Karnataka High Court
Mrs. Shruthi Shivkumar vs Mr. Amith A Batra on 2 August, 2023
Bench: Rajendra Badamikar
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CRL.RP No. 1125 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL REVISION PETITION NO. 1125 OF 2019
BETWEEN:
MRS. SHRUTHI SHIVKUMAR,
PROPRIETOR OF M/S. CHECKS & STRIPES,
WIFE OF SHIVAKUMAR DORAI,
AGED ABOUT 34 YEARS,
HAVING OFFICE AT, NO. 50,
6TH CROSS, DODDANNA INDUSTRIAL AREA,
PEENYA, 2ND STAGE,
BENGALURU-560 075.
...PETITIONER
(BY SRI. GAURAV GANAPATHY .C.G, ADVOCATE FOR
SRI. VAMSHI KRISHNA .C, ADVOCATE)
AND:
MR. AMITH A BATRA
SON OF MR. P. ASHOK KUMAR,
Digitally AGED ABOUT 22 YEARS,
signed by FLAT NO. 106, SOUNDARYA LINKS,
RENUKAMBA LINK ROAD, SESHADRIPURAM,
KG BENGALURU-560 020,
Location: High REPRESENTED BY THE POWER OF
Court of ATTORNEY HOLDER,
Karnataka MR. P. ASHOK KUMAR.
...RESPONDENT
(BY SRI. KARTHIK YADAV .U, AMICUS CURIAE)
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C,
PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND
SENTENCE DATED 26.07.2019 PASSED BY THE COURT OF LXV
ADDL. CITY CIVIL AND SESSIONS JUDGE IN
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CRL.RP No. 1125 of 2019
CRL.A.NO.602/2018 CONFIRMING THE ORDER DATED
08.03.2018 PASSED BY THE LEARNED XV ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE IN C.C.NO.7927/2016.
THIS PETITION COMING ON FOR FINAL HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This revision is filed by the accused under Section
397 r/w Section 401 of Cr.P.C. challenging the judgment
of conviction and order of sentence dated 08.03.2018
passed by the 15th ACMM Court, Bengaluru, in CC
No.7927/2016, which was confirmed by the LXV Additional
City Civil and Sessions Judge, Bengaluru, in Criminal
Appeal No.602/2018 vide judgment dated 26.07.2019.
2. For the sake of convenience, the parties herein
are referred with the original ranks occupied by them
before the trial Court.
3. The brief factual matrix leading to the case are
that, the complainant-Mr. Amith A. Batra and accused-
Smt.Shruthi are known to each other since last two years.
The accused is the Proprietor of M/s. Checks and Stripes
and for her business purpose, she approached the
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complainant and borrowed a sum of Rs.2.00 Lakhs on
07.10.2014 by executing a On-demand Promissory Note
and Consideration Receipt, It is further asserted that, in
discharge of the said legally enforceable debt, the accused
has issued two cheques dated 20.08.2015 and 20.09.2015
for a sum of Rs.1.00 each drawn on Indian Overseas Bank,
Vignana Nagar Branch, Bengaluru. When the said cheques
were presented, they were dishonoured for Insufficient
funds. Hence, the complainant got issued a legal notice
through his Advocate on 19.01.2016 and notice was
served on accused. But, the notice sent to her original
address was returned as 'not claimed'. It is asserted that
in spite of service of notice, the cheque amount was not
repaid and hence, the complainant through his Power of
Attorney Holder- Mr. P.Ashok Kumar has filed a private
complaint for the offence under Section 138 of the
Negotiable Instruments Act. Thereafter, the learned
Magistrate has recorded the sworn statement of Power of
Attorney Holder and found that there is sufficient material
to proceed against the accused and taken cognizance and
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CRL.RP No. 1125 of 2019
issued process against the accused. The accused
appeared through her counsel and was enlarged on bail.
The prosecution papers were furnished to the counsel
appearing for the accused. The plea under Section 138 of
the N.I. Act is framed and the same was red-over and
explained to the accused. The accused pleaded not guilty
and claimed to be tried.
4. The Power of Attorney Holder of the
complainant ie., the father of the complainant was
examined as PW.1 and he has also placed reliance on Ten
documents marked at Exs.P1 to P10. After conclusion of
the evidence of the complainant, the statement of accused
under Section 313 of Cr.P.C. is recorded to enable the
accused to explain the incriminating evidence appearing
against her in the case of prosecution. The case of
accused is of total denial.
5. After hearing the arguments and after
appreciating the oral and documentary evidence, the
learned Magistrate has convicted the accused for the
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offence under Section 138 of N.I.Act and imposed
sentence of fine of Rs.2,00,000/-. Being aggrieved by this
judgment of conviction and order of sentence, the accused
has approached the LXV Additional City Civil and Sessions
Judge, Bengaluru.
6. After re-appreciating the oral as well as
documentary evidence, the learned Sessions Judge has
dismissed the appeal vide judgment dated 26.07.2019
confirming the judgment of conviction and order of
sentence passed by the trial Court. Being aggrieved by
these concurrent findings, the revision petitioner/accused
is before this Court.
7. Heard the arguments advanced by the learned
counsel for the revision petitioner and the learned Amicus
Curiae for the complainant. Perused the records.
8. Learned counsel for the revision petitioner
would contend that the complainant himself is aged about
22 years having no financial capacity to advance loan and
hence, the presumption under Section 139 of the N.I. Act
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CRL.RP No. 1125 of 2019
cannot be drawn in favour of the complainant. He would
also assert that the complainant has not entered into the
witness box and all along his father has prosecuted this
matter. Hence, he would contend that both the Courts
below have failed to appreciate this material lacuna in the
case of the complainant and sought for indulgence by this
Court by setting aside the impugned judgment of
conviction and order of sentence passed by both the
courts below.
9. Per contra, learned Amicus Curiae would
support the judgment of conviction and order of sentence
passed by the trial Court. He would submit that, at the
time of financial transaction, admittedly the complainant
was present and he has issued Power of Attorney in favour
of his father, who was also present during the course of
transaction and the transaction itself is not disputed by the
accused. Hence, he would assert that the presumption
under Section 139 of N.I. Act is not rebutted by the
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CRL.RP No. 1125 of 2019
accused. As such, he would seek for dismissal of the
petition.
10. Having heard the arguments and perusing the
records, now the following point would arise for my
consideration:-
"Whether the judgment of conviction and
order of sentence passed by the trial Court and
confirmed by the First Appellate Court are
perverse, erroneous, arbitrary and illegal so as to
call for any interference by this Court?"
11. At the out set, it is evident from the records
that, though the complainant is said to be one Sri. Amith
Batra, he never appeared before the Court all along. The
complaint itself is filed through the Power of Attorney i.e.,
the father of the complainant, who is also examined as
PW.1. It has also come in the evidence that the
complainant is studying in B.Com. and staying in
Bengaluru itself. There is no explanation offered as to why
the complainant has not entered into the witness box.
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CRL.RP No. 1125 of 2019
12. Interestingly, all along the father of the
complainant i.e., the Power of Attorney Holder has
prosecuted the case before the trial Court as well as before
the First Appellate Court. However, before this Court,
neither the complainant nor the Power of Attorney Holder
chose to appear. The Court was kind enough to appoint an
Amicus Curiae, which was not required, as it was a
financial transaction between two private parties and the
complainant does not need any assistance of Amicus
Curiae, as the evidence disclose that PW.1 is financially
well-placed.
13. As per the allegations of the complaint, a sum
of Rs.2,00,000/- was paid on 07.10.2014 to the accused
by the complainant and the said amount was borrowed by
the accused for her business purpose. This specific
assertion made in Para-4 of the complaint discloses that,
there is a financial transaction between the complainant
and accused. The Power of Attorney Holder of the
complainant ie., father of the complainant is examined on
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CRL.RP No. 1125 of 2019
behalf of the complainant as PW.1. In his exam-in-chief
also, he has reiterated the same that the amount of
Rs.2,00,000/- was advanced by the complainant to the
accused and towards repayment of the said amount, the
disputed cheques came to be issued. However, the cross-
examination of PW.1 completely falsify this assertion. The
cross-examination of PW.1 on 15.09.2017 is very much
relevant, which reads as under:-
"
"¥ÀæPÀgÀtzÀ DgÉÆæ PÀ¼ÉzÀ 2 ªÀµÀðUÀ½AzÀ £À£Àß ºÉAqÀwUÉ
¥ÀjZÀAiÀĸÀÛ¼ÁVgÀÄvÁÛ¼É. CªÀgÀÄ £À£Àß ºÉAqÀwUÉ ºÉÃUÉ
¥ÀjZÀAiÀĸÀÛ¼ÁVgÀÄvÁÛ¼É ºÉüÀ®Ä §gÀĪÀÅ¢®è. ºÀtzÀ ªÀåªÀºÁgÀ
¢.07.10.2014 gÀAzÀÄ DgÉÆæ ªÀÄvÀÄÛ £À£Àß ºÉAqÀwAiÀÄ £ÀqÀÄªÉ DVzÀÄÝ
D ¸ÀªÀÄAiÀÄzÀ°è £Á£ÀÄ ºÁdjzÉÝ. ºÀtzÀ ªÀåªÀºÁgÀ £ÀªÀÄä PÀZÉÃjAiÀÄ°è
DVgÀÄvÀÛzÉ. £À£Àß D¦üøÀÄì £À£Àß ªÀÄ£ÉAiÀÄ°èAiÉÄà EzÉ. ºÀtzÀ ªÀåªÀºÁgÀzÀ
¸ÀªÀÄAiÀÄzÀ°è £À£Àß ªÀÄUÀ ºÁdgÀÄ EzÀÝ£ÀÄ. ªÀåªÀºÁgÀPÉÌ ¸ÀA§AzsÀ¥ÀlÖAvÉ
£À£Àß ªÀÄUÀ¤UÉ DgÉÆæ 2 ZÉPÀÄÌUÀ¼À£ÀÄß ¤ÃrgÀÄvÁÛ¼É. £À£Àß ªÀÄUÀ ©.PÁA
ªÁå¸ÀAUÀ ¨ÉAUÀ¼ÀÆj£À°èAiÉÄà ªÀiÁqÀÄwÛzÁÝ£É. ªÀåªÀºÁgÀ £ÀqÉzÀ
¸ÀªÀÄAiÀÄzÀ°è £À£Àß ªÀÄUÀ¤UÉ 22 ªÀµÀð ªAiÀĸÀÄì EvÀÄÛ ªÀåªÀºÁgÀ £ÀqÉzÀ
¸ÀazÀ¨sÀðzÀ°è £À£Àß ªÀÄUÀ£À SÁvÉAiÀÄ°è ºÀt EgÀ°®è. £ÁªÀÅ £ÀªÀÄä
PÀÄlÄA§zÀ «ÄvÀægÀ PÀqɬÄAzÀ ºÀt ¸ÀAUÀ滹 DgÉÆæUÉ ¤ÃrgÀÄvÉÛêÉ."
{ (underlined by me)
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14. This cross-examination of PW.1 clearly establish
that the financial transaction has taken place between the
wife of PW.1 ie., the mother of the complainant and
accused, but not between the complainant and accused.
The mere presence of the complainant during the said
transaction does not authorize him to claim that he was
having legally enforceable debt as against the accused.
There is no evidence as to why the cheques were issued in
the name of the complainant when the financial
transaction was between the mother of the complainant
and accused.
15. The initial presumption under Section 139 of
the N.I. Act is in favour of the complainant that the
cheques were issued towards the legally enforceable debt.
But the cross-examination of PW.1 itself discloses that no
financial transaction has taken place between the
complainant and accused and in such circumstances,
question of issuing cheques towards the legally
enforceable debt does not arise at all. Hence, the
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presumption available in favour of the complainant stands
rebutted and the burden shifts on the complainant to
establish that the financial transaction between himself
and the complainant.
16. In further cross-examination dated 15.12.2017,
PW.1 claims that the amount was collected from one
Kavitha and Jyothi and the same was handed- over to the
accused. But there is no evidence as to why the
complainant has availed the financial assistance from
Kavitha and Jyothi so as to advance hand loan to the
accused is not at all forthcoming. The allegations of the
complaint further disclose that the accused has also
executed On-demand Promissory Note and Consideration
Receipt on the same day. But, interestingly, PW.1 in his
cross-examination dated 15.12.2017 states that, no On-
demand Promissory Note or any other document was
executed by the accused. This statement is completely
contrary to the complaint allegations. It is to be noted
here that PW.1 himself has lodged the complaint and he is
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the signatory to the complaint, as he claims that he lodged
complaint as Power of Attorney Holder. But, his evidence
is contrary to the allegations made in the complaint at
Para No.4. Hence, it is evident that the complainant has
failed to prove the financial transaction between himself
and accused so as to claim that the disputed cheques were
issued towards the legally enforceable debt.
17. Both the courts below did not consider this
aspect and in a mechanical way, convicted the accused
ignoring the material admissions on the part of PW.1
regarding financial transaction between his wife and
accused, but not between the complainant and accused.
Both the courts below did not appreciate the oral and
documentary evidence in proper perspective and failed to
analise it in accordance with law especially with reference
to Section 139 of the N.I. Act pertaining to drawing
presumption in favour of the complainant. The judgment
of conviction and order of sentence passed by both the
courts below are perverse, erroneous and arbitrary.
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Hence, the revision needs to be allowed by setting aside
the impugned judgment of conviction and order of
sentence passed by both the courts below. As such, the
point under consideration is answered in the affirmative
and accordingly, I proceed to pass the following:-
ORDER
i) The revision petition is allowed.
ii) The impugned judgment of conviction and
order of sentence passed by the 15th ACMM
Court, Bengaluru, in CC No.7927/2016 dated
08.03.2018, which was confirmed by the 65th
Additional City Civil and Sessions Judge,
Bengaluru, in Criminal Appeal No.602/2018
vide judgment dated 26.07.2019, are set
aside.
iii) The accused-Smt. Shruthi is acquitted of the
offence under Section 138 of the N.I. Act and
she is set at liberty.
iv) The Bail Bonds executed by the accused, stand
cancelled.
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v) The deposit if any made by the
accused/revision petitioner shall be refunded to
her.
vi) The fees of Amicus Curiae are fixed at
Rs.3,000/-
vii) Further it is directed that the trial Court shall
recover the said fees payable to the Amicus
Curiae from the complainant, as he is an
Income-tax Assessee.
viii) The Court places its appreciation on record to
the assistance rendered by the Amicus Curiae.
Sd/-
JUDGE
KGR*
