Karnataka High Court

Smt. Lakshmi B vs Smt Naveena Shetty on 7 July, 2025

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 07TH DAY OF JULY, 2025

                       BEFORE
         THE HON'BLE MS JUSTICE J.M.KHAZI
   CRIMINAL REVISION PETITION NO. 1416 OF 2019
                         C/W
   CRIMINAL REVISION PETITION NO.1418 OF 2019


IN CRL.RP 1416/2019
BETWEEN:

  SMT. LAKSHMI B
  W/O LATE SHANKAR
  AGED ABOUT 45 YEARS
  R/AT NO.717, BAJANE MANE ROAD
  SAHAKAR NAGAR POST,
  BENGALURU-560092

                                         ...PETITIONER

(BY SRI.NISHIT KUMAR SHETTY, ADVOCATE)

AND:

   SMT. NAVEENA SHETTY
   D/O GOPA SHETTY
   AGED ABOUT 42 YEARS
   R/AT NO.14, 1ST FLOOR
   WARD NO.18, 4TH CROSS
   NEW BEL ROAD, BENGALURU-560092

                                         ...RESPONDENT

(BY SRI.BALAJI PRASAD.H, ADVOCATE FOR
SMT.SUNITHA.H.SINGH, ADVOCATE)

     THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C BY
THE ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE
THE JUDGMENT DATED 07.11.2019 PASSED BY THE COURT OF
THE LVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE
                          -2-




BENGALURU CCH-57 IN CRL.A.NO.312/2017 AND THE
JUDGMENT PASSED BY THE COURT OF THE XVIII ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE, BENGALURU DATED
06.02.2017 IN C.C.NO.15012/2014 AND ETC.,

IN CRL.RP 1418/2019
BETWEEN:

  SMT. LAKSHMI B
  W/O LATE SHANKAR
  AGED ABOUT 45 YEARS
  R/AT NO.717, BAJANE MANE ROAD
  SAHAKAR NAGAR POST,
  BENGALURU-560092

                                         ...PETITIONER

(BY SRI.NISHIT KUMAR SHETTY, ADVOCATE)

AND:

   SMT. NAVEENA SHETTY
   D/O GOPA SHETTY
   AGED ABOUT 42 YEARS
   R/AT NO.14, 1ST FLOOR
   WARD NO.18, 4TH CROSS
   NEW BEL ROAD, BENGALURU-560092

                                         ...RESPONDENT

(BY SRI.BALAJI PRASAD.H, ADVOCATE FOR
SMT.SUNITHA.H.SINGH, ADVOCATE)

     THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C BY
THE ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE
THE JUDGMENT DATED 07.11.2019 PASSED BY THE COURT OF
THE LVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE
BENGALURU CCH-57 IN CRL.A.NO.311/2017 AND THE
JUDGMENT PASSED BY THE COURT OF THE XVIII ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE, BENGALURU DATED
06.02.2017 IN C.C.NO.23131/2014 AND ETC.,
                                -3-




    THESE PETITIONS HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 24.04.2025, THIS DAY ORDER WAS
PRONOUNCED THEREIN AS UNDER:
CORAM:     HON'BLE MS JUSTICE J.M.KHAZI


                        CAV ORDER



      In these petitions filed under Section 397 of Cr.P.C,

petitioner who is accused before the trial Court has

challenged her conviction and sentence imposed by the

trial Court, which came to be confirmed by the Sessions

Court by dismissing the appeals filed by her.


      2.    For the sake of convenience the parties are

referred to by their ranks before the trial Court.


      3.    Two separate complaints came to be filed by

the   complainant    against     the   accused   for   offence

punishable under Section 138 of N.I Act, alleging that she

and accused were friends since 10 years. Accused gained

the confidence of complainant and used to borrow hand

loan and repay the same. During the month of January

2013, accused requested complainant to lend Rs.7 lakhs

for establishing a Beauty Parlour in Malleshwaram area of
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Bengaluru City. Accordingly, complainant advanced Rs.7

lakhs to her. Again in the month of April 2013, accused

requested complainant hand loan of Rs.1 lakh as she was

required to pay fee and donation for admitting her

daughter   to   Deeksha    Reva   College,   Sanjaynagar,

Bengaluru. She has promised to repay the same in two

instalments in between November 2013 to January 2014.


     3.1   However, when accused defaulted repayment

and on repeated request and demand, she issued two

cheques i.e., 566187 and 566185 for Rs.4 lakhs each

dated 04.04.2014 and 07.04.2014, with an assurance of

prompt payment on presentation. However, before the due

date, accused got issued a legal notice to the complainant

alleging that 4 cheques bearing Nos.566173, 566174,

566181 and 566184 are in her custody and demanded to

return them. However, the complainant has not received

any of those cheques from the accused.


     3.2    When she approached accused regarding the

said notice, accused said that the notice was sent by

mistake and that she can encash cheque Nos.566187 and
                                 -5-




566185. Accordingly, complainant presented the subject

cheques on due dates. However, they were dishonoured

on account of stop payment instructions. In this regard

she got issued legal notices dated 21.04.2014 and they

are duly served. After receipt of the legal notice, accused

vacated    the   house   in    Sanjayanagar     and   shifted   to

Ramamurthynagar. To harass the complainant accused

approached Mahila Sahayavani and after complainant

apprised the true facts, the said complaint was dismissed

after warning the accused. The accused has not sent reply

to the legal notice issued by the complainant. She has also

not paid the amount due and hence, the complaint.


     4.    After due service of summons accused has

appeared before the trial Court and contested the case by

pleading not guilty.


     5.    In both complaints, complainant has given

evidence    as   PW-1    and    her   brother    as   PW-2.     In

C.C.No.15012/2014, she has relied upon Exs.P1 to 57 and

in C.C.No.23131/2014, she has relied upon Exs.P1 to 10.
                                      -6-




        6.     During the course of her statement under

Section       313   Cr.P.C,        the    accused        has       denied      the

incriminating evidence led by the complainant.


        7.     Accused has also given evidence in both cases

by examining herself as DW-1 and got marked Exs.D1

to 4.


        8.     By   a    common          judgment,          the    trial     Court

convicted the accused and sentenced her to pay fine of

Rs.8,20,000/- with default sentence.


        9.     Aggrieved       by        the        same,     accused         filed

Crl.A.Nos.312/2017 and 311/2017. Both of them came to

be      dismissed       by   the    Sessions          Court       and      thereby

confirming the judgment and order of the trial Court.


        10.    Aggrieved by the concurrent findings of the trial

Court and Sessions Court, the accused has filed these

petitions contending that they are erroneous and passed

without       proper     appreciation          of    evidence.      They       are

manifestly bad resulting in serious miscarriage of justice.

The complainant has not proved her financial capacity to
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lend Rs.8 lakhs to the accused and she has also not shown

the said fact in her income tax returns. The trial Court has

erroneously held that accused has failed to establish

borrowing and repayment of Rs.50,000/-, when the

burden is on the complainant to prove her case. The trial

Court has also erred in holding that during the relevant

point of time accused was in financial distress and that she

has failed to rebut the presumption. Viewed from any

angle the impugned judgment and order is not sustainable

and hence, the petition.


        11.    In support of his arguments, learned counsel for

accused has relied upon the following decisions:

        i)     Ganesan Vs. State, rep. by the Inspector of
               Police and Anr. (Ganesan)1

        ii)    G J Raja Vs. Tejraj Surana (G J Raja)2

        iii)   A T Mydeen and another Vs.               Assistant
               Commissioner, Customs Department
               (A Mydeen)3

        12.    On       the   other    hand   learned   counsel     for

complainant would submit that having regard to the fact

that the cheques are drawn on the account of the accused
1
    2011 (5) CTC 747
2
    AIR 2019 SC 3817
3
    (2022) 14 SCC 392
                                    -8-




and      it   bears   her    signatures    and   on   presentation

dishonoured on account of stop payment instructions,

presumption under Section 139 of N.I Act is operating,

placing the initial burden on the accused to rebut the

same. On appreciation of the oral and documentary

evidence placed on record by both parties, the Courts

below have rightly held that not only accused has failed to

rebut the presumption, but also the complainant has

proved her case. There is no perversity committed by

them calling for interference and pray to dismiss the

petitions also.


        13.    In support of his arguments, learned counsel for

complainant has relied upon the decision in the case of S.

Mohammed Vs. Shekara Poojary (S.Mohammed)4.


        14.    Heard arguments of both sides and perused the

record.


        15.    Thus, in these petitions filed under Section 397

of Cr.P.C, accused has challenged the concurrent findings


4
    Crl.RP No.100/2015 dated 26.02.2021.
                               -9-




of the trial Court and Sessions Court convicting and

sentencing her for the offence punishable under Section

138 of N.I Act. While complainant claim that accused

borrowed hand loan of Rs.7 lakhs and Rs.1 lakh and

towards repayment of total sum of Rs.8 lakhs, she issued

two cheques for Rs.4 lakhs each. However, before she

could present them for realization, accused got issued a

legal notice alleging that while borrowing Rs.50,000/-, at

the instance of complainant she had given 4 blank cheques

bearing Nos.566173, 566174, 566181 and 566182 and

even though she repaid the said loan of Rs.50,000/- with

interest,   complainant   has       not   returned    them     and

demanded to hand over the same.


      16.   In this regard complainant has contended that

the   two   cheques   which   are     the   subject   matter    of

complaints are not among the 4 blank cheques bearing

Nos.566173, 566174, 566181 and 566182 alleged to have

been given by the accused and therefore, she proceeded

ahead and presented the subject cheques and on their
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dishonour and on the failure of accused to comply with the

same, filed the complaint.


      17.    Thus,   by   taking     a   defence    that    she   has

borrowed Rs.50,000/- and repaid the same the accused is

admitting that there was monetary transaction between

her and complainant and they were known to each other

since long time. Accused also admit the cheques in

question are drawn on her account and bear her signature

and on presentation, they came to be dishonoured on

account of stop payment instruction, presumption under

Section 139 of N.I Act is operating in favour of the

complainant and against the accused, placing the initial

burden on the accused to rebut the same and establish

that they were not issued towards repayment of any

legally recoverable debt or liability.


      18.    At the same time, though during the course of

cross-examination of the complainant, the accused has

also challenged her financial capacity, however, she has

not   sent   reply   to   the   legal    notice    issued    by   the

complainant. In the light of the same and in view of the
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decision of the Hon'ble Supreme Court in Tedhi Singh Vs.

Narayan Dass Mahant (Tedhi Singh)5, in the absence of

reply to legal notice challenging the financial capacity of

the      complainant,         though     at     the   first   instance,   the

complainant            need   not   prove       her    financial   capacity,

however, at the trial if the financial capacity of the

complainant is challenged, then it is for the complainant to

prove the same. In fact in the case of APS Forex Pvt, Ltd

Vs. Shakti International Fashion Linkers and others (APS

Forex)6 the Hon'ble Suprmee Court held that when the

accused rises issue of financial capacity of complainant, in

support of his probable defence, despite presumption

operating in favour of complainant regarding legally

enforceable debt under Section 139 of N.I Act, the 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.

         19.    Now, it is to be seen whether complainant has

proved her financial capacity. During the course of her


5
    (2022) 6 SCC 735
6
    (2020) 12 SCC 724
                              - 12 -




cross-examination, complainant has admitted that at the

time when she allegedly advanced the loan to the accused,

she was not having sufficient funds in her account.

However, she has specifically deposed that her brothers

and parents used to help her financially, whenever she

was in need of money. She has also deposed that she had

Rs.3 lakhs in cash with her and she took remaining Rs.4

lakhs from her brother.


     20.   In order to prove that her brother is financially

sound and had helped the complainant with finance at the

relevant point of time, complainant has examined her

brother Praveen Shetty as PW-2. He has produced

Ex.Ps.11 to 56, which clearly indicates that he is financially

sound. Though PW-2 is cross-examined at length, the

accused has not succeeded in dislodging his evidence.


     21.   On the other hand, during the course of her

evidence, accused has deposed that except Rs.50,000/-

she has not borrowed any hand loan from complainant and

they she had repaid the same in instalments with interest.

Her cross-examination reveal that initially she was running
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a Beauty Parlour at Nagashettihalli and during November

2012, she sifted it to Malleshwaram and at that time she

was in need of financial. She has also stated that for the

premises where she was running the Beauty Parlour at

Malleswaram, she paid Rs.1,50,000/- as advance. Though

she has denied that she had to spend for interior, it is

common practice that whenever a new establishment is

opened, it requires interiors and incur expenses, especially

when     accused    shifted    her     Beauty   Parlour   from

Nagashettihalli to Malleswaram which is a posh locality and

customers of such area would expect interiors upto the

mark.


       22.   During the course of her cross-examination,

accused has claimed that if she was in need of any finance

her husband was there to take care of it. However, at para

No.10 of her cross-examination, accused has admitted

that she had filed Crl.Misc.205/2011 against her husband

and others under the Protection of Women from Domestic

Violence Act, 2005 ('DV Act for short) and she had also
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filed O.S.No.694/2010 for partition against her husband

and his relatives.


      23.   This fact clearly indicate that during 2012, when

accused was in need of finance, her relationship with her

husband had spoilt and having regard to the fact that she

had   shifted    her    Beauty     Parlour    to    Malleswaram   in

November        2012,    it   probablise      the    contention   of

complainant that she was in need of finance to open the

Beauty Parlour. The accused has also conceded that her

daughter    was      studying     in      Deeksha    Reva   College,

Sanjaynagar, Bengaluru, during 2013 and therefore, it

also probabilises the case of the complainant that after

borrowing Rs.7 lakhs for her business, she also took hand

loan of Rs.1 lakh for admitting her daughter to the college.

At page No.7 of her cross-examination, accused has stated

that when she borrowed loan from the complainant she

issued cheque at Ex.P1 and complainant directed her to

repay the same within 1 1/2 years.

      24.   Having regard to the fact that both complainant

and accused were best of friends knowing each other since
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10 years and complainant was having backing of her

brothers and parents and accused was in need of finance,

it probabalises that accused borrowed the loan in question.


     25.   Though the accused has claimed that she

borrowed Rs.50,000/- from complainant and repaid the

same in instalments of Rs.6,000/- p.m, with interest,

except her self-serving statement, she has not produced

any other evidence. Though in the legal notice at Ex.P6,

the accused has claimed that 4 blank cheques bearing

Nos.566173, 566174, 566181 and 566184 are with the

complainant, admittedly, the subject cheques on the basis

of which complaints are filed are not among them. In the

said notice she has not referred to the cheque pertaining

to these cases. It appears accused was in the habit of

borrowing money and issuing cheques to various persons

and as such she is not in a position to know which cheques

were given to whom. If at all the subject cheques or any

other cheques were given to the complainant, at the time

of allegedly borrowing Rs.50,000/- and it was repaid with

interest, nothing prevented her from taking back the said
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cheques. Though the accused has given stop payment

instructions to the Bank, she has not produced the letter

addressed to the Bank to ascertain the reasons for such

instructions. It would have helped her defence. Therefore

this Court has no hesitation to hold that accused has taken

false defence and failed to prove the same.


     26.   The trial Court as well as the Sessions Court on

appreciation of oral and documentary evidence placed on

record have rightly held that the accused has failed to

rebut the presumption and at the same time, complainant

has proved the allegations against accused and convicted

and sentenced her. The findings given and conclusions

arrived at by them are consistent with the evidence on

record. This Court finds no perversity in the same, calling

for interference.


     27.   The accused has also raised a grievance that

the trial Court committed error in passing a common

judgment and order by clubbing both cases. It is pertinent

to note that separate trial was held and both parties have

led separate evidence. Only at the final disposal, the trial
                                  - 17 -




Court has passed common judgment and order. Having

regard to the fact that the parties are common, the

contention of the complainant as well as the defence of

accused are also common, to avoid repetition, the trial

Court has clubbed them and disposed of by a common

order. This Court finds no illegality or irregularity in the

same. It has not resulted in any miscarriage of justice.


     28.    In the result the petitions fail and accordingly,

the following:

                                ORDER
(i) Petitions filed by the accused under
Section 397 of Cr.P.C is dismissed.
(ii) The impugned judgment and order
dated 06.02.2017 in C.C.No.15012/2014
and C.C.No.23131/2014 on the file of
XVIII ACMM, Bengaluru and judgment
and order dated 07.11.2019 in
Crl.A.No.311/2017 and
Crl.A.No.312/2017 on the file of LVI
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Addl.City Civil and Sessions Judge,
Bengaluru (CCH-57) are confirmed.