Karnataka High Court
Srinivas H vs Jaishree M on 9 January, 2024
1 CRL.RP NO.1154 OF 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL REVISION PETITION NO.1154 OF 2021
BETWEEN:
SRINIVAS H
S/O HANUMAPPA
AGED ABOUT 50 YEARS
AT PRESENT R/AT VIDYANAGAR CROSS
HUNASAMARAHALLI POST
JALA HOBLI
BENGALURU - 562 157
PREVIOUSLY R/AT VIDYA NAGAR CROSS
BETTAHALSOOR POST
BENGLAURU NORTH TALUK - 562 157
...PETITIONER
(BY SRI. MUTHURAJU A, ADVOCATE)
AND:
JAISHREE M
D/O MUNIVENKATARAMANAPPA
AGED ABOUT 37 YEARS
R/AT VIDYA NAGAR CROSS
BETTAHALSOOR POST
BENGALURU NORTH TALUK - 562 157
.....RESPONDENT
(BY SRI. PRASHANTH P N, ADVOCATE)
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF
CR.P.C PRAYING TO a) REVISE AND SET ASIDE THE
JUDGMENT AND ORDER VIDE ANNEXURE-B DATED
13.09.2021 PASSED BEFORE THE COURT OF THE LVIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-59) AT
BENGALURU IN CRL.A.NO.249/2017 CONFIRMING THE
JUDGMENT AND ORDER VIDE ANNEXURE-A DATED
2 CRL.RP NO.1154 OF 2021
08.09.2016 PASSED IN THE COURT OF THE XII ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE AT BENGALURU IN
C.C.NO.32455/2014; b) ACQUIT THE PETITIONER OF THE
CHARGES LEVELED AGAINST HIM IN THE ENDS OF JUSTICE
AND EQUITY; c) ORDER ANY OTHER RELIEF WHICH HON'BLE
COURT DEEMS FIT AND PROPER IN THE ENDS OF JUSTICE.
THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 27.11.2023, COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
In this petition filed under Section 397 r/w 401
Cr.P.C, petitioner who is arraigned as accused has
challenged his conviction and sentence for the offence
punishable under Section 138 of N.I Act, imposed by the
trial Court, which came to be confirmed by the Sessions
Court by dismissing the appeal filed by him.
2. For the sake of convenience, the parties are
referred to by their rank before the trial Court.
3. Complainant filed complaint under Section 200
Cr.P.C against the accused alleging offence punishable
under Section 138 of N.I Act, contending that she knew
the accused since many years. He is residing behind her
house. He is working as a driver in BMTC. During
September 2013, accused approached the complainant
with a request for hand loan in a sum of Rs.10 lakhs for
his urgent need. He agreed to pay interest at 1%. On
receipt of the amount, he promised to repay the same in
the month of Jan 2014. Accordingly during the month of
January 2014, complainant requested him to return the
money. In this regard he issued cheque dated
27.01.2014 for 10 lakhs with an assurance that it would
be honoured on presentation. However, when
complainant presented the cheque for realization, it was
returned with an endorsement "Funds insufficient".
Complainant got issued a legal notice to the accused.
Though it is duly served, accused has neither paid the
amount due or sent any reply and without any
alternative, the complainant is constrained to file the
complaint.
4. After due service of summons, accused
appeared before the trial Court and contested the matter.
5. In order to prove the allegations against the
accused, complainant got herself examined as PW-1 and
relied upon Ex.P1 to 8.
6. During the course of his statement under
Section 313 Cr.P.C, the accused has denied the
incriminating evidence placed on record by the
complainant.
7. He has also stepped into the witness box and
examined himself as DW-1 and relied upon Ex.D1 to 3.
8. The trial Court accepted the case of the
complainant and convicted the accused. He is sentenced
to pay fine of Rs.10,10,000/-(wrongly typed as
Rs.10,00,000/-). Out of the fine amount, a sum of
Rs.10,05,000/- is ordered to be paid to the complainant
by way of compensation. In default of payment of fine,
the trial Court has sentenced the accused to undergo
simple imprisonment for six months.
9. Aggrieved by the same, accused filed appeal
before the Session Court. However, it was dismissed,
thereby confirming the judgment and order of the trial
Court.
10. Being aggrieved by the same, the accused is
before this Court, contending that the trial Court has
erred in the convicting the accused. The Courts below
have committed grave error in holding that complainant
has proved the allegations against accused beyond
reasonable doubt. The complainant has failed to produce
any iota of evidence to prove advancing of huge sum of
Rs.10 lakhs to the accused. The Courts below have failed
to appreciate the evidence led by the accused in proper
perspective. The order of the trial Court and Sessions
Court is non-speaking order and there is no judicial
application of mind and it calls for interference by this
Court and prays to allow the petition, set aside the
impugned judgment and order of trial Court as well as
the Sessions Court.
11. Heard arguments of both sides and perused
the record.
12. The accused admit that the cheque in question
is drawn on his account maintained with his banker and it
bears his signature. Therefore, the presumption under
Sections 118 and 139 of the N.I Act is operating in favour
of the complainant that the cheque was issued towards
the repayment of any legally recoverable debt or liability.
Therefore, initial burden would be on the accused to
rebut the presumption and establish that it was not
issued towards repayment of any legally recoverable debt
or liability and on the other hand to prove the
circumstances in which the cheque has reached the
hands of complainant.
13. It is pertinent to note that though the legal
notice is duly served on the accused, he has not chosen
to send any reply spelling out his defence or the
circumstances in which, according to him, the cheque in
question has reached the hands of the complainant.
However, at the trial, the accused has taken up a
defence that the complainant, her mother, sister-in-law
and the wife of accused and other women of the area
were running a Sri Shakti Sanga and they had taken loan
from bank and distributed among themselves in a sum of
Rs.40,000/- each. Out of the said amount, complainant,
her mother, sister-in-law and wife of accused advanced
him hand loan of Rs.2 lakhs and at that time a blank
cheque was taken from him by way of security and
though he repaid the said loan, the cheque remained
with the complainant and misusing the same, she has
filed the complaint. Of course the accused has also
disputed the financial capacity of the complainant.
14. In Tedhi Sing Vs Narayan Das Mahant (Tedhi
Singh)1, the Hon'ble Supreme Court held that when the
accused failed to send reply to the legal notice or failed
to challenge the financial capacity of complainant in his
reply notice, then complainant need not prove her
financial capacity at the first instance. However, if during
the course of trial, the accused takes up such defence,
then it is necessary for the complainant to prove her
financial capacity. In APS Forex vs Shakti International
2022 SCC OnLine SC 302
Fashion Linkers Pvt. Ltd (APS Forex)2, the Hon'ble
Supreme Court held that whenever accused raises issue
of financial capacity of complainant in support of his
probable defence, despite presumption in favour of the
complainant regarding legally enforceable debt under
Section 139, the 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. Having regard to the fact that
at the trial accused has challenged the financial capacity
of the complainant, initial burden is on her to prove her
financial capacity. Only after the complainant prove her
financial capacity and the fact of she having advanced
loan of Rs.10 lakhs to the accused, the onus shifts on the
accused to prove his defence. Of course it is necessary
for the complainant to prove her case beyond reasonable
doubt, whereas it is sufficient for the accused to prove
his defence by preponderance of probability.
(2020) 12 SCC 724
15. In order to prove her financial capacity, the
complainant has relied upon the fact that at relevant
point of time the property belonging to her father was
acquired and in this regard he was in receipt of
substantial sum of money and out of it he paid Rs.10
lakhs which she lent to the accused to meet his urgent
need. Ex.P5, 6 and 7 are vouchers regarding the
payment of compensation and Ex.P6 and 8 are the
sketches of the acquired property. In fact, during his
cross-examination, the accused has admitted that the
property belonging to the complainant was acquired and
she was in receipt of substantial sum of compensation.
Through these documents, the complainant has proved
that at the relevant point of time, she was in possession
of substantial sum and was able to advance Rs.10 lakhs
to the accused.
16. On the other hand, to prove that there was
some Sri Shakti Sanga formed by complainant and other
women including the wife of accused and at the time he
was lent Rs.2,00,000/- by four of them, including his wife
and the subject cheque was issued at the time of
borrowing the said Rs.2,00,000/- the accused has
produced a long notebook where in some details have
been jotted down. However, as admitted by the accused,
the said Sri Shakti Sanga was not registered and he is
not having any documents in the letterhead of the said
Sanga. Ex.D2 is the photo copy of auction notification
issued by the Karnataka Bank regarding the gold
ornament pledged with the Bank, wherein his name also
find place. This document is marked subject to objection.
The accused has not produced the documents issued by
the Bank regarding the loan taken by him pledging the
gold ornaments. At least the accused would have
examined his wife to prove that the cheque was issued
by the accused when he borrowed hand loan from the
women of Sri Sakthi Sanga etc.
17. Taking into consideration the oral and
documentary evidence placed on record, the trial Court
as well as the Sessions Court have come to a correct
conclusion that the complainant had financial capacity to
lend Rs.10,00,000/- to the accused and the cheque in
question was issued by him, when he borrowed the said
sum from the complainant. The accused has failed to
prove his defence even by preponderance of probability.
18. When the accused has failed to prove the
defence taken by him and thereby has failed to rebut the
presumption operating in favour of the complainant, on
the other hand, the complainant has established her
financial capacity and that the cheque was issued
towards the repayment of hand loan of Rs.10 lakhs
borrowed from the complainant, absolutely, there are no
justifiable grounds to interfere with the judgments and
orders of the trial Court and the Sessions Court. The
punishment imposed is also proportionate to the charges
proved against the accused. This is not a fit case calling
for interference by this Court. In the result, the petition
fails and accordingly the following:
ORDER
(i) The petition filed by the accused under
Section 397 r/w 401 Cr.P.C is dismissed.
(ii) The impugned judgment and order dated
08.09.2016 in C.C.No.32455/2014 on the
file of XII ACMM, Bengaluru and judgment
and order dated 13.09.2021 in
Crl.A.No.249/2017 on the file of LVIII
Addl.City Civil and Sessions Judge,
Bengaluru are here by confirmed.
(iii) The Registry is directed to send back the
trial Court and Sessions Court records
along with copy of this order forthwith.
Sd/-
JUDGE
RR
