Karnataka High Court
Sri Shankar Shetty vs Smt Srilatha Shetty on 17 January, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.A No. 420 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 420 OF 2015
BETWEEN:
SRI SHANKAR SHETTY
S/O LATE SRINIVASA SHETTY
AGED ABOUT 50 YEARS
R/AT "LAKSHMI SHETTY COMPOUND"
ASHOK NAGAR
MANGALORE - 575 006(DK).
...APPELLANT
Digitally signed by
(BY SRI M SUDHAKAR PAI, ADVOCATE)
LAKSHMINARAYANA
MURTHY RAJASHRI
Location: HIGH
AND:
COURT OF
KARNATAKA
SMT. SRILATHA SHETTY
W/O SRI MADHUSOODAN SHETTY
AGED ABOUT 39 YEARS
STAFF NURSE
MANIPAL COLLEGE OF DENTAL SURGERY
LIGHT HOUSE HILL ROAD
HAMPANAKATTA
MANGALORE - 575 001 (DK).
...RESPONDENT
(BY SRI RANJAN KUMAR K, ADVOCATE)
THIS CRL.A. IS FILED UNDER SECTION 378(4) Cr.P.C
PRAYING TO SET ASIDE THE ORDER DATED: 27.2.2015,
PASSED BY THE JMFC, 5 COURT, MANGALORE, DK, IN
C.C.No.431/2008 - ACQUITTING THE RESPONDENT/ACCUSED
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CRL.A No. 420 of 2015
FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I.
ACT AND ETC.,
THIS APPEAL COMING ON FOR HEARING THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL JUDGMENT
This appeal is filed challenging the judgment of
acquittal dated 27.02.2015 passed in C.C. 431/2008
by J.M.F.C., 5th Court, Mangalore, wherein the
respondent -accused has been acquitted for the
offence punishable under Section 138 of Negotiable
Instruments Act, 1881 (hereinafter referred to as "N.I.
Act" for brevity).
2. Respondent -accused to meet immediate
needs has barrowed loan of Rs.5,00,000/- from the
complainant during the month of March-2007 and
agreed to repay the same within 06 months. The
respondent -accused in order repay the said hand
loan has issued cheque bearing No.676564 dated
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14.07.2007 for Rs.5,00,000/- drawn on Syndicate
Bank, Hamapanakatta Branch, Manglore infavour of
the complainant. The complainant presented the said
cheque and same came to be dishonoured for want of
funds. The complainant got issued notice dated
03.11.2007 and it has been served on the respondent
-accused. The respondent -accused did not repay the
cheque amount therefore, the appellant -complainant
has filed private complaint against the respondent -
accused.
3. The learned Magistrate has taken
cognizance against the respondent -accused for the
offence punishable under Section 138 of N.I. Act and
registered C.C.No.431/2008. The plea of the
respondent has been recorded. The complainant in
order to prove case has examined himself as P.W.1
and got marked documents as Ex.P1 to P6. The
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statement of the respondent -accused came to be
recorded under Section 313 of Cr.P.C. The respondent
-accused has given her statement in writing at the
time of recording statement under Section 313(5) of
Cr.P.C and produced documents. The respondent -
accused did not lead any defence evidence. Learned
Magistrate after hearing arguments on both side has
formulated points for consideration and passed the
impugned judgment of acquittal. The said judgment
of acquittal has been challenged by the complainant in
this appeal.
4. Heard learned counsel for the appellant -
complainant and learned counsel for the respondent -
accused.
5. Learned counsel for the appellant -
complainant would contend that the respondent -
accused has barrowed hand loan of Rs.5,00,000/-
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during the month of March -2007 and in order to
repay the said hand loan issued the cheque -Ex.P1
dated 14.09.2007 and on presentation, it came to be
dishonoured. He further submits that during the
pendency of criminal case, the respondent -accused
has executed memorandum of understanding dated
26.09.2008 whereunder she has admitted barrowing
of Rs.5,00,000/- from the complainant during the
month of March -2007 and issuance of cheque -Ex.P1.
He submits that the respondent -accused under the
said memorandum of understanding has given a sum
of Rs.1,00,000/- and agreed to pay remaining balance
amount within 30 days. He further submits that when
the signature on the cheque -Ex.P1 is admitted, the
presumption under Section 139 of N.I. Act has to be
drawn. The said presumption drawn under Section
139 of the N.I. Act has not been rebutted by
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appropriate evidence. On these grounds he prays to
allow the appeal and convict the respondent -accused
for offence punishable under Section 138 of N.I. Act.
6. Learned counsel for the respondent -
accused would contend that the respondent -accused
has denied financial capacity of the appellant -
complainant. The appellant -complainant was accused
in three criminal cases filed for offence punishable
under Section 138 of N.I. Act, itself indicate that he
has no financial capacity. The appellant -complainant
has not produced any documents to show his financial
capacity. The appellant -complainant has not given
definite answers to the questions regarding his
involvement in criminal cases for offence punishable
under Section 138 of N.I. Act as accused, itself
indicate that he suppressing the truth. Ex.P6 has
come during pendency of the criminal case and
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respondent -accused has denied execution of Ex.P6 by
her. The complainant has not examined witnesses
who have signed in Ex.P6. The respondent -accused
has taken up defence that two signed cheques have
been handed over to one Venkataraya Prabhu when
she availed loan from him as security and they have
been misused by him through this appellant and
another person by name Dayanand Shetty. He
submits that the case filed by Dayanand Shetty in
C.C.No.272/2008 the respondent -accused has been
acquitted for offence punishable under Section 138 of
N.I. Act. The said Venkataraya Prabhu who is also
one of witnesses to Ex.P6 -memorandum of
understanding has not been examined in order to
prove execution of memorandum of understanding
and also to rebut the contention of the respondent -
accused that cheque -P.W.1 has been handed over
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him as security. Considering all these aspects, the
learned Magistrate has rightly acquitted respondent -
accused. With these, he prays for dismissal of the
appeal.
7. Having heard learned counsels this Court
has perused impugned judgment and trial Courts
records. Considering grounds urged, the following
point arises for consideration.
"Whether the trial Court has erred in
acquitting the respondent -accused for
offence punishable under Section 138 of N.I
Act?"
My answer to the above point is in the negative
for the following reasons.
As per averments of legal notice -Ex.P3 and
complaint, the alleged barrowing by the respondent -
accused from the appellant -complaint is during March
-2007 and specific date of the said barrowing is not
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stated in legal notice, complaint and evidence of
P.W.1. Even the alleged date of barrowing has not
been stated in Ex.P6 -Memorandum of understanding.
P.W.1 in his cross examination at para 27 has stated
that he has handed over cash on 14.11.2007. The
said date is subsequent to the date of cheque -Ex.P1.
The very said admission given by P.W.1 in his cross
examination creates suspicion in the case of the
complainant.
8. Ex.P6 -memorandum of understanding
dated 26.09.2008 has come into existence during
pendency of the criminal case. The respondent -
accused has denied execution of Ex.P6. The appellant
-complainant in order to prove Ex.P6 has not
examined any of the witnesses who have affixed their
signature on Ex.P6. One of the signatory to the said
memorandum of understanding -Ex.P6 is M.
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Venkataraya Prabhu. In Para 32 of cross examination,
P.W.1 has admitted that the said Venkataraya Prabhu
is his friend. P.W.1 has not examined the said
Venkataraya Prabhu to establish contents and
execution of EX.P6.
9. It is the defence of the respondent -accused
that she has handed over two signed cheques to
Venkataraya Prabhu when she availed loan from him
as security. In order to disprove the said contention
the complainant has not examined Venkataraya
Prabhu when he has stated that he is his friend.
Withholding the said evidence of Venkatraya Prabhu
itself creates suspicious in the complainant's case. The
documents produced along with statement filed by the
respondent -accused under Section 313(5) of Cr.P.C
will indicate that the appellant -complainant has been
involved in three criminal cases as accused for offence
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punishable under Section 138 of N.I Act. The
appellant -complainant i.e. P.W.1 in his cross
examination when it is asked regarding criminal cases
he gave ignorance to the said criminal cases. When
the complainant is an accused in the said criminal
cases what made him to give evading answers to the
said questions. The evading answers itself indicate
that the complainant is hiding the truth. The evidence
on record indicate that the respondent -accused has
rebutted the presumption under Section 139 of the N.I
Act. When the said presumption is rebutted the onus
is on the complainant to establish his case. The
complainant -appellant has not discharged his onus
regarding proof of barrowing of hand loan and
issuance of Ex.P1 -Cheque towards legally enforceable
debt.
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10. Considering all these aspect, learned
Magistrate has rightly acquitted the respondent -
accused for offence punishable under Section 138 of
N.I Act by well reasoned judgment. There are no
grounds made out for setting aside the impugned
judgment of acquittal. In the result, the appeal is
dismissed.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
DSP
