Smt L Padma vs S Nagabhushan
2022 Latest Caselaw 5357 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. 865/2011

BETWEEN

SMT L PADMA
W/O.C BYRAPPA
AGED ABOUT 45 YEARS
R/AT.NO.301/2
34TH A CROSS,9TH MAIN
4TH BLOCK, JAYANAGARA
BENGALURU-11.
                                                 ...APPELLANT

(BY SRI.LOKANATH K., ADV.(VC))

AND

S NAGABHUSHAN
S/O.SROJULU NAIDU
R/AT.NO.985, 9TH MAIN
PRAKASH NAGAR
BENGLAURU-21.

                                               ...RESPONDENT

(BY SRI.H.M.MURULIDHAR, ADV.(VC))

      THIS CRL.A. IS FILED UNDER SECTION 397 R/W 401
CR.P.C PRAYING TO SET ASIDE THE ACQUITTAL DATED:17.1.11
PASSED BY THE XXXVI ADDL.C.C. AND S.J., BANGALORE IN
CRL.A.NO.965/06 AND CONFIRM THE ORDER DATED:5.5.06
PASSED     BY   THE     XVI   ACMM,    BANGALORE     IN
C.C.NO.34305/1999.
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      THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:



                          JUDGMENT

This appeal filed by the appellant-complainant

under section 378 (4) of Cr.P.C for setting aside the

order of acquittal passed by XXXVI Additional City Civil

and Sessions Judge, Bengaluru, in Crl.A.No.965/2006

dated 17.1.2011 for having reversed the judgment of

conviction and sentence passed by the XVI Additional

Chief Metrolpolitan Magistrate, Bengaluru in

CC.No.34305/1999 dated 05.05.2006 for the offences

punishable under Section 138 of Negotiable

Instruments Act, 1881.

2. Heard the learned counsel for appellant and

learned counsel for respondent appearing through

video conference.

3. The rank of the parties before the trial court

is retained for the sake of brevity and convenience.

4. The case of the complainant before the trial

court is that the accused said to have approached and

obtained the hand loan of Rs.1,00,000/- with an

assurance to repay the same with 2% interest per

month. In February 1998 the complainant requested

the accused to repay the loan and waited till April

1998 and prior to that, the accused said to have

issued post dated cheques with assurance to present

the same with the amount of Rs.1,00,000/-.

Accordingly in April 1998 the complainant presented

the cheque on 30.04.1998 which was dishonoured for

'insufficient fund' on 05.05.1998, therefore legal

notice was issued to the accused which was not

claimed by the accused and it was returned back.

Accordingly complaint under Section 200 of Cr.P.C

came to be filed for the offences punishable under

Section 138 of NI Act.

5. The plea was recorded, the accused denied

the charges and claimed to be tried. Accordingly the

complainant himself was examined as PW1 and got

marked 5 documents and statements under Section

313 Cr.P.C was recorded. The case of the accused

was totally denied and he has entered into defense by

examining himself as DW1 and got marked 11

documents. After the arguments the trial Court found

the accused guilty and convicted him vide judgment

dated 05.05.2006. Being aggrieved by the same the

accused prepared an appeal before the Sessions Judge

in Crl.A.No.965/2006 which came to be allowed and

acquitted the accused. Being aggrieved by the

judgment of acquittal, the complainant filed the

appeal before this Court at first instance in Crl.A.No.

881/2008 wherein this court allowed the appeal on

23.10.2010 and remitted it back to the first appellate

court for fresh consideration with a direction to follow

the decision of Hon'ble Supreme Court in Rangappa

VS Mohan reported in AIR 2010 SCC 1898 and after

remanding the matter back to the first appellate court,

again the first appellate court re-heard the arguments

in Crl.A.No.969/2006 and again acquitted the accused

vide judgment dated 17.12.2011 which is under

challenge before this Court.

6. The learned counsel for the appellant has

contended that the trial court rightly convicting the

respondent by considering the documents on record

but the first appellate court committed error in

reversing the said judgment and acquitting the

respondent. Even though the judgment and the

document relied by the respondent accused i.e. Ex.P1

and 2 were discussed by the trial court where there is

no reference in respect of the cheque which was

obtained by the complainant's sister by force. The

legal notice was duly sent to the respondent accused

but it was not claimed, therefore it cannot be said as

it is not served on him. But it is not claimed, which

also attracts offence under Section 138 of NI Act and

it is deemed to be served on the respondent. The

complaint filed by the respondent against Sisters and

others in Crime No.75/1998 for kidnapping and other

offences were ended in acquittal. Such being the case

the first appellate court committed error in

disbelieving the evidence of the complainant holding

that there is no legally recoverable debt is not correct.

Therefore prayed for setting aside the judgment of the

first appellate court and requested for confirming the

judgment of the trial court.

7. Per Contra the learned counsel for the

respondent have supported the judgment of the first

appellate court and contended that, at first instance

the first of appellate court acquitted the respondent-

accused and again in the appeal this court set aside

the judgment of the first appellate court with a

specific direction to consider judgment of Hon'ble

Supreme Court in Gangappa's case stated supra and

subsequently the first appellate court after the

remand re-heard the arguments and re-appreciated

the evidence on record and especially at Para 14 of

the judgment categorically held that there is no legally

recoverable debt and the respondent accused remitted

the presumption available to the complainant under

Section 139 of NI Act and recent judgment passed by

the first appellate court on second time confirming the

acquittal. The respondent having contention in the

trial court that the sister of the complainant abducted

the accused along with the others, a kidnapping case

was filed, a charge sheet also filed against her, where

the sister of the of the complainant obtained the

signature on the blank cheques and one of the

cheques was presented by her sister and also filed

criminal case against the same respondent in respect

of cheque No.9155 dated 15.01.1998, in such case

the respondent was acquitted by the trial court vide

judgment dated 03.08.2001 and one of the cheque

was given to the hands of this appellant and she has

presented it on 30.04.1998. In the meanwhile in

01.04.1998 a criminal case was registered against the

sister of the appellant and there is no whisper

anything about the cheque given by this accused to

the hands of the complainant. If at all the accused

borrowed any loan, she could have presented the

cheque immediately after the registration of the

crime, but respondent was in judicial custody between

01.04.1998 and 06.04.1998 and this cheque was

purposely presented to harass the respondent

accused. Therefore it is contended absolutely there is

no legal recoverable debt payable by the respondent

to the complainant and the respondent-accused

successfully rebutted the presumption available to the

complainant under Section 138 of NI Act. Therefore

prayed for dismissing the appeal and confirm the

judgment of the first appellate court.

8. Having heard the arguments and perused the

records, the point that arises for consideration is,

a. Whether there is any legally recoverable debt

to be payable by the accused to the complainant and

the cheque was issued which was dishonoured for

insufficient of funds, thereby accused committed

offence under Section 138 of NI Act?

b. Whether judgment of the first appellate court

is called for interference by this Court?

9. On perusal of the record, the complainant

herself examined PW1 and got marked 5 documents.

The Ex.P1 is Cheque, P2 is endorsement, P3 is copy of

legal notice, P4 is Unserved Postal envelope and P5 is

UCP receipt. Though the contention raised by the

respondent that notice was not served in the first

instance and the complainant stated that the notice

was returned un-claimed it is deemed to be serviced.

It is well settled by the Hon'ble Supreme Court and

various judgment if the notice issued and returned for

any other reasons, it cannot be said it is served. But

here in this case Ex.P4 un-served postal envelope

reveals the postal authorities delivered the intimation

to the addressee and waited for some time for

claiming and it was not claimed by the accused-

respondent and it was returned to the centre, which

amounts for deemed service of notice. However,

coming to the legal issue regarding the legally

recoverable debt, the complainant has stated the

accused borrowed loan of Rs.1,00,000/- and given

cheque with assurance to repay the same with interest

and waited till April 1998. The respondent did not

repay the loan, therefore cheque was presented. But

the accused taken the contention that there is no

legally payable debt and cheques were forcefully

obtained by her sister by kidnapping the accused.

And to prove the same he has produced the

documents at Ex.D1 complaint filed by him to the

police, Ex.D2 is the FIR registered by the police in

Crime No.95/1998 for the offences punishable under

Section 363 and 365 of IPC for and Ex.D3 is charge

sheet filed by the police for the offence punishable

under Section 363 and 506 (II) read with 34 of IPC

against almost 16 accused persons and sister of the

complainant is one of the accused. It is also not in

dispute that the sister of the accused Sujata Ganesh

was the accused and after facing the trial she was

acquitted by trial court. Ex.D4 is the copy of the

judgment passed by 16th ACMM in C.C. No.4471/1999

dated 03.08.2001 where the sister of the complainant

filed a cheque case under Section 138 of NI Act for

having issued a cheque bearing No.9155 dated

15.01.1998 and that case also ended in acquittal. The

appeal said to be against judgment but no findings or

judgment produced before this Court to show that the

judgment of the acquittal was reversed by the

appellate Court. But the fact remains the respondent

accused was acquitted by the trial court and the

cheque which is also adjacent to the Cheque No. 9158

which is pending under consideration before This

court. The cheque in which 9155 issued by the same

accused to the sister of the complainant was ended in

acquittal. But the cheque No.9158 Ex.D5 is another

judgment where the cheque pertaining to cheque

No.9156 also filed by the brother of this complaint

against this respondent was ended in acquittal. Ex.D6

is another case in C.C.No.34210/1999 filed by Suresh

against this respondent in respect of a cheque bearing

No.009153 dated 16.12.1997 also ended in acquittal.

The another case in C.C.No.4897/1999-Ex.D7 in

respect of a complaint filed against the respondent

said to be filed by one Kalavathi against the

respondent was ended in acquittal. At this stage, the

learned counsel for the appellant has also produced

the judgment of this Court in passed in connected

three appeals in Crl.A.No.1356/2001 C/W

Crl.A.No.1519/2001 and Crl.A.No.1520/2001 and

against the acquittal of the respondent by the trial

Court in respect of Ex.D4 to Ex.D6 where the trial

Court acquitted the respondent for the offence under

Section 138 of N.I. Act which were marked as Ex.D4

to Ex.D6 were reversed by this Court by the judgment

dated 23.06.2006 and the respondent was convicted.

Admittedly, the respondent taken plea that the sister

of the complainant and others abducted these

respondents and they obtained the blank cheques and

signature forcibly. But Ex.D2-FIR and Ex.D3 charge-

sheet does not reveal anything about snatching the

cheques or blank cheques given by the accused

persons in the said case. That apart, the very criminal

case filed by the respondent against the sister of the

complainant and others were ended in acquittal. The

Co-ordinate Bench of this Court in connected matters

in Criminal Appeals No.1356/2001 C/W

Crl.A.No.1519/2001 and Crl.A.No.1520/2001 dated

23.06.2006 have categorically held at paragraph No.5

which is as under:

"The accused has produced Exs.D.1 and D.2 - Charge Sheet relating to complaint against the complainant for an offence of kidnap. The production of

charge-sheet is not a substantive evidence to prove the contents therein. The accused should have necessarily examined the witnesses cited in the charge-sheet to prove the theory of kidnap. That apart, the witnesses to the episode of kidnap viz.

C.Ws.5,6,7 and 8 have made a statement that accused Nos.1 to 8 forcibly kidnapped the accused-complainant and his wife and took them by car. The statements do not refer to taking cheque by coercion or taking signature on any blank papers. At the cost of repetition it is to be said that bare production of charge-sheet is not a substantive proof of the theory of kidnap.

The accused should have examined the necessary material witnesses in the charge-sheet to prove the defence theory. In the absence of such evidence it is to be held that the accused has failed to prove that the cheque is issued under voidable circumstances and thus failed to adduce necessary evidence to rebut the

presumption under Section 129 of N.I.

Act."

The Co-ordinate Bench of this Court has

reversed the findings of acquittal passed by the trial

Court in three cases and convicted the respondent.

The criminal case filed by the respondent for

kidnapping also ended in acquittal. Therefore, Ex.D1

to Ex.D7 relied by the respondent will not come to

rescue of the respondent for any purpose. Of course,

the respondent also filed a private complaint against

this appellant and others which was registered in PCR

No.185/2000 which was referred to the Police for

registering the FIR. But no documents is produced as

to what has happened to the investigation from last

22 years. Such being the case, based upon these

documents produced by the respondent, the First

Appellate Court holding the respondent rebutted the

presumption under Section 138 of the N.I. Act cannot

be acceptable. On the other hand, the issuance of

cheque was not in dispute and signature also not

denied by him. The notice was duly sent by the

complainant to the address of the respondent and the

intimation was delivered, but he has not claimed the

same, which amounts to deemed service of notice and

he has not given any reply. Such being the case, the

First Appellate Court by giving findings and reversing

the judgment of the trial Court which was convicted

the respondent herein in the first instance is not

correct. Therefore, the complainant is able to prove

the case against the respondent that the cheque

issued by the respondent for discharging the debt

which was dishonored for want of sufficient funds and

hence, the trial Court has rightly hold that after

proving the evidence on record convicted the

respondent as the First Appellate Court committed

error in acquitting the respondent. Therefore, the

judgment of the First Appellate Court is required to be

set aside.

Accordingly, the appeal is allowed.

The judgment of the First Appellate Court in

Crl.A.No.965/2006 dated 17.01.2011 is hereby set

aside and the judgment of the trial Court in

C.C.No.34305/1999 dated 05.05.2006 is hereby

restored.

In view of disposal of the petition, all pending

I.As do not survive for consideration and the same are

disposed of.

Sd/-

JUDGE AKV/GBB