Girish S K vs Smt. Shubhalatha Mani
2022 Latest Caselaw 5648 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 29TH DAY OF MARCH, 2022

                     BEFORE

       THE HON'BLE MR.JUSTICE K.NATARAJAN

       CRIMINAL APPEAL NO.816 OF 2011

BETWEEN:

GIRISH S.K,
S/O SHANKRAPPA,
AGED ABOUT 33 YEARS,
PROPRIETOR NANDI POWER POINT,
UPS-BATTERIES DISTRIBUTORS,
SHOP NO:2, CHRUCH ROAD,
MCC-A BLOCK, DAVANAGERE-CITY.          ...APPELLANT

(BY SRI M.R.HIREMATHAD, ADVOCATE)

AND:

SMT.SHUBHALATHA MANI,
W/O SUDESHKUMAR,
AGED ABOUT 32 YEARS,
TAXI OWNER AND TOURS CONSULTANT,
C/O D.NO:2499/16, (1ST FLOOR),
1ST MAIN, 4TH CROSS, VIDYANAGARA,
DAVANAGERE.                          ...RESPONDENT

(BY SRI D.PRABHAKAR, ADVOCATE)
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      THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) OF THE CR.P.C PRAYING TO SET ASIDE THE ORDER
DATED: 01.06.11 PASSED BY THE PRL.SR.CIVIL JUDGE
AND CJM, DAVANAGERE IN C.C.NO.2187/09 - ACQUITTING
THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138
OF N.I.ACT.
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     THIS CRIMINAL APPEAL COMING ON FOR
HEARING THIS DAY, THROUGH PHYSICAL HEARING
THE COURT DELIVERED THE FOLLOWING:

                    JUDGMENT

This appeal is filed by the appellant/complainant

under Section 378 of Cr.P.C challenging the acquittal

dated 1.06.2011 passed by the Principal Senior Civil

Judge and CJM, Davanagere, in C.C.No.2187/2009.

2. Heard the arguments of the learned

counsel for the appellant/complainant and

respondent/accused.

3. For the sake of convenience, the rank of

the parties before the Trial are retained for brevity.

4. The case of the complainant is that the

complainant and husband of the accused are friends.

Husband of the accused in order to purchase Tata

Indica Car has approached the complainant and

borrowed loan of Rs.85,000/- for having raised loan

before Mahindra and Mahindra Financial Company.

The complainant himself offered surety for the loan

amount of the accused. Subsequently, the accused

undertakes to repay the loan amount and accordingly,

in the month of December 2005 has issued a cheque

bearing No. 049510 dated 28.12.2005 when it was

presented for realization to the bank, it came to be

dishonoured on the ground of 'Funds Insufficient'.

Hence, legal notice was issued to the accused as per

Ex.P.3 and reply was sent by the accused as per

Ex.P6, but the accused failed to repay the amount,

therefore, a complaint came to be lodged under

Section 200 of Cr.P.C. for the offence punishable

under Section 138 of N.I. Act against the

respondent/accused.

5. After taking cognizance, the Trial Court

issued a notice to the accused. The accused appeared

before the Trial Court and her plea was recorded

wherein she pleaded not guilty and denied the charges

levelled against her.

6. The complainant in order to prove his case

examined himself as P.W.1 and got marked 7

documents Exs.P.1 to P.7. On behalf of

respondent/accused, the respondent-accused

examined herself as D.W.1 and got marked one

document as Ex.D1-Agreement and Ex.D1(a)

signature of witness in the cross examination of

P.W.1.

7. The Trial Court after hearing the

arguments, found the accused not guilty and acquitted

accused/respondent which is under challenge before

this Court in this appeal by the complainant.

8. The learned counsel for the appellant

contended that the appellant/complainant paid the

loan of Rs.85,000/- for the purpose of down payment

for purchasing the vehicle and also offered guarantee

to the loan amount payable by the

respondent/accused and at the time of raising loan

respondent has given blank signed cheque to the

Mahindra and Mahindra finance company and after

repayment of the loan, the Finance company handed

over entire document to the respondent and the

respondent had confronted the document in the Cross-

examination of the P.W.1 which is marked as Ex.D.1-

Agreement. Based upon Ex.D1, Agreement, the Trial

Court acquitted the respondent/accused which is not

correct. There is a reply from the respondent/accused

for the legal notice issued to the respondent-accused

as per Ex.P.3 and about Ex.D1, Agreement, there is

no mention in the reply vide Ex.P.6. At one stretch, it

is stated that she has given 21 cheques and

subsequently says she has given 11 cheques. There is

no consistency in the defence taken by the

respondent/accused. He further contends that

appellant/complainant and respondent/accused were

present before the Bhoothanatheshwara Temple and

as per Ex.P.7, accused has admitted the loan payable

to the complainant. Hence, prayed for reversing the

judgment and convicting the accused - respondent.

8. On the other hand, learned counsel

appearing for the respondent/accused supports the

judgment of the Trial Court and contended that the

respondent-accused as per Ex.D1 in the cross-

examination, where P.W.1 himself admitted the

document and signature on it which clearly shows that

he has received Eleven cheques for the purpose of

security as he stood as a guarantor for a loan taken by

the respondent-accused. Therefore, there is no error

or irregularity committed by the Trial Court in

acquitting the accused. Hence, he prays for dismissal

of the appeal.

9. Having heard the learned counsel for the

parties and after perusing the material placed on

record, the point that arise for consideration of this

Court is:

"1. Whether the judgment of the Trial

Court in acquitting the accused has called for

any interference?"

10. Having heard the arguments of the

learned counsel for the parties and perusal of the

record Ex.P.1 the cheque in question stated to be

issued by the respondent/accused, signature on the

cheque is not in dispute. The cheque was dishonoured

for insufficient funds. Ex.P.3 is the legal notice issued

by the appellant-complainant demanding for

repayment of Rs.85,000/-. Though the accused has

stated in the reply notice that she has given 11

cheques to the complainant at the time of purchasing

the car from the Mahindra and Mahindra Finance

Company but not have whispered anything about

Ex.D.1 executed by the complainant in favour of the

respondent. Ex.D.1 was filed before the Court in the

year 2010, during the pendency of the proceedings by

recalling P.W.1 which is marked at the time cross-

examination of P.W.1. Absolutely, there is no

reference in Ex.P.6 about the execution of Ex.D1 by

the complainant in favour of the respondent. On the

other hand, in the cross-examination in the evidence

of the respondent-accused has admitted that she had

borrowed loan from Mahindra and Mahindra Finance

Company for the purpose of purchasing vehicle,

whereas for the purpose of purchasing the car, have

to pay the down payment to the company. The

appellant/complainant has stated that he himself paid

down payment for purchase of the car. The

respondent-accused has given promise before the

advocates as well as before the two witnesses in the

temple as per Ex.P.7 by admitting the cheques given

by her and amount was payable to the complainant.

However, the said document Ex.P.7 was not proved by

the complainant by examining the President of the

Temple or any of the witnesses. However, Ex.P.7 was

not seriously disputed by the respondent/accused. Be

that as it may, on perusal of the cheque in question

which was issued by the respondent/accused person

was not in dispute. The appellant/complainant has

stated that it was for the security purpose he has

handed over 11 cheques given by the accused. The

respondent has not examined any of the authorized

person of the Finance company or not produced any

counter file of the cheque book to show that cheques

were handed to the Finance Company. Therefore, the

defence taken by the accused before the Trial Court

has to be proved at least to believe that there is

preponderance of probabilities that the cheque was

not given for pre-existing liability by only as a

security. On the other hand, presumption under

Section 139 of the N.I.Act is available to the

complainant when the issuance of the cheque and the

signature on the cheque is admitted by the accused-

respondent. The accused is required to rebut the

presumption by leading evidence by mere denial of

issuance of some cheque without mentioning Ex.D1-

agreement in the reply as stated at undisputed time.

the Trial Court has committed an error in accepting

Ex.D.1 and in acquitting accused. The Trial Court has

committed error in accepting the defence of the

accused by disbelieving P.W.1 and its documents.

Therefore, the judgment passed by the Trial Court

needs to be reversed.

In view of the above, I pass the following:

ORDER

i) The appeal is allowed.

ii) The judgment and order of acquittal

passed by the Principal Senior Civil Judge and CJM,

Davanagere, in C.C.No.2187/2009 dated 1.06.2011 is

hereby set aside and the accused is convicted for the

offence punishable under Section 138 of the N.I Act.

iii) Accused is sentenced to pay the fine

amount of Rs.1,25,000/- and in default to pay the fine

amount, she shall undergo simple imprisonment for a

period of six months.

iv) Out of the fine amount collected, the

complainant is entitled for a sum of Rs.1,20,000/- as

compensation under Section 357 of Cr.P.C., and the

remaining Rs.5,000/- shall be paid to the State-

Exchequer.

v) Office to send copy of the Judgment and

Trial Court records to the concerned Trial Court for

taking further course of action.

Sd/-

JUDGE

HR