The High Court
Case Details
- 1 - NC: 2025:KHC:14466 CRL.RP No. 1625 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE RAJESH RAI K CRIMINAL REVISION PETITION NO. 1625 OF 2016 BETWEEN: SRIMATHI W/O RAVI AGED ABOUT 45 YEARS R/AT NO.76, 4TH MAIN (OPP: CHURCH), CHAMARAJPET BANGALORE-560 018. (BY SMT. ARCHITHA SURESH FOR SRI. SHARATH S GOWDA, ADVOCATE) AND: SMT. B.V.LAKSHMI W/O SRI. JAYAPRAKASH AGED ABOUT 42 YEARS R/AT NO.885, 8TH CROSS 9TH MAIN, SRINAGAR BANGALORE-560 050. …PETITIONER …RESPONDENT (BY SMT. SOWMYA ANANTH, AMICUS CURIAE) THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT DATED 23.11.2016 PASSED BY THE LXIII ADDL. DIST. AND S.J., BANGALORE IN CRL.A.NO.599/2016 AND THE JUDGMENT AND ORDER OF CONVICTION DATED 13.04.2016 PASSED BY THE XXI A.C.M.M., BANGALORE IN C.C.NO.10068/2015 AND ACQUIT THE PETITIONER FOR THE OFFENCE P/U/S 138 OF N.I.ACT. THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: Digitally signed by HARIKRISHNA V Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:14466 CRL.RP No. 1625 of 2016 CORAM: HON'BLE MR JUSTICE RAJESH RAI K ORAL ORDER This revision petition is directed against the judgment dated 23.11.2016 passed in Crl.A.No.599/2016 by the LXIII Additional City Civil and Sessions Judge, Bengaluru City
Legal Reasoning
(hereinafter referred to as 'First Appellate Court'), whereby the First Appellate Court dismissed the appeal filed by the revision petitioner and thereby, confirmed the judgment of conviction and order of sentence passed by the XXI Addl. Chief Metropolitan Magistrate, Bengaluru (for short 'trial Court') in C.C.No.10068/2015 dated 13.04.2016. 2. For the sake of convenience, the parties are referred to as per their rankings before the trial Court. 3. The abridged facts of the prosecution case are that: The complainant and accused are known to each other. In the month of March 2014, the accused approached the complainant and availed hand loan of Rs.3 lakh on 05.03.2014 on a promise to the complainant to repay the same within six months. Thereafter, she failed to repay the said loan amount. On repeated request and demands, she issued Ex.P1-cheque - 3 - NC: 2025:KHC:14466 CRL.RP No. 1625 of 2016 bearing No.044354 dated 21.12.2014 for Rs.1 lakh drawn on IDBI Bank, Gandhinagara Branch, Bengaluru. Subsequently, the complainant presented the said cheque for encashment through her banker. However, the same dishonoured with an endorsement 'Funds Insufficient'. The said aspect intimated by the complainant to the accused through a legal notice as per Ex.P3. The said legal notice served on the accused. However, she replied to the said legal notice by denying the contents of Ex.P3. Subsequently, the complainant filed a private complaint under Section 200 of Cr.P.C. against the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'N.I. Act') before the trial Court. 4. To prove her case before the trial Court, the complainant herself examined as PW.1 and got marked 7 documents as Exs.P1 to P7. However, the accused also examined herself as DW.1 and got examined one witness as DW.2 so also marked 3 documents as Exs.D1 to D3. 5. After assessment of the oral and documentary evidence, learned trial Court convicted the accused for the - 4 - NC: 2025:KHC:14466 CRL.RP No. 1625 of 2016 offence punishable under Section 138 of N.I. Act and sentenced as under: "ORDER The accused is convicted U/Sec.255(2) of Cr.P.C for the offence punishable U/Sec 138 of N.I. Act. The accused is sentenced to pay total fine amount Rs.1,10,000/- (Rupees One Lakh and Ten Thousand only). In default to undergo simple imprisonment for a period of ten months. Out of the total fine amount of Rs.1,10,000/- a sum of Rs.1,00,000/- is ordered to be paid to the complainant by way of compensation U/Sec.357 of Cr.P.C., and the balance amount of Rs.10,000/- shall be remitted to the State." 6. Aggrieved by the said judgment, the accused preferred an appeal before the First Appellate Court in Crl.A.No.599/2016. The First Appellate Court, after re-assessment of the entire evidence on record, dismissed the appeal filed by the revision petitioner and confirmed the judgment of conviction and order of sentence passed by the trial Court. Challenge to the same is lis before this Court. - 5 - NC: 2025:KHC:14466 CRL.RP No. 1625 of 2016 7.
Legal Reasoning
I have heard Smt. Architha Suresh for Sri Sharath S.Gowda, learned counsel for the petitioner and Smt. Sowmya Ananth, learned Amicus Curiae for the respondent and perused the materials on record. 8. The primary contention of learned counsel for the petitioner is that both the trial Court and the First Appellate Court grossly erred while convicting the accused for the offence punishable under Section 138 of N.I. Act without appreciating the evidence on record in a right perspective. She further contended that the trial Court and the First Appellate Court totally failed to appreciate the probable defence put forth by the accused that the cheque in question i.e., Ex.P1 along with other 9 cheques were handed over by the accused to DW.2 i.e., one Saroja as a security for the financial transaction in the year 2013. The said Saroja handed over the cheques to the complainant and she presented the same for unlawful gain. She further contended that in order to substantiate the defence of the accused, she examined the said Saroja before the trial Court as DW.2 and got marked Ex.D1 to D3. Ex.D2 i.e., the statement given by DW.2 before Chamarajpet police clearly depicts that she had obtained 10 cheques from the accused as - 6 - NC: 2025:KHC:14466 CRL.RP No. 1625 of 2016 a security for the financial transaction she had with the accused and subsequently, she handed over Ex.P1 i.e., cheque to the complainant. Further the said aspect also forthcoming in Ex.P7 i.e., the reply notice issued by the accused so also in her 313 statement. She also contended that on perusal of the complaint, the complainant has narrated two different dates of advancing the loan amount. In such circumstances, the accused has rebutted the initial presumption arising under Sections 118 and 139 of N.I. Act. This aspect not properly appreciated by the trial Court and the First Appellate Court. Accordingly, she prays to allow the revision petition. 9. Per contra, learned Amicus Curiae for the respondent submitted that the trial Court and the First Appellate Court, after meticulously examining the entire evidence on record, passed a well reasoned judgments which do not call for any interference at the hands of this Court. She further contended that the evidence of PW.1 coupled with the documents placed by her clearly proves that the accused had availed the hand loan of Rs.3 lakh from the complainant and to discharge the said liability, she had issued Ex.P1-cheque. She further contended that much reliance could not be placed on - 7 - NC: 2025:KHC:14466 CRL.RP No. 1625 of 2016 Ex.D2 i.e., the statement of the DW.2 given before the Chamarajpet police, since the said statement was recoded on 29.09.2015 i.e., after filing of the private complaint. Accordingly, she prays to dismiss the revision petition. 10. Having heard the learned counsel for both the parties so also having given my anxious consideration on the documents made available before me including the judgments passed by the trial Court as well as the First Appellate Court, the only point that would arise for my consideration is: "Whether the First Appellate Court is justified in dismissing the appeal filed by the revision petitioner/accused by confirming the judgment of conviction and order of sentence passed by the trial Court?" 11. As could be gathered from the records, the cheque in question and the signature on the cheque is not seriously disputed by the accused. However, it is the specific defence of the accused that Ex.P1 issued by accused to DW.2-Saroja in the year 2013 pertains to the financial transaction between herself and DW.2. Even on perusal of Ex.P7, the reply notice also depicts that the accused had issued 10 cheques in favour of DW.2-Saroja as security purpose for some other transaction - 8 - NC: 2025:KHC:14466 CRL.RP No. 1625 of 2016 and in turn DW.2 handed over the said cheque to the complainant and the complainant presented the same for unlawful gain. To prove this defence, the accused examined DW.2-Saroja. On perusal of the evidence of DW.2, in the chief examination, she has specifically deposed that she had financial transaction with the accused in the year 2013 and she had obtained 10 cheques from the accused for security purpose. According to her, out of those 10 cheques, she handed over 4 cheques to the accused, albeit, she retained remaining 6 cheques with her. Later she had handed over the cheque in question-Ex.P1 to the complainant. 12. It is pertinent to note at this juncture that the accused lodged a police complaint before the Chamarajpet police station against DW.2 for having retained her six cheques and also having handed over Ex.P1-cheque to the complainant. In the said case, DW.2 has given a statement before the aforesaid police as per Ex.D2. On perusal of Ex.D2 depicts that DW.2 has admitted the financial transaction between herself and the accused in the year 2013 and also about receiving of 10 cheques from the accused for security purpose. Further, she has specifically stated with regard to the numbers of cheques - 9 - NC: 2025:KHC:14466 CRL.RP No. 1625 of 2016 which she had retained including the cheque in question-Ex.P1. In her evidence also, she had reiterated the same. The trial Court and the First Appellate Court, while passing the impugned judgments, totally relied on the evidence of PW.1 and also the signature on the cheque i.e., ExP1 is not disputed by the accused. 13. No doubt the initial presumption under Sections 118 and 139 of N.I. Act favours the complainant. However, it is settled position of law by this Court and the Hon'ble Apex Court that such initial presumption can be rebutted by the accused by placing probable defence. 14. In the case on hand, on careful perusal of the entire materials on record, I am of the considered view that the accused has rebutted the initial presumption arising under Sections 118 and 139 of N.I. Act by placing probable defence by examining DW.2 and placing the documents i.e., Exs.D1 to D3. Interestingly, on perusal of Ex.D1 i.e., subsequent legal notice issued by the complainant depicts that the accused had borrowed a sum of Rs.5 lakh instead Rs.3 lakh. Further, as rightly pointed out by the learned counsel for the revision petitioner, in the complaint, the complainant has stated - 10 - NC: 2025:KHC:14466 CRL.RP No. 1625 of 2016 different dates of advancing the loan amount. In such circumstances, I am of the considered view that both the trial Court and the First Appellate Court is not justified in convicting the accused for the offence punishable under Section 138 of N.I. Act. Accordingly, interference is required in the impugned judgment passed by the trial Court, which was confirmed by the First Appellate Court. In that view of the matter, I answer the point raised above in negative and proceed to pass the following:
Decision
ORDER i) The revision petition is allowed. ii) The judgment of conviction and order of sentence imposed by the trial Court in C.C.No.10068/2015, which was confirmed by the First Appellate Court in Crl.A.No.599/2016 are hereby set aside. iii. The revision petitioner/accused is acquitted for the offence punishable under Section 138 of N.I. Act. iv. The bail bond, if any, executed by the revision petitioner/accused shall stand cancelled. - 11 - NC: 2025:KHC:14466 CRL.RP No. 1625 of 2016 v. The fine amount, if any, deposited by the accused shall be refunded to her on due identification. vi Registry is directed to return back the Trial Court records along with a copy of this order to the concerned Court, forthwith. The Karnataka State Legal Services Authority is directed to pay Rs.15,000/- as honorarium to Smt.Sowmya Ananth, learned Amicus Curiae for the respondent, who has assisted in this matter. SD/- (RAJESH RAI K) JUDGE VM List No.: 1 Sl No.: 18