Karnataka High Court
Mr M S Krishna vs Smt Shanthamma on 7 February, 2024
1 CRL.A NO.859 OF 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.859 OF 2018
BETWEEN:
MR. M S KRISHNA
S/O LATE MR. SIDDAIAH,
AGED ABOUT 65 YEARS
C/O SMT. LEELAVATHI,
R/AT NO.36/2,
DURGAMBA TEMPLE,
GOWDANA PALYA,
BENGALURU - 560 078
......APPELLANT
(BY SMT. LAKSHMI S B, ADVOCATE)
AND:
SMT SHANTHAMMA
AGED ABOUT 40 YEARS
C/O SMT. SUMATHI,
"SHARADA KRUPA",
NO.14, 7TH CROSS, 1ST MAIN, 1ST FLOOR,
KUMARASWAMY LAYOUT, 2ND STAGE,
BENGALURU - 560 078.
RESPONDENT
(BY SRI. CHIDAMBARA G S, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) OF CR.P.C PRAYING TO a) SET ASIDE THE JUDGMENT
DATED 22.01.2018 PASSED BY THE XVI ADDL.C.M.M.,
BENGALURU IN C.C.NO.26753/2015 AND CONSEQUENTLY
ALLOW THE SAID COMPLAINT; b) PASS SUCH OTHER AND
FURTHER ORDERS BASED ON THE NATURE AND
2 CRL.A NO.859 OF 2018
CIRCUMSTANCES OF THE CASE; c) GRANT COST OF THE
APPEAL IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
19.01.2024, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is by the complainant challenging the
acquittal of respondent/accused for the offence
punishable under Section 138 of Negotiable Instrument
Act, 1881 (for short 'N.I. Act'), by the trial Court by
dismissing the complaint filed by him.
2. For the sake of convenience, parties are
referred to by their rank before the trial Court.
3. Complainant filed the complaint in question
contenting that he was working in KSRTC as Inspector
and retired in the month of June 2014. He received
pensionary benefits in a sum of Rs.24 lakhs. Out of it ,he
purchased a site for Rs.11 lakhs. He kept Rs.5 lakhs in
Bank in a Fixed Deposit for three years. He kept the
remaining amount in his savings bank account for laying
foundation.
3.1 It is further case of the complainant that one
Sumathi and her mother Savithramma are his close
relatives i.e, father of complainant and maternal grand
father of Sumathi were brothers. He came to know the
accused, who was a tenant under Sumathi. In the
presence of Savithramma, Sumathi and her husband,
accused requested the complainant to lend her hand loan
of Rs.2 lakhs, as she was in need of the said amount to
improve the immovable property which is going to fall to
the share of her husband situated at Kanakapura Road.
Accordingly, on 18.03.2015, complainant paid a sum of
Rs.2 lakhs to the accused in the presence of
Savithramma and husband of accused. Accused agreed
to repay the same with interest at bank rate and issued
cheque dated 20.06.2015.
3.2 When complainant met the accused in the
house of her owner i.e., Sumathi in the third week of
June 2015, accused and her son requested the
complainant to present the cheque in the second week of
August 2015 and it would be honoured. Accordingly, on
10.08.2015, complainant presented cheque for
encashment. However, it was returned dishonoured with
endorsement "Funds insufficient". In this regard,
complainant got issued legal notice dated 17.08.2015. It
is duly served on the accused. However, she has sent an
evasive reply and hence the complaint.
4. After due service of notice, accused appeared
and contested the case. She admitted that she came to
know the complainant through her owner Sumathi.
However, she has denied that she borrowed Rs.2 lakhs
from the complainant. On the other hand, she claimed
that she borrowed a sum of Rs.50,000/- from the
complainant and issued two blank cheques by way of
security and misusing one such cheque the complainant
has filed the complaint by falsely claiming that the
amount lent is Rs.2 lakh. At the trial, the accused has
also challenged the financial capacity of complainant.
5. Accused pleaded not guilty and claimed trial.
6. In order to prove the allegation against
accused, complainant has examined himself as PW-1 and
got marked Ex.P1 to 13.
7. During her statement under Section 313
Cr.P.C, the accused has denied incriminating evidence
led by the complainant.
8. Accused has led the defence evidence by
examining Sumathi as DW-1 and no documents are
marked on behalf of the accused.
9. However, during the cross-examination of
DW-1, the complainant has got marked Vakalathnama
filed on behalf of accused, 313 Statement, postal
acknowledgement and plea of the accused as Ex.C1 to 4.
10. Vide the impugned judgment and order, the
trial Court acquitted the accused holding that the
complainant has failed to prove his financial capacity to
advance hand loan of Rs.2 lakhs and on the other hand
the accused has probabilised her defence that she had
borrowed Rs.50,000/- from complainant and at that
time, two blank cheques were given and misusing one of
them, complainant has filed the complaint.
11. Being aggrieved by the impugned judgment
and order, complainant has filed this appeal contenting
that the impugned judgment and order are not tenable
either in law or on facts. Despite the fact that accused
has not entered the witness box, the trial Court has erred
in holding that accused has proved her defence and on
the other hand complainant has failed to prove his
financial capacity. The trial Court has erred in relying
upon the testimony of DW-1 when admittedly, the
relationship between her and complainant has stained.
The trial Court has also failed to appreciate the fact that
accused has admitted the transaction in the reply to the
legal notice. Viewed from any angle the impugned
judgment and order are not tenable and pray to allow the
appeal, convict the accused and sentence her
appropriately.
12. On the other hand learned counsel for accused
has supported the impugned judgment and order and
sought for dismissal of the appeal.
13. In support of his arguments, learned counsel
for accused has relied upon the following decision:
(i) K.Prakashan Vs. P.K.Surenderan
(K.Prakashan)1
14. Heard arguments of both sides and perused
the record.
15. The undisputed facts are that complainant and
DW-1 Sumathi are related i.e., the father of complainant
and maternal grand father of DW-1 Sumathi are
brothers. Accused Shanthamma was a tenant of a
residential house under DW-1 Sumathi. The fact that
complainant was working as Inspector in KSRTC and
retired during June 2014. It has come in the evidence
that the wife and children of complainant are residing at
Maddur, whereas complainant was residing at Bengaluru.
It is also not in dispute that at the relevant point of time
(2008) 1 SCC 258
complainant was visiting the house of DW-1 Sumathi in
the evening for dinner for a period of 6-7 months.
16. In this background complainant and accused
come to know each other and with that acquaintance on
the intervention of DW-1 Sumathi, complainant extended
hand loan to the accused. In fact the accused admit that
she has borrowed from complainant and issued the
subject cheque. However, she has claimed that the loan
borrowed by her was only Rs.50,000/- and not Rs.2
lakhs as claimed by the complainant. She has also
claimed that the cheque in question was issued blank
along with another cheque and filling up one cheque for
Rs.2 lakhs, complainant has filed the present complaint.
In fact the accused has sent reply to the legal notice
taking the above defence. During the cross-examination
of the complainant, accused has challenged his financial
capacity.
17. In the light of the fact accused admit that the
cheque in question is drawn on her account maintained
with her banker and it bears her signature, presumption
under Section 139 of N.I. Act operates in favour of
complainant, placing the initial burden on accused to
prove that it was not issued for repayment of the debt or
liability as claimed in the complaint. On the other hand it
is for the accused to prove the circumstances in which
the subject cheque reached the hands of complainant.
Only after the accused rebut the presumption operating
in favour of complainant, the burden would shift on the
complainant to prove his case. Of course, it is sufficient
for the accused to probabalise her defence, whereas the
complainant is required to prove his case beyond
reasonable doubt.
18. However, in John K.Abraham Vs. Simon C.
Abraham & Anr (John K.Abraham)2, the Hon'ble
Supreme Court held that in order to draw presumption
under Sections 118 and 139 of N.I Act, the burden lies
on the complainant to show that:
(i) She had the requisite funds for advancing
the sum of money/loan in question to
accused.
(2014) 2 SCC 236
(ii) The issuance of cheque by accused in
support of repayment of money advanced
was true and
(iii) The accused was bound to make payment
as had been agreed while issuing cheque in
favour of the complainant.
19. In Tedhi Singh Vs Narayan Das Mahant
(Tedhi Singh)3, the Hon'ble Supreme Court held that
where the accused has failed to send reply to the legal
notice, challenging the financial capacity of the
complainant, at the first instance complainant need not
prove his financial capacity. However, if during the
course of trial accused has taken up such defence, then it
is necessary for the complainant to prove his financial
capacity, when he allegedly advanced the amount and
towards repayment of it, the accused has issued the
cheque. In the present case though the accused has sent
reply to the legal notice, she has not challenged the
financial capacity of complainant in the said notice, but
during trial she has taken up such a defence.
2022 SCC OnLine SC 302
20. In fact, in APS Forex vs Shakti International
Fashion Linkers Pvt. Ltd (APS Forex)4, the Hon'ble
Supreme Court held that when accused rises issue of
financial capacity of complainant in support of his
probable defence, despite presumption in favour of
complainant regarding legally enforceable debt under
Section 139, onus shifts again on the complainant to
prove his financial capacity by leading evidence, more
particularly when it is a case of giving loan by cash and
thereafter issue of cheque.
21. In the light of the ratio in the above decisions,
burden is on the complainant to prove his financial
capacity, after which it is for the accused to prove her
defence.
22. In order to prove his financial capacity, the
complainant has deposed that after his retirement he has
received Rs.24 lakhs as retirement benefits and out of it,
he purchased a site measuring 15 x 40 ft for Rs.11 lakhs.
He has kept Rs.5 lakhs in Fixed Deposit for three years
(2020) 12 SCC 724
and remaining amount was kept in his Savings Bank A/c.
During his cross-examination dated 11.01.2017, the
complainant has specifically deposed that he had
withdrawn Rs.5 lakhs from his account about 2-3 months
earlier and out of it, he lent Rs.2 lakhs to the accused.
Despite the fact that on his retirement, the complainant
might have certainly received certain benefits, he has not
produced any documents to show that what exactly the
amount received and how he used it. At least he could
have produced his accounts statement to show that
about 2-3 months prior to the date of transaction, he had
withdrawn Rs.5 lakhs from his account to probablize his
claim that out of the said amount, he paid Rs.2 lakhs to
the accused by way of hand loan.
23. It is not in dispute that complainant came to
know the accused through his relative DW-1- Sumathi in
whose house accused was tenant. Through the testimony
of DW-1 Sumathi, the accused has proved that
complainant has lent only Rs.50,000/- to the complainant
through her and at the time of said transaction, he had
received two blank cheques and Ex.P-1 is one of them.
As admitted by the complainant, the signature and rest
of the contents of Ex.P-1 Cheque are in different
handwriting. They are also in different ink. It supports
the defence of the accused that she gave blank signed
cheques.
24. The cross-examination of DW-1 Sumathi
reveal that though initially the relationship between the
complainant and DW-1 Sumathi and her family members
were cordial and complainant was regularly visiting her
house, a quarrel took place between the complainant and
DW-1 Sumathi and thereafter, he stopped going to her
house. During her cross examination, a suggestion is
made to DW-1 Sumathi that the rate of interest, agreed
upon the loan is 4% which she has admitted. In this
regard, DW-1 Sumathi has stated that accused had paid
monthly interest in a sum of Rs.2,000/-. This piece of
evidence is not disputed by the complainant. If the
interest agreed to be paid is Rs.2,000/- p.m, at the rate
of 4% p.m., the principle amount would come to
Rs.50,000/-. This also supports the defence of the
accused.
25. It is argued by the learned counsel for the
complainant that to discharge the burden on her, the
accused has not stepped into the witness box. However,
in K.Prakashan referred to supra and relied upon by the
learned counsel for accused, the Hon'ble Supreme Court
has held that in a complaint under Section 138 of N.I.Act
in order to discharge the burden, the accused need not
step into the witness box. In fact in Rangappa Vs. Sri
Mohan (Rangappa)5 also the Hon'ble Supreme Court
has held that to rebut the presumption, the accused may
rely on the material placed on record by the complainant
and/or lead independent evidence. In the light of the
ratio in the above decisions, the fact that the accused
has not stepped into the witness box would not enure to
the benefit of complainant.
26. Thus, the complainant has not only failed to
prove his financial capacity, but also through the
(2010)11 SCC 441
testimony of DW-1 Sumathi, the accused has
probabalised her defence. Taking into consideration the
oral and documentary evidence placed on record, the
trial Court has come to a correct conclusion that charge
leveled against accused are not proved, beyond
reasonable doubt and acquitted her. On re-appreciation
of the evidence on record, this Court finds no justifiable
grounds to interfere with the conclusions arrived at by
the trial Court.
27. In the result, appeal fails and accordingly, the
following:
ORDER
(i) Appeal filed by the complainant under
Section 378 (4) of Cr.P.C is dismissed.
(ii) The impugned judgment and order dated
22.01.2018 in C.C.No.26753/2015 on the
file of XVI ACMM, Bengaluru, is confirmed.
(iii) The Registry is directed to send back the
trial Court records along with copy of this
order forthwith.
Sd/-
JUDGE
RR
