Karnataka High Court
Smt Shashikala vs Smt Munirathna on 28 November, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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CRL.A No. 1904 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO. 1904 OF 2019
BETWEEN:
SMT. SHASHIKALA,
W/O GOVINDARAJU,
AGED ABOUT 51 YEARS,
R/AT NO.29/1 2ND 'A' MAIN,
SHIVANGAR, RAJAJINAGAR,
BANGALORE-560 010.
...APPELLANT
(BY SRI. ADINARAYAN, ADVOCATE)
AND:
SMT. MUNIRATHNA,
W/O PEDDANNA,
R/AT NO.4-A, 1ST MAIN ROAD,
P.K. COLONY, QUEENS ROAD,
SHIVAJINAGAR,
BANGALORE-560 051.
Digitally
signed by
SOWMYA D AND WORKING AT:
ASST. EXECUTIVE ENGINEER,
Location: SHIVAJINAGAR SUB-WARD,
High Court TANK BUND ROAD,
of NEAR GANESH TEMPLE, ULSOOR,
Karnataka
BANGALORE-560 042.
BADGE NO.9124/A
...RESPONDENT
(BY SRI. SYED UMMER AND
SMT. ASMA PARVEEN .N, ADVOCATES)
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CRL.A No. 1904 of 2019
THIS CRL.A IS FILED U/S 378(4) CR.PC PRAYING TO SET
ASIDE THE JUDGMENT OF ACQUITTAL ORDER DATED
14.10.2019, PASSED BY THE XIII A.C.M.M.,BENGALURU IN
C.C.NO.16558/2017, ACQUITTING THE
RESPONDENTS/ACCUSED FOR THE OFFENCE P/U/S 138 OF THE
N.I ACT.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant / complainant
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 XIII Additional Chief
Metropolitan Magistrate in C.C.No.16558/2017 dated
14.10.2019.
2. For the sake of convenience, the parties herein
are referred with original ranks occupied by them before
the trial Court.
3. The brief factual matrix leading to the case are
that the complainant and accused are known to each other
for last 20 years; That the accused is working in Bruhat
Bangalore Mahangara Palike as Pourakarmika in
Shivajinagar Sub-Ward, Tank Bund Road, Bangalore. That
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the accused used to obtain hand loans from complainant as
per need and used to repay the said loans. That the
accused in order to perform her daughter's marriage has
obtained a hand loan of Rs.5 Lakhs from the complainant
and agreed to pay the said loan amount at the earliest. She
has also issued a cheque bearing No.840441 dated
01.03.2017 for a sum of Rs.5 Lakhs in favour of the
complainant. When the complainant presented the said
cheque through her bank, the said cheque was dishonored
for the reason that 'payment stopped' by the drawer.
4. The complainant has got issued a legal notice to
the accused. Inspite of service of legal notice, the accused
failed to make payment of the cheque amount and hence,
the complainant has lodged a complaint under Section 200
of Cr.P.C. alleging that the accused has committed an
offence punishable under Section 138 of Negotiable
Instruments Act, 1881 (hereinafter referred to as 'the
N.I.Act' for short).
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5. After recording the sworn statement and after
appreciating the oral and documentary evidence, the
learned Magistrate has taken cognizance of the offence and
issued process against the accused. The accused has
appeared and was enlarged on bail. The plea under Section
138 of N.I.Act was recorded and accused denied the same.
6. The complainant got examined herself as PW1
and one witness was examined on behalf of the
complainant as PW2. Further, the complainant has placed
reliance on 9 documents viz., Ex.P1 to Ex.P9. After
conclusion of the 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 the
prosecution. The case of accused is of total denial.
7. The learned Magistrate after hearing the
arguments and after appreciating the oral and documentary
evidence acquitted the accused for the offence punishable
under Section 138 of N.I.Act by exercising the powers
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under Section 255(1) of Cr.P.C. Being aggrieved by this
judgment of acquittal, the complainant / appellant is before
this court by way of this appeal.
8. Heard the arguments advanced by the learned
counsel for the appellant / complainant and learned counsel
for the respondent / accused. Perused the records.
9. The learned counsel for the complainant /
appellant would contend that accused has approached the
complainant through PW2 and availed a loan of Rs.5 Lakhs
and as a security and in discharge of the said debt, a
cheque came to be issued. He would also assert that a legal
notice was issued to both the addresses of the accused and
both the notices have been served, but there is no
response. He would contend that the cheque and signature
have been admitted and hence, there is a presumption in
favour of the complainant under Section 139 of N.I.Act.
Hence, he would contend that the learned Magistrate has
erroneously acquitted the accused and hence, he would
seek for allowing the appeal by convicting the accused.
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10. Per contra, the learned counsel for the
respondent would contend that the complainant is a house
wife and she has no financial capacity to advance the loan.
He would also contend that in the entire complaint, specific
date of advancement of the loan itself is not disclosed and
it is hard to accept the contention of the complainant that
she has advanced the loan amount without charging
interest. Hence, it is asserted that when the financial
capacity of the complainant is not established, the
presumption under Section 139 of N.I.Act is not available to
the complainant and to prove her financial status she has
not examined any independent witnesses. Hence, it is
submitted that the learned magistrate has appreciated the
oral and documentary evidence in its proper perspective
and has rightly acquitted the accused. Hence, he would
seek to dismissal of the appeal.
11. Having heard the arguments and perusing the
records, now the following point would arise for my
consideration:
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(i) Whether the judgment of acquittal passed
by the learned Magistrate is perverse,
arbitrary and erroneous so as to call for any
interference by this court?
12. It is the specific case of the complainant that the
accused is a pourakarmika and since many years she is
acquainted with her, she availed a loan of Rs.5 Lakhs for
performance of marriage of her daughter. She also asserts
that she has advanced the loan of Rs.5 Lakhs as she is
possessing certain lands in Doddaballapura Taluk wherein
certain dispute are there and she is going to get lumpsum
amount, after settlement of the dispute and assuring
repaying the same, she has issued a cheque Ex.P1, dated -
1.03.2017. There is no dispute 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
available to the complainant. However, the said
presumption is a rebuttable presumption. The accused can
rebut the said presumption by cross-examining the
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complainant or confronting the documents produced by the
complainant or by leading independent evidence.
13. The accused has disputed the very financial
status of complainant. It is settled law that when the
financial status is disputed, the initial presumption under
Section 139 of N.I.Act is not available to the complainant
and the complainant is required to prove her financial
status.
14. The complainant in her evidence claimed that the
accused is working as a sweeper and she used to attend
sweeping in a service road near her house and as such, she
is acquainted with her. In the complaint, the complainant
nowhere asserted when the loan was advanced by her. The
entire complaint is completely silent as to the date, month
or year of advancement of the loan. What is pleaded is a
post dated cheque dated 01.03.2017 was issued. But at the
first instance, the complainant is required to establish when
exactly the loan was advanced as the offence under Section
138 of N.I.Act is attracted only if it is a legally enforceable
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debt. If the amount was paid three years prior to issuance
of cheque, then it becomes a time barred debt and it
cannot be enforced but interestingly, the complainant no
where asserted when she has advanced the loan. The
complainant in her cross-examination admitted that she is
not an income-tax assessee. In the cross-examination she
tries to improve her case by asserting that in September
2016, she advanced the land loan. Even there she did not
disclose the specific date. Even in the legal notice, the date
of advancement of the loan is not at all forthcoming and it
is hard to accept the contention of the complainant that she
is unable to recollect the date of advancement of huge loan
of Rs.5 Lakhs.
15. The complainant claims that she advanced by
loan by way of cash and she asserts that the amount was in
her house and she kept this amount for last 20 years.
Admittedly, the husband of complainant is working in
Syndicate Bank. It is hard to accept the claim of the
complainant that she had kept cash of Rs.5 Lakhs in her
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house for 20 years without investment that too being a wife
of a banker. Apart from that she claims that she has not
charged any interest for this Rs.5 Lakhs. It is very strange
to note the conduct of the complainant that she is
advancing huge amount of Rs.5 Lakhs to a person who is
not closely related to her that too without interest.
16. In the further cross-examination, she claimed
that she was working as a tailor and her husband is
working as an employee in the Syndicate Bank. To prove
that she is a tailor and she is earning sufficiently, no
documents have been placed on record. She asserts that
she contributed Rs.3.5 Lakhs and Rs.1.5 Lakhs was
contributed by her husband and the said amount was paid.
If this version is accepted, then it is evident that the
complainant is not having financial capacity to advance
Rs.5 Lakhs at a stretch and she has taken assistance of her
husband to the tune of Rs.1.5 Lakhs. But this fact was
neither pleaded in the complaint nor in the notice. Even to
substantiate the said contention, she has not even
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examined her husband who would have been the best
witness in the given circumstances to disclose the financial
status of his wife.
17. Even the complainant does not know the
avocation of the husband of the accused. She claims that
the amount was paid in the presence of PW2 and placed
reliance on evidence of PW2, but when the financial
capacity of the complainant to advance Rs.5 Lakhs is not
established, the evidence of PW2 does not have much
relevance. Even the complainant did not know from which
place the accused hails and further pleads ignorance
regarding her income. When the complainant did not know
the income of the accused, it is hard to accept her
contention that she has advanced Rs.5 Lakhs without any
security or interest. Though it is asserted that the loan was
availed for the purpose of marriage of the daughter of the
accused, complainant pleads ignorance regarding the name
of the daughter of the accused itself.
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18. PW2 is so called eye witness and as observed
her evidence becomes irrelevant, since, she did not know
the date of advancement of loan and she asserts that in the
month of September 2016, loan was advanced. Further, the
cross-examination of PW2 discloses that when the accused
has demanded the loan amount, the complainant has taken
two days and later on arranged the amount and paid it. At
one breath, she claims that she received the amount and
handed over to the accused and in another breath, she
pleads that the amount was paid directly by the
complainant to the accused. These stands are inconsistent
and she is unable to say the specific date, month or year
when the loan was advanced in her cross-examination and
the same was referred as September 2016 in examination-
in-chief which means that she is not the author of the
examination-in-chief filed by way of affidavit . Hence, the
evidence of PW2 does not assist the complainant in any
way.
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19. The learned counsel for the appellant has placed
reliance on a decision of this court in 'UMRAZ KHAN VS.
A.JAMEEL AHMED', LAWS (KAR)-2006-3-67 regarding
service of notice. There is no serious dispute regarding
principles of law laid down there since, the notice was
issued to the last known address and it is deemed service
but however, the issue is not regarding service of notice but
the issue is with regard to the financial capacity of the
complainant to advance the amount of Rs.5 Lakhs, as she
asserts that she has taken financial assistance to the tune
of Rs.1.5 Lakhs from her husband and he is not examined.
Hence, the contention of the complainant that she was
capable of paying Rs.5 Lakhs to the accused by way of loan
cannot be accepted.
20. Further, considering these lacunas in the
evidence as well as in the pleading, the conclusion arrived
at by the learned Magistrate is also a possible conclusion.
Further it is well settled law that when two views are
possible, the view beneficial to the accused shall prevail.
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Further, it is also settled principle of law that when the view
taken by the learned Magistrate is also a possible view, the
appellate court shall not disturb the same unless perversity
is forthcoming.
21. The learned counsel for the appellant has placed
reliance on a decision reported in 'SRI.S.M.NATARAJA VS.
SRI.B.M.PRAKASH', ILR 2018 KAR 5431, but the facts
and circumstances are different and in view of 'RAJA RAM
THOUGH L.RS VS. MARUTHACHALAM', 2023 SCC
ONLINE SC 48 decision, the said principles cannot be
made applicable to the facts and circumstances of the case
in hand. He has also placed reliance on decision is in
'K.N.BEENA VS. MUNIYAPPAN AND ANOTHER', (2001)
8 SCC 458 and 'RANGAPPA VS. MOHAN', AIR 2010 SC
1898. The facts and circumstances of the said cases are
entirely different. No doubt the presumption is required to
be drawn under Section 139 of the N.I.Act, but once, the
financial status is questioned the said presumption is not
available. This issue has been discussed in detail in Raja
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Ram's case referred to supra and in view of the same, the
principles enunciated in the above cited decision, will not
come to the aid of the complainant / appellant herein in any
way.
22. As such, the learned Magistrate is justified in
acquitting the accused. The view taken by the learned
Magistrate cannot be said to be perverse or illegal so as to
call for any interference. Hence, the point under
consideration is answered in the negative and the appeal
being devoid of any merits, needs to be dismissed.
Accordingly, I proceed to pass the following:
ORDER
The appeal stands dismissed.
Sd/-
JUDGE
SS
