Karnataka High Court
Mayadevi vs Raghuram B. Kedekar And Anr on 22 February, 2024
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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NC: 2024:KHC-K:1712
CRL.A No.200104 of 2022
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO.200104 OF 2022 (378)
BETWEEN:
MAYADEVI
D/O JAGADEVAPPA DENGI,
AGE: 28 YEARS,
OCC; PRIVATE SERVICE,
R/O H.NO.15/1,
NEAR FARHATAABAD BUS STAND,
FARHATABAD,
TQ. AND DIST. KALABURAGI.
...APPELLANT
(BY SRI K. A. KALBURGI, ADVOCATE)
Digitally signed AND:
by SHILPA R
TENIHALLI
Location: HIGH 1. RAGHURAM B. KEDEKAR,
COURT OF
KARNATAKA PRESIDENT OF
RAKESH ROSHAN EDUCATIONAL INSTITUTE,
R/O PLOT NO.239,
GDA LAYOUT, NEAR GHATGE LAYOUT,
BEHIND CENTRAL BUS STAND,
KALABURAGI.
2. SMT. SITA R.B. KEDEKAR,
SECRETARY OF
RAKESH ROSHAN EDUCATIONAL INSTITUTE,
R/O PLOT NO.239,
GDA LAYOUT,
NEAR GHATGE LAYOUT,
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CRL.A No.200104 of 2022
BEHIND CENTRAL BUS STAND,
KALABURAGI.
...RESPONDENTS
(BY SRI LIYAQAT FAREED USTAD, ADVOCATE FOR R1 AND R2)
THIS CRL.A. IS FILED U/S. 378 (4) OF CR.P.C. PRAYING
TO SET ASIDE THE ORDER DATED 26-03-2022 PASSED BY THE
II ADDITIONAL CIVIL JUDGE AND JMFC IN C.C.NO.393/2018.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant/complainant
under Section 378(4) of Cr.P.C. challenging the judgment
of acquittal passed by the II Additional Civil Judge and
JMFC, Kalaburagi in C.C.No.393/2018 dated 26.03.2022 in
respect of the offence under Section 138 of the Negotiable
Instruments Act (for short, 'the Act').
2. For the sake of convenience, the parties herein
are referred with the original ranks occupied by them
before the Trial Court.
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3. The brief factual matrix leading to the case are
as under:
It is the contention of the complainant that the
accused approached the complainant one year earlier and
requested hand loan of Rs.5,00,000/- promising to repay
the same on or before July, 2017. It is asserted that as
per the request of the accused, the complainant advanced
a sum of Rs.5,00,000/- and later on accused Nos.1 and 2
failed to repay the loan amount and hence, on demand,
the accused have issued a cheque dated 23.08.2017 for
Rs.5,00,000/- towards discharge of legally enforceable
liability. When the said cheque was presented for
encashment, it was returned for insufficient of funds.
4. Thereafter, a statutory notice came to be
issued. As there is no response, a complaint came to be
filed for the offence under Section 138 of the NI Act before
the learned Magistrate. After recording the sworn
statement, the learned Magistrate has taken the
cognizance of the offence and issued process against the
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accused. The accused pleaded not guilty and claimed to
be tried.
5. Then the complainant was got examined herself
as P.W.1 and her father-in-law was examined as P.W.2.
She placed reliance on 15 documents marked at Exs.P.1 to
P.15. After conclusion of the evidence of the complainant,
the statement of the accused under Section 313 of Cr.P.C.
is recorded to enable the accused to explain incriminating
evidence appearing against them in the case of the
prosecution. The case of the accused is of total and they
did not choose to lead any oral and documentary evidence
in support of their defence.
6. After having heard the arguments and after
appreciating the oral and documentary evidence, the
learned Magistrate by the impugned judgment, acquitted
the accused for the offence under Section 138 of the NI
Act.
7. Being aggrieved by this judgment of acquittal,
the complainant is before this Court by way of this appeal.
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8. Heard the arguments advanced by the learned
counsel for the appellant/complainant and the learned
counsel for the respondents. Perused the records.
9. The learned counsel for the appellant would
contend that the cheque and signature have been
admitted and there is presumption under Section 139 of
the NI Act in favour of the complainant and same is not
rebutted. He has also placed reliance on an unreported
decision of this Court in Criminal Petition
No.8257/2019 and connect matters (Sri H.N. Nagaraj
Vs. Sri Suresh Lal Hira Lal) as well the decision of the
Apex Court in the Criminal Appeal No.803/2018 arising
out of SLP (CRL.) No.10030/2016 (Kishan Rao Vs.
Shankargouda). Hence, he would contend that the
learned Magistrate has erred in proper appreciation of the
evidence and sought for allowing the appeal by convicting
the accused/respondents herein.
10. Per contra, the learned counsel for the
respondents would support the judgment of acquittal
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passed by the Trial Court and he would submit that the
complainant had no financial capacity to advance the loan.
Her financial capacity was already disputed and her
evidence discloses that she had no financial capacity to
advance the loan. It is further submitted that the cheque
was pertaining to Rakesh Roshan Education Society and
the prosecution was individual and there is no transaction
between the institution and the complainant. Hence, he
would contend that the prosecution itself is baseless and
hence, sought for dismissal of the appeal.
11. Having heard the arguments and perusing the
records, now the following point would arise for my
consideration:
"Whether the judgment of acquittal passed by
II Additional Civil Judge and JMFC, Kalaburagi
in C.C.No.393/2018 is perverse, arbitrary and
erroneous so as to call for any interference by
this Court?"
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12. The main contention of the
complainant/appellant is that she advanced loan of
Rs.5,00,000/- to the accused. However, in the entire
complaint, the complainant nowhere asserted the date of
advancement of the loan. The entire evidence is also
silent in this regard. It is hard to accept that the
complainant is unable to re-collect the date of
advancement of the loan. Even the month or year of
advancement of loan is also nowhere asserted.
13. The complainant was examined as P.W.1 and in
her examination-in-chief, she has reiterated the complaint
allegations and there also she did not specify the date of
advancement of loan. In the cross-examination, she
claims that her monthly salary is only Rs.13,500/- and she
admits that she did not possess any cheque book. She
claims that the entire payment was made by way of cash.
She admits that she is not an income tax assessee and in
further cross-examination, she specifically admitted that
she has no financial capacity of payment of Rs.5,00,000/-
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and claims that the amount was adjusted by her father-in-
law by taking amount from others. This was never pleaded
in the complaint. Her cross-examination also reveals that
her husband is working as a peon in the institution run by
the accused. In the further cross-examination again she
has admitted that she had no financial capacity of
payment of Rs.5,00,00/- and the amount was demanded
from her father-in-law and hence, she paid the amount
which is a new case made out in the cross-examination.
The evidence of P.W.1 clearly discloses that she had no
financial capacity to advance loan of Rs.5,00,000/-.
14. P.W.2 is examined on behalf of the
complainant who is the father-in-law of the complainant.
He says regarding payment of Rs.5,00,000/- by the
complainant and in the cross-examination, he admitted
that his son was working with the accused and he was
trusted by the accused and they used to entrust the office
work to him. In his cross-examination, he claims that out
of Rs.5,00,000/-, the complainant has contributed
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Rs.2,50,000/-, he paid Rs.50,000/- and balance
Rs.2,00,000/- was adjusted by sale consideration of the
land. At the out set, there is no evidence to show that any
land was sold by this witness and he possessed the cash.
The story narrated by this witness is completely contrary
to the narration made by the complainant regarding
payment of Rs.5,00,000/-. Hence, it is evident that the
complainant has no financial capacity to advance the loan.
15. In view of decision reported in 2023 LiveLaw
(SC) 46 (Rajaram Sriramulu Naidu (D) vs
Maruthachalam (D)) case, the accused can rebut the
presumption available in favour of the complainant by way
of cross-examination or on the basis of the pleadings or
leading independent evidence. In the instant case by way
of cross-examination, the accused has exposed the
financial status of the complainant. Hence, the
presumption under Section 139 of the NI Act is not
available to the complainant.
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16. Apart from that on perusal of Ex.P.1, it is
evident that it is issued on behalf of Rakesh Roshan
Education Society and it is signed by the accused as the
President and the Secretary. Admittedly, there is no
transaction between Rakesh Roshan Education Society and
the complainant. The transaction is alleged to be in
individual capacity. In such event, the cheque which is
bounced is pertaining to Rakesh Roshan Education Society
and when there was no transaction, the question of
attracting the offence under Section 138 of the NI Act as
against the accused/respondent does not arise at all.
Even otherwise, in view of decision reported in 2012 (3)
SCC (CRI) 241 (Aneeta Hada vs M/S Godfather
Travels & Tours Pvt.Ltd, when the prosecution is made
pertaining to company or firm, the firm shall be a
necessary party. In the instant case, the cheque belongs
to the society and society itself is not a party. Even on this
point, the prosecution is not sustainable. The citations
relied by the learned counsel for the appellant are not
applicable since the evidence on record clearly establish
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that the presumption is rebutted by cross-examining
P.W.1 and P.W.2. Even the prosecution is also hit by
Section 141 of NI Act as per the decision of Aneeta
Hada's case referred above.
17. The learned Magistrate has appreciated all
these facts and circumstances in proper perspective and
has rightly acquitted the accused. No illegality or
perversity is found in the judgment of acquittal so as to
call for any interference. As such, the point under
consideration is answered in the Negative and accordingly,
the appeal needs to be dismissed. Hence, I proceed to
pass the following:
ORDER
The appeal stands dismissed.
Sd/-
JUDGE
RSP
