Karnataka High Court
Smt. Mahadevamma vs Sri.H. Shivashankar on 27 November, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
-1-
NC: 2023:KHC:42636
CRL.A No. 1806 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO.1806 OF 2023
BETWEEN:
SMT. MAHADEVAMMA,
W/O VENKATESHA,
AGED ABOUT 52 YEARS,
R/AT KUNTHANAHALLI VILLAGE,
BANNUR HOBLI,
T. NARASIPURA TALUK - 571 101.
...APPELLANT
(BY SRI. THUSHANATH C.V, ADVOCATE)
AND:
SRI. H. SHIVASHANKAR,
S/O HOMEBEGOWDA @ KARIYAPPA,
AGED ABOUT 35 YEARS,
R/AT HANUMANALU VILLAGE,
Digitally
signed by BANNUR HOBLI,
SOWMYA D T. NARASIPURA TALUK - 571 101.
Location: ...RESPONDENT
High Court THIS CRL.A IS FILED U/S 378(4) OF CR.PC PRAYING TO
of SET ASIDE THE JUDGMENT DATED 01.08.2023 IN
Karnataka C.C.NO.388/2020 ON THE FILE OF THE LEARNED CIVIL JUDGE
AND J.M.F.C AT T.NARASIPURA AND ALLOW THE APPEAL
CONSEQUENTLY CONVICT THE RESPONDENT / ACCUSED OF
THE OFFENCE P/U/S 138 OF N.I ACT.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
-2-
NC: 2023:KHC:42636
CRL.A No. 1806 of 2023
JUDGMENT
I.A.No.1/2023 is filed seeking special leave to file
this appeal.
2. This appeal is filed under Section 378(4) of
Code of Criminal Procedure, 1973 (hereinafter referred to
as 'Cr.P.C' for short) challenging the judgment of acquittal
passed by Civil Judge and JMFC, T.Narasipura in
C.C.No.388/2020.
3. The complainant filed a complaint asserting that
the accused is acquainted with her and with this
acquaintance, he has obtained a hand loan of
Rs.2,50,000/- on 27.08.2020 assuring repayment of the
same within 2 months and issued post dated cheque for
the said amount. It is alleged that when the said cheque
came to be presented, it was bounced for 'insufficient of
funds'. Hence, a complaint came to be lodged.
4. The complainant is examined as PW1 and her
son-in-law is examined as PW2. The complainant has also
NC: 2023:KHC:42636
placed reliance on 6 documents, while accused examined
himself as DW1 and placed reliance on 4 documents.
5. 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 Negotiable
Instruments Act, 1881 (hereinafter referred to as 'the
N.I.Act' for short). Against this judgment, this appeal is
filed.
6. The main contention of the complainant is that
the cheque and signature have been admitted and
presumption under Section 139 of N.I.Act is in favour of
the complainant. Hence, it is asserted that the learned
Magistrate has failed to appreciate this aspect and
erroneously acquitted the accused.
7. On perusal of the complaint and evidence, it is
evident that the complainant is a coolie working in bricks
factory. It is also evident that she has no source of income
except the wages received in the brick factory. She has
NC: 2023:KHC:42636
also got examined her son-in-law, PW2. Interestingly,
initially PW1 claimed that her relationship with son-in-law
are not cordial, but PW2 deposed in favour of the
complainant claiming that his relationship with
complainant is cordial.
8. The accused when he received a legal notice
has issued a reply notice disputing the very transaction
and further, specifically asserted that complainant has no
financial capacity to advance huge loan of Rs.2,50,000/-
and his contention is that he availed loan of Rs.25,000/-
from son-in-law of complainant and cheque was issued to
him as security and even after repayment of the said
amount, the cheque has been misused by PW2 in
collusion with the complainant.
9. The cross-examination of PW1 clearly discloses
that she and accused are resident of different villages and
they are not acquainted with each other. Further, her
income itself discloses that she was working in a brick
factory and she does not have any other source of income
NC: 2023:KHC:42636
except coolie work as she does not have any property.
Then the question will arise as to how she is capable of
advancing such a huge amount of Rs.2,50,000/- that too
by way of cash. When the accused has challenged the
financial status of the complainant, then the presumption
under Section 139 of the N.I.Act cannot be made available
by the complainant and she is required to prove her
financial status, but no such evidence is forthcoming.
10. On the contrary, accused has produced Ex.D1
consideration receipt executed by PW2 for having received
back the amount. The defence raised by the accused is
more probable and the complainant being a coolie has
failed to establish her financial status to advance huge
loan of Rs.2,50,000/-. Her cross-examination also clearly
discloses that she does not know the contents of
examination-in-chief and the figures or dates mentioned
thereunder. Hence, it is evident that she is not the author
of the complaint and somebody is prosecuting behind the
curtain. Looking to these facts and circumstances, the
NC: 2023:KHC:42636
learned Magistrate has acquitted the accused. No illegality
or perversity is found with the said judgment. When there
is no perversity or illegality in the judgment of acquittal
passed by the learned Magistrate, question of entertaining
I.A.No.1/2023 does not arise at all. Hence, I.A.No.1/2023
needs to be dismissed and consequently, appeal needs to
be dismissed. Accordingly, I proceed to pass the
following:
ORDER
(i) I.A.1/23 is dismissed by rejecting the leave
to file the appeal.
(ii) Consequently, the appeal stands dismissed.
Sd/-
JUDGE
SS
