Smt Jalaja @ Jalajakshi vs Smt G Venkta Durga Sarojini
2022 Latest Caselaw 12869 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 07TH DAY OF NOVEMBER 2022

                            BEFORE

THE HON'BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY

   CRIMINAL REVISION PETITION No.849 OF 2018

BETWEEN:

Smt.Jalaja @ Jalajakshi,
W/o Late E.Bhaskar Naidu,
Aged about 50 years,
R/at No.47/48,
Jai Jawan Street,
Kalkere Main Road,
Ramamurthy Nagar,
Bangalore-560 016.                             .. Petitioner

 ( By Sri V.Anand, Advocate )

AND:

Smt.G.Venkta Durga Sarojini,
D/o Late Bhaskar Naidu,
Aged about 52 years,
R/at 3rd Floor, No.47/48,
Jai Jawan Street,
Kalkere Main Road,
Ramamurthy Nagar,
Bangalore-560 016.                             .. Respondent

 ( By Smt. P.V.Kalpana, Amicus Curiae)

      This Criminal Revision Petition is filed under Section 397
read with Section 401 of Cr.P.C. praying to call for the lower
Court records in C.C.No.50961/2014 disposed off by the learned
XIV Addl.City Metropolitan Magistrate at Bengaluru and to set
aside the impugned judgment passed by the XXVIII Addl.City
                                               Crl.R.P.No.849/2018
                              2


Civil Judge at Mayohall Unit, (CCH-29), Bangalore in Crl.Appeal
No.25018/2016 dated 07.12.2017 confirming the judgment
passed by the XIV Addl.Chief Metropolitan Magistrate at
Bengaluru in C.C.No.50961/2014 dated 26.02.2016 and acquit
the petitioner in the above case.

      This Criminal Revision Petition having been heard through
Physical Hearing/Video Conferencing Hearing and reserved for
orders on 27.10.2022, coming on for pronouncement this day,
the Court made the following:

                           ORDER

The present petitioner was accused in

C.C.No.50961/2014, in the Court of the learned XIV

Addl.Chief Metropolitan Magistrate, Bengaluru, (hereinafter

for brevity referred to as the "trial Court"). By its judgment

dated 26.02.2016, the trial Court convicted the accused

for the offence punishable under Section 138 of Negotiable

Instruments Act, 1881 (hereinafter for brevity referred to

as `N.I.Act') and was sentenced accordingly.

2. The summary of the case of the complainant in the

trial Court was that the complainant and the accused and

one Suresh, son of accused, were known to each other for

the past ten years. The accused and his son approached

the complainant for financial assistance of `5 lakhs for Crl.R.P.No.849/2018

construction of the third floor in their building and also for

alteration of the ground to second floor. As the amount

was huge, the complainant sought three months time to

arrange for the funds. In the first week of January 2009,

the complainant managed to arrange the loan and has paid

a total sum of `4,75,000/-. The amount was paid by the

complainant from the compensation amount received by

her in MVC.No.3237/2001 and MVC.No.3238/2001. The

complainant had the LIC policy in her name and she

surrendered and got back `18,853/-. The accused assured

the complainant that she would repay the loan amount

after the completion of construction and the property

given on lease or within a period of one year whichever is

earlier. The complainant had stated that the loan amount

was given to the accused on several dates by cheque

dated 22.06.2010 bearing No.156428 for a sum of

`85,000/-, cheque dated 03.12.2009 bearing No.156422

for a sum of `65,000/-, cheque dated 19.01.2010 bearing

No.156424, for a sum of `7,000/- and cheque dated Crl.R.P.No.849/2018

31.03.2010 bearing No.156426, for a sum of `10,000/-

and the remaining amount was paid in cash, for which the

complainant has received the acknowledgement dated

13.08.2010 and 15.08.2010 from the accused. The

complainant had also received the post-dated cheques duly

signed by the accused and her son. After the completion

of the stipulated period, the accused and her son did not

repay the amount. Finally, to discharge the outstanding

liability, the accused has issued five cheques in question,

bearing No.531765, for a sum of `25,000/-, No.964188,

for a sum of `10,000/-, No.964200, for a sum of

`10,000/-, No.964181, for a sum of `5,000/- and

No.531764, for a sum of `25,000/-, all dated 27.07.2013,

drawn on Indian Bank, Cantonment Branch, Bengaluru.

One cheque bearing No.162284, dated 27.07.2013, for a

sum of `4,00,000/- was issued by the accused's son drawn

on Vijaya Bank, HBR Layout Branch, Bengaluru. When the

said cheques were presented for encashment, the same

were returned on 29.07.2013 with an endorsement Crl.R.P.No.849/2018

`funds insufficient'. The complainant got issued the notice

to accused on 24.08.2013 informing them about the

dishonour of the cheques and calling upon them to make

payment within fifteen days from the date of receipt of the

notice. The accused has not repaid the same, which

constrained the complainant to institute a criminal case

against the accused in the trial Court for the offence

punishable under Section 138 of N.I.Act.

3. Since the accused pleaded not guilty, charges were

framed against the accused for the alleged offences.

4. The complainant in order to prove her case, got

herself examined as PW-1 and got marked twentysix

documents from Exs.P-1 to P-26. On behalf of the accused,

the accused got herself examined as DW-1 and got marked

eight documents from Exs.D-1 to D-8.

5. After hearing both side, the trial Court by its

impugned judgment dated 26.02.2016, convicted the Crl.R.P.No.849/2018

accused for the offence punishable under Section 138 of

N.I.Act and sentenced her accordingly.

6. Challenging the said order, the accused has

preferred an appeal in Criminal Appeal No.25018/2016,

before the learned XXVIII Addl.City Civil & Sessions Judge,

Mayohall Unit, Bengaluru, (hereinafter for brevity referred

to as `Sessions Judge's Court), which by its judgment

dated 07.12.2017, dismissed the appeal by confirming the

judgment of conviction passed by the trial Court. It is

against these judgments of conviction, the accused has

preferred this revision petition.

7. Records from the trial Court and Sessions Judge's

Court pertaining to the matter were called for and the

same are placed before the Court.

8. In view of the fact that the learned counsel for the

respondent (complainant) failed to appear before this

Court on several dates of hearing, this Court by its

reasoned order dated 19.09.2022, appointed learned Crl.R.P.No.849/2018

counsel - Smt.P.V.Kalpana, as Amicus Curiae for the

respondent/complainant to represent her in this case.

9. Heard the arguments of learned counsel for the

petitioner and learned Amicus Curiae for the respondent.

Perused the materials placed before this Court.

10. For the sake of convenience, the parties would be

henceforth referred to as per their rankings before the trial

Court.

11. After hearing the learned counsel from both side,

the only point that arises for my consideration is,-

"Whether the impugned judgments suffer from perversity, illegality, impropriety warranting any interference at the hands of this Court".

12. The learned counsel for the petitioner/accused in

his argument submitted that it is not in dispute that the

parties to the litigation were known to each other and that

the cheques in question were drawn by the accused, which

came to be dishonoured for the reason of insufficiency of Crl.R.P.No.849/2018

funds when presented for their realisation by the

complainant. He also submitted that the issuance of legal

notice by the complainant demanding the payment of the

cheque amount is also not in dispute. He further submitted

that, however he disputes that there was no legally

enforceable debt payable by the accused towards the

complainant as on the date of presentation of the cheques.

The complainant herself in her cross-examination has

admitted that the amount that were due were paid to her

as per Exs.D-1 and D-1(a). The cheques in question were

blank cheques collected by the complainant while giving

small handloans for construction of third floor of the

building by the accused and those cheques were misused

by the complainant. He also submitted that there is no

reason for giving five cheques for different sums on the

same day by the accused. Finally stating that the

complainant had no capacity to lend such a huge amount,

learned counsel submitted that both the trial Court and the

Sessions Judge's Court failed to consider the said aspect

which has led them to pass an erroneous judgments.

Crl.R.P.No.849/2018

13. Per contra, learned Amicus Curiae for the

respondent in her brief argument submitted that the

accused has admitted that there were financial transaction

between herself and the complainant. Even though PW-1

has admitted in her cross-examination that it was she who

had filled her name and the date in the cheques in

question, however, the same is not prohibited under

N.I.Act. Finally stating that DW-1 in her cross-examination

has made admissions that the entry in Ex.D-2 is with

respect to payment of interest, as such, the same cannot

be considered as repayment of the principle loan amount,

learned Amicus Curiae submitted that the impugned

judgments does not warrant any interference at the hands

of this Court.

14. The complainant got herself examined as PW-1,

who in her examination-in-chief filed in the form of affidavit

evidence has reiterated the contentions taken up by her in

her complaint filed under Section 200 of Code of Criminal

Procedure, 1973 (hereinafter for brevity referred Crl.R.P.No.849/2018

to as `Cr.P.C.'). Her statement that accused and her son

Suresh were known to her and that the five cheques at

Exs.P-1 to P-5 were drawn by accused and those cheques

came to be returned unpaid when presented for realisation

for the reason of insufficiency of funds as per the Banker's

endorsements at Exs.P-6 and P-7, have not been denied or

disputed from the accused side. Further the evidence of

PW-1 that after dishonour of the cheques, she got issued a

legal notice through her counsel upon the accused as per

Ex.P-8 demanding repayment of the cheque amount and

the same was served upon the accused as could be seen

from the postal receipt, postal track information and settled

reply at Exs.P-9, P-10 and P-11 respectively, also have not

been denied or disputed from the accused side.

Admittedly, the cheque amount demanded by the

complainant in her legal notice at Ex.P-8 has not been paid

by the accused. As such, a presumption about legally

enforceable debt forms in favour of the complainant under

Section 139 of N.I.Act. However, the said presumption is

rebuttable.

Crl.R.P.No.849/2018

15. In the course of attempt to rebut the presumption

formed in favour of the complainant, the accused has taken

a specific defence both in the cross-examination of PW-1,

as well in her examination-in-chief as DW-1 that the two

cheques for a sum of `85,000/- and `65,000/- respectively

shown to have been given by the complainant to the

accused were towards the lease amount with respect to the

lease of the third floor in the building said to be belonging

to the accused, however, the said lease amount was

returned to the complainant. But, the complainant has

misused the cheques collected by her as security which has

led in she filing the present complaint against the accused.

However, the suggestions made from the accused side to

the complainant in the cross-examination of PW-1 was not

admitted as true by PW-1. Similarly, the statements made

by accused, who got herself examined as DW-1 reiterating

her defence, were denied in her cross-examination made

from the complainant side.

Crl.R.P.No.849/2018

16. Further the contention of the accused that the

complainant had no financial capacity to lend loan amount

were taken by suggesting the same in the cross-

examination of PW-1, as well the accused taking the said

defence even in her evidence as DW-1, however, the

complainant has stated that she had received the

compensation in a motor vehicle compensation claim cases

i.e., in MVC.No.3237/2001 and MVC.No.3238/2001,

wherein the award came to be passed on 30.04.2005. In

that regard, the complainant got marked her bank account

passbook at Ex.P-14, certified copy of judgment in

MVC.No.3237/2001 connected with MVC.No.3238/2001, at

Ex.P-15 and certified copy of the award passed in those

cases at Ex.P-16. However, in her cross-examination, a

suggestion was made to the effect that the compensation

amount which was a sum around `2,80,000/- was

withdrawn by her on the date 06.06.2006, but, the witness

stated that she is not remembering the same. The

attention of the witness was also drawn towards an entry to Crl.R.P.No.849/2018

that effect in the passbook, still, the witness has stated that

she does not remember the same. Since the said passbook

and entries are marked as Ex.P-14 and the compensation

amount said to have been credited to her account is also

supported by Ex.P-17, which is a photocopy of the cheque

in favour of the complainant and the challan showing the

deposit of the cheque amount to her account, the same

would go to show that the total amount as compensation

credited to the account of the complainant was only a sum

of `1,55,943/-. The relevant entry in the passbook at

Ex.P-14 is shown on the date 03.05.2006. Out of the said

amount, on 06.06.2006, the complainant is shown to have

withdrawn an amount of `1,50,000/- leaving a balance of

`7,374.98 ps. in her bank account. Further the entry in the

very same bank passbook would not show that at any time

during the alleged period of loan under installments, the

complainant had such a huge balance to support her

contention that the loan amount was a sum of `4,75,000/-.

Thus, prima facie a doubt arises about the financial Crl.R.P.No.849/2018

capacity of the complainant to lend a sum of `4,75,000/- as

loan amount to the accused. This aspect both the trial

Court and the Sessions Judge's Court have not analysed

and appreciated in their proper perspective.

Secondly, when it is the specific contention of the

accused that the alleged payment of `85,000/- and another

sum of `65,000/- through bank cheques in favour of the

accused were only towards lease amount and the issuance

and payment of those two cheques were prior to the date of

lease agreement which is said to be on 01.11.2010, it was

for the complainant who agreed the existence of a Lease

Agreement between herself and the accused to produce

cogent evidence, including Lease Agreement, to show that

the recital about the cheques shown in the Lease

Agreement were different than the alleged loan of

`85,000/- and `65,000/- vide cheque No.156428 and

cheque No.156422 respectively. The complainant who

admittedly was in possession of the said Lease Agreement

as a lessee under the accused, had documents with her Crl.R.P.No.849/2018

which could have substantiated her contention. However,

for the reasons best known to her, she did not produce the

said documents. This also creates a doubt in the case of

the complainant and makes the defence of the accused

stronger to rebut the presumption formed in favour of the

complainant under Section 139 of N.I.Act.

The aspect that `1,50,000/- was towards the lease

amount further gains support by the statement made by

none else than the complainant in her cross-examination

that the sum of `1,50,000/- which was lease amount has

been received by her back in the presence of police. This

makes the defence of the accused more probable that the

alleged two cheques of `85,000/- and `65,000/-,

amounting to `1,50,000/- may not be towards the alleged

loan amount, but, was towards the lease amount payable

by the complainant to her landlady i.e., the accused, which

lease amount, as admitted by the complainant (lessee), she

had collected back in the presence of the police. This point Crl.R.P.No.849/2018

also the trial Court and the Sessions Judge's Court have not

analysed and appreciated in their proper perspective.

Thirdly, the complainant who claims that she had lent

a sum of `4,75,000/- to the accused, could not able to say

in her cross-examination as to how much of the amount

she had paid in cash as loan and when the amount in cash

were paid to the accused. Had really the complainant paid

such a huge amount as loan to the accused, she was

expected to either maintain some documents in that regard

or at least should remember as to when the alleged

installments in the loan were given to the accused and of

what amount. On the other hand, though she denied a

suggestion that as shown in Exs.D-1 and D-2, the accused

has repaid their dues towards the complainant, but, the

very same witness in her initial cross-examination on

22.01.2015 has admitted that the contents in the

mini-diary at page Nos.95 to 99 are in her handwriting and

the signature found therein are also her signature only.

Crl.R.P.No.849/2018

The mini-diary was marked at Ex.D-1 and the relevant

portion at Ex.D-1(a).

A perusal of those entries in Ex.D-1 and D-1(a) go to

show that the complainant has acknowledged the receipt of

several small amounts of `5,000/- on seven occasions and

`8,600/- on one occasion, thus, a sum of `43,600/- is

shown to have been received by her. The same would go

to show that the accused has repaid some amount to the

complainant. Thus, the alleged loan amount cannot be a

sum of `4,75,000/-. However, it was for the complainant

to establish that what was the actual quantum of the legally

enforceable debt that was due from the accused to her.

She should have shown that it was a sum of `75,000/- or

more, as such, the accused was liable to pay the total

amount of all the five cheques i.e., from Exs.P-1 to P-5.

The complainant has not made any attempt in that regard.

On the contrary, she has only stated that the entries at

Ex.D-1 was with respect to another transaction. The mere

statement that the same was with respect to another Crl.R.P.No.849/2018

transaction would not exonerate the complainant from

satisfying about the alleged due from the accused since the

accused by leading cogent evidence both in the

cross-examination of PW-1 and herself as DW-1 and also

producing the documents at Exs.D-1 and D-2 could able to

introduce several serious doubts in the case of the

complainant both about her financial capacity to lend and

also about the alleged loan transaction.

Lastly, the complainant both in her complaint and in

her examination-in-chief as PW-1 has stated that towards

the repayment of the loan, the accused had issued five

post-dated cheques. Thus, she has made it clear that the

cheques at Exs.P-1 to P-5 were also dated with post-date

when they were given to her. On the contrary, the very

same witness in her cross-examination has stated that it

was she who filled her name in those cheques and also

mentioned the dates in them. This makes her very

statement made in her examination-in-chief that those

cheques were post-dated a false one. As such also, when it Crl.R.P.No.849/2018

is the contention of the complainant that towards

repayment of the loan, five post-dates cheques were given,

but, the very same witness subsequently shows that they

were not the post-dated cheques, but, she filled the dates

in those cheques by herself makes her own case weaker

about the existence of legally enforceable debt.

17. It is needless to say that, in order to rebut the

presumption formed under Section 139 of N.I.Act, the

accused need not have to prove his/her defence beyond

reasonable doubt. Suffice if he/she makes out a case of

preponderance of probability. In the instant case, the

accused initially by showing that the complainant had no

financial capacity to lend such a huge amount of

`4,75,000/- as loan to her, then by establishing that there

existed a lease transaction between herself and the

complainant and that the lease amount collected by the

accused as a landlady was repaid in the presence of police

and further showing a doubt in the case of the complainant

that she could not come up with exact amount of the Crl.R.P.No.849/2018

alleged loan as due amount, has made out a case of

preponderance of probabilities and thus has successfully

rebutted the case of the complainant.

However, both the trial Court and the Sessions

Judge's Court have failed to appreciate these aspects. On

the other hand, merely because the cheques at Exs.P-1 to

P-5 were drawn by the accused and those cheques were

returned unpaid when presented for realisation and also on

the fact that the complainant got issued a legal notice

demanding the payment of the said cheque amount, they

concluded holding that the complainant has proved the

guilt of the accused punishable under Section 138 of

N.I.Act. Since the said conclusion of both the trial Court

and the Sessions Judge's Court has now proved to be

erroneous, the impugned judgments warrants interference

by this Court.

18. Accordingly, I proceed to pass the following

order:

Crl.R.P.No.849/2018

ORDER

[i] The Criminal Revision Petition stands allowed.

[ii] The impugned judgment of conviction and order

on sentence passed by the learned XIV Addl.Chief

Metropolitan Magistrate, Mayo Hall Unit, Bengaluru, dated

26.02.2013 in C.C.No.50961/2014, holding the petitioner

herein (accused) guilty of the offence punishable under

Section 138 of the Negotiable Instruments Act, 1881, and

the impugned judgment passed by the learned XXVIII

Addl.City Civil and Sessions Judge, Mayo Hall, Bengaluru,

dated 07.12.2017, in Criminal Appeal No.25018/2016,

confirming the judgment of the trial Court, are hereby set

aside;

[iii] The petitioner (accused) - Smt.Jalaja @

Jalajakshi, wife of late E.Bhaskar Naidu, residing at

No.47/48, Jai Jawan Street, Kalkere Main Road,

Ramamurthy Nagar, Bengaluru-560 016, is acquitted of

the offence punishable under Section 138 of the Negotiable

Instruments Act, 1881.

Crl.R.P.No.849/2018

The Court, while acknowledging the services rendered

by the learned Amicus Curiae for the respondent -

Smt P.V.Kalpana, recommends an honorarium of a sum of

not less than `4,000/- payable to her by the Registry.

Registry to transmit a copy of this order to both the

trial Court as also the Sessions Judge's Court along with

their respective records immediately.

Sd/-

JUDGE

bk/