Smt. Kumari Lalitha vs K.S. Shivakumar
2023 Latest Caselaw 7297 Kant

                                          -1-
                                                     NC: 2023:KHC:37917
                                                   CRL.A No. 81 of 2013




                  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 25TH DAY OF OCTOBER, 2023

                                         BEFORE
                   THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
                          CRIMINAL APPEAL NO. 81 OF 2013(A)
                BETWEEN:

                SMT. KUMARI LALITHA,
                W/O GANGAIAH,
                AGED ABOUT 49 YEARS,
                R/AT NO. 1529, 13TH CROSS,
                NEAR SHIVANANDA STORES,
                KALYAN NAGAR, T. DASARAHALLI
                BANGALORE-74.
                                                           ...APPELLANT
                (BY SRI. P. MAHADEVA SWAMY, ADVOCATE)
                AND:

                K.S. SHIVAKUMAR,
                S/O SEENAPPA,
                AGED ABOUT 45 YEARS,
                "SLN NILAYA", R/AT 15,
                BYRAWESHWARANAGAR,
Digitally       DODDABIDARAKALLU,
signed by       NAGASANDRA,
RENUKAMBA       BANGALORE-560 057.
KG                                                       ...RESPONDENT
Location:       (BY SRI. M. RAMASWAMY, ADVOCATE)
High Court of        THIS APPEAL IS FILED U/S.378(4) CR.P.C PRAYING TO
Karnataka       SET ASIDE THE JUDGMENT DATED 02.11.2012 PASSED BY THE
                XIII A.C.M.M., BANGALORE IN C.C.NO.34842/2010 -
                ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
                P/U/S 138 OF N.I.ACT.

                    THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
                COURT DELIVERED THE FOLLOWING:
                                -2-
                                             NC: 2023:KHC:37917
                                         CRL.A No. 81 of 2013




                          JUDGMENT

This is an appeal filed by the appellant/complainant

under Section 378(4) of Cr.P.C. challenging the judgment

of acquittal passed by the XIII Additional Chief

Metropolitan Magistrate, Bangalore, in CC No.34842/2010,

dated 02.11.2012.

2. For the sake of convenience, the parties herein

are referred with the original ranks occupied by them

before the trial Court.

3. The brief factual matrix leading to the case are

as under:

It is the contention of the complainant that accused

is a friend of the complainant and during the first week of

February 2009, the accused approached and requested the

complainant for a hand loan of Rs.6,00,000/- to meet the

expenses of the marriage of his daughter. It is further

asserted by the complainant that considering the need of

the accused, the complainant has advanced a hand loan of

NC: 2023:KHC:37917 CRL.A No. 81 of 2013

Rs.6,00,000/- on 05.02.2009 and accused agreed to pay

interest at the rate of 18% per annum and repay the

amount within fifteen days. The accused did not repay the

said amount and on persistent demand, on 09.12.2009,

the accused issued two post dated cheques dated

10.12.2009, for a sum of Rs.3,00,000/- each. When the

said cheques were presented, they were bounced for

insufficient of funds and hence, complainant has issued a

legal notice to the accused and inspite of service of legal

notice, accused has not repaid the cheque amount. Hence,

the complainant has filed a complaint against the accused

under Section 138 of the Negotiable Instruments Act,

1881 (for short 'N.I. Act'). The complainant was got

examined herself as PW1 and placed reliance on Ex.P1 to

Ex.P12. After completion of the evidence of complainant,

the statement under Section 313 Cr.P.C. is recorded to

enable the accused to explain the incriminating evidence

appearing against him in the case of the complainant. The

case of the accused is of total denial. He has also got

examined himself as DW1.

NC: 2023:KHC:37917 CRL.A No. 81 of 2013

4. After hearing the arguments and after

appreciating the oral and documentary evidence, the

learned Magistrate has acquitted the accused for the

offence under Section 138 of the N.I. Act.

5. Being aggrieved by this judgment of acquittal,

accused is before this Court by way of this appeal.

6. Heard the arguments advanced by the learned

counsel for appellant. The learned counsel for respondent

is absent. Perused the records.

7. The learned counsel for the appellant would

contend that the loan was advanced on 05.02.2009 and

cheques were issued on 09.12.2009. He would also assert

that the cheques belong to the account of the accused and

they bear the signatures of the accused are admitted and

hence, the initial presumption under Section 139 of the

N.I. Act is in favour of the complainant. He would also

assert that the complainant has also proved her financial

capacity to advance a huge hand loan to the tune of

Rs.6,00,000/- and hence, he would assert that the trial

NC: 2023:KHC:37917 CRL.A No. 81 of 2013

Court has failed to appreciate the oral and documentary

evidence in proper perspective and erroneously acquitted

the accused, which has resulted in miscarriage of justice.

Hence, he would seek for allowing the appeal by setting

aside the impugned judgment of acquittal and sought for

convicting the accused.

8. Having heard the arguments and perusing the

records, now the following point would arise for my

consideration:

"Whether the judgment of acquittal passed by the trial Court is perverse and arbitrary so as to call for any interference by this Court."

9. It is the specific contention of the complainant

that the accused has availed a hand loan of Rs.6,00,000/-

for the purpose of performing the marriage of his daughter

on 05.02.2009. It is also asserted that, as the accused is

acquainted with the complainant, she advanced the hand

loan and accused agreed to pay the hand loan amount

NC: 2023:KHC:37917 CRL.A No. 81 of 2013

with interest at the rate of 18% per annum. In this regard,

the complainant has placed reliance on Ex.P1 & Ex.P2.

10. The complainant was got examined herself as

PW1 and she has reiterated the complaint allegations. The

cross-examination of complainant discloses that the

accused has disputed the financial status of the

complainant to advance such a huge loan in 2009. The

complainant has placed reliance on Sale Deed marked at

Ex.P13 to prove her financial status.

11. In the cross-examination, the complainant

admitted that she has no independent source of income

except the salary income of her husband. She has also

admitted that the salary income of her husband is around

Rs.26,261/- per month. She claims that she had financial

capacity as she has sold the immovable property for

consideration of Rs.4,95,000/-. She asserts that, however,

she has received a sale consideration of Rs.15,00,000/-.

But on perusal of Ex.P13, it is evident that the sale

consideration is only Rs.4,95,000/-. When the complainant

NC: 2023:KHC:37917 CRL.A No. 81 of 2013

is asserting that she has received Rs.15,00,000/- towards

sale consideration, the burden shifts on the complainant to

substantiate this aspect. As per Section 91 of the Indian

Evidence Act, the documentary evidence will prevail over

the oral evidence, except under the exceptions provided

under Section 92 of the Indian Evidence Act. The

complainant has not produced any evidence to show that

she falls under any exceptions. Further, she asserts that at

the time of receiving Rs.15,00,000/- sale consideration,

her brother Yoganarasimaiah and her husband were

present. But both of these witnesses were not examined to

substantiate the contention that she has received

Rs.15,00,000/- sale consideration. Hence, the said

contentions asserted by the complainant cannot be

accepted.

12. Further, as per Ex.P13, the Sale Deed was

executed on 10.05.2007 itself. But this transaction has

taken place two years later on and it is hard to accept the

contention of the complainant that she kept this hard cash

NC: 2023:KHC:37917 CRL.A No. 81 of 2013

of Rs.4,95,000/- in her house all along. No doubt, the

accused admits that Ex.P1 & Ex.P2 belongs to him and

they bear his signatures and initial presumption under

Section 139 of the N.I. Act is in favour of the complainant.

But since the accused has raised a defence of financial

capacity of the complainant, the burden shifts on the

complainant to prove her financial status. Ex.P13 will not

assist the complainant to prove her financial status.

13. Apart from that, complainant in her evidence

asserted that when she advanced the loan in her house,

one Ratnamma was present. But said Ratnamma was not

examined by the complainant for the best reasons known

to her. Further, the complainant asserts that she came in

contact with the accused through Ratnamma only and it is

hard to accept that when the accused is not her

neighbour, she has advanced a huge loan of Rs.6,00,000/-

without any security. Hence, the complainant has failed to

substantiate her financial status to advance huge loan of

Rs.6,00,000/- to the accused. Hence, the presumption

NC: 2023:KHC:37917 CRL.A No. 81 of 2013

under Section 139 of the N.I. Act is not available to the

complainant.

14. The learned Magistrate has appreciated the oral

and documentary evidence in proper perspective. The view

taken by the learned Magistrate is a possible view in view

of the fact that the take-home salary of the husband of the

complainant is Rs.18,325/- and it is hard to accept that

she could advance a huge loan of Rs.6,00,000/-. Further,

as per the mandate of the Apex Court, the interference by

the appellate Court in case of acquittal should be very rare

and when two views are possible, the view favourable to

the accused shall prevail. Further, when two views are

possible, the view taken by the trial Court should not be

disturbed unless there are compelling circumstances. In

the instant case, no such compelling circumstances are

forthcoming to disturb the view taken by the learned

Magistrate.

- 10 -

NC: 2023:KHC:37917 CRL.A No. 81 of 2013

15. Looking to these facts and circumstances, the

complainant has failed to establish that the disputed

cheques were issued towards legally enforceable debt.

Hence, the judgment of acquittal passed by the learned

Magistrate cannot be said to be perverse or arbitrary so as

to call for any interference. As such, the point under

consideration is answered in the negative. In view of the

same, the appeal being devoid of any merits, does not

survive for consideration and accordingly, I proceed to

pass the following:

ORDER

(i) The appeal stands dismissed.

Sd/-

JUDGE

DS