Smt. Vyshali vs Smt. Bharthi G
2022 Latest Caselaw 5347 Kant

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      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 24TH DAY OF MARCH, 2022

                          BEFORE

          THE HON'BLE MR. JUSTICE K.NATARAJAN

              CRIMINAL APPEAL No.1398/2019

BETWEEN

SMT. VYSHALI
W/O KESHAVE GOWDA,
AGED ABOUT 33 YEARS,
RESIDING AT HASSAN - 573 201.

PRESENTLY RESIDING AT
NO.10, 1ST CROSS, 3RD MAIN,
SHANTHI NAGAR
HASSAN - 573 201.                            ... APPELLANT

(BY SRI. V F KUMBAR, ADVOCATE (VIDEO CONFERENCE))

AND

SMT. BHARTHI G
AGED ABOUT 35 YEARS
RETIRED POLICE,
ADIMANE ROAD,
1ST CROSS, ADARSH NGAR,
HASSAN - 573 201,

AND ALSO AT
BHARATHI G,
LAKSHMI BANGLE STORES,
ADIMANE ROAD,
1ST CROSS, ADARSH NAGAR,
HASSAN-573201.                           ...RESPONDENT

(BY SRI. CHETHAN B, ADVOCATE)
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     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT OF
ACQUITTAL DATED 15.04.2019 PASSED BY THE PRINCIPAL
CIVIL JUDGE AD JMFC, HASSAN IN C.C.NO.4843/2017
ACQUITTING THE RESPONDENTS/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 138 OF THE N.I. ACT.

     THIS CRIMINAL APPEAL COMING ON FOR HEARING
THROUGH VIDEO CONFERENCING THIS DAY, THE COURT
DELIVERED THE FOLLOWING:


                         JUDGMENT

This appeal is filed by the appellant-complainant

under Section 378(4) of Cr.P.C. challenging the order of

acquittal passed by the Principal Civil Judge and JMFC,

Hassan in C.C. No.4843/2017 dated 15.04.2019.

2. Heard learned counsel for the parties and

perused the records.

3. For convenience, the parties are referred to as

per their ranking before the trial Court.

4. The case of the appellant-complainant is that she

filed a complaint under Section 200 of Cr.P.C. for the

offence punishable under Section 138 of Negotiable

Instruments Act, 1881 (hereinafter referred to as 'Act')

alleging that respondent-accused borrowed loan of

Rs.5,75,000/- for meeting family exigencies on 07.04.2017

promising to pay the same within June 2017. The accused

did not pay the same. When the complainant demanded

for return of the loan, the accused issued two cheques,

one on 10.07.2017 for the sum of Rs.2,90,000/- and

another on 24.07.2017 for the sum of Rs.2,85,000/-.

When the said cheques were presented for encashment,

they were returned as 'insufficient funds'. Hence, notice

was issued and evasive was reply filed by the respondent-

accused. Hence, the complainant filed a private complaint

before Magistrate in C.C. No.4843/2017. After registering

the case, the accused examined herself as P.W.1 and got

marked 9 documents. After recording the statement of the

accused under Section 313 of Cr.P.C., the respondent-

accused entered appearance and examined herself as

D.W.1 and marked 5 documents. After hearing the

arguments and on going through the documents, the trial

Court found that the respondent-accused was not guilty

and acquitted the accused by its impugned order, which is

under challenge.

5. Learned counsel for the appellant submits that

the trial Court committed an error in acquitting the

respondent-accused. In fact, the respondent-accused

borrowed money and to discharge the liability, she issued

two cheques for Rs.5,75,000/-. The trial Court has wrongly

acquitted accused by relying upon admission given by the

appellant-complainant in the cross examination. The

respondent-accused approached and borrowed loan of

Rs.5.00 lakhs and two cheques were issued to the

complainant for Rs.5,75,000/-. But the trial Court has

acquitted the accused holding that the complainant has not

proved the fact that she has paid Rs.5,75,000/-. Hence,

learned counsel prayed for allowing the appeal.

6. Per contra, learned counsel for the respondent-

accused submitted that the respondent-accused has

rebutted presumption in favour of the appellant-

complainant, and both the appellant and respondent are

the members of Puradamma Mahila Swasahaya Sangha

and the members borrow money from the banks by

repaying the same on monthly installments and

accordingly, they borrowed the sum of Rs.4.00 lakhs from

the bank and distributed the same among themselves. A

book pertaining to the Society in this regard is also

maintained register by the Sangha. Ex.D.4 -Bank pass

book and Ex.D.5-the book mainained by the Sangha was

also produced before the trial Court. Considering the fact,

though the trial Court has acquitted the respondent-

accused, has wrongly held that the contention of the

complainant is not proved by the respondent-accused and

proceeded to dismiss the criminal case. The learned

counsel has also contended that a detailed reply has been

given by the respondent-accused as per Ex.D.1. He

contended that there is no legal enforceable debt payable

to the appellant-complainant. Hence, prayed for dismissal

of the appeal.

7. Having heard learned counsel appearing for the

parties and on perusal of the records, the point that would

arise for consideration of this Court is as follows:

" Whether the trial Court has committed an error in acquitting the respondent-accused, which calls for interference ?"

8. Perusal of the records would reveal that the

appellant-complainant has stated in her evidence in the

examination in chief that the respondent-accused

borrowed loan of Rs.5,75,000/- and to discharge the loan,

the respondent issued two cheques for Rs.2,90,000/- and

for Rs.2,85,000/-. But in the cross examination, the

appellant has admitted that the respondent approached

her for loan of Rs.5.00 lakhs and she has paid only Rs.5.00

lakhs to respondent. Based upon the admission, the trial

Court has acquitted the respondent-accused as loan of

Rs.5.00 lakhs was given and the cheques were given for

Rs.5,75,000/-. There is no averment in the complaint that

the respondent was given loan of Rs.5,75,000/-. It should

not be forgotten that the Central Government demonitised

the old currency notes on 08.07.2016 and a notification

was issued for returning the old currency notes till

December, 2016 and time was extended further. In view

of the new currency notes issued by the Central

Government, there was restriction for drawing the cash of

more than Rs.20,000/- per day for an account holder. Only

online transaction were allowed for payment of more than

Rs.20,000/-. Such being the case, the contention of the

appellant-complainant that she has paid Rs.5.00 lakhs by

cash to the respondent on 07.04.2017, is not acceptable.

9. That apart, the contention of the respondent

reveals that there was a register maintained by the

Sangha where the appellant-complainant and the

respondent-accused and few others are all the members of

the Sangha. The members of Sangha borrow money from

bank, distribute among themselves and make entries in

the registry maintained in the Sangha. They used to repay

it with meager amount of Rs.100/-, Rs.150/- per day and

whenever they have money. The balance also will be

mentioned in the register. On looking to the document, it

reveals that the members borrowed loan from bank and

repaid Rs.100/- and Rs.150/- per day a week, and also

whenever they got some money. After collection of the

entire amount, they used to deposit the same to the bank

as repayment of loan. Here in this appeal, paying such

huge amount to the respondent-accused by the appellant

complainant is not acceptable. Apart from that, the

complainant and other members i.e. almost 20 members,

have borrowed some amount. Therefore, it reveals that

the complainant and other members of the society have

borrowed some amount from the bank and distributed

among themselves and paid to the bank by collecting the

excess. Such being the case, the amount of Rs.5,75,000/-

paid to the respondent-accused by the appellant-

complainant does not arise. The trial Court is right in

coming to the to the conclusion that legally recoverable

debt is not proved by the complainant.

10. On perusal of the entire record and evidence of

the respondent-accused, she has categorically denied

liability on her part. In fact, the respondent-accused has

rebutted the presumption under Section 139 of the Act

available to the complainant. Such being the case, there is

no ground warranting to interfere with the order of

acquittal passed by the trial Court.

The appeal is devoid of merits and it is accordingly

dismissed.

Sd/-

JUDGE

Cs/-