Karnataka High Court

Ramesha vs Smt. Lakshmamma T on 9 January, 2025

Author: Shivashankar Amarannavar

Bench: Shivashankar Amarannavar

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                                                             NC: 2025:KHC:747
                                                        CRL.A No. 422 of 2014




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 9TH DAY OF JANUARY, 2025

                                             BEFORE
                      THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
                                 CRIMINAL APPEAL No. 422 OF 2014
                      BETWEEN:

                         RAMESHA
                         S/O KRISHNAPPA
                         AGED ABOUT 54 YEARS
                         PLUMBER, R/A H.NO.3036,
                         V P BORE, HUNSUR TOWN
                         MYSORE DISTRICT - 571 105.
                                                                 ...APPELLANT
Digitally signed by
LAKSHMINARAYANA       (BY SRI RAJANNA, ADVOCATE)
MURTHY RAJASHRI
Location: HIGH
COURT OF              AND:
KARNATAKA

                         SMT. LAKSHMAMMA T
                         W/O T HOMBEGOWDA
                         AGED ABOUT 48 YEARS
                         WORKING AS COOLIE
                         AT PUBLIC BOYS PRE-METRIC HOSTEL
                         BANNIKUPPE VILLAGE & POST
                         KASABA HOBLI, HUNSUR TALUK
                         MYSORE DISTRICT - 571 105.
                                                               ...RESPONDENT

                      (BY SMT. ROJA M R, ADVOCATE FOR
                       SRI MAHANTESH S HOSMATH, ADVOCATE)

                           THIS CRL.A. IS FILED UNDER SECTION 378(4) Cr.P.C.
                      PRAYING TO SET ASIDE THE ORDER DATED 04.04.2014
                      PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, HUNSUR IN
                      C.C.No.326/2011 - ACQUITTING THE RESPONDENT/ACCUSED
                      FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I.
                      ACT AND ETC.
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                                                   NC: 2025:KHC:747
                                              CRL.A No. 422 of 2014




    THIS APPEAL COMING ON FOR HEARING THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:     HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR



                       ORAL JUDGMENT

1. This appeal is filed by the complainant

challenging the judgment of acquittal dated 04.04.2014

passed in C.C. No. 326/2011 by the Senior Civil Judge and

JMFC, Hunsur, whereunder the respondent - accused has

been acquitted for offence under Section 138 of Negotiable

Instruments Act (hereinafter referred to as the `N.I. Act').

2. Case of the complainant in brief is, that the

respondent - accused had borrowed a sum of

Rs.2,00,000/- from the complainant for her legal necessity

and executed an On Demand Promisory Note and

consideration receipt agreeing to repay the same with

interest at 2% per month. Inspite of repeated requests

and demands, the respondent - accused did not pay the

amount borrowed and therefore, the complainant got

issued legal notice on 04.10.2010 and it has been served

on the respondent - accused on 07.10.2010. After receipt

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of the said notice, the respondent - accused approached

the complainant and issued a cheque bearing No. 083077

dated 23.10.2010 drawn on State Bank of Mysuru, Hunsur

Branch for a sum of Rs.2,52,000/-. Said cheque, on

presentation, came to be dishonoured for insufficient

funds. The complainant got issued legal notice on

20.11.2010 and it has been served on the respondent -

accused. As the respondent - accused did not pay the

cheque amount, the complainant has filed a complaint.

After recording the sworn statement, the learned

Magistrate has taken cognizance against the respondent -

accused for offence under Section 138 of N.I. Act and a

case came to be registered in C.C. No. 326/2011. Plea of

the respondent - accused came to be recorded. The

complainant, in order to prove his case, examined himself

as P.W.1 and got marked Ex.P.1 to Ex.P.12. Statement of

the respondent - accused came to bee recorded under

Section 313 of Cr.P.C. The respondent - accused

examined herself as D.W.1 and examined one witness as

D.W.2 and got marked one document as Ex.D.1. After

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hearing arguments on both sides, learned Magistrate

formulated points for consideration and passed the

impugned judgment of acquittal. Said judgment of

acquittal has been challenged by the complainant in this

appeal.

3. Heard learned counsel for appellant -

complainant and learned counsel for respondent - accused.

4. Learned counsel for appellant would contend

that the respondent - accused, for meeting the medical

expenses of her son, had borrowed Rs.2,00,000/- agreeing

to pay interest at 2% per month and executed an On

Demand Promisory Note and consideration receipt. In

order to re-pay the same, she had issued Ex.P.1 - cheque

and it came to be dishonoured for want of funds. Evidence

of P.W.1 itself prove the said lending and receipt of

amount by the respondent - accused. The respondent -

accused has not given any reply to the legal notice issued

by the complainant. As the cheque is admitted, a

presumption under Section 139 of the N.I. Act is required

to be raised. Without considering all these aspects,

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learned Magistrate has erred in passing the impugned

judgment of acquittal. With this, he prayed to allow the

appeal.

5. Learned counsel for respondent - accused would

contend that considering the evidence on record learned

Magistrate has rightly acquitted the respondent - accused.

She has supported the reasons assigned by the trial Court.

With this she prayed for dismissal of the appeal.

6. Having heard the learned counsel for the

appellant and learned counsel for the respondent -

accused this Court has perused the impugned judgment of

acquittal and other material placed on record.

7. Considering the grounds urged the following

point arises for consideration in this appeal.

Whether the trial Court has erred in acquitting the respondent - accused for offence under Section 138 of N.I. Act?

8. My answer to the above point is in the negative

for the following reasons:

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It is the case of the complainant that at the time of

borrowing the respondent - accused had executed an On

Demand Promisory Note and consideration receipt. P.W.1

has stated the same in her evidence. The complainant has

also stated the same in the two notices got issued by him

to the respondent - accused, one dated 04.10.2010

(Ex.P.2) and another dated 20.11.2010 (Ex.P.7). In the

complaint - Ex.P.1 also the complainant has stated

regarding the respondent - accused executing On Demand

Promisory Note and consideration receipt for

Rs.2,00,000/-. The complainant has not produced the said

On Demand Promisory Note and consideration receipt to

establish the borrowing of money by the respondent -

accused. P.W.1 in his chief examination has also not

stated as to why he has not produced the On Demand

Promisory Note and consideration receipt. P.W.1 in his

cross-examination has stated that the respondent -

accused took back the On Demand Promisory Note and

consideration receipt after issuing the cheque - Ex.P.1.

The complainant ought to have stated the same in his

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complaint - Ex.P.1 and also in the legal notice - Ex.P.7.

Said statement of the complainant regarding returning of

On Demand Promisory Note and consideration receipt to

the respondent - accused appears to be an after thought.

As the On Demand Promisory Note and consideration

receipt are not produced by the complainant, he has failed

to establish lending of Rs.2,00,000/- by him to the

respondent - accused.