Smt Leelamma vs Sri B Puttanna
2023 Latest Caselaw 3552 Kant

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      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 21ST DAY OF JUNE, 2023

                         BEFORE

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

          CRIMINAL APPEAL NO.1246 OF 2012

BETWEEN:

SMT LEELAMMA
W/O RAMAKRISHNEGOWDA
AGED ABOUT 50 YEARS
R/A 158, 6TH A MAIN
3RD BLOCK, T R NAGAR
BENGALURU - 560 028
                                              ...APPELLANT
(BY SMT. N PADMAVATHI, ADVOCATE)

AND:

SRI B PUTTANNA
MAJOR
NO.70, 2ND CROSS
4TH BLOCK, BSK 3RD STAGE
BENGALURU - 560 085
                                           .....RESPONDENT

(BY SRI. B S ANIL KUMAR, ADVOCATE)

   THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF CODE OF CRIMINAL PROCEDURE PRAYING TO GRANT
LEAVE AND PERMIT THE APPELLANT TO FILE THIS APPEAL
AGAINST THE ORDER OF ACQUITTAL AND CALL FOR THE
ENTIRE RECORDS IN C.C.NO.20384/2007 ON THE FILES OF
THE LEARNED 22ND ACMM, BENGALURU AND SET ASIDE THE
JUDGMENT AND ORDER OF ACQUITTAL PASSED AGAINST
THE    APPELLANT   ON   26.09.2012   AND    CONSEQUENTLY
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CONVICT THE RESPONDENT BY ALLOWING THIS APPEAL IN
THE INTEREST OF JUSTICE.


     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED         ON     05.06.2023,     COMING      ON        FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:


                        JUDGMENT

Being aggrieved by dismissal of her complaint filed

against the respondent/accused alleging offence punishable

under Section 138 of N.I.Act, complainant has come up

with this appeal under Section 378(4) of Cr.P.C, with a

prayer to set aside the impugned judgment and order and

convict the accused and sentence him appropriately.

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 she and

accused are well acquainted with each other and in the

month of May 2006, accused borrowed a sum of

Rs.15,00,000/- for his personal use with a promise to

repay the same within one year. He issued a post dated

cheque dated 26.05.2007 for a sum of Rs.15,00,000/-. On

the instructions of the accused, when complainant

presented the said cheque on 26.05.2007, it was

dishonored on the ground of "Insufficiency of funds",

"Account is dormant", "Insufficiency of balance" and

"Inoperative account" on 28.05.2007. Complainant got

issued a legal notice to the accused. Accused has sent an

evasive reply on 14.06.2007.

3.1 After due service of notice, respondent

appeared through counsel and contested the case.

4. In support of her case, complainant examined

herself as PW-1 and her daughter Manjula as PW-2 and

relied upon Ex.P1 to 24.

5. During the course of statement under Section

313 Cr.P.C, accused has denied the incriminating evidence.

6. Accused has stepped into the witness box by

examining himself as DW-1. He has relied upon Ex.D1 to

15.

7. Vide the impugned judgment and order, the

trial Court dismissed the complaint.

8. Complainant has challenged the impugned

judgment and order contending that the trial Court has

gravely erred in acquitting the accused without proper

appreciation of the evidence placed on record. The trial

Court has erred in accepting the defence of the accused

that the subject cheque was issued by him when it was

blank towards security of advance of Rs.50,000/- received

from the accused and her daughter. It has also erred in

coming to the conclusion that the complainant has failed to

prove her financial capacity. Complainant has disputed that

she was tenant under the accused. Accused has not

produced any evidence to prove that she was the tenant.

The trial Court has failed to appreciate Ex.P10 to 16, which

are produced to show how the complainant has gathered

the amount which was advanced to the accused. The trial

Court has erred in holding that as there is difference in the

ink between the signature of the accused and the rest of

the writing; the cheque in question was issued blank and it

corroborates the defence of the accused. The findings of

the trial Court is contrary to the evidence placed on record

and as such perverse and prays to allow the appeal.

9. On the other hand learned counsel for accused

supported the impugned judgment and order and

submitted that appreciating the oral and documentary

evidence in proper perspective, the trial Court has rightly

acquitted the accused and prays to dismiss the appeal.

10. Heard arguments of both sides and perused the

record.

11. It is not in dispute that complainant and

accused were known to each other since long time. Though

the complainant has disputed that she was the tenant

under the accused, it is an admitted fact that her daughter

was a tenant. In fact to prove that the complainant was

tenant under him, the accused has relied upon Ex.D2,

which is certified copy of judgment in O.S.No.6965/2007,

which was a suit filed for Ejectment of complainant from

the residential premises rented out by accused to the

complainant. This document prima facie establish the fact

that complainant was also a tenant of accused.

12. In response to the legal notice issued by the

complainant, accused has sent reply notice as per Ex.P8. In

the reply notice, the accused has taken up a specific plea

that he had issued the subject cheque blank by way of

security to the advance amount received from the

complainant and her daughter in a total sum of Rs.50,000/-

as a rent agreement was not executed between them.

Alleging that misusing the said cheque, false complaint has

been filed.

13. During the course of cross-examination of PWs-

1 and 2, the accused has also taken up a specific

contention that complainant is not having a financial

capacity to advance Rs.50,000/- to the accused. Therefore,

though it is established that the cheque in question belongs

to the accused and it is drawn on the account maintained

with the bank and on presentation of the same, it was

returned dishonored on the ground of insufficiency of funds

and other grounds and thereby the presumption under

Section 118 and 139 of the N.I.Act is required to raised

that the cheque was issued towards repayment of legally

recoverable debt, having regard to the specific defence

taken by the accused that the cheque was issued blank

towards security of advance of Rs.50,000/- and that

complainant had no financial capacity to lend huge sum of

Rs.15,00,000/-, the burden is on the complainant to prove

her financial capacity.

14. Accused has taken up a specific plea that while

two tenements of his were given on rent to the

complainant and her daughter, he has received advance in

a total sum of Rs.50,000/- from them and towards security

of the said amount, he has issued the cheque as there was

no rent agreement entered into between them. On the

other hand during the course of their cross-examination,

both PWs-1 and 2 have maintained that in respect of

tenancy of two tenements in question, a rent agreement

has come into existence and they i.e., more specifically

PW-2 is having the said rent agreement with her. However,

despite accused claiming that no such rent agreement is in

existence, neither the complainant nor her daughter have

chosen to produce the same. In the absence of the

production of the said agreement, the defence of the

accused that there was no rent agreement and therefore,

he had to issue a blank cheque by way of security towards

the advance received by him is to be accepted.

15. As rightly observed by the trial Court, the

complainant has failed to prove that the contents of the

cheque are also in the handwriting of accused apart from

his signature or at least to prove that when accused issued

the said cheque, it was completely written. Moreover,

though the complainant has relied upon Ex.P10 to 16,

which are rent agreements as well as the mortgage deeds,

the total sum received under these documents is

Rs.3,90,000/-. This fact is also observed by the trial Court.

These documents are subsequent to the alleged transaction

between the complainant and the accused. Since the

amount received under these documents are advance as

well as the mortgage amount, while the said transaction

comes to an end, the complainant is required to return the

said amount to the concerned persons.

16. Even where it is agreed that earlier to these

lease agreements and mortgage deeds, the complainant

might have received similar sum from the other tenants,

then also, as rightly observed by the trial Court the sum

which could be received from such transaction is highly

inadequate to prove the financial capacity of the

complainant to advance huge sum of Rs.15,00,000/- to the

accused. As rightly observed by the trial Court, the

complainant has not proved what exact was the legal

necessity for which the accused had to borrow a huge sum

of Rs.15,00,000/- that too during 2006. Had the

complainant proved what was the legal necessity of the

accused to borrow such amount and in fact he had utilized

the same for the said purpose, it would have been helpful

to improve the case of the complainant. Consequently,

despite the fact that the presumption is acting in favour of

the complainant, having failed to prove her financial

capacity, the complainant has failed to prove the

allegations against the accused.

17. Taking into consideration all these aspects, the

trial Court has rightly held that the charge leveled against

the accused is not proved beyond reasonable doubt and

acquitted him. This Court finds no justifiable reasons to

interfere with the well reasoned judgment of the trial

Court. In the result, the appeal fails and accordingly, I

proceed to pass the following:

ORDER

(i) Appeal filed by the complainant is dismissed.

(ii) The impugned judgment and order of the trial

Court is confirmed.

(iii) The registry is directed to send back the trial

Court record along with copy of this judgment

forthwith.

Sd/-

JUDGE

RR