Karnataka High Court
Kamala S vs Bharathi on 28 October, 2021
Author: Mohammad Nawaz
1
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]
***
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.
2
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
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.
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.
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
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
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
