Smt. Vanishree W/O Raju Sagarkar vs Mrs Jhansi Rani W/O Ravikant Manvi
2022 Latest Caselaw 9667 Kant

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           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

        DATED THIS THE 27TH DAY OF JUNE, 2022

                         BEFORE

           THE HON'BLE MRS.JUSTICE M.G. UMA

         CRIMINAL APPEAL NO.200036/2020

Between:

Smt. Vanishree W/o Raju Sagarkar,
Age: 42 years, Occ: Business & Agriculture,
R/o H.No.11-268, Vinoba Chowk,
Brahmampur, Kalaburagi.
                                                ... Appellant
(By Sri Ananth S. Jahagirdar, Advocate)


And:

Mrs. Jhansi Rani W/o Ravikant Manvi,
Aged about 47 years, Occ: Dentist,
R/o H.No.1-3-281/73-74,
Vijaya Nagara Colony, Ashapur Road,
Dist: Raichur-584101.
                                              ... Respondent
(By Sri Santosh S.Patil, Advocate)

      This Criminal Appeal is filed under Section 378(4)
R/w Section 372-Proviso of the Code of Criminal
Procedure, praying to allow this appeal and set aside the
judgment and order of acquittal dated 07.08.2019 passed
in C.C.No.8148/2015 on the file of II-Addl. Civil Judge and
JMFC, at Kalaburagi, and to pass all other appropriate
order as may be necessary in the facts and circumstances
of the case.
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      This appeal coming on for Hearing, this day, the
Court delivered the following:

                             JUDGMENT

The appellant-complainant is before this Court being

aggrieved by the impugned judgment of acquittal dated

07.08.2019 passed in C.C.No.8148/2015 by learned II-

Additional Civil Judge and JMFC, Kalaburagi, (hereinafter

referred to as 'Trial Court') acquitting the accused for the

offence punishable under Section 138 of the Negotiable

Instruments Act, 1881 (for short 'NI Act').

2. Brief facts of the case are that, the appellant

as complainant filed the private complaint in PCR

No.1005/2015 on the file of II-Additional JMFC, Kalaburagi,

against the accused alleging commission of the offence

punishable under Section 138 of the NI Act. It is alleged

that the accused had issued the cheque bearing

No.526190 dated 07.05.2014 for a sum of Rs.2,24,000/-,

drawn on ING Vysya Bank Ltd., Raichur and the cheque

bearing No.070205 dated 08.05.2014, for a sum of

Rs.1,80,000/- drawn on Axis Bank, Riachur, in favour of

the complainant towards repayment of legally recoverable

debt. When the said cheques were presented for

encashment, first cheque was dishonored as there was

insufficient fund with ING Vysya Bank and the second

cheque was dishonored as the account was closed with

Axis Bank. Even though legal notices were issued to the

accused calling upon her to repay the cheque amount, said

notices were not received by the accused and the same

were returned. It is stated that the accused knowing the

contents of the legal notices, returned the same to the

complainant. However, the accused had not repaid the

cheque amount and thereby, committed the offence

punishable under Section 138 of the Act.

3. The Trial Court took cognizance of the offences

against the accused and summoned her to appear before

the Court. The accused appeared before the Court and

pleaded not guilty and claimed to be tried. The

complainant examined herself as PW.1 and got marked

Exs.P1 to P11 in support of her contention. The accused

denied all the incriminating materials available on record in

her statement recorded under Section 313 of Cr.P.C.,

examined herself as DW.1 and she also got marked Exs.D1

to D10 in support of her defence.

4. The Trial Court after taking into consideration

all these materials on record came to the conclusion that

the complainant has not proved existence of the legally

recoverable debt, but on the other hand, the accused is

successful in proving her defence that she had already

repaid the loan obtained by her and therefore, the accused

is entitled to be acquitted. Accordingly, the impugned

judgment of acquittal was passed acquitting the accused

for the offence punishable under Section 138 of the NI Act.

5. Being aggrieved by the impugned judgment of

acquittal passed by the Trial Court, the complainant is

before this Court.

6. Heard Sri Ananth S. Jahagirdar, learned

counsel for the appellant-complainant and Sri Santosh S.

Patil, learned counsel for the respondent-accused.

7. Learned counsel for the appellant-complainant

submitted that the complainant is a housewife who lent the

amount of Rs.7,00,000/- to the accused who is a doctor by

profession. Towards repayment of the loan amount, the

accused issued two different cheques; one drawn on ING

Vysya Bank for Rs.2,24,000/- and other cheque drawn on

Axis Bank for Rs.1,80,000/-. When the cheques were

presented for encashment, first cheque was dishonored for

insufficient funds and the second cheque for the reason

that account is already closed. Inspite of issuance of

notice, cheque amount was not repaid. The accused

admitted issuance of Exs.P1 and P2 in discharge of legally

enforceable debt. She also admitted issuance of notice

and stated that she has instructed her counsel to give the

reply notice, but no reply was issued. Even though it is

contended that she has already repaid the cheque amount,

no cogent materials are produced before the Court in

support of the same. The accused relies on the registered

sale deed at Ex.D8 executed by her father in favour of the

complainant. It is altogether a different transaction

between the complainant and the father of the accused.

During the course of cross-examination of DW.1, she

specifically admitted that the sale deed was executed for

consideration which was received by her father. Under

such circumstances, the Trial Court has erred in acquitting

the accused. When the accused admits issuance of

cheques and also admits her signatures on Exs.P1 and P2,

presumption under Sections 118 and 139 of the Act arises

and it is for the accused to rebut the same. Even though

the accused examined herself as DW.1 and got marked

Exs.D1 to D10 in support of her contention, presumptions

have not been rebutted. When the accused has failed to

rebut the legal presumption, she is liable for conviction.

The Trial Court erred in ignoring all these legal position

and acquitting the accused. Therefore, he prays for

allowing the appeal and to convict the accused for the

offence punishable under Section 138 of the NI Act.

8. Per contra, learned counsel for the respondent-

accused submitted that the complainant has not proved

existence of legally recoverable debt. While filing the

complaint, the complainant has not stated as to when the

hand loan of Rs.7,00,000/- was granted. However, while

issuing legal notices, it is contended that the loan was

obtained by the accused during January, 2013. While filing

affidavit in lieu of examination-in-chief, it is stated that

during January 2013, the loan in question was obtained.

However, during the course of cross-examination, it is

specifically stated that it was during January, 2014 loan

was obtained.

9. He further contended that the accused had

obtained loan of only Rs.2,00,000/-. The same was repaid

to the complainant as evidenced by Exs.D1 to D7. Ex.D8

is the copy of the sale deed executed by the father of the

accused in favour of the complainant that was for

repayment of the loan amount. The accused categorically

stated that since the complainant was insisting and

harassing, father of the accused executed sale deed as per

Ex.D8. All these documents are admitted documents. No

prudent man would pay Rs.7,00,000/- once again after

getting sale deed executed during January, 2014, when

according to the complainant loan of Rs.7,00,000/- was

due to be paid by the accused. Thereby, the accused has

probabilized her defence. The Trial Court has taken into

consideration all these materials on record and acquitted

the accused. Therefore are no reasons to interfere with the

same and therefore, prays for dismissal of the appeal.

10. Perused the materials on record. Considering

the rival contentions of the parties, the following point

would arise for my consideration:

"Whether the appellant has made out a ground to interfere with the impugned judgment of acquittal passed by the Trial Court?"

My answer to the above point is 'Negative' for the

following:

REASONS

11. It is the specific contention of the complainant

that she had lent Rs.7,00,000/- to the accused. Of-course,

in the complaint, date, month and year of the said loan is

not mentioned. Legal notices are marked as Exs.P5, 9 and

10 wherein it is mentioned that during the year 2013 loan

of Rs.7,00,000/- was obtained by the accused. While filing

the affidavit in lieu of examination-in-chief, it is stated that

loan in question was obtained during January, 2013.

However, during the course of cross-examination, the

complainant states that it was not during January, 2013,

but it was during January, 2014 loan of Rs.7,00,000/- was

lent. Therefore, the complainant herself is not sure as to

when Rs.7,00,000/- was paid. The amount of

Rs.7,00,000/- during the year 2013 or 2014 is

considerably a big amount. According to the complainant,

she has not obtained any security for the same.

12. Ex.D8 is the registered sale deed admittedly,

executed by the father of the accused in favour of the

complainant and consideration amount mentioned therein

was Rs.7,20,000/-. The accused who is examined as DW.1

specifically stated that since the complainant was insisting

and harassing for repayment of the loan amount, the sale

deed in question was executed in respect of earlier loans.

The accused has produced Exs.D1 to D7, the counter

vouchers for having transferred the amount to the

complainant. All these documents are undisputed by the

complainant.

13. Now the question that is before this Court is as

to whether the complainant proves existence of legally

recoverable debt even after execution of the sale deed as

per Ex.D8. Except oral testimony of the complainant, there

is absolutely no other material in support of such

contention. If at all, the complainant had lent hand loan of

Rs.7,00,000/- during January, 2013 or January, 2014, the

contention of the complainant that she again paid

Rs.7,20,000/- as consideration for registration of sale

deed, copy of which is produced as per Ex.D8 is most

improbable. On the other hand, defence taken by the

accused that towards discharge of the loan that was due to

the complainant, the sale deed was executed by her father

as per Ex.D8 is a probable defence.

14. When the complainant contends that the loan

was due, there is legally recoverable debt and that

cheques in question were issued in discharge of said

amount and produces cheques and legal notices, the

complainant is successful in placing prima facie materials

which gives rise to presumption under Sections 118 and

139 of the NI Act. It is for the accused to take defence

and probabilise the same. In the present case, the accused

has taken specific defence and produced Exs.D1 to D8. All

these documents are not disputed by the complainant.

When it is the contention of the complainant that an

amount of Rs.7,00,000/- was due from the accused and it

is admitted that as per Ex.D8, sale deed was executed in

respect of open site by the father of the accused in favour

of the complainant, defence taken by the accused that the

sale deed was towards discharge of legally recoverable

debt is more probable. Therefore, I am of the opinion that

the accused is successful in probabilising her defence.

Hence, she is not liable for conviction.

15. I have gone through the impugned judgment

of acquittal passed by the Trial Court. It has taken into

consideration the evidence of the material witnesses and

arrived at a right conclusion. The appellant-complainant

has not made out any ground to interfere with the

impugned judgment of acquittal passed by the Trial Court.

Therefore, I am of the opinion that the respondent-

accused is not liable for conviction.

16. Hence, my answer to the above point is in

negative and I proceed to pass the following:

ORDER

Criminal Appeal is dismissed.

Sd/-

JUDGE NB* Ct: SMP