B.S Kiran vs J. Rekha
2022 Latest Caselaw 9309 Kant

                             1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 22ND DAY OF JUNE, 2022

                       BEFORE

    THE HON'BLE MR. JUSTICE V. SRISHANANDA

          CRIMINAL APPEAL NO.357/2011

BETWEEN:

B.S. KIRAN,
S/O SRI. B.T. SRINIVASAIAH,
AGED ABOUT 34 YEARS,
R/O D.NO.262,
SIDDHI VINAYAKA BLOCK,
1ST CROSS, 4TH MAIN,
TEACHER'S LAYOUT,
MYSORE.
                                           ...APPELLANT

(BY SRI. K. A. CHANDRASHEKARA, ADVOCATE)

AND :

J. REKHA,
W/O. MAHESH,
AGED ABOUT 36 YEARS,
R/O. D. NO.304, 3RD CROSS,
RAGHAVENDRA NAGARA,
MYSORE.
                                      ...RESPONDENT

(BY SRI. J.S. HALASHETTI, AMICUS CURIAE)
                                    2


     THIS CRL.A IS FILED U/S.378(4) OF CR.P.C
PRAYING TO SET ASIDE THE ORDER DATED 24.02.2011
PASSED    BY   THE    III   ADDL.S.J., MYSORE IN
CRL.A.NO.145/2009 AND RESTORE THE ORDER DATED
20.10.2009 PASSED BY THE IV ADDL. I. CIVIL JUDGE
(JR.DN.) AND JMFC, MYSORE IN C.C. NO.532/2008
ACQUITTING THE RESPONDENT/ACCUSED FOR THE
OFFENCE P/U/S 138 OF N.I. ACT.

     THIS CRIMINAL APPEAL COMING ON FOR FINAL
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:-

                       JUDGMENT

Heard Sri. K.A. Chandrashekara, learned counsel for

the appellant/complainant and Sri. J. S. Halashetti, Amicus

Curiae for the respondent/accused.

2. The appeal is filed by the unsuccessful

complainant, who had launched prosecution against the

respondent herein by filing a private complaint under

Section 200 of Cr.P.C. seeking action against the

respondent for the offence punishable under Section 138

of the Negotiable Instruments Act, 1881 (hereinafter

referred to as the 'NI Act' for short).

3. Brief facts of the case are as under:

A complaint came to be filed under Section 200 of

Cr.P.C. contending that accused-respondent borrowed a

sum of Rs.3 lakhs on 03.05.2005 from the complainant

agreeing to repay the same within two years. An on

demand promissory note and consideration receipt was

also executed by the complainant in proof of the said

transaction. After repeated requests, an order to

discharge the liability covered under the on demand

promissory note, accused passed on a cheque bearing

No.154146 dated 25.06.2007 for a sum of Rs. 3 lakhs

drawn on South Indian Bank Limited, Mysuru in favour of

the complainant.

4. The said cheque on presentation got

dishonoroued with an endorsement "funds insufficient" on

13.07.2007. Thereafter, the complainant issued a legal

notice on 04.08.2007 through registered post

acknowledgement due.

5. The notice sent to the accused by RPAD

returned with an endorsement 'refused' and notice sent

under the certificate of posting stood duly served on the

accused. There is no reply to the callings of notice nor

compliance. Therefore, the complainant was constrained

to file the complaint seeking action against the accused.

6. The presence of the accused was secured

before the learned Magistrate after taking cognizance of

the aforesaid offence. Thereafter, plea was recorded.

Accused pleaded not guilty and therefore, trial was held.

7. In order to prove the case of the complainant,

complainant got examined as PW.1 and marked 8

documents, which were exhibited and marked as Exs.P1 to

P8.

8. On conclusion of the prosecution evidence,

statement of the accused as contemplated under Section

313 Cr.P.C was recorded, wherein accused denied all the

incriminatory circumstances found against her.

Thereafter, accused lead her evidence by examining

herself as DW.1 and Smt. G. S. Gunamba as DW.2, who is

the mother of the complainant. On behalf of the accused,

5 documents were marked, which were exhibited and

marked as Exs.D1 to D5.

9. On conclusion of the recording of the evidence,

learned trial Magistrate heard the parties and passed an

order of conviction convicting the accused for the offence

punishable under Section 138 of the NI Act and sentenced

the accused to undergo simple imprisonment for three

months and to pay fine of Rs.3,10,000/- with default

sentence of further simple imprisonment of three months.

After the deposit of fine amount, the same was ordered to

be paid as compensation to the complainant.

10. Being aggrieved by the judgment of conviction

and order of sentence passed by the learned trial

Magistrate, the accused preferred an appeal before the

District Court in Crl.A. No.145/2009.

11. Learned District Judge secured the trial Court

records and the presence of the complainant and also

heard the parties in detail.

12. On re-appreciation of the material on record,

the learned District Judge allowed the appeal filed by the

accused and dismissed the complaint filed by the

complainant by judgment dated 24.02.2011. Being

aggrieved by the same, the complainant is before this

Court.

13. In the appeal, following grounds have been

raised:

          "    1.         The    appellate       Court     erred       in

    acquitting        the       respondent       for    the    offence
    punishable under Section 138 of N.I. Act.                         The

impugned judgment and order suffers from serious legal infirmities and as such, the order of the learned Magistrate is required to be restored.

2. The appellate Court failed to notice that the appellant herein has placed all the material on record to attract the ingredients of Sec.138

of N.I. Act and are satisfied and hence he ought not to have allowed the appeal.

3. Since, the entire burden has been properly and clearly discharged by the appellant, it is for the respondent to rebut that there was no debt or liability. In the instant case the respondent has failed to do the same and therefore reversing the order of conviction by the appellate Court is not warranted.

4. The case of the appellant herein is that, the accused herein borrowed a sum of Rs.3,00,000/- from him on 03.05.2005, agreeing to repay the same within 2 years. Since, the accused is the neighbor of the appellant herein, the appellant paid the said amount to the accused. The accused, towards the discharge of the aforesaid liability issued the cheque Ex-P1 in favour of the appellant herein. The said cheque was returned and unpaid through the banker of accused with an endorsement funds insufficient. The appellant herein complying all the ingredients of the offence punishable under Section 138 of NI Act filed the complaint before the Learned Magistrate. The learned Magistrate after appreciation of entire material placed by both

the parties convicted the accused and sentenced her as stated supra. In an appeal, the Hon'ble appellate Court without proper appreciation of the material placed on record, reversed the finding of the Learned Trial Judge. The said order by the Hon'ble Appellate Court is liable to be set aside and the order of the Learned Magistrate is required to be restored.

5. It is admitted by DW-1 the accused in her evidence that cheque belongs to herself and the signature found on the said cheque is also belongs to herself. And further it was admitted by her during the cross examination that on demand by the complaint to return his amount of Rs.3,00,000/-, she had issued the cheque dated 25/10/2007 drawn on South Indian Bank. This crucial evidence of the accused has not been properly appreciated by the Hon'ble Appellate Court.

6. The Hon'ble Appellate Court only on the stray admissions of the DW-2, who is none other than the mother of the appellant herein passed the order of the acquittal.

7. The appellant herein in addition to the cheque Ex-P1, also produced on demand pronote issued by the accused herein, which

clearly shows that the accused towards the discharge of legally enforceable debt in favour of the appellant herein issued the cheque Ex.P1.

8. The findings of the Appellate Court are erroneous and liable to be set aside.

9. The First Appellate Court has left the important questions of law without being considered and there was no proper appreciation of evidence.

10. Even otherwise the order of acquittal passed by the Appellate Court is illegal, unjust and improper and liable to be set-aside and interference of this Hon'ble Court is absolutely required.

11. This appeal is in time."

14. Reiterating the above grounds, Sri. K. A.

Chandrashekara, learned counsel for the appellant

vehemently contended that the learned judge in the First

Appellate Court did not properly appreciate the material

evidence on record. He further contended that the reasons

assigned by the learned judge in the First Appellate Court

that the contents of Exs.D2 to D6 being aggrieved by the

mother of the complainant, who is examined as DW.2 has

no bearing while appreciating the case of the appellant and

sought for allowing the appeal.

15. In the absence of any proper representation to

the accused, despite appointing the amicus, who

represents the respondent, this Court perused the entire

records meticulously in the light of arguments put forth on

behalf of the appellant.

16. On perusal of the material on record, following

points would arise for consideration are:

"1. Whether the appellant/complainant has established all ingredients to attract the offence punishable under Section 138 of the NI Act?

2. Whether the judgment passed by the First Appellate Court acquitting the respondent for the offence punishable under Section 138 of the NI Act is suffering from legal infirmity or perversity and thus, calls for interference?

3. What order?"

17. Sri. J. S. Halashetti, learned Amicus Curiae for

the respondent supports the impugned judgment and

contends that the plea taken by the accused that the loan

was duly discharged has been established by the accused

by placing cogent and convincing evidence on record and

in view of the specific admission made by DW.2, who is

none other than the mother of the complainant contends

that Exs.D2 to D5 is in her hand writing and the defence

taken by the accused has been established by placing

cogent and convincing evidence on record and the same

has been rightly appreciated by the learned judge in the

First Appellate Court and sought for dismissal of the

appeal.

18. The complainant has also relied on 8

documentary evidences, which were exhibited and marked

as Exs.P1 to P8. Among the documents, Ex.P1 is the

dishonoured cheque, Ex.P2 is the Endorsement, Ex.P3 is

the office copy of legal notice, Ex.P4 is the COP receipt,

Ex.P5 is the Registered postal receipt, Ex.P6 is the

returned RPAD cover, Ex.P7 is the legal notice and Ex.P8 is

the on demand pronote.

19. In order to rebut the presumption available to

the complainant under the statute, the complainant has

stepped into the witness box and examined herself. In her

evidence, she has specifically deposed about the

transaction between the complainant and herself.

20. It is also specifically deposed by her that

whenever there was a need to borrow money, she use to

borrow money from the mother of the complainant and

she used to maintain an account in a note book and

whenever the amount is repaid through cheque that was

given by her to the mother of the complainant would be

returned to her. However, in respect of the loan

transaction, as per Ex.P8, even after the repayment of

money, the cheque was not returned and the same is

misused by the complainant who is none other than son of

DW.2 - G. S. Gunamba.

21. In her cross-examination, it is elicited that she

is a law graduate and having the knowledge of issuing the

cheque and not paying the money. She has specifically

answered in her cross-examination that when she was

enquired the mother of the complainant about the return

of the cheque, she has stated that the said cheque has

been misplaced.

22. In order to establish her case, she also got

examined Smt. G. S. Gunamba - D2, who is the mother of

the complainant. In her examination in chief she has

stated that the complainant is her son and he is a

contractor. She also stated about the acquaintance of

accused for 20-25 years and her mother also.

23. To that extent, she did not support the case of

the accused. Permission was granted by the Court to treat

her as hostile witness and permitted her for cross-

examination. In her cross-examination, she has stated

that the hand writing in Exs.D2 to D5, which is the note

book and letters are in her hand writing. She admits that

the content in those exhibits pertains to the transaction of

Krishnegowda and herself and Savithramma and herself.

She admits that she has not given the loan through

somebody else.

24. She denied that in Ex.D5, there is a mention as

to the transaction of the accused with her. She admits

that the transaction mentioned in Ex.D4 is the true

transaction. She admits that in Ex.D2, she has signed it

but the hand writing therein are not her hand writing. In

Ex.D2, she admits that the contents found in third page is

in her hand writing. She denies that on 16.02.2007 she

has received the entire money and signed beneath the said

endorsement.

25. The trial Court ignoring the said evidence

available on record and only proceeded to consider the

evidence placed by the complainant and convicted the

accused.

26. The learned judge in the First Appellate Court

in paragraph Nos.15 and 16 has held as under:

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16. F ªÉÆPÀzÀݪÉÄAiÀÄ°è ¦ügÁå¢AiÀÄÄ DgÉÆæUÉ ¢£ÁAR|| 3-5-2005 gÀAzÀÄ 3,00,000-00 gÀÆ¥Á¬ÄUÀ¼À£ÀÄß ¸Á®ªÁV PÉÆnÖgÀĪÀÅzÁV ºÉýzÀÝgÀÆ, vÀ£Àß §½ CµÀÄÖ zÉÆqÀØ ªÉÆvÀÛzÀ ºÀt EvÀÄÛ JA¨sÀ §UÉÎ AiÀiÁªÀÅzÉà ¸ÁPÀëöåªÀ£ÀÆß ºÁdgÀàr¹gÀĪÀÅ¢®è. EzÀ®èzÉÃ, 3,00,000-00 gÀÆ¥Á¬ÄUÀ¼ÀAvÀºÀ zÉÆqÀØ ªÉÆvÀÛªÀ£ÀÄß £ÀUÀzÁV DgÉÆæUÉ PÉÆqÀ¯ÁUÀ¬ÄvÀÄ JA§ ¦ügÁå¢AiÀÄ ¸ÁPÀëöåªÀ£ÀÄß ¸ÀÄ®¨sÀªÁV £ÀA§®Ä ¸ÁzsÀå«®è. ¥ÀæwgÀPÉë ¸ÁQë-2gÀªÀgÀ ¸ÁPÀëöåªÀ£ÀÄß JZÀÑjPɬÄAzÀ ¥Àj²Ã°¹zÀgÉ, £À£Àß C©ü¥ÁæAiÀÄzÀ°è ¸ÀzÀj ¸ÁQëAiÀÄ ¸ÁPÀëöåªÀÅ, DgÉÆæAiÀÄÄ ªÉÆPÀzÀݪÉÄAiÀÄ°è vÉUÉzÀÄPÉÆArgÀĪÀ ¥ÀæwgÀPÉëAiÀÄ£ÀÄß ¨ÉA§°¸ÀĪÀAvÉ EgÀÄvÀÛzÉ ªÀÄvÀÄÛ ¦ügÁå¢AiÀÄ vÁ¬Ä

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27. On perusal of the reasoning assigned by the

learned District Judge especially with regard to the

appreciation of the rebuttal evidence placed by the

accused, this Court is of the considered opinion that the

First Appellate Court has properly appreciated the rebuttal

evidence.

28. The First Appellate Court also placed reliance

on the judgment of Hon'ble Supreme Court that the

presumption available to the complainant under the

provisions of the NI Act is not absolute presumption but

the same is rebuttable presumption. When a rebuttal

evidence is placed on record, the Court is bound to

consider the rebuttal evidence in its proper perspective

and arrive at a conclusion that whether the cheque has

been dishonored which has been given for legally

recoverable debt and there is no compliance to the callings

of statutory notice.

29. In the case on hand, since there is a clear

admission by the mother of the complainant that the

contents in Exs.D2 to D5 are in her hand writing and only

with regard to the specific entry she has denied the

suggestions put on behalf of the accused. Learned judge

in the First Appellate Court has rightly appreciated that in

order to somehow recover the money from the accused,

she has given false evidence supporting the case of the

complainant. Further, there is a clear admission that

there was no transaction with the complainant except on

demand promissory note being signed by the accused.

Whether at all, it is the money that has been lent by Kiran

and for that purpose on demand promissory note is

executed is not properly proved by the complainant.

Further, there is a clear admission by DW.2 stating that

she has not lent any money in the name of Kiran to

accused. All these aspects of the matter when viewed

cumulatively, this Court is of the considered opinion that

learned judge in the First Appellate Court has rightly re-

appreciated the material evidence on record while passing

the impugned judgment whereby the accused/respondent

was acquitted.

30. On re-considering the material evidence on

record, in the light of the appeal grounds urged on behalf

of the appellant, this Court is of the considered opinion

that the complainant has not placed such evidence on

record so as to hold that the learned judge has passed

impugned judgment not considering the case of the

appellant in proper perspective.

31. Further, since in the absence of any further

proof placed which has been elicited through the cross-

examination of DW.2, this Court is of the considered

opinion that the complainant has not been able to establish

all ingredients to attract the offence punishable under

Section 138 of the NI Act and the accused has sufficiently

rebutted the presumption available to the complainant.

Accordingly, point No.1 is answered in negative.

Consequently, point No.2 is also answered in negative and

pass the following:

ORDER

i. Appeal is merit less and is hereby dismissed.

ii. The assistance rendered by Sri. J. S.

Halashetti, learned Amicus Curiae is placed on record with

appreciation.

Sd/-

JUDGE VBS