Karnataka High Court
Sri S P Karthik vs Smt Mahima Mohan Champa on 19 July, 2023
Bench: J.M.Khazi
1 Crl.A.No.817/2012
c/w Crl.A.No.818/2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.817 OF 2012
C/W
CRIMINAL APPEAL NO.818 OF 2012
IN CRIMINAL APPEAL NO.817 OF 2012
BETWEEN:
SRI. DR. RAJENDRA S
S/O LATE N SOMASHEKARAIAH
AGED ABOUT 44 YEARS
RESIDING AT #181/B,
1ST CROSS, A BLOCK
BANNIMANTAP
MYSORE - 570 015
...APPELLANT
(BY SRI. SRINIVASA D C, ADVOCATE)
AND:
SMT. MAHIMA MOHAN CHAMPA
W/O DR. SUDARSHAN
AGED ABOUT 37 YEARS
R/A NO.33, 'GEETHA'
VIVEKANANDA ROAD
YADAVAGIRI
MYSORE
.....RESPONDENT
(BY SRI. ABUBACKER SHAFI, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF THE CODE OF CRIMINAL PROCEDURE PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL PASSED
BY THE IV ADDITIONAL I CIVIL JUDGE & JMFC, MYSORE IN
C.C.NO.469/2006 DATED 28.06.2012 AND FURTHER PUNISH
THE ACCUSED/RESPONDENT IN ACCORDANCE WITH
2 Crl.A.No.817/2012
c/w Crl.A.No.818/2012
SECTION 138 OF N.I.ACT, IN THE INTEREST OF JUSTICE AND
EQUITY.
IN CRIMINAL APPEAL NO.818 OF 2012
BETWEEN:
SRI S P KARTHIK
S/O P SRIKANTAPRASAD
AGED ABOUT 35 YEARS
RESIDING AT #35
MODEL HOUSE, 6TH CROSS
JAYALAKSHMIPURAM
MYSORE
...APPELLANT
(BY SRI. SRINIVASA D C, ADVOCATE)
AND:
SMT. MAHIMA MOHAN CHAMPA
W/O DR. SUDARSHAN
AGED ABOUT 37 YEARS
R/A NO.33, 'GEETHA'
VIVEKANANDA ROAD
YADAVAGIRI
MYSORE
.....RESPONDENT
(BY SRI. ABUBACKER SHAFI, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF THE CODE OF CRIMINAL PROCEDURE PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL PASSED
BY THE HON'BLE IV ADDITIONAL I CIVIL JUDGE & JMFC,
MYSORE IN C.C.NO.543/2007 DATED 28.06.2012 AND
FURTHER PUNISH THE ACCUSED/RESPONDENT IN
ACCORDANCE WITH SECTION 138 OF N.I.ACT, IN THE
INTEREST OF JUSTICE AND EQUITY.
THESE CRIMINAL APPEALS HAVING BEEN HEARD AND
RESERVED ON 14.06.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
3 Crl.A.No.817/2012
c/w Crl.A.No.818/2012
JUDGMENT
In these appeals, the complainants have challenged
the impugned judgments and orders passed by the trial
court acquitting the accused for the offence punishable
under section 138 of N.I Act.
2. In these appeals, though the complainant are
different, accused is common and she has taken a common
defence and relied upon certain common documents which
are pertaining to the common defence taken by her. Since
common discussion is involved, these two appeals are
clubbed together and decided by a common judgment and
order.
3. For the sake of convenience, the complainants
are referred to by their names and accused is referred as
accused.
4. Both complainants are Doctors by profession. In
fact it has come in the evidence of accused that her father
as well as husband are Doctors and in that way, they are
known to each other. Accused and complainant Dr.
Rajendra are also relatives.
c/w Crl.A.No.818/2012
5. It is the case of complainant Dr.Rajendra that
on 08.10.2005 accused for her legal necessity borrowed a
sum of Rs.1,00,000/- from him agreeing to repay the same
within a short period along with interest at 18% p.a and
when she failed to repay the amount within the promised
time, on approach and demand by the complainant
Dr.Rajendra, she issued a cheque bearing number 861232
dated 02.08.2006. However, when it was presented for
encashment, it is dishonored with endorsement 'Funds
insufficient'. He got issued a legal notice dated 01.09.2006.
Though she has received the notice, she failed to comply
with the same. However, she has sent an untenable reply.
Without any alternative, he has filed the complaint.
6. It is also the case of the complainant Dr. S.P.
Karthik that for her legal necessity accused borrowed a
sum of Rs.4,00,000/- promising to repay the same with
interest at 12% per annum and on the same day i.e,
08.05.2006, she got issued a post dated 16.08.2006
cheque bearing number 729235. On 14.09.2006, when
complainant Dr. S.P.Karthik presented it for realization, it
was dishonored for 'Funds insufficient'. He issued a legal
c/w Crl.A.No.818/2012
notice calling upon the accused to repay the amount due
under the cheque. In this case also though the accused has
received the notice, she has neither complied with it nor
sent any reply and therefore the complaint is filed.
7. In both cases, the accused has taken up a
defence that the mother of complainant Dr. Rajendra whom
the accused has chosen to examine as witness i.e DW-2
Prabhavathi was running chit fund business and accused
was a regular participant in the same and every time she
bid for the chit DW-2 Prabhavati used to take cheques for
double the amount from her and sometimes she used to
take blank cheques from her and misusing the same, she
got filed these complaints through her son Dr.Rajendra and
complainant Dr.S.P.Karthik, who is no other than a friend
and student of Dr.Rajendra. In fact, she filed a criminal
complaint against DW-2 - Prabhavati, complainant, Dr.
Rajendra, Dr.S.P.Karthik, other two persons who also filed
complaints against the accused for the offence punishable
under Section 138 of N.I. Act and with this defence,
accused sought for dismissal of the complaints.
c/w Crl.A.No.818/2012
8. In support of his case complainant Dr. Rajendra
examined himself as a PW-1 and relied upon Ex.P1 to 15.
9. In support of his case, complainant
Dr.S.P.Karthik has examined himself as PW-1, one witness
as PW-2 and relied upon Ex.P1 to 15.
10. During the course of her statement under
Section 313 of Cr.P.C, accused has denied the incriminating
evidence.
11. In fact, in both cases, the accused has
examined herself as DW-1. She has chosen to examine the
mother of Dr Rajendra as DW-2. She has relied upon Ex.D1
to 10.
12. Vide the impugned judgment and order, the trial
Court has dismissed the complaints.
13. Being aggrieved by the same, the complainants
have challenged the impugned judgments and orders
contending that they are erroneous, contrary to the facts
and evidence on record. In the light of cogent and reliable
evidence placed on record by the complainants, the trial
c/w Crl.A.No.818/2012
court has erred in acquitting the accused. The trial Court
has failed to draw the presumption under Sections 118 and
139 of N.I. Act. In the light of the said presumption, the
onus is on the accused to prove her defence, but she
certainly failed to establish the same. Consequently, the
impugned judgments and orders are liable to be set aside.
13.1 Though the accused has taken up a specific
defence that she had given more than 40 cheques to DW-2
Prabhavathi, as security and in the alleged undertaking i.e
Mucchalike (hereinafter referred to as 'Muchhalike'), she
has admitted of having received such cheques, in the reply
notice at Ex.D7, legal notice sent to DW-2 Prabhavathi as
at Ex.D8 as well as in complaint - PCR.No.45/2007 at
Ex.D1, filed by the accused against the complainant and
others, the accused has not referred to existence of such
Muchhalike and it is clearly a concocted document. This
document is concocted by the complainant with the help of
concerned police after it was referred to investigation by
the trial Court. This aspect is not appreciated by the trial
Court.
c/w Crl.A.No.818/2012
13.2 Though during the investigation, the
Investigating Officer has got examined the signature in the
Mucchalike, he has not chosen to get the report with regard
to the writing of rest of the document. Though in these
complaints, the accused has taken up a defence that
cheque number 731293 for Rs.1,00,000/- was given to
DW-2 Prabhavathi, in Ex.P15 which is the reply notice sent
to Dr Mohan Kumar, she has claimed that this cheque along
with other cheques was given to Smt. Sarojamma - the
mother of Dr.Mohan Kumar as a security for the chit fund
business run by her. This itself goes to show that the
defence taken by the accused is false and the Mucchalike
relied upon by the accused is a concocted document. In
fact in the complaint filed against Dr.Mohan Kumar,
accused has compromised before the Lok Adalat by paying
the amount due to him. Without appreciating all these
aspects, the trial Court has erred in dismissing the
complaints and prays to allow the appeals, convict accused
and sentence her accordingly.
c/w Crl.A.No.818/2012
14. In support of his arguments, learned counsel for
complainant has relied upon the following decisions:
(i) Sri.N.A. Prabhakar Vs. Mahima Mohan Champa
(Prabhakar)1
(ii) Sumeti Vij Vs. M/s Paramount Tech Fab Industries
(Sumeti Vij)2
15. On the other hand learned counsel for accused
has supported the impugned judgment and order and prays
to dismiss the appeal.
16. In support of his arguments, learned counsel for
accused has relied upon the following decisions:
(i) Krishna Janardhan Bhat Vs. Dattatraya G.Hegde
(Krishna Janardhan Bhat)3
(ii) Kumar Exports Vs. Sharma Carpets
(Kumar Exports)4
(iii) M.Senguttuvan Vs. Mahadevaswamy
(Senguttuvan)5
(iv) Shashi Prakash Vs. B.Krishna Murthy
(Shashi Prakash)6
(v) Kamala S. Vs. Vidyadharan M.J & Anr.
(Kamala)7
Crl.A.No.930/2011
2021 (1) Kar.L.R 378 (SC)
(2008) AIR (SC) 1325
(2009) AIR (SC) 1518
(2007) ILR (Karnataka) 2709
(2004) ILR (Karnataka) 2938
c/w Crl.A.No.818/2012
(vi) Amzad Pasha Vs. H.N.Lakshmana
(Amzad Pasha)8
(vii) M/s United Distributors Mangalore Vs.
Smt.Geetha K.Rai (M/s United Distributors)9
17. Heard arguments and perused the record.
18. Thus, it is the specific case of the complainants
that accused borrowed hand loan of Rs.1,00,000/- and
Rs.4,00,000/- respectively and issued the subject cheques
towards repayment of the same and on presentation to the
Bank, they were dishonored for want of sufficient funds.
Though accused admit that the cheques belongs to her,
drawn on her account maintained with the Bank and they
bear her signature, she has contended that they were not
issued in favour of complainants towards repayment of any
debt or liability.
19. On the other hand, it is her specific case, DW-2
Prabhavathi - mother of complainant Dr.Rajendra was
running chit business and accused was participating in the
same regularly and at that time she had collected around
40 cheques some of them were blank and misusing two
(2007) 1 DCR 321
(2010) 3 KCCR 1950
(2011) 3 KCCR 1825
c/w Crl.A.No.818/2012
such cheques the complaints are filed. Having regard to the
fact that accused admit that the subject cheques belongs to
her drawn on her account and they bear her signature, the
presumption under Sections 118 and 139 of N.I.Act is
operating in favour of the complainants and consequently,
the burden is on the accused to rebut the said
presumption. Only after she discharge the said burden, the
onus would shift on the complainants to establish the
circumstances in which accused issued the cheques.
Consequently, it is necessary to examine whether the
accused has rebutted the presumption operating against
her.
20. During the course of their evidence,
complainants who are examined as PW-1 in their respective
cases have reiterated the complaint averments. After the
subject cheques were dishonored, they have issued legal
notice to the accused calling upon her to pay the amount
due and it is duly served on her. In fact she has sent reply
alleging that DW-2 - Prabhavathi was running chit business
and the subject cheques were issued to her and they have
been misused. In fact she has given a list of 39 cheques
which were allegedly given to DW-2 Prabhavathi. Though
c/w Crl.A.No.818/2012
cheque No.729235 which is the subject matter of
C.C.No.543/2007 filed by Dr.S.P.Karthik find place in this
list, cheque No.861232 which is the subject matter of
C.C.No.469/2006 filed by Dr.Rajendra does not find place
in this list.
21. In fact in C.C.No.543/2007, during her cross-
examination accused has admitted that in her reply at
Ex.P15 (C.C.No.469/2006), to the legal notice sent to
Dr.Mohan Kumar who is complainant in C.C.No.982/2007,
she has stated that cheque No.731293 dated 24.03.2007
which is the subject matter of the said case, is issued to his
mother Sarojamma, who was allegedly running a chit fund
business. The same cheque number find place in Ex.P7,
which is reply notice sent to complainant Dr.Rajendra,
containing the list of cheques allegedly given to his mother
i.e., DW-2 Prabhavathi. This very fact indicate that the
accused has taken up a false defence alleging that DW-2
Prabhavathi as well as Sarojamma were running chit fund
business and they have collected number of cheques from
her by way of security and misusing some of them, filed
criminal cases against her.
c/w Crl.A.No.818/2012
22. In fact as per Ex.P8 to 15, accused has
compromised with Dr.Mohan Kumar and consequently,
C.C.No.982/2007 filed by him came to be dismissed as
settled. Before the Lokadalath, both parties have admitted
that the amount due under the cheque is paid by the
accused and received by the complainant i.e., Dr.Mohan
Kumar. However, on this aspect, accused has denied that
amount due was paid and claimed that the said case was
compromised without she paying the alleged amount due
under the said cheque. Her evidence is contrary to the
documents i.e., compromise entered into before the
Lokadalath.
23. Now coming to the defence of the accused that
DW-2 - Prabhavathi was collecting cheques from her and
some of them were blank; though accused repaid the
amount due under the chits bid by her, she did not return
the cheques and when accused insisted upon, DW-2
Prabhavathi gave an undertaking (Mucchalike) as per Ex.D6
(C.C.No.469/2006) and Ex.D4 (C.C.No.543/2007) and
misusing them has got filed several complaints. In fact
accused has filed a private complaint against DW-2
c/w Crl.A.No.818/2012
Prabhavathi, Dr.S Ashok, complainants - Dr.Rajendra,
Dr.S.P.Karthik and one N.A.Prabhakar alleging offences
punishable under Section 143, 406, 420, 465, 468 r/w
Section 149 I.P.C. It was referred to the jurisdictional
police and after conducting investigation, the concerned
police filed charge sheet in C.C.No.50/2008.
24. It appears during investigation accused has
produced the Mucchalike in question before the
Investigating Officer and it is seized through mahazar. In
fact the Investigating Officer has referred it to handwriting
expert and the disputed signature therein is compared with
admitted/proved signature of DW-2 Prabhavathi. The
handwriting expert has given the report that the disputed
signature in the Muchhalike is that of DW-2 Prabhavathi.
However, except the interested testimony of the accused
that the Muchhalike was given by DW-2 Prabhavathi, there
are no independent witnesses for the execution of the
same. Accused has not disclosed whether the writing in the
Mucchalike is also in the handwriting of DW-2 Prabhavathi.
She has also not stated in whose handwriting the said
document is written.
c/w Crl.A.No.818/2012
25. Of course, complainant and DW-2 Prabhavathi
have denied that any such Mucchalike was executed by
DW-2 Prabavathi. Though the Investigating Officer has
chosen to get the signature in the Mucchalike examined by
the handwriting expert, he has not conducted any
investigation to ascertain whether the writing therein is
also in the handwriting of DW-2 Prabhavathi or in the
handwriting of someone else. Consequently, the accused
has failed to establish that DW-2 Prabhavathi has
executed the Mucchalike admitting the receipt of several
cheques from DW-2 Prabhavathi and some of them were
blank.
26. As already discussed in the present case
accused has taken up a defence that several cheques were
collected by DW-2 Prabhavathi. Simultaneously, she has
claimed that Sarojamma - the mother of Dr.Mohan Kumar,
who had also filed a complaint against accused has also
collected several blank cheques from her and some of these
cheques are common. This itself falsifies the defence of the
accused. It is relevant to note that according to the
accused the Mucchalike is dated 15.07.2005. The
c/w Crl.A.No.818/2012
complainants issued legal notice to the accused and filed
complaint subsequent to the said date. However, in her
reply notice the accused has not at all referred to execution
of Mucchalike by DW-2 Prabhavathi admitting receipt of
several cheques, including few blank cheques.
27. In this regard in her affidavit evidence, accused
had deposed that though as per the Mucchalike, DW-2
Prabhavathi agreed to return the cheques, she demanded
additional money and when accused did not agree for the
same, she refused to return the cheques. With regard to
not referring to the Muchhalike in her reply notice, DW-2
Prabhavathi has deposed that she has misplaced the same
and forgotten about it when reply notice was sent. Having
regard to the allegations that nearly 40 blank cheques were
collected by DW-2 Prabhavathi and not returning the same
and when insisted upon, allegedly executing the Mucchalike
and several complaints were filed based on such blank
cheques allegedly issued in favour of DW-2 Prabhavathi, at
any stretch of imagination, it cannot be accepted that
accused would forget about it.
c/w Crl.A.No.818/2012
28. This very fact creates a doubt as to whether
such a Mucchalike was executed by DW-2 Prabhavathi or
there is substance in the allegations made by complainants
that in collusion with the Investigating Officer, accused has
concocted it. In the absence of proof of execution of the
said document, with cogent and convincing evidence, this
Court is inclined to accept the contention of the
complainants that it is a document concocted for the
purpose of criminal complaint in C.C.No.50/2008 filed
against DW-2 Prabhavathi and others and therefore, it does
not find place mention in her reply notice.
29. Of course, during the course of her evidence,
DW-2 Prabhavathi has denied that she was conducting chit
fund business, accused was one of the participants and she
used to collect blank cheques from her and has executed
the Muchhalike. Her evidence is not of any help to improve
the defence of the accused.
30. As evident from the National Judicial Data Grid
(NJDG) C.C.No.50/2008 filed by the accused against
complainants and others including DW-2 Prabahvathi is
dismissed on 16.07.2020 and they are acquitted of all the
c/w Crl.A.No.818/2012
charges. In fact accused has filed Crl.A.No.144/2020
against the said judgment and order before the Prl.District
and Sessions Judge, Mysuru and vide judgment and order
dated 31.08.2021, the said appeal is also dismissed. She
has not further challenged the said orders. Consequently,
the allegations against DW-2 Prabhavathi and others that
blank cheques were taken from accused and they were
being misused is stand disproved.
31. During her cross-examination accused has
conceded that as soon as she paid the bid amount due from
her, there was no impediment to get back the alleged
cheuqes given to DW-2 Prabhavathi by way of security.
Admittedly, accused has not made any such attempt to get
them back. This also falsifies her defence. The accused has
also contended that sometimes DW-2 Prabhavathi paid her
bid amount in cash and sometimes by way of cheques. She
has also deposed that she used to pay the chit instalments
sometimes in cash and on other occasions through
cheques. The accused has not chosen to produce any Bank
documents to evidence this fact which would have
corroborated her defence that DW-2 Prabhavathi was
c/w Crl.A.No.818/2012
running chit fund business and in that connection was
taking blank cheques from the accused and they were
misused by her.
32. Prabhakar, is also an appeal against the
present accused Smt.Mahima Mohan Champa. In the said
appeal rejecting the defence taken by her the Co-ordinate
Bench of this Court allowed the appeal, set aside the
judgment of acquittal passed by the Sessions Court and
confirmed the conviction imposed by the trial Court.
33. So far as the decisions relied upon by the
accused are concerned, they are not applicable to the facts
and circumstances of the present case.
34. As held by the Hon'ble Supreme Court in
Sumeti Vij, it is well settled that the proceedings under
Section 138 of N.I.Act are quasi-criminal in nature, and the
principles which apply to acquittal in other criminal cases
are not applicable in the cases instituted under the N.I.Act.
35. Thus, from the above discussions, this Court is
of the considered opinion that accused has failed to rebut
the presumption under Sections 118 and 139 of N.I.Act,
c/w Crl.A.No.818/2012
even on preponderance of probabilities. On the other hand
in the light of presumption under Sections 118 and 139 of
N.I.Act and through the oral and documentary evidence
placed on record, the complainants have proved the
allegations against accused beyond reasonable doubt. The
trial Court without examining the oral and documentary
evidence in proper perspective has committed error in
holding that the charge leveled against accused is not
proved and thereby acquitting her. Having regard to the
fact that the findings of the trial Court are contrary to the
evidence placed on record and as such perverse, these are
fit cases to interfere by this Court.
36. When the Court comes to the conclusion that
the charge leveled against the accused is proved beyond
reasonable doubt for the offence punishable under Section
138 of N.I.Act and the appeal is allowed by setting aside
the impugned judgment and order of acquittal, the next
question would be to what punishment the accused is
liable.
37. The punishment prescribed for the offence
under Section 138 of the N.I.Act is imprisonment for a term
c/w Crl.A.No.818/2012
which may extend to two years or with fine which may
extend to twice the amount of cheque or with both. The
hand loan availed by the accused is Rs.1,00,000/- in
C.C.No.469/2006 and Rs.4,00,000/- in C.C.No.543/2007.
The transaction between the complainant and accused is of
the years 2005 and 2006, respectively. Despite availing
hand loan from the complainant, accused has taken up a
false defence and driven the complainant to indulge in
litigation in all these 18-19 years. Taking into consideration
these aspects, I am of the considered opinion that
sentencing accused to pay fine in a sum of Rs.2,00,000/- in
C.C.No.469/2006 and Rs.6,00,000/- in C.C.No.543/2007,
in default of paying the fine sentencing her to undergo
imprisonment for a period of six months each would meet
the ends of justice and accordingly, I proceed to pass the
following:
ORDER
(i) Appeals filed by the complainants under
Section 378(4) of Cr.P.C are allowed. The
impugned judgment and order dated
28.06.2012 in C.C.No.469/2006 and
C.C.No.543/2007 on the file of IV Addl.
I Civil Judge & JMFC., Mysuru, is set aside.
c/w Crl.A.No.818/2012
(ii) Accused is convicted for the offence
punishable under Section 138 of the N.I.Act
and sentenced to pay fine in a sum of
Rs.2,00,000/- in C.C.No.469/2006 and
Rs.6,00,000/- in C.C.No.543/2007, in
default of payment of fine, to undergo
imprisonment for a period of six months
each.
(iii) The entire fine amount realized is ordered to
be paid to the complainants by way of
compensation.
(iv) The Registry is directed to return the trial
Court records along with copy of this
judgment forthwith.
Sd/-
JUDGE
RR
