Karnataka High Court
Devarajegowda H vs M Pushpalatha on 29 November, 2023
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CRL.A No. 612 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 612 OF 2012
BETWEEN:
DEVARAJEGOWDA H.,
S/O LATE HALEGOWDA,
AGED ABOUT 52 YEARS,
R/AT POONADAHALLY POST,
P.BASAVANAHALLY VILLAGE,
PERIYAPATNA TALUK-571 107,
MYSORE DISTRICT.
...APPELLANT
(BY SRI. A.LOURDU MARIYAPPA, ADVOCATE)
AND:
M.PUSHPALATHA,
W/O LATE BASAVARAJU,
AGED ABOUT 40 YEARS,
R/A P.W.D.OFFICER, ATTENDER,
Digitally signed HUNSUR TOWN-571 105,
by SANDHYA S MYSORE DISTRICT.
Location: High ...RESPONDENT
Court of (BY SRI. H.S.SANTHOSH, ADVOCATE)
Karnataka
THIS CRL.A FILED U/S 378(4) OF CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT OF ACQUITTAL PASSED BY THE
CIVIL JUDGE & JMFC., PERIYAPATNA IN C.C.No.515/2007
DATED 04.02.2012 ACQUITTING THE RESPONDENT/ACCUSED
FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF
N.I.ACT.
THIS APPEAL, COMING ON FOR ARGUMENTS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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CRL.A No. 612 of 2012
JUDGMENT
Complainant has preferred this appeal against the
judgment of acquittal passed by the Civil Judge and JMFC,
Periyapatna in C.C.No.515/2007 dated 04.02.2012.
2. The rank of the parties in this appeal are
referred in the same rank as referred by the Trial court.
3. Brief facts of the complaint are that the accused
borrowed a loan of Rs.3,00,000/- from the complainant
and to discharge her liability, she had issued a cheque
bearing No.63853 dated 01.12.2006 to be drawn on
Karnataka Contractor's Credit Co-Operative Society Ltd.,
Mandya Branch and when the complainant presented the
same for encashment through S.B.M., Periyapatna Branch,
the same was returned with shara 'Under liquidation as
per RBIO order dated 12.02.2004'. On receipt of the
same, the complainant issued a legal notice on 06.01.2007
through RPAD demanding to repay the cheque amount and
it was duly served on the accused on 09.01.2007. Inspite
of service of notice, accused did not pay the cheque
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amount. Hence, the complainant lodged a complaint
against the accused under Section 138 of N.I. Act.
4. After taking cognizance, a case was registered
in C.C.No.515/2007 and summons was issued to the
accused. In response to the summons, accused appeared
before the trial Court and substance of the plea was
recorded. Accused pleaded not guilty and claimed to be
tried.
5. To prove the case of the complainant,
complainant got himself examined as PW.1 and got
marked six documents as Exs.P1 to P6. On closure of
complainant's side evidence, statement of the accused
under Section 313 of Cr.P.C. was recorded. Accused had
totally denied the evidence of PW.1, but she did not
choose to lead any evidence. On hearing the arguments
of both sides, the trial Court passed the impugned order of
acquittal. Being aggrieved by the same, the
appellant/complainant has preferred this appeal.
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6. Learned counsel for the complainant has
submitted his arguments that the trial Court has acquitted
the accused only on the ground that as on the date of
alleged transactions, complainant had no financial capacity
to lend an amount of Rs.3,00,000/- to the accused.
Accused did not send any reply to the legal notice issued
by the complainant prior to filing of the complaint, that is
why the complainant did not produce the said documents
before the trial Court. Only during the course of cross-
examination, accused set up one of a defence that the
complainant had no financial capacity to lend an amount of
Rs.3,00,000/-. Now the complainant has filed an
application under Section 391 of Cr.P.C., along with
documents so as to prove that the complainant had got
sufficient funds to lend an amount of Rs.3,00,000/- to the
accused. Hence, he sought for allowing this application
and remand the matter to the trial Court for fresh disposal
in accordance with law.
7. As against this, learned counsel for the
respondent/accused has submitted his arguments that the
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trial Court has properly appreciated the evidence on record
in accordance with law and facts and there are no grounds
to interfere with the impugned judgment of acquittal. In
addition to that, there are material omissions and
contradictions in the evidence of PW.1. Complainant has
not assigned any sufficient reasons to allow this
application. On all these grounds, he sought for dismissal
of the appeal and also the application filed under Section
391 of Cr.P.C.
8. Having heard the arguments on both sides and
on perusal of records, following points would arise for my
consideration:
1. Whether the application filed under Section 391
of Cr.P.C. deserves to be allowed?
2. What order?
9. My answer to the above points is as under:
Point No.1 : In the affirmative;
Point No.2 : As per final order.
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Regarding point No.1:
10. I have carefully gone through the materials
placed before this Court. The complainant has placed the
materials to attract the provisions of Section 138 of N.I.
Act except the legally recoverable debt. With regard to
this aspect, the trial Court has opined that the complainant
has not placed any material to show that he had got
financial capacity to lend the disputed amount to the
accused.
11. It is submitted by the learned counsel for the
complainant/appellant that though the respondent had
received legal notice issued by the complainant, she did
not send any reply and she had taken a contention that
the complainant had no financial capacity to lend the
amount of Rs.3,00,000/-. Respondent would have
produced these documents before the trial Court. But only
at the time of cross-examination, she had set up a defence
and the same was accepted by the trial Court. Now the
complainant has produced the documents along with the
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an application under Section 391 of Cr.P.C. with the
affidavit of the appellant. In the affidavit, he has clearly
stated that he had got sufficient funds to lend
Rs.3,00,000/- to the accused. Hence, he sought for
allowing this application.
12. Accepting the reasons assigned in the evidence
and considering the facts and circumstances of the case, it
is just and proper to allow this application. Hence, I
answer point No.1 in the affirmative.
Regarding point No.2:
13. For the aforesaid reasons and discussions, I
proceed to pass the following:
ORDER
i. The appeal is allowed;
ii. The impugned judgment passed by the Civil
Judge and JMFC, Periyapatna in
C.C.No.515/2007 dated 04.02.2012 is set
aside;
iii. The application filed under Section 391 of
Cr.P.C. is allowed;
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iv. The matter is remitted to the trial Court with a
direction to provide an opportunity to the
complainant to adduce his oral and
documentary evidence;
v. The trial Court is also directed to provide an
opportunity to the accused to adduce her
evidence, if any, and proceed with the case in
accordance with law;
vi. Both the parties are directed to appear before
the trial Court on 21.12.2023 without seeking
any further notice from the trial Court;
vi. Registry is directed to send a copy of this
judgment and the documents produced along
with the application filed under Section 391 of
Cr.P.C. and trial Court records to the
concerned trial Court;
vii. The trial Court is directed to dispose of this
case within a period of six months from the
date of appearance of the parties i.e. form
21.12.2023, as the matter is of the year 2007.
Sd/-
JUDGE
PGG
