Karnataka High Court
Sri. G K Girish vs Smt. Sridevi Rao on 19 December, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL No.418/2018
BETWEEN:
SRI. G.K. GIRISH,
S/O SRI. KENCHAPPA,
AGED ABOUT 34 YEARS,
RESIDING AT NO.17/4,
1ST MAIN, 2ND CROSS,
AREKEMPANAHALLI,
WILSON GARDENT,
BENGALURU-560 027.
....APPELLANT
(BY SRI. M.S. MANJANNA, ADVOCATE)
AND:
SMT. SRIDEVI RAO,
W/O SRI. VENKAT,
AGED ABOUT 44 YEARS,
R/AT NO.50, 2ND CROSS,
VENUGOPALA LAYOUT,
R.T. NAGAR,
BENGALURU-560 032.
.... RESPONDENT
(BY SRI. RAJAGOPALA NAIDU, ADVOCATE)
THIS APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C.
PRAYING TO CALL FOR THE RECORDS IN C.C.NO.22684/2015,
ON THE FILE FO THE LEARNED XXI ACMM, BENGALURU AND
FURTHER SET ASIDE THE JUDGMENT DATED 03.05.2017.
2
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 13.12.2023, COMING ON FOR 'PRONOUNCEMENT
OF JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is filed by the complainant under Section
378(4) of Cr.P.C. challenging the judgment of acquittal
passed by the XXI ACMM, Bengaluru, in CC No.22684/2015
dated 03.05.2017.
2. For the sake of convenience, the parties herein
are referred with the original ranks occupied by them before
the trial Court.
3. The accused-Smt. Sridevi Rao is a friend of
complainant-Sri. G.K. Girish and during the month of
September 2013, the accused-Smt. Sridevi Rao approached
the complainant for seeking financial assistance to make
improvement of her business and other legal necessities.
The complainant has advanced loan to the extent of
Rs.13,00,000/- in three installments i.e, a sum of
Rs.4,40,000/- paid by way of self-cheque bearing
No.0493043 dated 15.10.2013 and Rs.2,80,000/- by way of
self-cheque bearing No.0204197 dated 12.06.2014 both are
drawn on Corporation Bank, S.C. Road Branch, Bengaluru
and also paid a sum of Rs.5,80,000/- by way of cash on
16.08.2014. The accused assured repayment of the said
amount to the complainant within six months from
16.08.2014. But, she did not repay the amount within the
time assured. When the complainant demanded for
repayment of amount, the accused has issued four cheques
for Rs.1,50,000/-, Rs.2,00,000/-, Rs.8,00,000/- and
Rs.1,50,000/- all dated 28.05.2015 drawn on Sree Charan
Souhardha Co-operative Bank, City Market Area Branch,
Bengaluru, towards discharge of her legally enforceable
liability. When the said cheques were presented to the
Bank, they were returned unpaid with an endorsement
'Funds Insufficient'. Then the complainant got issued a
statutory notice against the accused and in spite of the
same, the accused failed to repay the cheque amounts and
hence, the complainant has lodged a complaint before the
learned Magistrate for the offence under Section 138 of the
Negotiable Instruments Act, 1881 ( for short, 'N.I. Act').
4. The learned Magistrate after recording the sworn
statement, has taken cognizance of the offence and issued
process against the accused. The accused appeared
through her counsel and was enlarged on bail. The plea of
accused under Section 138 of the N.I. Act was recorded and
accused denied the same.
5. The complainant got examined himself as PW.1
and placed reliance on Exs.P1 to P15. After conclusion of
evidence of the complainant, the statement of accused
under Section 313 of Cr.P.C. was recorded to enable the
accused to explain the incriminating evidence appearing
against her in the case of complainant. The case of accused
is of total denial and it is asserted that, in fact the
complainant himself is indebted to the accused and the
payments through RTGS were regarding repayment of a
part of debt amount and not the loan advancement as
asserted by the complainant. The accused has got examined
herself as DW.1 and placed reliance on Exs.D1 to D10.
6. The learned Magistrate after hearing the
arguments and after appreciating the oral and documentary
evidence has acquitted the accused for the offence under
Section 138 of the N.I. Act by exercising powers under
Section 255(1) of Cr.P.C. Being aggrieved by the said
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 the respondent/accused. Perused the records.
8. Learned counsel for the appellant/complainant
would contend that amount to the extent of Rs.13,00,000/-
was advanced in three installments on 15.10.2013,
16.06.2014 and 16.08.2014 in a sum of Rs.4,40,000/-,
Rs.2,80,000/- and Rs.5,80,000/- respectively and in
discharge of the said liability, the disputed cheques under
Exs.P1 to P4 came to be issued. It is further argued that
Exs.P14 and P15 clearly disclose that the amount
Rs.4,40,000/- and Rs.2,80,000/- was received by the
accused and the supplementary deed of the Trust produced
by the complainant was subsequent to the proceedings. It
is also asserted that the ID Card pertaining to the
complainant and income-tax returns were lost by the
complainant and accused produced them, but proper
custody is not explained. He would contend that since the
cheques have been admitted and signature is being that of
accused, the presumption under Section 139 of N.I. Act is in
favour of the complainant and accused has failed to rebut
the said presumption by raising a probable and tenable
defence. Hence, he would contend that the learned
Magistrate has failed to appreciate these facts and
circumstances in proper perspective and has erroneously
acquitted the accused, and as such he would seek for
allowing the appeal by convicting the accused/respondent
herein.
9. Learned counsel for the respondent/accused would
contend that in fact, the cheques at Exs.P1 to P4 are of the
year 2015 and account of the accused was closed long back
and transaction is not proved. It is asserted that, though
receipt of the amount by way of self-cheques to the tune of
Rs.4,40,000/- and Rs.2,80,000/- are admitted, it is not
the loan amount, but it is pertaining to repayment of loan
by the complainant himself, as he has secured loan of
Rs.30,00,000/- from accused. It is asserted that there is no
evidence regarding payment of Rs.5,80,000/- by way of
cash and the transaction itself is not proved. He would also
contend that the Legal Notice at Ex.D7 discloses that said
the legal notice was issued to the accused demanding the
amount due to the complainant to the tune of
Rs.30,00,000/- and there is no monetary transaction
pertaining to complainant advancing the loan. He would
also invite the attention of the Court to Ex.D3 asserting that
the account statement discloses that the account belongs to
one Prof. M.S. Nanjunda Rao Foundation and the accused
was prosecuted in her individual capacity without making
the said Trust as a necessary party and hence, it is asserted
that the prosecution is bad in law, as offence under Section
138 of the N.I. Act is not attracted.
10. The learned counsel for the respondent/accused
has also invited the attention of the Court to Exs.D9 and
D10 pertaining to the complaint in Crime No.301/2016
which was lodged by one M.S. Balamba N. Rao, the
complainant therein, against present complainant and one
Venkatesh Reddy regarding theft of cheques and other
documents from the house of the M.S. Balamba N. Rao and
forgery. Hence, it is asserted that there is no evidence to
show that the claim is a legally enforceable liability and
hence, it is argued that the learned Magistrate has properly
appreciated the oral and documentary evidence and rightly
acquitted the accused, which does not call for any
interference. Hence, he would seek for dismissal of 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 trial Court is perverse, erroneous and arbitrary
so as to call for any interference by this Court?
12. It is the contention of the complainant that
accused has availed loan of Rs.13,00,000/- in three
installments at Rs.4,40,000/-, Rs.2,80,000/- and Rs.
5,80,000/-. It is asserted that the first two installments
dated 15.10.2013 and 12.06.2014 were paid by way of self-
cheque and 3rd installment of Rs.5,80,000/- was paid by
cash on 16.08.2014. On the contrary it is the specific
defence of the accused that, in fact the complainant is due
to pay Rs.30,00,000/- to the accused and the payment of
Rs.2,80,000/- and Rs.4,40,000/- were admitted and it is
asserted that they were regarding repayment of partial
debt amount due to the accused.
13. The complainant was examined as PW.1. The
disputed cheques are produced at Exs.P1 to P4 and there
is no serious dispute that these cheques bear the signature
of accused. But, straightaway the presumption under
Section 139 of N.I. Act cannot be drawn since the account
does not belong to accused, but it belongs to the Trust.
14. The complainant/PW.1 in his examination chief
has reiterated the complaint allegations. When he has paid
Rs.2,80,000 and 4,40,000/- by way of cheque, what made
him to pay Rs.5,80,000/- by cash is not at all explained by
him. Further, it is also relevant to note here that the bank
statement of account produced by the complainant does not
pertaining to the period of third transaction dated
16.08.2014. The complainant has not produced any
document to show that he was holding cash of
Rs.5,80,000/- as on that date of the said transaction, so as
to advance said the amount.
15. The other important issue is that the cheques at
Exs.P1 to P4 were said to have been issued on the same
day and they are all bearing date 28.05.2015. But, there is
no explanation as to why four cheques were issued and if at
all there was a due, the complainant could have received
the single cheque from accused. These anomalies are also
not explained by the complainant.
16. It is the specific defence of accused that the
complainant was due to accused to the extent of
Rs.30,00,000/- and two payments of complainant by way of
cheques were towards repayment of the part of debt due to
accused. It is further specific assertion of accused that the
complainant along with his friend one Sri.Venkata Reddy
was residing as a tenant in the house belonging to the
accused and at the that time the cheques at Exs.P1 to P4
were stolen. However, the complainant has disputed that
he was staying in the house belonging to accused as a
tenant. But, on perusal of Ex.D5 it is evident that the
address given there is that of the accused. Though the
complainant asserts that Ex.D5 was stolen and it was lost
along with other documents and they were being misused
by the accused, but the authenticity of Ex.D5 was not
disputed. Further, Ex.D6 is also undisputed, wherein the
address of account holder is shown to be as that of accused.
Hence, the contention of the complainant, he was not
residing as a tenant in the house belong to accused holds
no water. This is again corroborated with the complaint
filed at Exs.D9 and D10.
17. But, however these proceedings are independent
proceedings. The question whether the defence raised by
accused is probable or not is required to be considered.
Considering the conduct of the complainant, the defence of
accused appears to be more probable rather than the
assertions of complainant.
18. Apart from that, Ex.D5-ID Card is in the name of
the complainant and there the complainant is shown to be
Personal Assistant to MLC and it was issued by the
Karnataka Legislative Council Secretariat. The complainant
has no where asserted that he was designated as a Personal
Assistant to any MLC and during the course of argument.
Learned counsel for appellant/complainant admits that the
complainant has never worked as Personal Assistant, but is
submitted that only to have easy access, this ID Card was
obtained. Then it is evident that the complainant has gone
to the extent of obtaining ID Card by giving false
information to the Government and hence, the genuineness
of his case itself is in stake.
19. It is further important to note here that the
complainant claims that he advanced loan of Rs.13,00,000/-
to the accused. But Ex.D1 is the Income Tax Returns
submitted by the complainant and his total annual income is
shown to be Rs.3,25,880/-. When his total income itself is
Rs,3,25,880/-, question of the complainant advancing loan
to the tune of Rs.13,00,000/- does not arise at all. Further,
the learned counsel for appellant asserted that the
complainant has lost this document along with other
documents, it was not produced from proper custody. But,
when the document was produced, it was not objected for
marking and further the genuineness of the document was
not challenged. The document at Ex.D1 completely falsifies
the financial status of the complainant to advance loan of
Rs.13,00,000/- by way of cash.
20. The other most important issue raised by the
accused is that the cheques do not belong to her and it is
pertaining to the Trust. In this regard the accused has
produced Ex.D3 and Ex.D3 is undisputed document. It
shows that it is pertaining to Current Account No.2292 and
it is issued by Sree Charan Souhardha Co-operative Bank
Limited and account is standing in the name of Prof. M.S.
Nanjunda Rao Foundantion. This document establishes that
the Current Account 2292 is in the name of M/s. Nanjunda
Rao Foundation and two persons were authorized to
operate the Bank Transaction including the accused. But,
the Trust is not made as a party and the amount was never
paid to the Trust, and there is no transaction between the
complainant and Trust.
21. Section 138 of the N.I. Act states that the
cheque is to be drawn by a person on the account
maintained by him/her with Banker. But, in the instant
case, the cheques are belonging to the Trust of Prof. M.S.
Nanjunda Rao Foundation. Admittedly Exs.P1 to Ex.P4 are
pertaining to Current Account No.2292 and Ex.D3 clearly
establishes that the cheques are pertaining to the Trust.
Admittedly the said Trust is not made as a party.
Considering the fact of defence of accused that the
complainant along with his friend has stolen the cheques
when they were staying as tenants in the house belonging
to her, appears to be more probable defence rather than
the assertion of the complainant regarding advancement of
loan, in view of the fact that the cheques do not belong to
accused in her individual capacity.
22. The learned Magistrate in this regard has placed
reliance on a decision reported in 2010(4) KCCR 2876
(Shivappa Reddy Vs. C.K.Jagannath) and held that the
complaint itself is not maintainable. The records clearly
disclose that the account is pertaining to the said Trust and
there is no transaction between the Trust and the
complainant. But, the cheques belong to the Trust and
accused was prosecuted in her individual capacity and the
Trust is not a party. Under such circumstances, the offence
under Section 138 of N.I. Act is not attracted.
23. Considering all these facts and circumstances,
and considering the financial status of the complainant and
the fact that cheques belonging to the Trust and it is
evident that the presumption under Section 139 of the N.I.
Act is not at all available to the complainant and he is
required to prove his case beyond all reasonable doubt. But
the records disclose that the complainant has not placed
any material to show regarding advancement of loan of
Rs.13,00,000/- to the accused in three installments,
especially the 3rd installment by way of cash to the tune of
Rs.5,80,000/-.
24. The learned Magistrate has appreciated the oral
and documentary evidence in proper perspective and has
rightly acquitted the accused. No illegality or perversity is
found in the judgment of acquittal passed by the learned
Magistrate so as to call for any interference by this Court.
As such, I am constrained to answer the point under
consideration in the negative and accordingly I proceed to
pass the following:-
ORDER
The appeal stands dismissed.
Sd/-
JUDGE
KGR*
