Karnataka High Court
D M Nagarajasetty vs Smt Vasundara Radha on 1 August, 2024
-1-
NC: 2024:KHC:30357
CRL.A No. 540 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL APPEAL NO. 540 OF 2013 (A)
BETWEEN:
D.M. NAGARAJASETTY
S/O LATE MUDDUNAGAIAH SETTY,
AGED ABOUT 62 YEARS,
RESIDING AT NO.120,
GROUND FLOOR, 80 FEET
MAIN ROAD, S.B.M. COLONY,
BANGALORE - 560 050
...APPELLANT
(BY SRI. H.S. CHANDRASHEKAR, ADVOCATE)
Digitally signed
by NANDINI B G
AND:
Location: high
court of
karnataka SMT. VASUNDARA RADHA
KRISHNA, W/O. RADHAKRISHNAN,
AGED BOUT 69 YEARS,
RESIDING AT NO.61,
CHAMUNDESHWARI LAYOUT,
VIDYARANYAPURA MAIN ROAD,
BANGALORE - 560 097
...RESPONDENT
(BY SRI. R PRABHAKARA, ADVOCATE (ABSENT))
THIS CRIMINAL APPEAL IS FILED U/S.378(4) CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT OF ACQUITTAL DATED 07.03.2013
PASSED BY THE XVIII A.C.M.M. AND XX A.S.C.J., BANGALORE IN
C.C.NO.3612/2003 - ACQUITTING THE RESPONDENT/ACCUSED FOR
THE OFFENCE P/U/S 138 OF N.I.ACT.
THIS CRIMINAL APPEAL, COMING ON FOR FINAL HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE M G UMA
-2-
NC: 2024:KHC:30357
CRL.A No. 540 of 2013
ORAL JUDGMENT
The complainant in C.C.No.3612/2003, on the file of
learned XVIII Additional Chief metropolitan Magistrate,
Bangalore is impugning the judgment dated 07.03.2013,
acquitting the accused for the offences punishable under
Section 138 of Negotiable Instruments Act.
2. Learned counsel Sri. H.S. Chandrashekar for the
appellant submitted that he has filed written arguments and the
same may be considered in the light of the oral and
documentary evidence placed before the Court. Perused the
materials on the record including the Trial Court records.
3. In view of the rival contentions urged by the
learned counsel for both the parties, the point that would arise
for my consideration is:
"Whether the appellant has made
out any grounds to allow the appeal?"
My answer to the above point is in 'Negative' for the
following:
NC: 2024:KHC:30357
REASONS
4. It is the specific contention taken by the appellant -
complainant before the Trial Court that the accused was known
to him and he had requested for a hand loan and accordingly,
he had lent a sum of Rs.4,50,000/- (Rupees Four Lakhs Fifty
Thousand Only) to the accused during August-2002. Towards
discharge of the said hand loan, the accused had issued the
cheque as per Ex-P1 for Rs.4,50,000/- (Rupees Four Lakhs Fifty
Thousand Only) on 16.11.2002. The same was presented for
encashment on 27.11.2002 and it was dishonored as there was
insufficient funds in the account. At the request of the accused,
the cheque was again presented for encashment, but even then
it was dishonored as there was insufficient funds. Legal notice
was issued to the accused as per Ex-P6 and the same was
served on the accused. The accused had not repaid the cheque
amount but had issued the reply as per Ex-D2 with false
allegations. Thereby, the accused has committed the offence
punishable under Section 138 of NI Act.
5. To prove his contention, the complainant examined
himself as PW-1 and got marked as Ex-P1 to Ex-P22. The
accused examined himself as DW-1 and got examined two
NC: 2024:KHC:30357
witnesses as DWs-2 and 3 and got marked as Exs-D1 to 15 in
support of his contention.
6. The complainant who is examined as PW-1 states
that he is running a Chit Fund business and he is paying income
tax. Cash of Rs.4,50,000/- (Rupees Four Lakhs Fifty Thousand
Only) was with him as he was earning Rs.6,000/- to 7,000/-
per month and he used to spend Rs.5,000/- per month, out of
which he saved Rs.4,50,000/- (Rupees Four Lakhs Fifty
Thousand Only) and kept it aside for performing the marriage
of his daughter. But the accused requested for hand loan and
he paid the same during August-2002. It is interesting to note
that even according to the complainant, he had performed his
daughter marriage during September-2002. Later in the cross
examination, witness states that he was having income of
about Rs.2,00,000/- to Rs.3,00,000/- per annum and was
saving huge amount. He also offers to produce necessary
documents to show his income and to probabalise lending of
the amount. But no such records are produced before the Trial
Court for the reasons best known to the complainant.
NC: 2024:KHC:30357
7. Lending an amount of Rs.4,50,000/- (Rupees Four
Lakhs Fifty Thousand Only) during August-2002 is considerably
a huge sum. When the complainant states that he was only
having income of Rs.6,000/- to Rs.7,000/- per month and use
to spend Rs.5,000/- for his personal expenses, it is hard to
believe that the complainant had saved Rs.4,50,000/- (Rupees
Four Lakhs Fifty Thousand Only) to perform the marriage of his
daughter had lent it to the accused that to when the marriage
of his daughter was fixed during September-2002. There is
absolutely no reasonable explanation for the same. Therefore,
it could be stated that the complainant had not proved his
financial capacity nor lending of the amount. Even though, the
accused has taken different defence, he has not probabalized
the same. However, the fact remains that the complainant has
not probabalized his contention by proving lending of the
amount and existence of legally recoverable debt. Under such
circumstances, the presumption under Section 139 of NI Act,
stands rebutted from the evidence that is elicited during cross
examination of PW-1. cannot be raised. When the complainant
himself has failed to discharge his burden of proving lending of
the amount and existence of legally recoverable debt, the
NC: 2024:KHC:30357
burden will not again shift on the accused. Under such
circumstances, the accused is entitled to be acquitted.
8. I have gone through the impugned judgment of
acquittal passed by the Trial Court. It has taken into
consideration the oral and documentary evidence placed before
it and has arrived at the right conclusion. I do not find any
illegality or perversity in the judgment impugned. Hence, I am
of the opinion that no grounds are made out to entertain the
appeal.
9. Accordingly, I answer the above point in the
negative and proceed to pass the following:
ORDER
The appeal is dismissed.
Sd/-
(M G UMA)
JUDGE
SPV
