Karnataka High Court
Miss Jayanthi vs Smt Vijaya Prasad on 5 November, 2024
-1-
NC: 2024:KHC:44468
CRL.A No. 130 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL APPEAL NO. 130 OF 2017 (A)
BETWEEN:
MISS. JAYANTHI,
D/O MALLASHETTY,
AGED ABOUT 30 YEARS,
R/AT BALAJI EXTENSION,
6TH CROSS, HONGASANDRA,
BENGALURU - 560 068
... APPELLANT
(BY SRI. G.M. SRINIVASAREDDY, ADVOCATE)
AND:
Digitally
signed by
NANDINI B G SMT. VIJAYA PRASAD,
Location: S/O SRI PRASAD,
high court of AGED ABOUT 41 YEARS,
karnataka
R/AT C/O KRISHNA MOHAN,
NO.32, ANUGRAHA ENCLAVE,
NYAYAPPANAHALLI,
BENGALURU - 560 068
... RESPONDENT
(BY SRI. K. ABHINAV ANAND, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED 378(4) CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED
02.01.2017 PASSED BY THE LEARNED LXVIII ADDL. CITY CIVIL AND
S.J., BANGALORE (CCH-69) IN CRL.A.NO.342/2016, IN WHICH THE
APPEAL FILED BY THE ACCUSED-RESPONDENT UNDER SECTION
374(3) OF CRPC WAS ALLOWED AND ACQUITTED THE ACCUSED FOR
THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I ACT AND
CONFIRM THE JUDGMENT OF CONVICTION AND SENTENCE PASSED
BY THE LEARNED XIX ACMM, BANGALORE IN C.C.NO.15252/2012
DATED 26.02.2016 PUNISHABLE UNDER SECTION 138 OF N.I ACT.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 25/10/2024 COMING ON FOR PRONOUNCEMENT
OF ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
CORAM: HON'BLE MRS JUSTICE M G UMA
-2-
NC: 2024:KHC:44468
CRL.A No. 130 of 2017
CAV JUDGMENT
The complainant in C.C.No.15252 of 2012, on the file of
the learned XIX Additional Chief Metropolitan Magistrate,
Bengaluru City (hereinafter referred to as 'Trial Court') is
impugning the judgment of acquittal dated 02.01.2017 passed
in Crl.A.No.342 of 2016, on the file of the learned LXVIII
Additional City Civil and Sessions Judge, Bengaluru City,
(hereinafter referred to as 'First Appellate Court'), allowing the
appeal and acquitting the accused for the offence punishable
under Section 138 of Negotiable Instruments Act (for short 'the
NI Act') after setting aside the judgment of conviction and
order of sentence dated 26.02.2016 passed by the Trial Court.
2. For the sake of convenience, the parties shall be
referred to as per their rank and status before the Trial Court.
3. Brief facts of the case are that, the complainant
filed the private complaint in PCR No.7093 of 2012 against the
accused alleging commission of the offence punishable under
Section 138 of NI Act. It is the contention of the complainant
that she and the accused were working together in a Garment
factory at Kodichikkanahalli Road, Bengaluru and they were
knowing each other. The accused had borrowed a sum of
NC: 2024:KHC:44468
Rs.220,000/- during October-2010 for the purpose of
purchasing an Autorickshaw and to meet the business
requirements, promising to repay the same within two months.
Towards discharge of the debt, the accused had issued the post
dated cheque bearing No.940221 for Rs.2,20,000/- during
November-2011, mentioning the date as 25.02.2012. When the
cheque was presented for encashment, the same was
dishonoured as payment stopped by the drawer. The
complainant issued the legal notice through courier as well as
RPAD. Notice sent through courier was served on the accused
and notice sent through RPAD was returned unserved as not
claimed. The accused had not made payment of the cheque
amount and thereby, committed the offence punishable under
Section 138 of NI Act. Accordingly, the complainant requested
the Trial Court to take cognizance of the offence and to initiate
legal action.
4. The Trial Court took cognizance of the offence,
registered C.C.No. 15252 of 2012. The accused appeared before
the Court, pleaded not guilty and claimed to be tried. The
complainant in order to prove her contention examined herself
as PW-1, got marked Ex.P-1 to P-5. The accused denied all the
NC: 2024:KHC:44468
incriminating materials available on record, examined herself as
DW-1 and got market Ex.D-1 to D-7 in support of her defence.
The Trial Court, after taking into consideration all these
materials on record, came to the conclusion that the
complainant is successful in proving the guilt of the accused
beyond reasonable doubt and therefore, passed the judgment of
conviction and order of sentence dated 26.02.2016 convicting
the accused for the offence punishable under Section 138 of NI
Act and sentencing her to pay a fine of Rs.2,75,000/- and in
default to pay fine to undergo simple imprisonment for a period
of six months.
5. Being aggrieved by the same, the accused has
preferred Crl.A.No.342 of 2016. The First Appellate Court on re-
appreciation of the materials on record allowed the appeal vide
judgment dated 02.01.2017, by setting aside the impugned
judgment of conviction and order of sentence passed by the
Trial Court by acquitting the accused for the offence punishable
under Section 138 of NI Act. Being aggrieved by the impugned
judgment of acquittal passed by the First Appellate Court, the
complainant is before this Court.
NC: 2024:KHC:44468
6. Heard Sri G. M. Srinivasa Reddy, learned counsel
for the appellant and Sri. K. Abhinav Anand, learned counsel for
respondent. Perused the materials including the Trial Court
records.
7. Learned counsel for the appellant contended that
the complainant has specifically stated that the accused had
borrowed an amount of Rs.2,20,000/- during October-2010 and
towards repayment at the same, she had issued the cheque
dated 25.02.2012. Admittedly, the cheque was dishonoured as
payment stopped by the drawer. The notice sent through courier
was served on the accused, but notice sent through RPAD was
returned as not claimed. In spite of that, the accused had not
repaid the cheque amount and thereby, committed the offence
as stated above. The complainant examined herself as PW-1 and
got marked Ex.P-1 to P-5. Nothing has been elicited from PW-1
during cross-examination. The accused admitted issuance of
cheque as per Ex.P-1 with her signature. Under such
circumstances, the presumption under Section 139 of NI Act
would arise and the burden shifts on the accused to rebut the
presumption. Even though the accused has stepped into the
witness box, deposed as DW-1 and got marked Ex.D1 to D7, she
NC: 2024:KHC:44468
failed to rebut the presumption. Therefore, she is liable for
conviction. The Trial Court on proper appreciation of the
materials on record, passed the judgment, convicting the
accused and sentencing her to pay fine. But the First Appellate
Court committed a error in acquitting the accused. Therefore, he
pays for allowing the appeal.
8. Per contra, learned counsel for the respondent
opposing the appeal submitted that the complainant has not
proved lending of the amount. The date of lending was never
mentioned by the complainant either in the legal notice or in the
complaint. The complainant stated that the cheque in question
was issued during November-2011. But it bears the date as
25.02.2012. Ex.D-1 is the complaint by the complainant. Ex.D-2
is the complaint by the accused. The accused has taken a
specific defence that the complainant had stolen the cheque in
question from her house and misused the same. Ex.D-3 is the
letter written by the accused instructing the banker to stop
payment. Accordingly, the cheque was dishonored as the
payment stopped. All these facts and circumstances probabilizes
the contention taken by the accused. Even though the Trial
Court committed an error in convicting the accused, the First
NC: 2024:KHC:44468
Appellate Court on proper appreciation of the materials on
record, acquitted her. There are no reasons to interfere with the
same, and accordingly, prays for dismissal of the appeal.
9. In view of the rival contentions urged by learned
counsel for both the parties, the point that would arise for my
consideration is:
"Whether the impugned judgment of acquittal
passed by the First Appellate Court suffers from
perversity or illegality and calls for interference by
this Court?"
My answer to the above point is in the 'Negative' and
pass the following:
REASONS
10. The complainant contended in the complaiant that
the accused had borrowed an amount of Rs.2,20,000/- during
October-2010 for the purpose of purchasing an Autorikshaw and
also for other business requirements. During November-2011,
the cheque in question was issued mentioning the date as
25.02.2012. On presentation of the cheque, it was dishonoured
as payment stopped by the drawer. Legal notice sent through
courier was served on the accused, but the notice sent through
NC: 2024:KHC:44468
RPAD was returned unserved as not claimed. Therefore, the
accused was having the knowledge of the contents of the notice,
and in spite of that, she has not repaid the cheque amount and
thereby, committed the offence.
11. Per contra, the defence taken by the accused is that
the complainant who was frequently visiting her house had
came to enquire the health of the accused and managed to steal
the blank cheque with the signature of the accused. The
complainant had no financial capacity to lend and the accused
had never borrowed the amount. The legal notice was never
served on her. Therefore, there was no legally enforceable debt
and she is entitled for acquittal.
12. To prove these rival contentions, the complainant
examined herself as PW-1. During cross-examination, she stated
that the accused had borrowed the amount on 17.10.2010. The
cheque was issued during 2011, but denied the suggestion that
the accused had never borrowed any amount from the
complainant. She denied the suggestion that she had stolen the
blank cheque from the house of the accused. Witness stated
that the accused had changed her residence to Yalenahalli about
NC: 2024:KHC:44468
three or four months after obtaining the loan. She pleaded
ignorance about the address of the accused at Yalenahalli.
13. The witness admitted that, on 26.02.2012, she had
lodged the complaint against the accused with Madiwala police
but denied the suggestion that in the said complaint she has
stated that the accused had given a blank cheque in her favour.
She denied that the copy of the blank cheque was also enclosed
with the complaint. She denied the suggestion that she had
stolen the cheque, misused the same and filed the complaint.
Witness admitted that the accused had filed a complaint against
her with the Commissioner of Police, which was later transferred
to Hulimavu Police Station. Witness admitted that Ex.D-1 is the
complaint given by her with Madiwala Police Station on
26.02.2012. Ex.P-1 is the cheque dated 25.02.2012 drawn in
favour of the complainant by the accused for Rs.2,20,000/-.
Ex.P-2 is the endorsement of the bank returning the cheque
dishonoured as payment stopped by the drawer. Ex.P-3 is the
copy of the legal notice dated 14.03.2012. Ex.P-4 is the
returned envelope, addressed to the accused unserved as not
claimed. Ex.P-5 is the private complaint.
- 10 -
NC: 2024:KHC:44468
14. The accused, after denying the incriminating
materials available on record, examined herself as DW-1
contending that while working in the garment factory, she came
in contact with the complainant and both of them were visiting
each other's house very frequently. During 2011, she shifted her
house to Yalenahalli and in 2013, she shifted her residence to
Beguru. Witness stated that during 2011, she was suffering
from illness and stopped going for work. The complainant had
visited her house and had given ill-advice which was turned
down by the accused. Since then, the complainant was
threatening to teach a lesson and also to implicate the accused
in false case. Later the accused came to know that the blank
cheque signed by her was stolen by the complainant.
15. The accused stated that on 20.02.2012 she was
called by Madiwala Police and came to know that the
complainant had given a false complaint against her. She
informed the police about the complainant stealing the cheque.
Accordingly she filed the complaint against the complainant. The
said complaint is marked as per Ex.D-2. Witness stated that she
had given instructions to the banker to stop payment, after
coming to know that the cheque in question was stolen by the
- 11 -
NC: 2024:KHC:44468
complainant. The medical record is marked as Ex.D4, the
electricity bill is marked subject to objection as Ex.D-5. She also
produced the Ex.D-6, the receipt for having taken the cooking
gas and Ex.D-7 is the ration card to show that the accused was
residing at Yallenahalli. She has contended that she never
issued cheque Ex.P-1 towards discharge of any debt or liability
and she had never borrowed any amount. She also stated that
she was not served with any notice. During cross examination,
witness stated that the complainant had stolen the cheque from
her house and after coming to know about the same, she gave
stop payment instructions to the banker. Witness admitted that
the complainant had given the police complaint with Madiwala
police station on 26.06.2012 as per Ex.D-1 and denied the
suggestion that after obtaining the loan, she had issued the
cheque towards repayment of the same and deliberately taken
the false defence to deny her liability to pay the amount.
16. When it is the contention of the complainant that
the accused in discharge of legally enforceable debt had issued
the cheque Ex.P-1 for Rs.2,20,000/- and the accused admits
that the cheque belongs to her bank account and it bears her
signature, the initial burden on the complainant gets discharged
- 12 -
NC: 2024:KHC:44468
and the presumption under Section 139 of NI Act arise. The
burden shifts on the accused to rebut the said legal
presumption. The accused in order to rebut the legal
presumption, cross-examined PW-1. During cross-examination,
PW-1 admitted that she had filed the complaint as per Ex.D-1. It
is pertinent to note that Ex.D-1 is dated 26.02.2012 stating that
the accused had issued the blank cheque towards legally
recoverable debt and also the persons mentioned in the
complaint have intimidated, assaulted the complainant and
therefore requested the police to take action against them. The
xerox copy of the blank cheque bearing number 940221 with
the signature of the accused is enclosed with Ex.D-1. This fact is
categorically admitted by PW-1. When Ex.P-1 is dated
25.02.2012 drawn by the accused in favor of the complainant
for Rs.2,20,000/- producing the copy of the very same blank
cheque with the signature of the accused on 26.02.2012 gave
rise to a serious doubt about the contention taken by the
complainant. There is absolutely no explanation for this
inconsistency. When on 26.02.2012, the cheque Ex.P-1 was
blank only with the signature of the accused, how Ex.P-1 dated
25.02.2012 was filled in by referring to the name of the
- 13 -
NC: 2024:KHC:44468
complainant, with date and the amount both in the figure and
words. PW-1 never explained anything about that.
17. The accused cross-examined PW-1 at length
regarding the complainant visiting her house frequently and
stealing the cheque from her house. Of course, the suggestions
were denied by PW-1. However, it is not the contention of the
complainant that the accused had issued the blank cheque.
Under such circumstances, how the blank cheque annexed to
Ex.D-1 came in possession of the complainant is not explained.
Since this fact goes to the root of the matter, the accused is
successful in probabilizing her defence. Moreover, Ex.D-3 is the
letter dated 23.02.2012 addressed by the accused to the branch
manager of Vijaya Bank, Bengaluru, referring to the cheque
Ex.P-1 and instructing to stop payment on the ground that the
complainant who used to visit her house had stolen the same.
The cheque Ex.D-1 dated 25.02.2012, Ex.D-3 instructing the
banker to stop payment is 23.02.2012. It is on the basis of this
Ex.D-3, the cheque-Ex.P-1 was dishonoured as payment
stopped by the drawer. This also substantiates the contention
taken by the accused. In other words, the accused had taken
the defence that the cheque in question was stolen by the
- 14 -
NC: 2024:KHC:44468
complainant not after dishonor of the cheque, but much prior to
the date of the cheque and issued necessary instructions to the
banker. Under such circumstances, I am of the opinion that the
accused is successful in rebutting the legal presumption by
probabilizing her defence.
18. Once the accused is successful in probabilizing her
defence and rebutting the legal presumption, the burden again
shifts on the complainant to prove her capacity to lend the
amount and also actual lending of Rs.2,20,000/- as contended
by her in the complaint. The complainant is required to prove
the existence of legally recoverable debt and issuance of the
cheque towards discharge of the same, independently without
the assistance of the legal presumption. Admittedly, the
complainant is not having any document to prove any of these
facts. It is again pertinent to note that in the admitted document
Ex.D-1, the complainant states that she had lent the amount by
pledging her gold ornaments and also by withdrawing her PF
amount. Therefore it is clear that the complainant was not
having sufficient funds with her, but she pledged the gold
ornaments and got the PF amount to lend Rs.2,20,000/- to the
accused. The complainant could have produced necessary
- 15 -
NC: 2024:KHC:44468
documents to prove these facts. Nothing has been placed on
record to substantiate the contention of the complainant. When
the complainant has failed to prove these facts, it is to be
concluded that the complainant has failed to discharge her
burden and also to prove the guilt of the accused beyond
reasonable doubt. Under such circumstances, the accused is
entitled for acquittal.
19. I have gone through the impugned judgment of
acquittal passed by the First Appellate Court. It has referred to
the oral and documentary evidence in the light of the averments
made in the complaint and arrived at a right conclusion. I do
not find any reason to interfere with the same. Accordingly, I
answer the above point in the negative and proceed to pass the
following:
ORDER
The appeal is dismissed.
Sd/-
(M.G. UMA)
JUDGE
SPV
