H.N. Sujatha vs P.C. Shivaraju
2023 Latest Caselaw 5885 Kant

                           1          CRL. A NO.542 OF 2011




   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 23RD DAY OF AUGUST, 2023

                         BEFORE

           THE HON'BLE MS.JUSTICE J.M.KHAZI

         CRIMINAL APPEAL NO.542 OF 2011

BETWEEN:

H.N.SUJATHA
AGED ABOUT 35 YEARS,
D/O LATE NAGAPPA,
R/AT NO.200,
C/O SUBRAMANI, 10TH CROSS,
SUBRAMANYAPURA POST,
BENGALURU - 560 061.
                                           ...APPELLANT
(BY SRI. SURESH SUBBAIAH, ADVOCATE)

AND:

P.C. SHIVARAJU
S/O CHENNIGOWDA,
AGED ABOUT 40 YEARS,
R/AT BANAVASI VILLAGE,
RAMANAGARA DISTRICT.
                                      .....RESPONDENT

(BY SRI. G M SRINIVASA REDDY, ADVOCATE)

    THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE
THE JUDGMENT OF ACQUITTAL IN CRL.A.NO.456/2010,
DATED 25.02.2011 PASSED BY THE FAST TRACK (SESSIONS)
COURT-XVII, BENGALURU CITY         AND  CONFIRM THE
JUDGMENT DATED 24.05.2010 PASSED BY THE XIV - ADDL.
CHIEF   METROPOLITAN    MAGISTRATE,    BENGALURU    IN
C.C.NO.17667/2008 ACCORDINGLY TO MEET THE ENDS OF
JUSTICE AND EQUITY.
                                2           CRL. A NO.542 OF 2011




     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED    ON    19.06.2023, COMING   ON   FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:

                          JUDGMENT

1. Being aggrieved by the dismissal of her

complaint filed under Section 200 Cr.P.C. against the

respondent/accused for the offence punishable under

Section 138 of Negotiable Instruments Act, 1881

(hereinafter referred to as 'the N.I.Act'), by the Sessions

Court, thereby reversing the judgment and order of

conviction imposed by the Trial Court, appellant who is

the complainant has filed this appeal under Section

378(4) of the Criminal Procedure Code.

2. For the sake of convenience, the parties are

referred to by their rank before the Trial Court.

3. It is the case of the complainant that accused

is no other than her husband. Both of them are working

as teachers in Government Primary School. Due to some

misunderstanding, they are living separately. However,

when they were living together, at the instance of 3 CRL. A NO.542 OF 2011

accused, she borrowed loan of Rs.50,000/- from UCO

Bank and Rs.25,000/- from BDCC Bank and gave it to

the accused. She also paid a sum of Rs.1,25,000/- as

hand loan to the accused to clear hand loans incurred by

him. On her repeated request and demand, accused

issued her a cheque for Rs.2,00,000/- towards the entire

amount due to her. However, when she presented the

same for realisation, it was dishonoured on the ground of

insufficiency of funds. She got issued a legal notice to the

accused. Instead of complying with the said notice,

accused has sent an evasive reply. Without any

alternative, she is forced to file this complaint.

4. After due service of notice, the accused has

appeared through counsel and contested the matter. He

pleaded not guilty and claimed the trial.

5. In order to bring home guilt to the accused,

the complainant has examined herself as PW1. She has

relied upon Exs.P1 to 13.

4 CRL. A NO.542 OF 2011

6. During the course of his statement under

Section 313 Cr.P.C., the accused has denied the

incriminating evidence.

7. On the other hand, the accused has examined

himself as DW1 and relied upon Exs.D1 to D8.

8. Accepting the case of the complainant, the

Trial Court convicted the accused and sentenced him to

pay fine of Rs.1,51,000/- in default to undergo simple

imprisonment for three months.

9. Accused challenged the same before the

Sessions Court in Crl.A.No.456/2010. Vide the impugned

judgment and order, the Sessions Court acquitted the

accused.

10. Being aggrieved by the same, the complainant

is before this Court contending that the Sessions Court

has not appreciated the oral and documentary evidence

placed on record in right perspective. Having regard to

the fact that the cheque in question belongs to the

accused and it bears his signature, presumption under 5 CRL. A NO.542 OF 2011

Sections 118 and 139 of N.I.Act is operating in favour of

the complainant. However, the Sessions Court has failed

to appreciate this fact. It has also failed to appreciate the

fact that being the wife of accused, the complainant

helped him to come up in life by providing financial

assistance and prays to allow the appeal, set aside the

impugned judgment and order and restore the judgment

and order of the Trial Court.

11. On the other hand, the learned counsel for

accused submitted that there is no relationship of

husband and wife between the accused and the

complainant. In fact, complainant is the wife of one

Manjunatha. Since the complainant and accused were

colleagues, she had access to the signed blank cheque

belonging to the accused and misusing the same, the

complainant has chosen to file a false complaint. After

appreciating the oral and documentary evidence, the

Sessions Court has come to a correct conclusion that the

allegations are not proved and reversed the order of Trial

Court and prays to dismiss this appeal also.

6 CRL. A NO.542 OF 2011

12. Heard arguments of both sides and perused

the record.

13. Thus, it is the specific case of the complainant

that accused is no other than her husband and both of

them are working as teachers in Government Primary

School and in order to help him financially, she borrowed

two loans from banks and also advanced hand loan of

Rs.1,25,000/- to him. To repay the same, he issued the

subject cheque for Rs.2,00,000/-. However, it came to

be dishonoured for insufficient funds in his account and

therefore she filed the complaint.

14. Except the fact that they are working as

school teachers in a Government Primary School, the

accused has disputed the rest of the case of the

complainant. According to him, he is married to one

Sudhamani about 18 years back and having three

daughters aged 17 to 12 years. In fact, complainant is

married to one Manjunatha. Taking advantage of her

access to the Almirah, where teachers keep their

belongings, the complainant has stolen a signed blank 7 CRL. A NO.542 OF 2011

cheque belonging to him and misusing it and has filed a

false complaint. In order to harass him, the complainant

is in the habit of filing false complaints against him and

also given petitions to his employer and this is one such

example.

15. Having regard to the fact that the accused

admitted that the subject cheque belongs to him, drawn

on his account maintained with his banker and it bears

his signature, presumption under Section 139 of the

N.I.Act is operating in favour of the complainant and

against the accused. Consequently, burden is on the

accused to rebut the presumption, in the event of which,

the burden shifts to the complainant to prove her case.

16. In order to prove her relationship with the

accused and also that she borrowed loan from banks, the

complainant has relied upon Exs.P10 to P12, which are

the notices sent by Raitara Seva Sahakari Bank,

Kanakapura. In Ex.P10, while the complainant is shown

as the principal borrower, accused is shown as the

surety. She is also described as the wife of accused.

8 CRL. A NO.542 OF 2011

Ex.P13 is the election ID card, wherein she is shown as

the wife of the accused. However, during the course of

her cross-examination, the complainant has admitted

that she was married to one Manjunatha. Though the

complainant has claimed that she has secured divorce

from the said Manjunatha, no such documents are

produced.

17. Ex.D1 is the certified copy of the order passed

in Mis.No.4/2008 on the file of Principal Civil Judge and

JMFC, Kanakapura under the provisions of Protection of

Women from Domestic Violence Act. It was a petition

filed by the complainant against the accused and his

father seeking various reliefs under the provisions of

Protection of Women from Domestic Violence Act.

However it came to be dismissed by observing that the

complainant has failed to prove that she is the wife of the

accused. Exs.D2 to D7 are the remand application, FIR,

complaint, order sheet and judgment in

C.C.No.1544/2008. Similarly, Exs.D8 to D10 are the

order sheet, FIR and complaint in Cr. No.326/2009 9 CRL. A NO.542 OF 2011

lodged by the complainant against the accused. These

are the criminal proceedings initiated by the complainant

against accused. In both cases, accused is acquitted.

18. In all these proceedings, the contention of the

complainant that she is the wife of accused is negatived.

Except the interested testimony of the complainant,

there is no other evidence to establish that the

complainant is the legally wedded wife of accused and in

that capacity, in order to help him financially,

complainant borrowed loan from the banks and also paid

Rs.1,25,000/- as hand loan out of the savings to the

accused and towards the payment of the same, accused

has issued the subject check.

19. On the other hand, through preponderance of

probabilities, the accused has proved that he is a married

person, having three daughters and complainant had

access to his signed blank cheque and misusing the

same, she has filed the complaint. In fact, in Ex.P2 while

the signature of the accused is in black ink, the rest of

the writing is in blue ink and it probabalise the defence of 10 CRL. A NO.542 OF 2011

the accused that it was a signed blank cheque and the

complainant has misused the same.

20. Though the Trial Court has rightly held that

complainant had no financial capacity to lend

Rs.2,00,000/- to the accused, only on the fact that she

has borrowed loan of Rs.75,000/- from the Bank, the

Trial Court has come to a wrong conclusion that she had

paid Rs.75,000/- to the accused. As colleagues, the

possibility of accused having stood as guarantor to the

loan borrowed by the complainant cannot be ruled out.

At the most it could be held that complainant and

accused were in live in relationship. Having regard to the

fact that the complainant has taken up a false contention

that she and accused are married and at the same time

has failed to prove that she had given financial

assistance to the accused to the tune of Rs.2,00,000/,

appreciating the oral and documentary evidence placed

on record, the Sessions Court has rightly set aside the

order of the Trial Court and acquitted the accused. In the

light of oral and documentary evidence placed on record, 11 CRL. A NO.542 OF 2011

this Court is of the considered opinion that there are no

justifiable grounds to interfere with the impugned

judgment and order. In the result, the appeal fails and

accordingly the following:

ORDER

The appeal filed by the complainant is dismissed.

The impugned judgment and order of the Sessions

Court setting aside the judgment and order of the Trial

Court is confirmed.

Registrar is directed to send back the Trial Court

records along with copy of this order forthwith.

Sd/-

JUDGE

RR/KGK