Smt. Ganga Lakshmi vs Smt. Rama Venktesh
2022 Latest Caselaw 5832 Kant

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      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 31ST DAY OF MARCH, 2022

                         BEFORE

          THE HON'BLE MR. JUSTICE K.NATARAJAN

             CRIMINAL APPEAL No.229 OF 2018
                          C/W
             CRIMINAL APPEAL No.230 OF 2018

IN CRIMINAL APPEAL No.229 OF 2018

BETWEEN

SMT. GANGA LAKSHMI
AGED ABOUT 44 YEARS
W/O MANJUNATH B
R/AT NO.89, 4TH CROSS
NISARGA BADAVANE, BONE MILL
HESARGHATTA ROAD
T DASARAHALLI
BENGALURU - 560 073.                          ... APPELLANT

(BY SRI KALPANA P V, ADVOCATE)

AND

SMT. RAMA VENKTESH
W/O VENKATESH
AGED ABOUT 46 YEARS
R/A NO.237, 15TH C CROSS
2ND PHASE, WEST OF CHORD ROAD
MAHALAKSHMI LAYOUT
BENGALURU - 560 086.                     ... RESPONDENT

(BY SRI S THEJESHWARA, HCGP)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED
04.12.2017 PASSED BY THE XIX ADDL.C.M.M., BENGALURU IN
C.C.NO.8606/2016 - ACQUITTING THE RESPONDENT/ACCUSED
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FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I.
ACT.

IN CRIMINAL APPEAL No.230 OF 2018

BETWEEN

SMT. GANGA LAKSHMI
AGED ABOUT 44 YEARS
W/O MANJUNATH B
R/AT NO.89, 4TH CROSS
NISARGA BADAVANE, BONE MILL
HESARGHATTA ROAD
T DASARAHALLI
BANGALORE - 560 073.                       ... APPELLANT

(BY SRI : KALPANA P V, ADVOCATE)

AND

SMT. RAMA VENKTESH
W/O VENKATESH
AGED ABOUT 46 YEARS
R/A NO.237, 15TH C CROSS
2ND PHASE, WEST OF CHORD ROAD
MAHALAKSHMI LAYOUT
BANGALORE - 560 086.                     ... RESPONDENT

(BY SRI S THEJESHWARA, HCGP)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED
21.12.2017 PASSED BY THE XIX ADDL.C.M.M., BENGALURU IN
C.C.NO.8607/2016 - ACQUITTING THE RESPONDENT/ACCUSED
FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I.
ACT.

     THESE CRIMINAL APPEALS COMING ON FOR FINAL
HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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                      JUDGMENT

The Crl.A.No.229/2018 is filed by the appellant

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

judgment of acquittal passed by the XIX ADDL.C.M.M,

Bengaluru in C.C.No.8606/2016 dated 04.12.2017 for

the offences punishable under Section 138 of

Negotiable Instruments Act, 1881.

2. The Crl.A.No.230/2018 is filed by the same

appellant-complainant under Section 378(4) of Cr.P.C

for setting aside the judgment of acquittal passed by

the XIX ADDL.C.M.M, Bengaluru in C.C.No.8607/2016

dated 21.12.2017 for the offences punishable under

Section 138 of Negotiable Instruments Act, 1881.

3. Heard the arguments of learned counsel for

the appellant and learned counsel for the respondent.

4. The rank of the parties before the trial

Court retained for the sake of convenience.

5. The case of the appellant in the first case

with respect to CC.No.8606/2016 is that the accused

and the complainant are known to each other and the

accused borrowed loan of Rs.2,00,000/- from the

appellant in December 2014 with promise to repay the

same within a short period and he has issued cheque

for Rs.2,00,000/- vide cheque No.352289 dated

16.12.2015 when it was presented before the bank

and it was dishonoured for "funds insufficient"

therefore she approached the accused and requested

for payment and at the request of the accused once

again re-presented the cheque on 22.01.2016 the

same was dishonoured. Hence legal notice on

04.02.2016 issued, intimation was delivered but

respondent accused neither replied nor paid the

amount. Hence, complaint came to be filed for the

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

offences punishable under Section 138 of Negotiable

Instruments Act, 1881.

6. In Crl.A.No.230/2018 where the accused also

borrowed loan of Rs.3,50,000/- from the complainant

in December 2000 and issued a cheque bearing

No.352286 dated 16.12.2015 and the same was

dishonoured on 22.01.2016 and therefore at request

of accused once again it was presented on 25.01.2016

and again it was dishonoured, legal notice was issued

intimation was delivered to respondent, but neither he

replied nor repaid the money. Hence complaint came

to be filed under Section 200 Cr.P.C for the offences

punishable under Section 138 of NI Act.

7. The further case of the complainant is that

the respondent-accused paid through the counsel in

both the cases and independently contested the

matter by denying the charges framed by the Court.

The appellant examined herself as PW1 in both cases

by filing the affidavit and marked documents. The

statement of the accused also recorded, respondent

also examined as DW1 also marked six documents

and after hearing arguments acquitted the accused

mainly on the ground that the complaint was filed for

of payment of Rs.2,00,000/- but the evidence was for

Rs.3,50,000/- in the first case and in the second case

the complaint was for Rs.3,50,000/- but the evidence

was given for Rs.2,00,000./-.

8. After hearing arguments, the trial court

acquitted the accused mainly on the ground that the

evidence and the complaint differs, which is clear

contradiction, hence acquitted. The learned counsel

for the contended that there are two cases filed by the

complainant in the same court and evidence was

recorded by the Magistrate on the same day, where

the cheque and the evidence was lead in the first case

pertaining to second case whereas the affidavit and

evidence lead in the second case which was pertaining

to first case. The respondent also not verified the but

only denied the same. The trial court also committed

error in not properly verifying the documents and

accepted the evidence and finally delivered the

judgment, which is not correct. Hence prayed for

remanding the matter back to the trial court for fresh

consideration.

9. Per contra learned counsel for respondent

seriously objected and contended that the judgment

was delivered not only on the point of evidence but

also the complaint has no capacity to pay

Rs.5,50,000/- to the accused and no document was

produced, such being the case and she was earning

only Rs.10,000/- per month as salary whereas the

respondent-accused was working as accountant in the

same work place (Pragathi Corporation). Such being

the case no occasion for respondent to borrow huge

money and complainant also not having capacity to

pay such huge amount to the respondent, therefore

prayed for dismissing the appeal.

10. Having heard the arguments and perusal of

records, the point for consideration arises;

Whether the judgment of the trial court passing

the judgment by considering misplaced evidence in

the case calls for interference?

11. On perusal of the records, admittedly the

complainant filed two complaints for two different

cheques bearing No.352289 dated 16.01.2015 and

352286 dated 16.12.2015 and both the complaints

were taken cognizance by the Magistrate after

recording sworn statement and plea also recorded for

an amount of Rs.2,00,000/- in the first case and

Rs.3,50,000/- in the second case. It is pertinent to

note while examination of the complaint before the

trial court in both the cases, where the complainant

has filed affidavit in view of examination chief on

29.07.2017. There were two different affidavits which

were filed in lieu of evidence while production of the

affidavits the counsel for the accused committed

blunder in producing the affidavit in respect of the

cheque for Rs.2,00,000/- in cheque No.352289 and in

the second case in C.C.No.8607/2016 instead of filing

the said affidavit in CC.No.8606/2016. The cheque for

Rs.2,00,000/- and the legal notice, as well as all

marked documents in respect of Rs.2,00,000/- but

the complainant was filed for Rs.3,50,000/-. Likewise

in the second case in CC No.8607/2016 the affidavit

filed by the complainant in respect of cheque for

Rs.2,00,000/- whereas the complaint was filed for

Rs.3,50,000/-.

12. The marking of the document also clearly

reveals the cheque was for Rs.3,50,000/-. The

affidavit evidenced for Rs.3,50,000/- whereas the case

filed for Rs.2,00,000/- and all the examination chief

affidavit, cheque, legal notices, were all pertaining to

the first case, has been produced and marked in

second case and the cheque and documents

pertaining to second case marked in first case, there

was exchange of the evidence adduced during

proceedings due to confusion. That apart, the trial

Court blindly accepted evidence and everything until

arguments stage and while passing the judgment, trial

court has stated the complaint is for some amount

and evidences for different amount, therefore on that

ground the accused was mainly acquitted apart from

the other grounds. However, the judgment delivered

by trial court is not sustainable for the reasons the

trial court when two cases were filed in the same court

for evidences were made and the documents were

wrongly marked by the counsel. The court cannot

simply do work as post office without observing and

exercising power under Section 165 of the Evidence

Act, which reveals from this statement of the accused

under the Section 313 of Cr.P.C recorded by the

Magistrate wherein though the evidence was lead by

the complainant for different evidence in different

cases but the statement recorded under Section 313

of Cr.P.C by the Magistrate, is not based upon

examination chief of the complainant.

13. The question No. 2 was imposed for issuing

cheque of Rs.3,50,000/- which was dishonoured

whereas the evidence examination chief was given by

the complainant for Rs.2,00,000/-. Likewise in second

case the statement was recorded for Rs.2,00,000/-

whereas evidence was given for Rs.3,50,000/- which

reveals the statement under Section 313 is important

stage recorded by the Magistrate and it is not based

on the examination chief, which reveals Magistrate

also committed error while recording the statement

unknowingly that the evidence and the complaint was

placed before the court. Therefore on this ground the

judgment of the trial court in both the cases is not

sustainable under the law. Hon'ble Supreme Court

held in various judgment that recording statement

under Section 313 of Cr.P.C is not a formality but it is

important stage where the incriminating evidence

against accused shall have to be read over and

explained to him and thereafter accused has to start

his defense. Such being the case the evidence and the

statement under Section 313 of Cr.P.C being

contradictory to each other than the complaint.

Therefore, there is serious prejudice caused to the

complainant case. The learned counsel for the

appellant fairly admits, it is the mistake on the part of

the advocate while filing the evidence which was

exchanged in both cases.

14. Though the learned counsel for respondent

objected regarding capacity and other grounds but for

the said reasons the same cannot be adjudicated at

this stage when the evidence and the documents were

wrongly marked by the court in different cases.

Therefore, by keep opening all the contentions of the

respondent-accused, it is deemed fit and proper to set

aside the judgment delivered by the trial Court in both

the cases.

Accordingly both the appeals are allowed.

The judgment of the trial court passed in

C.C.No.8606/2016 dated 04.12.2017 and

C.C.No.8607/2016 dated 21.12.2017 passed by the

XIX ADDL.C.M.M, Bengaluru for the offences

punishable under Section 138 of Negotiable

Instruments Act, 1881, are hereby set aside. The

matters are remanded back to the trial court for

considering fresh evidence.

The matter required for fresh consideration with

the direction to check the affidavit evidence in both

the cases and by keeping open all the contention and

grounds urged by the parties before the court and also

permitted to lead any further evidence.

Accordingly, these appeals are disposed of with

direction to dispose the matter within 6 months from

the date of the receipt of the copy of this order.

Sd/-

JUDGE

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