Karnataka High Court
Mrs Lakshmi R vs Mrs Vinutha K R on 28 May, 2024
1 CRL.A NO.344 OF 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF MAY 2024
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.344 OF 2019
BETWEEN:
MRS. LAKSHMI R
W/O CHANDRAPPA
WORKING AS HOUSE WIFE
AGED ABOUT 37 YEARS,
R/O NO.69, 2ND FLOOR, 3RD CROSS,
2ND STAGE, KURUBARAHALLI
BENGALURU - 560 079
......APPELLANT
(BY SMT. BHAGYA K, ADVOCATE)
AND:
MRS. VINUTHA K R
W/O MANJUNATH
WORKING AS FILM PRODUCER
AGED ABOUT 31 YEARS,
R/O NO.69 2ND FLOOR, 3RD CROSS,
2ND STAGE, KURUBARAHALLI
BENGALURU - 560 079
.....RESPONDENT
(BY SRI. SRINIVASA T GOWDA, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) OF CR.P.C PRAYING TO SET ASIDE THE ORDER OF
ACQUITTAL DATED 19.09.2018 PASSED IN CRL.APPEAL
NO.171/2018 BY THE LIX ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH-60) AND PASS SUCH
OTHER ORDERS AS DEEM FIT IN THE CIRCUMSTANCE OF THE
CASE, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
21.03.2024, COMING ON FOR PRONOUNCEMENT OF
2 CRL.A NO.344 OF 2019
JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
In this appeal filed under Section 378(4) of Cr.P.C,
complainant has challenged the judgment and order
passed by the Sessions Court, reversing the conviction
imposed by the trial Court and thereby acquitting the
respondent/accused for the offence punishable under
Section 138 of Negotiable Instruments Act, 1881 (for
short 'N.I. Act').
2. For the sake of convenience, parties are
referred to by their rank before the trial Court.
3. It is the case of the complainant that she and
accused are close friends known to each other since five
years. She believed that accused is a film producer. On
12.04.2016, accused approached her with a request for
financial accommodation of Rs.5 lakhs. She promised to
repay the same within three months. Complainant
arranged for the said sum by pledging her ornaments
and paid Rs.5 lakhs to the accused on 22.04.2016. After
three months when complainant demanded the
repayment, accused asked another two months time.
After further period of two months when complainant
demanded the repayment, accused requested for further
accommodation of three months. However, even after
expiry of further period of three months, she failed to
repay the amount, but issued cheque dated 28.03.2017,
with an assurance of prompt payment.
4. Accordingly, on 28.03.2017, complainant
presented the cheque for encashment through her
account. To her shock and surprise, it was dishonoured
with endorsement "Funds insufficient". Even though
complainant brought this fact to the notice of the
accused, she did not choose to respond positively.
Therefore, complainant got to issued legal notice dated
06.04.2017. It is served on the accused on 08.04.2017.
After receipt of legal notice, accused has neither repaid
the amount due nor sent any reply and hence the
complaint.
5. After due service of summons, accused
appeared before the trial Court and contested the matter
by pleading not guilty to the plea recorded by the trial
Court.
6. In order to prove the allegations against the
accused, the complainant has examined herself as PW-1
and relied upon Ex.P1 to 8.
7. During the course of her statement under
Section 313 Cr.P.C, the accused has denied the
incriminating evidence led by the complainant.
8. However, accused has not chosen to lead any
defence evidence.
9. Vide judgment and order dated 09.01.2018,
the trial Court convicted the accused and sentenced her
to pay fine Rs.5 lakhs with default sentence.
10. Aggrieved by the same accused approached
the Sessions Court in Crl.A.No.171/2018. Vide the
impugned judgment and order dated 19.09.2018, the
Sessions Court allowed the appeal filed by the accused
and acquitted her.
11. Complainant has challenged the judgment and
order passed by the Sessions Court, contending that it is
contrary to the evidence placed on record and as such
liable to be set aside. There is no proper application of
mind by the Sessions Court and the judgment and order
under challenge are highly arbitrary. There is no
appreciation of the pleadings and evidence and as such
findings of the Sessions Court are perverse. In the light
of the fact that accused does not dispute that the subject
cheque is drawn on her account, maintained with her
banker and it bears her signature, presumption under
Section 139 of the N.I Act is operating in favour of the
complainant and therefore initial burden is on the
accused to prove that the cheque was not issued towards
repayment of any legally recoverable debt or liability.
Having failed to enter the witness box, accused has failed
to rebut the presumption and therefore burden never
shifted on the complainant to prove her case. Even
otherwise the complainant has proved the allegations
against the accused beyond reasonable doubt. The
Sessions Court is not justified in setting aside a well
reasoned judgment of the trial Court and it calls for
interference by this Court.
12. In support of arguments, learned counsel for
complainant has relied upon the decision in M.Abbas Haji
Vs. T.N.Channakeshava (M.Abbas Haji)1.
13. On the other hand, learned counsel for
accused has supported the impugned judgment and
order. He would submit that in the light of several
judgments of the Hon'ble Supreme Court, when the
complainant has failed to prove her financial capacity,
the burden has never shifted on the accused and
therefore the Sessions Court is justified in acquitting the
accused and pray to dismiss this appeal also.
14. In support of his arguments, learned counsel
for accused has relied upon the following decisions:
AIR 2019 SC 4617
(i) Basalingappa Vs. Mudibasappa
(Basalingappa)2
(ii) Leelamma Vs. B.Puttanna (Leelamma)3
15. Heard elaborate arguments of both sides and
perused the record.
16. At the outset, it is relevant to note that the
accused is not disputing that the subject cheque belongs
to her, drawn on her account and it bears her signature.
Therefore presumption under Section 139 of N.I. Act is
operating in favour of the complainant, placing the initial
burden on the accused to prove that the cheque was not
issued towards repayment of any debt or liability and on
the other hand to establish the circumstances in which
the cheque has reached the hands of the complainant.
17. It is also relevant to note that the accused has
also not disputed the fact of service of notice. She has
also not sent any reply disputing the allegations made in
the complaint and putting forth any definite defence. As
held by the Hon'ble Supreme Court in C.C.Alavi Haji Vs.
(2019) 5 SCC 418
Crl.A.No.1246/2012 Dt: 21.06.2023
Palapetty Muhammed and Anr (Alavi Haji)4, the object
of issue of legal notice is to enable a honest and prompt
drawer of a cheque to make payment within stipulated
time and thereby escape the ignominy of facing criminal
trial. However, in the reply notice, incidentally, the
accused may disclose his defence and also come up with
the circumstances in which the cheque came to be issued
or reached the hands of the complainant.
18. However, as held by the Hon'ble Supreme
Court in Tedhi Singh Vs Narayan Das Mahant (Tedhi
Singh)5, 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. But, at the trial if the financial
capacity of complainant is challenged, then it is for the
complainant to prove the same. In the present case,
though the accused has not sent reply to the legal notice,
at the trial, she has challenged the financial capacity of
(2007) 6 SCC 555
2022 SCC OnLine SC 302
the complainant and consequently the burden is on the
complainant to prove her financial capacity.
19. In John K.Abraham Vs. Simon C. Abraham &
Anr (John K.Abraham)6, 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.
(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.
20. In APS Forex vs Shakti International Fashion
Linkers Pvt. Ltd (APS Forex)7, the Hon'ble Supreme
Court held that when accused raises issue of financial
capacity of complainant, in support of his probable
(2014) 2 SCC 236
(2020) 12 SCC 724
defence, despite presumption operating in favour of
complainant regarding legally enforceable debt under
Section 139 of N.I. Act, 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 Vijay Vs. Laxman and Anr (Vijay)8,
K.Subramani Vs. K.Damadara Naidu (K.Subramani)9 and
K.Prakashan Vs. P.K.Surenderan (K.Prakashan)10, also
the Hon'ble Supreme Court held that the presumption
under Section 139 of N.I. Act, is a rebuttable presumption
and when accused rebut the same by preponderance of
probabilities, it is for the complainant to prove his case
beyond reasonable doubt including the financial capacity.
22. Keeping the ratio in the above decisions in
mind, it is necessary to examine whether the complainant
was having financial capacity to advance Rs.5 lakhs to the
accused and proved the same.
(2013) 3 SCC 86
(2015) 1 SCC 99
(2008) 1 SCC 258
23. It is the definite case of complainant that she
has paid the hand loan of Rs.5 lakhs by pledging her gold
ornaments. However, though in the legal notice and
complaint, the complainant has stated that she pledged
her gold ornaments to get the money in question, she has
not disclosed with whom they were pledged. However, at
the trial complainant has produced Ex.P4 to 8 stated to be
the receipts issued by Manappuram Asset finance Ltd.
Except Ex.P7 dated 19.04.2016 which is for a sum of
Rs.79,700/-, the remaining receipts are subsequent to
22.04.2016. Therefore, the complainant has failed to
prove that through Ex.P 4 to 8 she has pledged her gold
ornaments and paid Rs.5 lakhs to the accused to
overcome her financial requirement.
24. During the course of arguments, learned
counsel for complainant has produced five receipts dated
19.04.2016 regarding pledge of gold ornaments on
19.04.2016, for a total sum of Rs.5,05,799/- and
submitted that these are the documents through which
she pledged her gold ornaments and paid the amount to
the accused. If these are the documents relevant to the
case on hand, the complainant is not having any
explanation as to why they were not produced and
marked at the trial. Moreover, on the face of it, these
documents reveal that already loan taken by pledging the
gold ornaments have been repaid within June 2016 and
there is nothing due. The complainant is not having an
explanation as to how she was able to repay the said
amount and whether it was repaid by the accused herself.
25. Moreover the complainant has not filed any
application seeking production of additional documents
and therefore these documents cannot be taken into
consideration. Even otherwise as noted earlier, as per
these documents, the loan in question is already repaid
and therefore intentionally, the complainant has not
chosen to produce these documents. From the perusal of
Ex.P4 to 8 and the documents produced along with the
memo, it is quite clear that complainant is in the habit of
regularly pledging ornaments and taking loan and getting
the ornaments released after paying the amount due.
26. It has come in the evidence that complainant is
a homemaker, not having any income of her own, even
though she has deposed that earlier she was working as
Tailor in a garment factory and was promoted as
Supervisor. According to her evidence itself, she left her
job about five years back. Therefore, complainant is not
having any income of her own. According to the
complainant, accused is a film producer. If that is the
case, as an out of work tailor, if the complainant could
possess so many gold ornaments, certainly as a film
producer, the accused may also be owning gold
ornaments. If at all complainant could get requisite
money by pledging her gold ornaments, she could have
very well directed the accused to pledge her gold
ornaments and take loan from the Manappuram Asset
Finance Limited. The contention of the complainant that
she advanced hand loan of Rs.5 lakhs to the accused
without any interest also does not appeal to reason why
she was required to pay interest to the Manappuram
Asset finance Limited.
27. When the complainant has failed to prove her
financial capacity to lend Rs.5 lakhs to the accused, the
presumption under Section 139 of N.I Act has not come to
play and consequently the burden has not shifted on the
accused to rebut the same. Therefore, despite the
accused not coming up with any explanation as to how
the cheque in question came into the hands of
complainant, the complaint is liable to be dismissed. The
trial Court without examining Ex.P4 to 8 in proper
perspective came to a wrong conclusion that the
allegations against accused are proved beyond reasonable
doubt. However, the Session Court after re-appreciation
of the oral and documentary evidence placed on record
has rightly dismissed the complaint. This Court finds no
justifiable reasons to interfere with the conclusions
arrived by the Session Court. In the result, the 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 judgment and order dated 19.09.2018
in Crl.A.No.171/2018 on the file of LIX
Addl.City Civil and Sessions Judge,
Bengaluru, acquitting the accused by
reversing the judgment and order dated
09.01.2018 in C.C.No.12865/2017 on the
file of XXII ACMM, Bengaluru, is hereby
confirmed.
(iii) The Registry is directed to send back the
trial Court as well as Session Court records
along with copy of this judgment forth with.
Sd/-
JUDGE
RR
