Karnataka High Court
Smt. B Ramamani vs Smt. Hemalatha on 13 December, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL No.934/2020
BETWEEN:
SMT. B. RAMAMANI,
W/O K.R. KRISHNA PRASAD,
AGED ABOUT 49 YEARS,
RESIDING AT NO.214, 4B, 3RD CROSS,
4TH MAIN, JAGAJYOTHI LAYOUT,
NAGADEVANAHALLI,
BENGALURU-560 056.
....APPELLANT
(BY SRI. SHARATH KUMAR SHETTY, ADVOCATE)
AND:
SMT. HEMALATHA,
W/O B.S. SATHYANANDAN,
AGED ABOUT 58 YEARS,
RESIDING AT NO.153, 17TH CROSS,
30TH MAIN, 6TH PHASE,
J.P. NAGAR, BENGALURU-560 078.
.... RESPONDENT
(BY SRI. RAVI .R, ADVOCATE)
THIS APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C.
PRAYING TO SET ASIDE THE ORDER OF ACQUITTAL DATED
08.07.2020 PASSED BY THE XXII ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE AT BENGALURU CITY IN
C.C.NO.8633/2018-ACQUITTING THE RESPONDENT/ACCUSED
FOR THE OFFENCE P/UNDER SECTION 138 OF N.I. ACT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 05.12.2023, COMING ON FOR 'PRONOUNCEMENT
2
OF JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is filed by the appellant/complainant
challenging the judgment of acquittal passed by the
XXII Additional Chief Metropolitan Magistrate, Bangalore, in
CC No.8633/2018, dated 08.07.2020.
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 is well acquainted with the accused
being her relative. The accused demanded a hand loan of
Rs.20,00,000/- from complainant to meet her financial
difficulties and considering the need of the complainant,
accused advanced Rs.20,00,000/- in the month of
December-2017 and accused assured of repayment of the
same in last week of December 2017. The accused did not
repay the loan amount and on demand by the complainant,
she has issued a cheque bearing No.008493, dated
01.02.2018 for Rs.20,00,000/- drawn on Federal bank, J.P.
Nagar Branch, Bengaluru, in favour of complainant. When
complainant presented the said cheque for encashment, it
came to be returned with an endorsement as "funds
insufficient". Later on, the complainant has got a issued a
legal notice to the accused and after of service of legal
notice, the accused gave an untenable reply but did not
repay the cheque amount. Hence, the complainant has filed
a complaint under Section 200 of Cr.P.C. alleging that
accused has committed an offence under Section 138 of the
Negotiable Instrument Act, 1881 (for short 'N.I.Act').
4. The learned Magistrate after recording the sworn
statement of complainant and after perusing the
documentary evidence has taken cognizance of the offence
and issued a process against the accused. The accused has
appeared through his counsel and was enlarged on bail. The
plea under Section 138 of the N.I. Act is framed against
accused and accused pleaded not guilty.
5. The complainant was got examined himself as
PW1 and placed reliance on seven documents marked at
Ex.P1 to Ex.P7. During the cross-examination of
complainant, Ex.D1 to Ex.D3 were got marked on behalf of
the accused. After the conclusion of the evidence of
complainant, the statement of accused under Section 313
Cr.P.C. was recorded to enable the accused to explain the
incriminating evidence appearing against her. The case of
accused is of total denial. However, she did not lead any
independent evidence in support of his contention.
6. After hearing the arguments and after
appreciating the oral and documentary evidence, the
learned Magistrate has acquitted the accused for the offence
punishable under Section 138 of the N.I. Act by exercising
his powers under Section 255(1) of Cr.P.C. Being aggrieved
by this judgment of acquittal, the complainant is before this
Court by way of this appeal.
7. Heard the arguments advanced by the learned
counsel for the appellant/complainant and the learned
counsel for respondent/accused. Perused the records.
8. The learned counsel for the complainant would
contend that the accused and complainant are close
relatives and with that understanding, the loan was
demanded and in good faith the same was advanced and in
respect of repayment, cheque under Ex.P1 came to be
issued. It is also asserted that she had already sold her
property on 13.11.2017, which is evident from Ex.P5 and
she received Rs.33,00,000/- as sale consideration and
hence, her financial status is established. It is also asserted
that the cheque-Ex.P1 belongs to complainant and it bears
signature of complainant are admitted and hence, the
presumption under Section 139 of the N.I. Act is in favour
of complainant and same is not rebutted by the accused by
leading any cogent evidence. Hence, he would contend that
the learned Magistrate has committed an error in acquitting
the accused and sought for allowing the appeal by
convicting the accused.
9. Per contra, the learned counsel for respondent
would contend that the complainant has not established her
financial status and the reply notice issued itself specifies
the defence as the complainant used to get some amount
from accused and in this regard, she has obtained the
cheques and later on asserted that the amount was not
required but failed to repay the amount. Since they were all
residing in same family, the same was not taken seriously,
but this said cheque is now being misused. He would also
assert that in the entire complaint or in the evidence, there
is no reference of specific date of advancement of loan
which creates a serious doubt regarding the transaction as
claimed by the complainant. It is also contended that in
Ex.P3, the demand was made for interest, which discloses
that the claim is not a legally enforceable debt. Hence, he
would contend that the complainant has failed to prove that
the amount under Ex.P1 is a legally enforceable liability and
as such, he would assert that the learned Magistrate has
appreciated the oral and documentary evidence in proper
perspective and rightly acquitted the accused. Hence, he
would seek for dismissal of the appeal.
10. Having heard the arguments and after
appreciating the oral and documentary evidence, now the
following point would arise for my consideration:
"Whether the judgment of acquittal passed by
the trial Court is perverse and arbitrary so as to
call for any interference by this Court."
11. It is an Undisputed fact that accused is an aunt
of complainant being the wife of uncle of the complainant.
Hence, it is evident that the parties are closely related to
each other. It is also an admitted fact that the complainant
is a housewife and she is not doing any independent
avocation.
12. It is the specific contention of the complainant
that accused has availed Rs.20,00,000/- from the
complainant in December-2017. It is interesting to note
here that the complainant claims to have advanced such a
huge amount in cash, but she is unable to disclose the date
of advancement of the loan. This conduct of the
complainant is very much suspicious. No doubt, the accused
has not disputed the financial status of the complainant in
his reply notice. However, it is the duty of the complainant
to prove the passing of consideration, if accused is able to
create some doubt regarding case of the complainant.
13. There is no serious doubt of the fact that the
cheque belongs to the accused and it bears her signature.
Hence, the initial presumption under Section 139 of the N.I.
Act is in favour of complainant to the effect that the cheque
was issued towards legally enforceable liability. However,
the said presumption is not a conclusive presumption, but it
is a rebuttable presumption. At the same time, accused is
required to rebut the said presumption only on the basis of
preponderance of probability.
14. In the instant case, the complainant admits that
she is a housewife. Further, she does not know the date of
advancement of the loan. She in her cross-examination,
tries to make out a case that she sold her property and
received sale consideration to the tune of Rs.33,00,000/-
and out of the same, Rs.20,00,000/- was paid to the
accused. She asserts that the said amount was kept in the
house. The complainant has placed reliance on sale deed
dated 13.11.2017, produced at Ex.P5. On perusal of Ex.P5,
it is evident that the complainant has not received sale
consideration at one instance, but she received sale
consideration on 7/8/2017, 12/08/2017, 5/11/2017 and
13/11/2017 in installments. Further, all these amounts were
received by the complainant by way of cheques and hence,
it is evident that the said amount was credited to her
account. The credit of the amount of Rs.10,00,000/- &
Rs.15,00,000/- is evident from Ex.P6. If this is taken into
consideration, then Rs.25,00,000/- is deposited. but the
complainant claims that the sale consideration of
Rs.20,00,000/- was kept in her house.
15. Even on perusal of bank statement at Ex.P7, it is
evident that she has not withdrawn Rs.20,00,000/- but
certain withdrawals were there and they were in the name
of one Chandrashekhar or a Security Firm. Nothing was
placed on record to show that the said Chandrashekhar R,
or the Security Firm has returned the said amount to the
complainant. Hence, the cross-examination of complainant
clearly establishes that the presumption available in her
favour is rebutted.
16. In her further cross-examination she has also
admitted that her husband has filed two cheque bounced
cases and it is evident from Ex.D1 and Ex.D2. On perusal of
Ex.D1 and Ex.D2, it is evident that the husband of
complainant advanced Rs.1,00,00,000/- to one M.R.Srinivas
and his wife Suchitra. It is hard to accept that the
complainant and her husband are advancing the loan to
such a huge extent without any security or interest.
17. Apart from that, the complainant all along in her
cross-examination asserted that on 13.11.2017, she
received a sale consideration of Rs.33,00,000/-, but Ex.P5
falsifies this statement as it discloses that the said amount
was received in installments on different dates. Further,
PW1 admitted that she is not an income tax assesse. In
Ex.P5 there is reference that she was selling the land for
clearing the debt and other financial difficulties. In that
event, the question of she lending this amount to others
does not arise at all. Apart from that, the consideration
received by her after the sale is a capital gain and is
required to be shown in income tax or else it should have
been used for purchase of the property within one year as
per the provisions of Income Tax Act, but the same was not
done by the complainant and she is not a Income Tax
assessee. Though the complainant asserts regarding sale of
the house, but said transaction was pertaining to 2012 &
2013.
18. The complaint further all along alleged that she
has withdrew the amount credited to account and placed
reliance on Ex.P7, but on the perusal of Ex.P7 there is no
entry regarding she withdrawing the amount to the tune of
Rs.20,00,000/- and she admits this aspect but she asserts
that she has withdrew the amounts, if she had withdrawn
the amount from her bank account, it should have been
mentioned in statement Ex.P7.
19. Apart from that, in the further cross-
examination, she has also admitted that she was having
loan of Rs.5,00,000/-. Under such circumstances, question
of she advancing a huge loan of Rs.20,00,000/- without
proper security does not arise at all. Even the conduct of
her husband disclose that he lent Rs.1,00,00,000/- to other
two persons and two cases were also filed as per Ex.D1 and
Ex.D2. For having advanced the loan, she has not produced
on demand promissory note or pronote. Though there is no
specific denial of source of income, but considering her
cross-examination, her source of income itself is under
stake. When accused srpecifically disputed the lending of
the said amount, it is for complainant to substantiate the
said contention, but no such evidence is forthcoming. No
evidence is placed to show that she did withdrew the
amount from her account out of the sale consideration, but
the records disclose that the withdrawal was by cheque in
the name of Chandrashekhar.R, Ravikumar.J and Security
Firm etc., Further, this is again corroborated by the conduct
of the complainant, wherein she nowhere asserted the
specific date of advancement of loan. She simply asserts
that loan was advanced in December-2017 that too by way
of cash and when complainant has paid certain sums to
other persons by way of cheque, nothing prevented her to
make payment to the accused by way of cheque and no
explanation is offered for making payment by way of cash.
All these facts and circumstances clearly establish that the
accused has rebutted the presumption available in favour of
complainant that the cheque was issued towards legally
enforceable liability.
20. Admittedly, accused and complainant are close
relatives and the defence of the accused is that complainant
receiving the cheques from the accused for certain sums as
per need and both cheques being misused which were
issued in good faith. Considering the conduct of the
complainant, this defence raised by the accused appears to
be more probable.
21. Looking to these facts and circumstances, the
presumption in favour of complainant under Section 139 of
the N.I. Act stands rebutted and complainant has not placed
any other material evidence to prove that the cheque was
issued towards legally enforceable liability. The learned
Magistrate considered all these aspects in proper
perspective and has rightly acquitted the accused. No
perversity or illegality is found in judgment of acquittal
passed by the learned Magistrate so as to call for any
interference. As such, the appeal being devoid of any
merits, does not survive for consideration. Accordingly, the
point under consideration is answered in the negative and
as such, I proceed to pass the following:
ORDER
(i) The appeal stands dismissed.
Sd/-
JUDGE
DS
