Karnataka High Court
Smt. Leela Ashok Kriplani vs Sri. Munirathnam N G on 7 March, 2024
1 CRL.A NO.2225 OF 2018
c/w CRL.A.NO.2226 OF 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.2225 OF 2018
C/W
CRIMINAL APPEAL NO.2226 OF 2018
IN CRL.A.NO.2225 OF 2018:
BETWEEN:
SMT. LEELA ASHOK KRIPLANI
AGED ABOUT 42 YEARS,
W/O. MR.ASHOK KRIPLANI,
R/AT NO.51, GROUND FLOOR,
3RD MAIN, OPP.LAKE, HOYSALA NAGAR,
BENGALURU - 560 016.
......APPELLANT
(BY SMT. BHARATHI M, ADVOCATE)
AND:
SRI. MUNIRATHNAM N G
S/O SRI.GOVINDAPPA,
AGED ABOUT 47 YEARS,
R/AT 16TH CROSS,
DEAD END 2ND HOUSE, NEAR MORI,
GAYATHRI LAYOUT, BASAVANAPURA,
K.R.PURAM, BENGALURU - 560 036.
.......RESPONDENT
(BY SRI. VEERANNA G TIGADI, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) OF CR.P.C PRAYING TO a) SET ASIDE THE JUDGMENT
OF ACQUITTAL DATED 01.10.2018 PASSED IN
C.C.NO.51750/2013 BY THE LVII ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, MAYO HALL UNIT, BENGALURU
CONVICT THE RESPONDENT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE
INSTRUMENTS ACT, IN THE INTEREST OF JUSTICE; b) ORDER
2 CRL.A NO.2225 OF 2018
c/w CRL.A.NO.2226 OF 2018
AN ACTION UNDER SECTION 390 OF CRIMINAL PROCEDURE
CODE, AGAINST THE RESPONDENT; c) PASS SUCH OTHER
AND FURTHER ORDERS AS MAY BE DEEMED JUST, PROPER
AND REASONABLE.
IN CRL.A.NO.2226 OF 2018:
BETWEEN:
SMT. LEELA ASHOK KRIPLANI
AGED ABOUT 42 YEARS
W/O MR. ASHOK KRIPLANI
R/A NO.51, GROUND FLOOR
3RD MAIN, OPP. LAKE, HOYSALA NAGAR
BENGALURU - 560 016
......APPELLANT
(BY SMT. BHARATHI M, ADVOCATE)
AND:
SMT SAVITHA
W/O SRI. MUNIRATHNAM N G
R/A 16TH CROSS,
DEAD END 2ND HOUSE, NEAR MORI
GAYATHRI LAYOUT, BASAVANAPURA
K R PURAM, BENGALURU - 560 036
.......RESPONDENT
(BY SRI. VEERANNA G TIGADI, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) OF CR.P.C PRAYING TO a) SET ASIDE THE JUDGMENT
OF ACQUITTAL DATED 01.10.2018 PASSED IN
C.C.NO.51749/2013 BY THE LVII ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, MAYO HALL UNIT, BENGALURU
AND CONVICT THE RESPONDENT/ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE
INSTRUMENTS ACT, IN THE INTEREST OF JUSTICE; b) ORDER
AN ACTION UNDER SECTION 390 OF CRIMINAL PROCEDURE
CODE, AGAINST THE RESPONDENT; c) PASS SUCH OTHER
AND FURTHER ORDERS AS MAY BE DEEMED JUST, PROPER
AND REASONABLE.
3 CRL.A NO.2225 OF 2018
c/w CRL.A.NO.2226 OF 2018
THESE APPEALS HAVING BEEN HEARD AND RESERVED
ON 07.02.2024, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
These two appeals are filed by complainant
challenging the acquittal of respondent/accused for the
offence punishable under Section 138 of Negotiable
Instruments Act, 1881 (for short 'N.I. Act'), by
dismissing the complaint filed by her under Section 200
Cr.P.C.
2. In both appeals, complainant is common
whereas accused are wife and husband. The facts leading
to the filing of complaints and the defence taken by the
accused are similar. The evidence lead by both parties
are identical. Therefore, these two appeals are clubbed
together and decided by a common judgment.
3. For the sake of convenience, while
complainant is referred to as complainant, accused are
referred to by their name prefix by the term accused.
c/w CRL.A.NO.2226 OF 2018
4. It is the case of complainant that she and
accused Savitha are known to each other since many
years. In the light of said acquaintance, both accused
borrowed hand loan from her.
5. So far as the complaint filed against accused
Munirathnam is concerned, it is contended by the
complainant that to meet his financial difficulties, he
requested for financial assistance and during August
2012 he borrowed Rs.4,00,000/-. In November 2012, he
borrowed Rs.6,50,000/-, during December 2012, he
availed hand loan of Rs.1,00,000/- and once again during
the end of December 2012, he took hand loan of
Rs.1,00,000/-. Thus, in all he borrowed hand loan of
Rs.12,50,000/- with a promise to repay the same at the
earliest. When he failed to repay the same, on repeated
request and demand, he paid a sum of Rs.1,75,000/- on
17.09.2012 and Rs.1,00,000/- on 26.12.2012. So far as
balance is concerned, he issued four cheques for a sum
of Rs.2,00,000/-, Rs.2,00,000/-, Rs.2,00,000/- and
c/w CRL.A.NO.2226 OF 2018
Rs.3,75,000/- with an assurance that it would be
honoured on presentation.
6. So far as accused Savitha is concerned, it is
contended by the complainant that during December
2012, she requested for and availed hand loan of
Rs.1,06,000/- with a promise to repay the same with
interest. When she failed to keep up with her promise, on
request and demand she issued two cheques i.e., for a
sum of Rs.1,00,000/- and Rs.6,000/- with the assurance
that they would be encashed on presentation.
7. However, when the cheques issued by both
accused were presented for realization, they were
dishonoured on the ground "Insufficient Funds". When
complainant got issued legal notice to both accused, they
were returned with endorsement "Insufficient Address"
and hence the complaint.
8. After service of summons, both accused
appeared and contested the matter. They pleaded not
guilty and claimed trial.
c/w CRL.A.NO.2226 OF 2018
9. In order to prove the allegations against
accused, complainant got herself examined as PW-1 in
both cases. In C.C.No.51750/2013 which is the case filed
against the husband, the complainant has got marked
Ex.P1 to 30. In C.C.No.51749/2013, which is the case
filed against the wife, the complainant has got marked
Ex.P1 to 7.
10. During the course of the statement under
Section 313 Cr.P.C, the accused have denied the
incriminating evidence led by the complainant.
11. In fact, in both cases, accused have examined
themselves as DW-1. They have also examined one
common witness C. Yallappa as DW-2.
12. In C.C.No.51749/2013, the accused has got
marked Ex.D1 to 6.
13. In C.C.No.51750/2013, the accused has got
marked Ex.D1 to 5.
c/w CRL.A.NO.2226 OF 2018
14. Vide separate impugned judgments and
orders dated 01.10.2018, the trial Court dismissed both
complaints.
15. Aggrieved by the same, the complainant has
filed two separate appeals, contending that the impugned
judgments and orders of trial Court are illegal, arbitrary
and against the material evidence placed on record and
the probability of the case. The trial Court has failed to
appreciate the evidence placed on record in right
perspective and thereby came to a wrong conclusion.
They are not supported by sound reasoning. They suffer
from serious illegality, infirmities and as such liable to be
set aside. The trial Court has come to a wrong conclusion
that since there was previous case against the accused
Munirathnam, which ended in conviction and the appeal
and Criminal Revision Petition filed by him were
dismissed and Crl.Misc.No.24/2013 was pending and as
such there was no fresh transaction between the
complainant and accused. The trial Court has also erred
in holding that accused have rebutted the Statutory
c/w CRL.A.NO.2226 OF 2018
presumption. Viewed from any angle, the impugned
Judgments and orders of the trial Court are not
sustainable in law and pray to allow the appeals, convict
the accused and sentence them in accordance with law.
16. In support of his arguments, learned counsel
for complainant has relied upon the following decisions:
(i) Rangappa Vs. Sri Mohan (Rangappa)1
(ii) Jain P Jose Vs. Santhosh & Anr.
(Jain P.Jose)2
17. On the other hand, learned counsel
representing the accused has supported the impugned
judgments and orders and sought for dismissal of the
appeals.
18. In support of his arguments, learned counsel
for accused has relied upon the following decisions:
(i) H.D. Sundara and Ors Vs. State of Karnataka
(H.D.Sundara)3
(ii) Selveraj Vs. State of Tamil Nadu (Selveraj)4
(2010) 11 SCC 441
(2023) 9 SCC 581
(1976) 4 SCC 343
c/w CRL.A.NO.2226 OF 2018
(iii) Basalingappa Vs. Mudibasappa
(Basalingappa)5
(iv) Noor Aga Vs. State of Punjab and Anr.
(Noor Aga)6
(v) Neeraj Dutta Vs. State (Govt. of NCT of
Delhi (Neeraj Dutta)7
19. Heard elaborate arguments of both sides and
perused the record.
20. Thus, it is the definite case of complainant,
that accused of both cases, who are husband and wife
have borrowed hand loan from her and towards
repayment of the same issued cheques, but when
presented for realization, they were dishonoured for want
of sufficient funds and after issuing legal notice and on
the failure of accused to pay the amount due under the
cheques, complaints are filed.
21. Accused admit that the cheques in question
belongs to them, drawn on their account maintained with
their bankers and they bear their signatures.
(2019) 5 SCC 418
(2008) 16 SCC 417
(2023) 4 SCC 731: AIR 2023 SC 330
c/w CRL.A.NO.2226 OF 2018
Consequently, the presumption under Section 139 of N.I.
Act comes into play to the effect that the cheques are
issued towards repayment of any legally recoverable
debt or liability. The accused have also not disputed the
financial capacity of complainant. It is pertinent to note
that the legal notice sent to the accused is returned
unserved on account of insufficient address. However, in
the complaint the accused are served on the same
address. In fact, the accused have not disputed the fact
of notice being sent to them. In the circumstances, it is
to be held that the legal notice is duly served on them.
22. However, the accused have denied and
disputed the very fact of borrowing loan from the
complainant and that the cheques were issued towards
repayment of the same. On other hand, they have taken
up a specific defence that in respect of dishonour of
cheque, a complaint was filed by the complainant against
accused Munirathnam in C.C.No.28309/2007 and he was
convicted on 31.05.2008. The appeal as well as the
criminal revision petition filed by him against the said
c/w CRL.A.NO.2226 OF 2018
judgment and order were dismissed and in fact,
Crl.Misc.No.24/2013 was pending for execution of the
said order and such being the case, the question of
complainant once again granting hand loans in lakhs of
rupees would not arise. The accused have taken up a
specific defence that during the execution of the said
case, accused Munirathnam was taken to police station
and on the intervention of the police, the subject
cheques were collected by the complainant and filling up
the same, they were presented and on their dishonour,
these two complaints are filed.
23. In the light of the admitted facts and the
specific defence taken by the accused, it is necessary to
examine whether the accused have rebutted the
presumption under Section 139 and in which event, the
burden would shift on the complainant to prove that the
cheques in question are issued towards repayment of
loan extended by her.
24. It is an undisputed/admitted fact that having
allegedly borrowed hand loan in a sum of Rs.5 lakhs and
c/w CRL.A.NO.2226 OF 2018
failed to repay the same, complainant prosecuted
accused Munirathnam in C.C.No.28309/2007 and he was
convicted and sentenced vide order dated 31.05.2008 for
the offence punishable under Section 138 of N.I Act.
Against the same, accused Munirathnam filed
Crl.A.No.25036/2008 and it was dismissed on
28.10.2009, by confirming the conviction and sentence
rendered by the trial Court. Accused unsuccessfully
challenged the same in Crl.RP.No.1062/2009 and vide
order dated 28.08.2012, this Court dismissed the same.
Thus, when complainant has allegedly extended hand
loan in lakhs of rupees to the accused, the conviction
secured by her was starring the accused on their face
and it creates doubt as to whether in such circumstances
accused would approach complainant for further loan and
she would grant the same.
25. The accused have examined DW-2 C.Yellappa
stated to be a politician. He has given evidence to the
effect that in connection with the pendency of criminal
miscellaneous petition against the accused Munirathnam,
c/w CRL.A.NO.2226 OF 2018
for enforcement of the conviction secured against him,
he accompanied accused Munirathnam to the police
station. On the intervention of the police, complainant
collected blank cheques from the accused and they are
utilised to file the subsequent complaints. In fact, during
her cross-examination complainant has admitted that the
cheques in question are filled in the handwriting of her
husband, which also supports the defence of the accused
that the cheques were blank when issued by them.
26. When the complainant has prosecuted
accused Munirathnam, on the allegations that he failed to
fulfill his promise of repaying the debt taken from her by
allowing the cheque to be dishonoured, when the
criminal revision petition filed by the accused
Munirathnam was pending before the High Court, it is
highly improbable that complainant lend them lakhs of
rupees as hand loan. Accused Munirathnam has paid
Rs.1,75,000/-, Rs.1,00,000/- on 26.12.2012,
Rs.1,00,000/- on 05.10.2012. When he was produced
before the trial Court in Crl.Misc.No.24/2013 through
c/w CRL.A.NO.2226 OF 2018
warrant and FLW, he has paid Rs.88,750/-, Rs.75,750/-,
Rs.50,500/- by depositing in the Court. When such
drastic steps were taken against accused Munirathnam
for recovery of the money due from him, at any stretch
of imagination it cannot be believed that complainant
advanced further loan to both accused, especially when
the track record of accused Munirathnam with regard to
payment of cheque is doubtful.
27. After examining the oral and documentary
evidence placed on record in the right perspective, the
trial Court has acquitted both accused. This Court finds
no justifiable grounds to interfere with the conclusions
arrived at by the trial Court. In the result, the appeal
fails and accordingly the following:
ORDER
(i) Both appeals are dismissed.
(ii) The judgments and orders dated
01.10.2018 in C.C.No.51750/2013 and
C.C.No.51749/2013 on the file of LVII
ACMM, Bengaluru are confirmed.
c/w CRL.A.NO.2226 OF 2018
(iii) The Registry is directed to send back the
trial Court records along with copy of
this order forthwith.
Sd/-
JUDGE
RR
