it requires interference of this Court. 5. Per contra, the learned amicus curiae appearing for the respondent would contend that the Trial Court has given the reasoning that the contents of the reply notice are not denied by the complainant in her complaint or in her chief examination - 5 - NC: 2025:KHC:11806 CRL.A No. 856 of 2013 affidavit. Hence, it reveals that the complainant has admitted the contents of the reply notice and the same is discussed in paragraph No.15 and at the time of cross-examination of the accused, there is no suggestion that this complainant was not selling the clothes for installments and she had not taken the blank signed cheque and blank signed stamp paper as security. The defence of the accused is also not denied by the complainant and hence the Trial Court comes to the conclusion that the defence of the accused is highly probable. The defence is not denied in the cross-examination of D.W.1 also and nothing is elicited in the cross-examination of D.W.1 that amount was lent and cheque was given. The Trial Court also taken note that Exs.D.2 and 3 reveals that on 27.05.2009, the husband of the complainant got issued the demand notice to the husband of the accused. It is not the case of the complainant that herself and her husband are not residing together and once the defence of the accused is probable, the burden shifts on the complainant to prove her case and the same is discussed by the Trial Court and for having lent the money also the Trial Court made an observation that the complainant has vaguely stated that this accused is owing Rs.50,000/- and why this accused was owing Rs.50,000/- is not stated by the complainant. Admittedly, the - 6 - NC: 2025:KHC:11806 CRL.A No. 856 of 2013 accused is not the relative or neighbour of the complainant. Only the relationship of both of them is with regard to buying of dress material and except that, there was no any relationship and also while lending the money also not taken any document and only subsequently it is stated that on demand, cheque was issued and hence not accepted the case of the complainant and rightly dismissed the complaint. 6. Having heard the learned counsel for the appellant and the learned amicus curiae appearing for the respondent and also on perusal of the material on record, the points that arise for the consideration of this Court are: (i) Whether the Trial Court has committed an error in acquitting the accused in not accepting the case of the complainant and committed an error in coming to the conclusion that the accused probablised the case of her defence and whether it requires interference of this Court by exercising the appellate jurisdiction? (ii) What order? Point No.(i): 7. Having heard the learned counsel for the appellant and the learned amicus curiae, this Court has to take note of the contents of the complaint and the contents of the complaint is - 7 - NC: 2025:KHC:11806 CRL.A No. 856 of 2013 the basis for lending of money. In the complaint, the complainant has stated that the accused was owing Rs.50,000/- and in discharge of the said debt, the accused had issued a cheque and not stated for what reason the accused approached the complainant for lending of Rs.50,000/- and no purpose is mentioned in the complaint except stating owing of Rs.50,000/- and issuance of cheque and even not stated anything about how both of them have acquaintance with each other except stating about owing of liability and issuance of cheque. In the evidence also not stated anything about the same. In the cross- examination of P.W.1 also, though marked the documents, she admits that she cannot say the date on which the amount was lent, but only says that it was in the month of March 2009. In the cross-examination, a suggestion was made that both of them have acquaintance with each other with regard to the fact that the accused was working in the Post Office and also even admits that not having any history of the accused and also admits that she was running a tailoring shop and the accused was giving dress material for stitching. She also admits that the contents of the document of Ex.P.1 handwriting are different and also unable to say whether the cheque was given on the very same day of mentioning the date or prior to that. But - 8 - NC: 2025:KHC:11806 CRL.A No. 856 of 2013 admits that the cheque was given after one month of lending of money and not having any document to show that she was having the amount Rs.50,000/-. She admits that the amount was not lent for interest and also even not aware of what was the need for the accused to avail the loan, but says she was having problem. 8. On the other hand, in the evidence of D.W.1, she has set up the defence what she has given in the reply notice that she used to purchase the dress material on credit basis from the complainant and hence she issued the cheque and repaid the amount and on two to three occasions, she demanded to return the cheque, but the complainant did not return the same. The cheque was old and hence she kept quiet. In the cross-examination, D.W.1 admits that the cheque belongs to her account and admits her signature. She admits that the complainant was running tailoring shop in the office of Post Office building and she was having acquaintance with her. She says that in the year 2005 for the first time she has purchased the dress material on credit basis from the complainant. When the suggestion was made to D.W.1 whether the complainant was having capacity to lend the money, D.W.1 says that she is not aware of the same. However, D.W.1 admits that a case was - 9 - NC: 2025:KHC:11806 CRL.A No. 856 of 2013 filed against her husband also for the very same amount, but denied the suggestion that both of them are family friends. However, she says that the cheque was given towards dress material, but did not give any complaint when the cheque was not returned. 9.
Decision
The appeal is dismissed. ORDER The Registry is directed to make the payment of Rs.5,000/- as fee to the amicus curiae, who appears on behalf of the respondent on the direction of this Court to assist the Court. Sd/- (H.P.SANDESH) JUDGE MD List No.: 1 Sl No.: 58