Karnataka High Court
Smt.Thripura Vishwanath vs Sri.M.N.Kumar on 5 August, 2024
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NC: 2024:KHC:30936
CRL.A No. 165 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL APPEAL NO. 165 OF 2023 (A)
BETWEEN:
SMT. THRIPURA VISHWANATH,
W/O. P.S. VISHWANATH,
AGED ABOUT 82 YEARS,
RESIDING AT NO.33, 5TH MAIN,
K.P. PUTTANNA CHETTY ROAD,
CHAMARAJPET, BANGALORE - 560 018
Digitally signed ...APPELLANT
by SWAPNA V
(BY SRI. JAIRAJ .G., ADVOCATE)
Location: high
court of
karnataka
AND:
SRI. M.N. KUMAR,
S/O. NANJAPPA,
AGED ABOUT 56 YEARS,
PROPRIETOR M.N. MOVIES,
RESIDING AT NO.2358 /32,
1ST 'C' MAIN ROAD, 1ST CROSS,
VIJAYANAGAR II STAGE, BBMP
WARD NO.133, BANGALORE - 560 104
ALSO AT NO.526/9, 9TH MAIN,
HAMPINAGAR, VIJAYANAGAR II
STAGE, BANGALORE - 560 104
...RESPONDENT
(BY SRI. RAJESH .A., ADVOCATE)
THIS CRIMINAL APPEAL IS FILED U/S 378(4) OF CR.PC
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER PASSED BY
THE LEARNED ADDL. SMALL CAUSE AND 26TH A.C.M.M AT
BENGALURU IN C.C.NO.7596/2021 BY ITS JUDGMENT DATED
14.12.2022 AND ALLOW THE APPEAL FILED BY THE
APPELLANT/COMPLAINANT BY CONVICTING THE RESPONDENT
UNDER SEC.138 OF THE N.I ACT AND AWARD THE SUITABLE
COMPENSATION TO THE APPELLANT/COMPLAINANT.
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NC: 2024:KHC:30936
CRL.A No. 165 of 2023
THIS CRIMINAL APPEAL, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE M G UMA
ORAL JUDGMENT
The complainant in C.C.No.7596/2021 on the file of
learned Additional Small Cause (SCCH-9) and 26th A.C.M.M,
Bangalore, is impugning the judgment dated 14.12.2022,
acquitting the accused for the offences punishable under
Sections 138 of Negotiable Instruments Act (for short 'NI Act').
2. For the sake of convenience, the parties shall be
referred to as per their rank and status before the Trial Court.
3. Heard Sri Jairaj G, learned counsel for the appellant
and Sri Rajesh A, learned counsel for the respondent. Perused
the materials including the Trial Court records.
4. Learned counsel for the complainant-appellant
contended that the complainant is a house wife. She had lent
an amount of Rs.20,00,000/- (Rupees Twenty Lakhs Only) to
the accused, during 2014. The husband of the complainant is
Mr. P.S. Vishwanath, a well-known cricketer, who recently died.
He was having sufficient means and with the help of her
husband, the complainant had lent the amount to the accused.
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The accused had issued the cheques- Ex-P1 and P2 for
Rs.10,00,000/- each, towards repayment of the amount that
was due to be paid. On presentation of the cheques, the same
were dishonored as there was no sufficient funds in the account
of the accused. Legal notice as per Ex-P5 was issued and the
same was served on the accused as per Ex-P8 and P9. But the
accused had not repaid the cheque amount and thereby
committed the offence punishable under Section 138 of NI Act.
5. Learned counsel submitted that the complainant
has examined herself as PW-1 and got marked the documents
as per Ex-P1 to P10 in support of her contention. During cross
examination, nothing has been elicited from PW-1 to disbelieve
her version. She categorically stated that she was constructing
an apartment in Chamarajapete, 5th main road. That means to
say that the complainant was having sufficient funds with her.
Issuance of the cheques as per Ex-P1 and P2 are not denied.
When the accused admits issuance of the cheques with his
signatures, the burden lies on the accused to rebut the
presumption under Sections 118 and 139 of NI Act. The said
burden is not discharged by the accused. In spite of that, the
Trial Court has proceeded to dismiss the complaint on the
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ground that the complainant has not proved her financial
capacity. When the accused has not specifically denied financial
capacity of the complainant, the Trial Court committed error in
dismissing the complaint.
6. Learned counsel placed reliance on the decision of
the co-ordinate bench of this Court in Smt. T. R. Radhamma
v/s Sri Munigowda1 to contend that the complainant is not
expected to give evidence of her financial capacity when she
lead her evidence in the matter. It is for the accused to prove
that the complainant was not having financial capacity to lend
the amount. Therefore, learned counsel for the appellant
contends that the Trial Court has committed an error and
accordingly, prays for allowing the appeal.
7. Per contra, learned counsel for the respondent
submits that the Trial Court has taken into consideration all the
materials on record and rightly dismissed the complaint and
prays for dismissal of the appeal.
MANU/KA/0397/2024
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8. 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 impugned judgment of
acquittal suffers from perversity or
illegality and calls for interference by this
court? "
My answer to the above point is in 'Negative' for the
following:
REASONS
9. It is the specific contention of the complainant that
she had lent an amount of Rs.20,00,000/- in cash during 2014
to the accused and the same was not repaid by him. Towards
repayment of the same, the accused had issued cheques as per
Ex-P1 and P2 for Rs.10,00,000/- each. On presentation, the
same were dishonored. In spite of service of notice, the cheque
amount was not paid and thereby the accused committed the
offence under Section 138 of NI Act.
10. To prove her contention, the complainant stepped
into the witness box and deposed as PW-1. During cross
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examination, witness stated that the accused had taken the
money for a big budget cinema. She had paid it through cash.
She pleaded her ignorance, as when exactly she paid the
amount. It is pertinent to note that PW-1 has stated that
during 2014, she was constructing an apartment in Bengaluru
and it took almost 8 years to complete. It is also pertinent to
note that PW-1 has specifically stated that since she was facing
financial crunch, the construction work was stalled for
sometime. When such is the evidence given by PW-1, naturally,
the accused will take advantage of the same.
11. It is also pertinent to note that in the sworn
statement filed by PW-1, she has specifically stated that she
had paid the amount of Rs.20,00,000/- to the accused by way
of cash part by part by getting it from her husband. Therefore,
it is clear that the appellant is a house wife and she was not
having any income. She got the money from her husband and
paid to the accused on various dates. I do not find any details
regarding payment of the same to the accused. It is also
pertinent to note that the amount of Rs. 20,00,000/- paid in
cash during 2014, which is considerably a big amount.
Admittedly, there is no piece of paper to evidence the same.
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When the complainant specifically states that she was facing
financial crunch and construction of the apartment took almost
8 years, it cannot be said that she was having financial capacity
to lend such a big amount.
12. Learned counsel for the appellant placed reliance on
the decision in Rajesh Jain v/s Ajany Singh2, to contend that
the complainant need not lead evidence to prove his financial
capacity, when the accused admits issuance of cheque with his
signature. When the complainant files the complaint and also
files the affidavit in lieu of examination in chief by way of sworn
statement, the defence that may be taken by the accused may
not be known to the complainant. Under such circumstances, it
is not incumbent on the complainant to say in detail about her
financial status. But during cross examination, learned counsel
for the accused has elicited from PW-1 regarding her financial
difficulties. Under such circumstances, the complainant could
have produced cogent materials to show that she and her
husband were having sufficient cash with them and the same
was paid to the accused on various dates.
(2023) 10 SCC 148
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13. It is also pertinent to note that the accused had
taken defence that during 2015 he had availed a loan of
Rs.5,00,000/- from the complainant. It is his contention that he
had repaid the entire amount of Rs.5,00,000/-. This fact is
admitted by PW-1 during cross examination. It is the further
contention of the accused that he had issued cheques as per
Ex-P1 and P2 as security while availing loan of Rs. 5,00,000/-
which was subsequently presented for encashment during
2020-2021. When PW-1 admits that the accused had availed
loan of Rs. 5,00,000/- during 2015 and had repaid it on
21.10.2015, the accused is successful in probablizing the
defence that he had issued cheques in question as security
when he availed the loan at first instance. The complainant
could have placed any cogent material to disbelieve the version
of the accused and to substantiate her contention regarding her
financial condition and lending of the huge amount of
Rs.20,00,000/-. No such efforts were made by the complainant.
Under such circumstances, it could be said that even though
the complainant was successful in discharging her initial
burden, the accused is successful in rebutting the presumption
under Sections 118 and 139 of NI Act and the reverse burden is
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on the complainant to establish her contention. When once the
accused discharges his burden by rebutting the presumption,
the complainant cannot place reliance on the presumption of
law which already stands rebutted. Nothing is on record to hold
that the complainant independently proved her contention
regarding commission of the offence by the accused. Under
such circumstances, the accused is entitled for acquittal.
14. 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.
15. 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
