Karnataka High Court
Sri. Thulasiraman vs Smt. Muniakkayamma on 31 May, 2024
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.A No. 1772 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 1772 OF 2016
BETWEEN:
SRI. THULASIRAMAN
S/O GOVINDASWAMY NAIDU
AGED ABOUT 46 YEARS
RESIDING AT No.50
3RD "A" CROSS, S.V.G. NAGAR
MOODALAPALYA
BANGALORE-560 021.
...APPELLANT
Digitally signed by
LAKSHMINARAYANA
MURTHY RAJASHRI (BY SRI S VICTOR MANOHARAN, ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA AND:
SMT. MUNIAKKAYAMMA
W/O S.B. MUNIYAPPA
AGED ABOUT 56 YEARS
RESIDING AT No. 15, HAF POST
10TH CROSS, LAKSHMAIAH BLOCK
GANGANAGAR
BANGALORE - 560 024.
...RESPONDENT
(BY SRI P RAJU, ADVOCATE - ABSENT)
THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER DATED 6.09.2016
PASSED BY THE XXII A.C.M.M., BENGALURU CITY IN
C.C.No.8404/2014 - ACQUITTING THE RESPONDENT/ACCUSED
FOR THE OFFENCE P/U/S 138 OF N.I.ACT AND ETC.,
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CRL.A No. 1772 of 2016
THIS APPEAL COMING ON FOR DICTATING JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal is filed praying to set-aside the judgment
and order dated 06.09.2016 passed in C.C.No.8404/2014
by the XXII Additional Chief Metropolitan Magistrate,
Bengaluru City and convict the respondent - accused and
award compensation to the appellant - complainant.
2. Heard learned counsel for the appellant. Counsel for
the respondent was not present on 29.05.2024 and
30.05.2024 when the matter was heard.
3. The appellant was the complainant and the
respondent was the accused in C.C.No.8404/2014 on the
file of XXII Additional Chief Metropolitan Magistrate,
Bengaluru.
4. Facts in brief are that; the respondent - accused had
borrowed a sum of Rs.3.00 lakhs from the appellant -
complainant on 11.01.2013 to meet the medical expenses
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of her husband and educational expenses of her
daughters, agreeing to repay the same within six months.
The respondent - accused had issued a cheque - Ex.P1 for
repayment of the said hand loan for a sum of
Rs.3.00 lakhs. The appellant - complainant presented the
said cheque to his banker and it was returned with shara
"Account Dormant" and "funds insufficient". The
complainant got issued a legal notice demanding the
cheque amount to the respondent. Inspite of service of
notice, the respondent - accused did not repay the cheque
amount. Therefore, the appellant - complainant has
initiated the proceedings against the respondent - accused
for the offence under Section 138 of the Negotiable
Instruments Act, 1881 (for short hereinafter referred to as
"the Act").
5. The complainant has been examined as PW1. The
Deputy Commissioner of Police was examined as PW2 and
got marked Exs.P1 to P9. The respondent has been
examined as DW1 and her husband Sri.S.B.Muniyappa has
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been examined as DW2 and got marked Exs.D1 to D4.
The Trial Court after hearing the parties and appreciating
the evidence on record has acquitted the respondent -
accused for the offence under Section 138 of the Act.
6. Learned counsel for the appellant would contend that
Ex.P7 is the pass book of the bank account of the
appellant - complainant. In its relevant entries - Ex.P7(a)
would indicate that the appellant - complainant has
withdrawn a sum of Rs.3.00 lakhs from the Bank on
10.01.2013 and as on the date of hand loan ie.,
11.01.2013, he had cash of Rs.3.00 lakhs, which he lent it
to the respondent - accused. The said aspect establishes
that the appellant - complainant had sufficient funds and
capacity to lend money to the respondent - accused.
Inspite of the same, the learned Magistrate has made an
erroneous observation that the appellant - complainant
had bank balance of Rs.92,151/- on the date of lending
the loan and he having paid a sum of Rs.3.00 lakhs to the
accused is doubtful. He contends that DW1 - accused had
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admitted her signature on Ex.P1 - cheque. Ex.P1 -
cheque has been issued for making payment of legally
enforceable debt and a presumption has to be raised
under Section 139 of the Act. He contends that even the
respondent - accused has executed on demand
promissory note and consideration receipt as per Ex.P2 for
a sum of Rs.3.00 lakhs. The defence of the accused that
the cheque given by her to one Sri.B.M.Umesh has been
misused by the appellant - complainant, has not been
established and mere filing of a private complaint against
this appellant and Sri.B.M.Umesh in that regard will not
prove the said aspect, unless and until the appellant and
the said Sri.B.M.Umesh are held guilty in the said criminal
proceedings. Even DW2, husband of respondent - accused
has deposed that Ex.P1 is the cheque of his wife which he
had given it to Sri.B.M.Umesh. The said aspect itself
would establish that Ex.P1 - cheque bears the signature of
the respondent - accused who is the wife of DW2. He
contends that without considering all these aspects, the
learned Magistrate has swayed away, only considering the
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private complaint filed by the respondent - accused and
her husband against the appellant and Sri.B.M.Umesh and
the learned Magistrate has erroneously acquitted the
respondent - accused. With this, he prayed to allow the
appeal.
7. Having heard the learned counsel for the appellant,
the Court has perused the records and the impugned
judgment.
8. As per the case of the appellant - complainant, the
respondent - accused had borrowed a sum of
Rs.3.00 lakhs from the appellant - complainant on
11.01.2013 and he gave the said amount by cash.
Learned Magistrate by referring to Ex.P7 - pass book of
the bank account of the appellant - complainant has
observed that as on the date of lending hand loan, the
appellant's account had balance of Rs.92,151/-. The said
observation of the Trial Court is erroneous. The relevant
entry in Ex.P7 - pass book is at Ex.P7(a) and it is dated
10.01.2013. The said entry would indicate that on
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10.01.2013, the appellant - complainant by tendering the
cheque, had withdrawn a sum of Rs.3.00 lakhs on
10.01.2013 and lent a sum of Rs.3.00 lakhs to the
respondent - accused on the very next day i.e., on
11.01.2013. Therefore, the appellant - complainant had
funds and capacity to lend a sum of Rs.3.00 lakhs to the
respondent - accused as on 11.01.2013. Hence, the
observation of the learned Magistrate that the appellant
had no sufficient funds to lend the money is erroneous.
9. Ex.P1 is the cheque said to have been issued by the
respondent - accused to the appellant - complainant for
repayment of the amount borrowed. The respondent -
accused who had been examined as DW1, in her chief
examination has stated that she had given the blank
signed cheque as per Ex.P1 to one Sri.B.M.Umesh when
her husband had borrowed money from him. In her cross
examination, DW1 had admitted that signature on Ex.P1 -
cheque is her signature. Even husband of the respondent
- accused Sri.Muniyappa who has been examined as DW2
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has stated that he had given the blank signed cheque of
his wife to Sri.B.M.Umesh, at the time of borrowing money
from him. These aspects would establish that Ex.P1 -
cheque contains the signature of the respondent -
accused. Therefore, considering the said aspects, a
presumption requires to be raised under Section 139 of
the Act. It is for the respondent - accused to rebut the
said presumption. It is the case of the respondent -
accused that her husband had borrowed money from one
Sri.B.M.Umesh and subsequently, the said Sri.B.M.Umesh
filed a criminal case against her husband for dishonour of
cheque and in the said matter, her husband paid the
amount and the said Sri.B.M.Umesh did not give the said
signed cheque of the respondent - accused to her husband
and he has misused the same through this appellant -
complainant. The respondent - accused, on receipt of
demand notice issued by the appellant - complainant has
filed a private complaint in P.C.R.No.21540/2013 against
this appellant and one Sri.B.M.Umesh, a certified copy of
which is at Ex.D1. Ex.D2 - copies of two cheques, Ex.D3
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- a copy of the bank endorsement and Ex.D4 - deposition
of Sri.B.M.Umesh in C.C.No.7045/2008 would indicate that
said Sri.B.M.Umesh had initiated the proceedings against
husband of the respondent - accused for the offence
under Section 138 of the Act, in the year 2008. What
happened in the said C.C.No.7045/2008 is not placed on
record. Even, the respondent - accused has not placed on
record with regard to what has happened to her complaint
filed in P.C.R.No.21540/2013. Mere filing of a private
complaint against this appellant and Sri.B.M.Umesh
alleging that Sri.B.M.Umesh and this appellant have
misused the blank signed cheque of respondent - accused
will not establish their defence. Even the order sheet
which is enclosed to Ex.D1 of P.C.R.No.21540/2013 would
indicate that the said complaint has been referred to
Station House Officer, R.T.Nagar Police Station under
Section 156(3) of Cr.P.C and the report is awaited. What
was the report filed by the police in the said case is not
placed on record. Unless misuse of the cheque by the said
Sri.B.M.Umesh through this appellant - accused would
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establish, a mere allegation of misuse will not amount to
rebuttal of presumption drawn under Section 139 of the
Act. Husband of the respondent - accused was a Police
Officer and his service record is produced by PW2 at Ex.C1
would indicate that husband of the respondent - accused
has been removed from the service on 05.01.2006. The
evidence of DWs.1 and 2 will indicate that they had five
daughters. Husband of the respondent - accused has
been dismissed from the service and the respondent -
accused has to maintain herself, her husband and her five
children will itself show that she was in need of money to
meet the same. Without considering all these aspects, the
learned Magistrate erred in acquitting the respondent -
accused for the offence under Section 138 of the Act. The
appellant - complainant has made out a case for setting-
aside the impugned judgment of acquittal and for
convicting the respondent - accused for the offence under
Section 138 of the Act.
10. In the result, the following;
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ORDER
(i) The appeal is allowed.
(ii) The impugned judgment of acquittal
passed in C.C.No.8404/2014 by the XXII
Additional Chief Metropolitan Magistrate,
Bengaluru dated 06.09.2016 is set-aside.
(iii) The respondent - accused is convicted for
the offence under Section 138 of the Act
and she is sentenced to pay a fine of
Rs.3,05,000/- and in default, to undergo
simple imprisonment for a period of six
months.
(iv) Out of the fine amount, a sum of
Rs.3.00 lakhs is ordered to be paid to the
appellant - complainant as compensation.
Sd/-
JUDGE
GH
