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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF OCTOBER, 2021
BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO.1176 OF 2019
BETWEEN:
KAMALA S.,
W/O. PARAMESHWARA K.,
AGED ABOUT 42 YEARS,
NO.19/A, SRIDARNAGARA,
KODIPALYA, SRIDHARAGUDDA,
KENGERI, BENGALURU-60.
... APPELLANT
[BY SRI. SANTHOSH KUMAR M.B., ADVOCATE]
AND:
BHARATHI,
W/O. YOGESH MURTHY H.S.,
AGED ABOUT 46 YEARS,
NO.42, 2ND MAIN, 3RD CROSS,
VIDYANAGARA, T.DASARAHALLI,
BENGLAURU-560 057.
... RESPONDENT
[RESPONDENT-SERVED AND UNREPRESENTED]
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (4) OF
CR.P.C., PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT DATED
06.05.2019 PASSED BY THE XXIII A.C.M.M., BANGALORE IN
C.C.NO.14148/2018 ACQUITTING THE RESPONDENT/ACCUSED FOR
THE OFFENCE P/U/S 138 OF THE N.I. ACT.
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THIS CRIMINAL APPEAL COMING ON FOR ADMISSION,
THROUGH VIDEO CONFERENCE/PHYSICAL HEARING, THIS DAY THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred against the judgment and order dated 06.05.2019 passed by the Court of XXIII Addl. Chief Metropolitan Magistrate, Nrupathunga Road, Bengaluru City, in CC No.14148/2018, acquitting the accused/respondent of offence punishable under Section 138 of N.I. Act.
2. Heard the learned counsel for the appellant. Though the respondent is served, there is no representation.
3. The main contention raised by the learned counsel for the appellant is that the trial court relying upon an unmarked document namely E-statement produced by the accused at the time of recording his statement under Section 313 of Cr.P.C. has held that the account number shown in the cheque stands in the name of husband of the accused and not the accused. He would contend that the said account could be the joint account of the accused and her husband and therefore, the trial court was not 3 justified in acquitting the accused, accepting the said document which was not marked in evidence.
4. The case of the complainant is that in the 1st week of January 2016, the accused approached the complainant seeking financial assistance as she was in dire need of money for her personal necessities, as such the complainant paid Rs.2,25,000/- by cash on 25.01.2016. Since the said amount was not paid and on demand by the complainant, the accused got issued a cheque bearing No.570792 dated 08.02.2018 drawn on Vijaya Bank Dasarahalli Branch, Bengaluru, for a sum of Rs.2,25,000/- towards discharge of outstanding amount due to the complainant. The said cheque when presented to the bank, came to be dishonoured with an endorsement "funds insufficient" on 12.02.2018. Further, a legal notice was issued to the accused by RPAD and in spite of service of notice to the accused on 14.02.2018, the accused neither paid the money covered under the cheque nor issued any reply. Therefore, committed an offence under Section 138 of N.I. Act.
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5. The complainant to establish her case got examined herself as PW1 and got marked Ex.P1 to P7. Accused did not enter into the witness box and did not mark any documents.
6. The defence of the accused is that she did not borrow any loan as alleged by the complainant and not issued the cheque towards discharge of legally recoverable debt. However, while recording her statement under Section 313 of Cr.P.C, she submitted her written statement stating that the cheque and signature was not of her and produced the particulars of statement of account issued by the Vijaya Bank, Dasarahalli Branch, Bengaluru and contended that the said account stood in the name of one Yogesh Murthy S.H.
7. The trial court has come to the conclusion that PW1 has not denied that the account stood in the name of Yogesh Murthy S.H. Therefore, held that the complainant has failed to discharge a reverse burden to prove that the questioned cheque belong to the accused and acquitted the accused. 5
8. The perusal of the order passed by the trial court goes to show that mainly relying on the E-statement of accounts produced by the accused at the stage of recording 313 Cr.P.C. statement, it has come to the conclusion that the complainant has failed to establish that the cheque in question was issued by the accused and the account was maintained by her. According to the complainant, the said Yogesh Murthy S.H. is the husband of the accused and the bank while issuing a memo, has not given any Endorsement to the effect that the account is not maintained by the accused. On the other hand, cheque was returned on the ground of insufficient funds. In this background, the trial court was not justified in placing reliance on the unmarked document to hold in favour of the accused.
9. It is no doubt true that the accused cannot be punished in respect of an unconcerned cheque. However, in the instant case, the complainant was not given an opportunity to dispute the e-statement or the document which was produced by the accused. Accused has not entered the witness box and the E-statement was also not marked in evidence. The opportunity to cross-examine the accused with respect to the said document 6 has been denied to the complainant. The trial court was also not proper in observing that the complainant has not taken any pain to examine the bank officials when the E-statement was produced by the accused. Further, the trial court has observed at para 22 of the judgment that the complainant has failed to prove the case by rebutting the presumption envisaged under Section 118 and 139 of N.I. Act, which observation is totally contrary to the said provision.
10. For all the above reasons, the impugned judgment passed by the trial court is not sustainable in law and same is liable to be set aside. Hence, the following;
ORDER Criminal appeal is allowed.
The judgment and order dated 06.05.2019 passed by the Court of XXIII Additional Chief Metropolitan Magistrate, Bengaluru City in CC No.14148/2018 is hereby set aside.
The matter is remanded back to the trial court with a direction to give an opportunity to both the parties to lead 7 evidence, in the light of the observations made herein above, after issuing notice and to decide the case in accordance with law.
The evidence already adduced shall be intact and not disturbed.
The complainant also undertakes to appear before the trial court within a period of fifteen days from the date of receipt of a copy of this judgment.
SD/-
JUDGE snc