Smt Mary Vinya vs Smt Rema
2023 Latest Caselaw 10112 Kant

Karnataka High Court

Smt Mary Vinya vs Smt Rema on 11 December, 2023

Author: Rajendra Badamikar

Bench: Rajendra Badamikar

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                                                CRL.A No. 329 of 2018
                                                   NC: 2023:KHC:44793




               IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                 DATED THIS THE 11TH DAY OF DECEMBER, 2023

                                     BEFORE
                THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
                     CRIMINAL APPEAL NO. 329 OF 2018 (A)
             BETWEEN:

             SMT. MARY VINYA,
             W/O SRI. JAMES,
             AGED ABOUT 40 YEARS,
             R/O. MUTHAPPA TEMPLE ROAD,
             KARMAD VILLAGE, AMMATHI POST,
             VIRAJPET TALUK - 571 218,
             KODAGU DISTRICT.
                                                         ...APPELLANT
             (BY SRI. RAJARAMA SOORYABAIL, ADVOCATE)

             AND:

             SMT. REMA,
             W/O. SASHI,
             AGED ABOUT 45 YEARS,
Digitally    R/O. POLIBETTA ROAD,
signed by
SOWMYA D     KARMAD VILLAGE, AMMATHI POST,
Location:    VIRAJPET TALUK - 571 518,
High Court   KODAGU DISTRICT.
of
Karnataka                                              ...RESPONDENT
             (BY SRI. P. UDAYASHANKAR RAI, ADVOCATE)

                  THIS CRL.A IS FILED U/S.378(4) OF CR.P.C PRAYING TO
             SET ASIDE THE JUDGMENT DATED 05.01.2018, PASSED BY
             THE PRINCIPAL CIVIL JUDGE AND JMFC, VIRAJPET, IN
             C.C.NO.264/2015, ACQUITTING THE RESPONDENT FOR THE
             OFFENCE P/U/S 138 OF THE N.I. ACT.
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                                      CRL.A No. 329 of 2018
                                         NC: 2023:KHC:44793




    THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                        JUDGMENT

This appeal is filed by the appellant/complainant

under Section 378(4) of the Cr.P.C. challenging the

judgment of acquittal passed by the Principal Civil Judge

and JMFC, Virajpet in C.C.No.264/2015 dated 05.01.2018.

2. For the sake of convenience, parties herein are

referred with the original ranks occupied by them before

the Trial Court.

3. The brief factual matrix leading to the case is as

under:

The complainant is well acquainted with the

accused and he has availed loan of Rs.1,50,000/- from the

complainant in month of January 2015, and towards the

discharge of the said amount, she has issued the cheque

for a sum of Rs.1,50,000/-, dated 20.02.2015, drawn on

Canara Bank, Ammathi Branch. When the complainant

presented the said cheque, it was returned with an

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endorsement as 'insufficient funds'. Then the complainant

has issued a legal notice to the accused and in spite of the

service of the legal notice, the accused neither paid the

amount nor replied to the legal notice. Hence, she has

filed a complaint under Section 200 of the Cr.P.C., before

the learned Magistrate alleging that the accused has

committed an offence under Section 138 of the Negotiable

Instruments Acts, 1881 (for short 'N.I. Act' 1881).

4. Learned Magistrate after recording the sworn

statement and perusing the documentary evidence, issued

process after taking cognizance of the offence. The

accused has appeared through his counsel and was

enlarged on bail. She denied the plea recorded under

Section 138 of the N.I. Act and pleaded not guilty.

5. The complainant got examined herself as PW.1

and placed reliance on 5 documents marked at Ex.P1 to

Ex.P5. After the conclusion of the evidence of the

complainant, the statement of the accused under Section

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313 of Cr.P.C. was recorded to enable the accused to

explain the incriminating evidence appearing against her.

The case of the accused is of total denial. She got

examined herself as RW.1, and another witness was

examined on her behalf as RW.2.

6. The learned Magistrate after hearing the

arguments and after appreciating the oral and

documentary evidence, acquitted the accused solely on

the ground that the complainant has failed to prove her

financial capacity and it was improbable for her to advance

a loan of Rs.1,50,000/-.

7. Being aggrieved by this judgment of acquittal

the appellant is before this Court by way of this appeal.

8. Heard the arguments advanced by the learned

counsel for the appellant and the learned counsel for the

respondent. Perused the records.

NC: 2023:KHC:44793

9. Learned counsel for the appellant would

contend that the accused has not disputed the cheque and

signature on the cheque and hence, the presumption

under Section 139 of the N.I. Act, is in favour of the

complainant. It is also asserted that the learned Magistrate

has acquitted the accused only on the ground of financial

status of the complainant but failed to consider the fact

that, the financial status was never challenged and there is

no reply to the legal notice issued. Hence, he would

contend that the learned Magistrate has proceeded on

assumption and presumption and as such, he would seek

for allowing the appeal by setting aside the impugned

judgment of acquittal by convicting the

accused/respondent herein.

10. Per contra, the learned counsel for the

respondent would support the judgment of acquittal

passed by the trial Court. He would contend that, the

complainant has not produced any documents to show her

capacity to advance the loan and the learned Magistrate

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has rightly appreciated this aspect and acquitted the

accused, and when the said judgment is well reasoned

one, it does not call for any interference. Hence, he would

seek for dismissal of the appeal.

11. Having heard the arguments and perusing the

records, now the following point would arise for my

consideration.

"Whether the judgment of acquittal passed by the learned Magistrate on the file of Principal Civil Judge & JMFC., Virajpet in C.C.No.264/2015 vide judgment dated 05.01.2018 is perverse, arbitrary and erroneous, so as to call for any interference by this Court.

12. It is the contention of the complainant that the

accused has availed a loan of Rs.1,50,000/- from her and

in discharge of the said debt, the disputed cheque under

Ex.P1 came to be issued. It is an undisputed fact that, the

cheque belongs to the accused and bears the signature of

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the accused. Hence, the initial presumption under Section

139 of the N.I. Act, is in favour of the complainant to the

effect that the cheque was issued towards legally

enforceable liability. The drawing of the said presumption

is mandatory and the accused is at liberty to rebut the

said presumption by way of cross-examination or by

leading the evidence in this regard.

13. The complainant got examined herself as PW.1

and in her examination-in-chief, she has re-iterated the

averments made in the complaint. PW.1 was cross-

examined at length and in the entire cross-examination of

PW.1, the financial status of the complainant was never

challenged. Even though she has narrated certain

transactions, the said transactions were also never

challenged including her income. When the financial status

of the complainant was not at all challenged during the

cross-examination or by way of issuing reply notice, the

question of rebuttal of the presumption does not arise at

all. However, even then the accused is entitled to rebut

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the presumption but the records disclose that the accused,

who has examined as DW.1, all along asserted that she

had issued a reply notice. She also asserted that she had

produced the copy of the reply notice, but she has not

replied and she has not even produced the copy of the

reply notice if she had replied. Ex.P3 is the legal notice

and Ex.P5 is the postal acknowledgment for service of

notice to the accused which is admitted.

14. In the cross-examination of PW.1, the

complainant has raised a defence that the complainant,

accused and others have formed an association and they

were doing money lending business and towards security

of these transactions, cheques were issued. The

suggestion came to be denied by the complainant.

However, during the examination-in-chief the accused who

got examined herself as DW.1 has put forward a new

defence asserting that the complainant was financing the

amount on interest basis and she used to collect the

interest from the others and used to handover the same

NC: 2023:KHC:44793

to the complainant. It is also asserted that, she used to

get payment for her work and as a security, the

complainant had obtained two blank cheques and as some

of the parties, who had borrowed the money, did not

return the same to the complainant, he misued the

cheques. This statement is completely a new statement

and in the cross-examination of PW.1, a suggestion was

made that the complainant and the accused along with

others were doing money lending business, but in the

evidence, the accused has tried to set up a defence that

the complainant alone was doing money lending business

and she used to collect the installment and the interest

from the borrowers and used to pay the same to the

complainant, for which she was being paid, which is a new

defence. Hence, it is evident that, the accused is taking

inconsistent defences and she has not rebutted the

presumption available in favour of the complainant.

15. Learned Magistrate on account of non-

production of documents regarding financial status of the

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complainant, held that the transaction is improbable.

However, when the financial status of the complainant

itself is not challenged by the accused, question of

considering the capacity of the complainant to advance the

loan, does not arise at all as under Section 139 of the

N.I.Act, it is mandatory for the Court to draw a

presumption. In this regard, it is relevant to refer the

citation reported in the case of RAJESH JAIN Vs. AJAY

SINGH reported in (2023) 10 Supreme Court cases

148. In view of these facts and circumstances, the entire

approach of the learned Magistrate is perverse, arbitrary

and erroneous and when the judgment is based on

perversity, the judgment calls for interference by this

Court.

16. Hence, the judgment of acquittal does not

survive for judicial scrutiny and calls for interference. The

amount of Rs.1,50,000/- was advanced in the year 2015

and under Section 138 of the N.I. Act, the Court can

impose sentence of imprisonment, which may extend upto

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two years or fine which may be extend to the double of

the cheque amount or both. The transaction is of nearly

eight years old and considering these facts and

circumstances, in my considered opinion, it is just and

proper to impose fine of Rs.2,50,000/- to the complainant

which would serve the purpose. As such, the point under

consideration is answered in the affirmative and hence, I

proceed to pass the following:

ORDER

1. The appeal is allowed. The impugned judgment of acquittal passed by the Principal Civil Judge and JMFC, Virajpet in C.C.No.264/2015 dated 05.01.2018 is set aside.

2. The accused/respondent herein is convicted for the offence punishable under Section 138 of the N.I.Act.

3. The accused/respondent herein is sentenced to pay a fine of Rs,2,50,000/-

in default she is required to undergo

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simple imprisonment for a period of six months.

4. Out of the fine amount of Rs.2,40,000/-

shall be paid to the complainant/appellant herein by way of compensation under Section 357 of Cr.P.C., and balance amount of Rs.10,000/- shall be appropriated to the State towards expenses.

5. Registry is directed to send back the records to the trial Court along with a copy of this judgment with a direction to the learned Magistrate to secure the presence of the accused and recover the fine or enforce the default sentence.

Sd/-

JUDGE

URN

CT: BHK