Rajagopal vs Smt Rathnamma
2023 Latest Caselaw 7099 Kant

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                                  CRL.A No. 593 of 2012



 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
    DATED THIS THE 09TH DAY OF OCTOBER, 2023
                       BEFORE
       THE HON'BLE MR JUSTICE S RACHAIAH
       CRIMINAL APPEAL NO. 593 OF 2012 (A)


BETWEEN:

   RAJAGOPAL
   S/O SADASHIVAPPA

   SINCE DEAD BY HIS LR'S:

   (AMENDED VIDE COURT ORDER
   DATED 16.08.2023)

   1(A) SMT. K C RATHNAMMA
        W/O LATE RAJAGOPALA
        AGED ABOUT 47 YEARS

   1(B) SMT. S R RANJITHA
        D/O LATE RAJAGOPALA
        W/O MANJUNATHA
        AGED ABOUT 28 YEARS

       BOTH ARE R/O
       MANCHANAYAKANAHALLI VILLAGE
       CHANNAGIRI TALUK
       DAVANGERE DISTRICT - 577 213.

   1(C) SMT. POOJASHREE S R
        D/O LATE RAJAGOPALA
        W/O KUMARAYYA
        AGED ABOUT 26 YEARS
        R/O NO. 21, MAIN ROAD
        CHANNESHAPURA VILLAGE
        CHANNAGIRI TALUK
        DAVANGERE DISTRICT - 577 221.


                                          ...APPELLANTS
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                                     CRL.A No. 593 of 2012



(BY SRI. N K SIDDESWARA, ADVOCATE)


AND:
   SMT RATHNAMMA
   W/O LATE RAMACHANDRACHAR
   AGED ABOUT 72 YEARS
   AGRICULTURIST
   R/O HAROHALLI VILLAGE
   CHANNAGIRI TALUK
   DAVANGERE DISTRICT - 577 213.

                                            ...RESPONDENT

(BY SRI. D R BASAVARAJAPPA, ADVOCATE)



                         ***

    THIS CRL.A IS FILED U/S.378(4) OF CR.P.C PRAYING TO

SET ASIDE THE JUDGMENT PASSED BY THE SENIOR CIVIL

JUDGE & JMFC, CHANNAGIRI IN C.C.NO.204/2011 DATED

12.03.2012 AND CONVICT THE RESPONDENT IN ACCORDANCE

WITH LAW AND GRANT SUCH OTHER RELIEF/S AND ETC.,



     THIS CRIMINAL APPEAL HAVING BEEN HEARD AND

RESERVED    ON     04.10.2023,     COMING      ON     FOR

PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE COURT

DELIVERED THE FOLLOWING:-
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                                          CRL.A No. 593 of 2012



                           JUDGMENT

1. This Criminal Appeal is arising out of judgment and

order of acquittal dated 12.03.2012 in C.C.No.204/2011 (Old

No.146/2010) on the file of the learned Senior Civil Judge and

J.M.F.C., Channagiri, wherein the Trial Court acquitted the

respondent / accused for the offence punishable under Section

138 of the Negotiable Instruments Act (for short 'N.I. Act').

The rank of the parties in the Trial Court henceforth will

be considered for convenience.

2. Briefly facts of the case are as under:

The appellant and the respondent were known to each

other for several years. The respondent approached the

appellant for financial assistance and borrowed a sum of

Rs.1,20,000/- for the purpose of agriculture development as

hand loan on 17.10.2009. The respondent agreed to repay the

said amount on or before 17.02.2010. However, the

respondent did not repay the said amount, instead, she issued

a cheque for a sum of Rs.1,20,000/-. When the said cheque

was presented for encashment, it was returned with an

endorsement as 'funds insufficient'. Legal notice was issued on

17.04.2010 through RPAD and also Certificate of Posting. The

notice sent through Certificate of Posting was served to the

CRL.A No. 593 of 2012

respondent. In spite of notice having been served to the

respondent, the respondent did not repay the amount. Hence,

the appellant filed a complaint before the Trial Court having

jurisdiction.

3. To prove the case of the complainant / appellant,

the complainant examined himself as PW.1 and got marked 5

documents as Exs.P1 to P5. However, the accused / respondent

did not adduce any evidence.

4. The Trial Court after appreciating the oral and

documentary evidence on record, acquitted the accused for the

offence punishable under Section 138 of N.I. Act. Being

aggrieved by the same, the deceased appellant, who is

represented by his LRs., has preferred this appeal.

5. Heard Shri N.K.Siddeswara, learned counsel for the

appellants and Shri D.R.Basavarajappa, learned counsel for the

respondent.

6. It is the submission of learned counsel for the

appellants that, the judgment and order of acquittal passed by

the Trial Court is contrary to law, facts and evidence of the case

and hence, the same is liable to be set aside.

CRL.A No. 593 of 2012

7. It is further submitted that the Trial Court failed to

raise the presumption in favour of the appellant. Once the

ingredients under Section 138 of the NI Act are fulfilled, the

Court has to raise the presumption in favour of the

complainant. Even though the accused did not reply to the legal

notice and not raised the probable defence that the cheque was

issued other than the legally enforceable debt or liability, the

Trial Court failed to take note of the same and recorded the

acquittal which is perverse and the same is liable to be set

aside. Making such submissions, learned counsel for the

appellants prays to allow the appeal.

8. Per contra, learned counsel for the respondent

justified the order of acquittal passed by the Trial Court and

submitted that there was no monetary transaction as stated by

learned counsel for the appellants. The elder daughter of the

complainant / appellant was given in marriage to the son of the

respondent, the elder daughter of the complainant died on

17.06.2009 and the cremation was held on the same day.

After the death of the daughter of the complainant, there was

no cordial relationship existed between the appellant and the

respondent as is admitted in the evidence of PW.1. Such being

CRL.A No. 593 of 2012

the fact, the respondent approached the appellant on

17.10.2009 and borrowed a sum of Rs.1,20,000/- appears to

be strange and not acceptable.

9. It is further submitted that the accused had

contended that the said cheque was issued at the intervention

of the elders and the well wishers on account of panchayath

held for the occasion of death of the daughter of the

complainant who was the daughter-in-law of the respondent /

accused. As on the date of issuance of the cheque, there was

not legally enforceable debt or liability, therefore, the accused

not liable to pay the amount. The Trial Court after considering

the said aspect and recorded the acquittal. Therefore,

interference with the said findings may not be warranted.

Making such submissions, learned counsel for the respondent

prays to dismiss the appeal.

10. Having heard the rival contentions of learned

counsel for the respective parties and also perused the findings

of the Trial Court in recording the acquittal, it is necessary to

refer to the judgment of the Hon'ble Supreme Court in the case

CRL.A No. 593 of 2012

of BASALINGAPPA v. MUDIBASAPPA1, held in paragraph

No.31 read thus:

31. This Court had occasion to consider the expression "perverse" in Gamini Bala Koteswara Rao and others Vs. State of Andhra Pradesh through Secretary, (2009) 10 SCC 636, this Court held that although High Court can reappraise the evidence and conclusions drawn by the trial court but judgment of acquittal can be interfered with only judgment is against the weight of evidence. In Paragraph No.14 following has been held:-

"14. We have considered the arguments advanced and heard the matter at great length. It is true, as contended by Mr Rao, that interference in an appeal against an acquittal recorded by the trial court should be rare and in exceptional circumstances. It is, however, well settled by now that it is open to the High Court to reappraise the evidence and conclusions drawn by the trial court but only in a case when the judgment of the trial court is stated to be perverse. The word "perverse" in terms as understood in law has been defined to mean "against the weight of evidence". We have to see accordingly as to whether the judgment of the trial court which has been found perverse by the High Court was in fact so."

(2019) 5 SCC 418

CRL.A No. 593 of 2012

On careful reading of the dictum of the Hon'ble Supreme

Court it makes it clear that in a case of appeal against

acquittal, the Appellate Court has to interfere only when it is

noticed any perversity or illegality in appreciation of evidence.

11. Now it is also relevant to refer to the judgment of

the Hon'ble Supreme Court in the case of BIR SINGH v.

MUKESH KUMAR2, paragraph No.20 read thus:

"20. Section 139 introduces an exception to the general rule as to the burden of proof and shifts the onus on the accused. The presumption under Section 139 of the Negotiable Instruments Act is a presumption of law, as distinguished from presumption of facts. Presumptions are rules of evidence and do not conflict with the presumption of innocence, which requires the prosecution to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law and presumptions of fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact as held in Hiten P. Dalal [Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16 : 2001 SCC (Cri) 960] ."

(2019) 4 SCC 197

CRL.A No. 593 of 2012

On careful reading of the dictum of the Hon'ble Supreme

Court, it makes it clear that Section 139 of the NI Act

introduces an exception to the general rule as to the burden of

proof and shifts the onus on the accused.

12. Coming to the present case, the defence of the

accused is that the complainant and the accused are the

relatives, the daughter of the complainant was given for

marriage with the son of the accused. The daughter of the

complainant died in the matrimonial house on 17.06.2009. A

panchayath was held in inspection bungalow at Chennagiri, at

the advise of the elders and well wishers it was decided that

the amount of Rs.1,30,000/- to be paid to the complainant as a

compensation as the complainant lost his daughter.

13. It is stated that amount of Rs.10,000/- was paid on

the same day, for the balance amount of Rs.1,20,000/- cheque

was issued. However, none of the members of the panchayath

were examined to substantiate that the cheque had been

issued as a compensation at the intervention of the

panchayath. Even assuming that the cheque admittedly had

been issued as a compensation on account of death of the

daughter of the complainant, the accused had not produced

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CRL.A No. 593 of 2012

any documents to show that she has paid the amount as

mentioned in the cheque. Therefore, the liability on the cheque

certainly be fastened on the admission of the accused.

14. Further, the accused in the cross-examination

suggested that the cordial relationship between the

complainant and the accused had been strained after death of

the daughter of the complainant who is the daughter-in-law of

the accused, PW.1 admitted the strained relationship.

However, denied that the cheque was issued for compensation.

15. On careful reading of the dictum of the Hon'ble

Supreme Court and also the evidence of the accused, it can be

construed that the accused has not rebutted the presumption

and it is needless to say that the accused has neither issued

reply notice nor examined herself as a witness. Therefore, the

presumption raised in favour of the complainant under Sections

118 and 139 of the NI Act has not been rebutted and the

complainant has proved that the existence of recoverable debt

or liability. The Trial Court failed to take note of the

presumption and asked the complainant to discharge the initial

burden, which appears to be erroneous and the order of

acquittal passed by the Trial Court is required to be set aside.

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CRL.A No. 593 of 2012

16. In the light of the observations made above, I

proceed to pass the following:-

ORDER

i) The Criminal Appeal is allowed.

ii) The judgment and order of acquittal dated

12.03.2012 in C.C.No.204/2011 (Old No.146/2010)

passed by the learned Senior Civil Judge and JMFC,

Channagiri stands set aside.

iii) The respondent / accused is convicted for the offence

punishable under Section 138 of the Negotiable

Instruments Act and she is sentenced to pay a fine of

Rs.1,96,000/- (Rupees One Lakh Ninety Six Thousand

only), in default of payment of fine, the respondent /

accused shall undergo simple imprisonment for one

year.

iv) In case the respondent fails to make payment of the

fine, it can be recovered in terms of Section 421 of

the Code of Criminal Procedure as arrears of land

revenue.

v) On payment of the fine amount, the compensation of

Rs.1,90,000/- (Rupees One Lakh Ninety Thousand

only) to be paid to the LRs., of the appellant /

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CRL.A No. 593 of 2012

complainant on proper identification and remaining

balance of Rs.6,000/- (Rupees Six Thousand only)

has to be adjusted towards the Exchequer of the

State.

vi) The Registry is directed to send the records to the

Trial Court along with a copy of this order forthwith.

Sd/-

JUDGE

Bss/un