Karnataka High Court
Smt Vidya Ramesh vs Smt Anuradha A R on 20 March, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2025:KHC:11806
CRL.A No. 856 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL APPEAL NO.856 OF 2013
BETWEEN:
1. SMT. VIDYA RAMESH,
W/O SHRI. K. RAMESH,
AGED ABOUT 46 YEARS,
R/AT FLAT NO.104,
UDAY APARTMENTS,
SUBHASH NAGAR,
MANGALORE-04.
...APPELLANT
(BY SRI. CYRIL PRASAD PAIS, ADVOCATE)
AND:
1. SMT. ANURADHA A.R.,
W/O SRI. ARUN RANJAN,
Digitally signed
by DEVIKA M AGED ABOUT 42 YEARS,
Location: HIGH RESIDING AT WANANJUR,
COURT OF MANGALORE.
KARNATAKA ALSO AT E.D. ADYAR POST OFFICE,
ADYAR, MANGALORE-52.
...RESPONDENT
(BY SMT. ARCHANA K.M., AMICUS CURIAE
VIDE ORDER DATED 10.02.2025)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED
10.05.2013 PASSED BY THE I ADDL. CIVIL JUDGE AND JMFC,
MANGALORE, D.K., IN C.C.NO.1616/2010 - ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT.
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CRL.A No. 856 of 2013
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard the learned counsel for the appellant and the
learned amicus curiae for the respondent appointed by this
Court.
2. The factual matrix of the case of the complainant
before the Trial Court is that the accused was owing a sum of
Rs.50,000/- to the complainant and in discharge of the said
debt, the accused had issued a cheque and when the same was
presented, it was dishonoured with an endorsement "insufficient
funds". Hence, notice was given and reply was also given and
complaint was filed in view of the non-payment of the amount.
The Trial Court took the cognizance and secured the accused
and the accused did not plead guilty and claimed trial. Hence,
the complainant examined herself as P.W.1 and got marked the
documents at Exs.P.1 to 5. The accused was subjected to 313
statement and also led defence evidence before the Trial Court.
The Trial Court having considered the case of the complainant
and also the case of the accused, accepted the contention of the
accused regarding defence as probable defence since there was
a relationship between the complainant and the accused
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regarding purchasing of dress material as the complainant was
running tailoring shop and selling the dress material. The fact
that the complainant was selling the dress material is not
disputed by the complainant and the defence of the accused is
that when she used to purchase the dress material, she has
given the cheque and the same was misused. The contention of
the complainant that she has lent the money of Rs.50,000/- to
the accused and the accused has issued the subject matter of
the cheque was not accepted by the Trial Court and acquitted
the accused.
3. Being aggrieved by the acquittal order of the Trial
Court, the present appeal is filed by the complainant before this
Court.
4. The main contention of the learned counsel for the
appellant is that the learned Magistrate has gravely erred in
coming to the conclusion that the reply issued by the accused to
the legal notice was not mentioned in the complaint. The
reasoning assigned by the Trial Court is erroneous. The learned
counsel contend that 15 days period will get over on 31.08.2009
and the complaint was filed on 07.09.2009. The reply was
issued on 06.09.2009 and the same was received by the
complainant on 08.09.2009 and hence the same was not stated
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either in the complaint or in the chief evidence. The learned
counsel contend that the Trial Court magnonified the same for
acquittal of the accused and the said observation is erroneous.
The other observation that the complainant not met the defence
of the accused either in the chief evidence or in the cross-
examination of D.W.1 is also erroneous. The learned counsel
contend that in the cross-examination of D.W.1, it is elicited that
no complaint was given when the cheque was misused by the
complainant. The Trial Court committed an error in accepting
the defence of the accused in not properly appreciating the
evidence available on record. The learned counsel contend that
after issuance of the cheque, the accused contend that she has
made the payment of Rs.7,000/- to Rs.8,000/- and in order to
prove the same, nothing is placed on record. In the absence of
any material for having made the payment of Rs.7,000/- to
Rs.8,000/-, the Trial Court ought not to have accepted the
defence of the accused. Hence, it requires interference of this
Court.
5. Per contra, the learned amicus curiae appearing for
the respondent would contend that the Trial Court has given the
reasoning that the contents of the reply notice are not denied by
the complainant in her complaint or in her chief examination
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affidavit. Hence, it reveals that the complainant has admitted
the contents of the reply notice and the same is discussed in
paragraph No.15 and at the time of cross-examination of the
accused, there is no suggestion that this complainant was not
selling the clothes for installments and she had not taken the
blank signed cheque and blank signed stamp paper as security.
The defence of the accused is also not denied by the
complainant and hence the Trial Court comes to the conclusion
that the defence of the accused is highly probable. The defence
is not denied in the cross-examination of D.W.1 also and nothing
is elicited in the cross-examination of D.W.1 that amount was
lent and cheque was given. The Trial Court also taken note that
Exs.D.2 and 3 reveals that on 27.05.2009, the husband of the
complainant got issued the demand notice to the husband of the
accused. It is not the case of the complainant that herself and
her husband are not residing together and once the defence of
the accused is probable, the burden shifts on the complainant to
prove her case and the same is discussed by the Trial Court and
for having lent the money also the Trial Court made an
observation that the complainant has vaguely stated that this
accused is owing Rs.50,000/- and why this accused was owing
Rs.50,000/- is not stated by the complainant. Admittedly, the
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accused is not the relative or neighbour of the complainant.
Only the relationship of both of them is with regard to buying of
dress material and except that, there was no any relationship
and also while lending the money also not taken any document
and only subsequently it is stated that on demand, cheque was
issued and hence not accepted the case of the complainant and
rightly dismissed the complaint.
6. Having heard the learned counsel for the appellant
and the learned amicus curiae appearing for the respondent and
also on perusal of the material on record, the points that arise
for the consideration of this Court are:
(i) Whether the Trial Court has committed an
error in acquitting the accused in not accepting
the case of the complainant and committed an
error in coming to the conclusion that the
accused probablised the case of her defence
and whether it requires interference of this
Court by exercising the appellate jurisdiction?
(ii) What order?
Point No.(i):
7. Having heard the learned counsel for the appellant
and the learned amicus curiae, this Court has to take note of the
contents of the complaint and the contents of the complaint is
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the basis for lending of money. In the complaint, the
complainant has stated that the accused was owing Rs.50,000/-
and in discharge of the said debt, the accused had issued a
cheque and not stated for what reason the accused approached
the complainant for lending of Rs.50,000/- and no purpose is
mentioned in the complaint except stating owing of Rs.50,000/-
and issuance of cheque and even not stated anything about how
both of them have acquaintance with each other except stating
about owing of liability and issuance of cheque. In the evidence
also not stated anything about the same. In the cross-
examination of P.W.1 also, though marked the documents, she
admits that she cannot say the date on which the amount was
lent, but only says that it was in the month of March 2009. In
the cross-examination, a suggestion was made that both of
them have acquaintance with each other with regard to the fact
that the accused was working in the Post Office and also even
admits that not having any history of the accused and also
admits that she was running a tailoring shop and the accused
was giving dress material for stitching. She also admits that the
contents of the document of Ex.P.1 handwriting are different
and also unable to say whether the cheque was given on the
very same day of mentioning the date or prior to that. But
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admits that the cheque was given after one month of lending of
money and not having any document to show that she was
having the amount Rs.50,000/-. She admits that the amount
was not lent for interest and also even not aware of what was
the need for the accused to avail the loan, but says she was
having problem.
8. On the other hand, in the evidence of D.W.1, she
has set up the defence what she has given in the reply notice
that she used to purchase the dress material on credit basis
from the complainant and hence she issued the cheque and
repaid the amount and on two to three occasions, she
demanded to return the cheque, but the complainant did not
return the same. The cheque was old and hence she kept quiet.
In the cross-examination, D.W.1 admits that the cheque belongs
to her account and admits her signature. She admits that the
complainant was running tailoring shop in the office of Post
Office building and she was having acquaintance with her. She
says that in the year 2005 for the first time she has purchased
the dress material on credit basis from the complainant. When
the suggestion was made to D.W.1 whether the complainant
was having capacity to lend the money, D.W.1 says that she is
not aware of the same. However, D.W.1 admits that a case was
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filed against her husband also for the very same amount, but
denied the suggestion that both of them are family friends.
However, she says that the cheque was given towards dress
material, but did not give any complaint when the cheque was
not returned.
9. Having considered the evidence of P.W.1 and D.W.1
and also the pleadings of the parties, this Court has already
pointed out that in the complaint not stated anything about for
what purpose the amount was availed by the accused. During
the course of cross-examination, P.W.1 admits that she does not
know for what purpose the amount was availed by the accused,
but only says that the accused had expressed that she is having
problem and even could not remember the date of lending of
money, but only says that it may be in the month of March
2009. Having perused the reasoning of the Trial Court, the Trial
Court comes to the conclusion that nothing is stated in the
complaint about the reply notice. The very contention of the
learned counsel for the appellant is that the reply notice was
received on the very next date of filing of the complaint and
hence the very reasoning of the Trial Court may not be proper.
But the very case of the complainant has not been denied
through out in the cross-examination of D.W.1 that lent the
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money and executed the cheque. Even did not deny anything
about having received the reply notice belatedly. In the cross-
examination of D.W.1 nothing is suggested to the witness and
the same is taken note of by the Trial Court while giving the
reason that no suggestion was made to the witness that the
complainant was not selling the clothes for installments and she
had not taken the blank stamp paper and blank signed cheque
as security when the definite defence was set out by the
accused. The Trial Court rightly made an observation in
paragraph Nos.15 and 16 that the defence of the accused is not
denied by the complainant in the cross-examination. D.W.1
says that she demanded the cheque two to three times and
even no suggestion to the said evidence that no such demand
was made to return the cheque. No doubt, there is an
admission on the part of D.W.1, but she has not given any
complaint to the police, but the Court has to take note of
whether any probable defence has been raised by the accused.
10. The fact that both of them are having acquaintance
with each other in connection with tailoring shop and also the
accused was visiting the shop is not in dispute and there is no
dispute with regard to purchasing of dress material by the
accused on credit basis. D.W.1 categorically deposed that the
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balance amount of dress material was repaid. Even not
suggested that no credit basis business between both of them
and made any payment when D.W.1 categorically deposed the
same. The Trial Court while coming to the conclusion that the
complainant has not proved the case and the accused has
proved the case by lending cogent evidence and also probable
defence, rightly comes to the conclusion in paragraph No.15 that
the burden shifts on the complainant to prove that there was a
legally recoverable debt and to that effect also not placed any
material. The relationship between the complainant and the
accused is also not stated in the complaint and even not stated
anything about the reason for lending of money. It is emerged
in the evidence that the accused is not the relative or neighbour
of the complainant except having acquaintance in connection
with tailoring. Apart from that, no document was collected by
the complainant as on the date of lending of Rs.50,000/-, but
admits that the cheque was issued after one month. There is no
explanation on the part of the complainant for lending money
without obtaining any document and also there was no any
earlier transaction of loan between the complainant and the
accused at any point of time except stating that the accused was
owing Rs.50,000/-. Hence, I do not find any error committed by
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the Trial Court and the Trial Court assigned the reason while
acquitting the accused. The Trial Court in detail discussed in
paragraph Nos.15 and 16 with regard to the very pleading as
well as the evidence available on record, particularly the
evidence of D.W.1 and P.W.1 and unless the material available
on record is not considered by the Trial Court, the question of
interfering does not arise. Hence, I do not find any ground to
reverse the finding of the Trial Court by exercising the appellate
jurisdiction. Hence, I answer the point in the negative.
Point No.(ii):
11. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
The Registry is directed to make the payment of
Rs.5,000/- as fee to the amicus curiae, who appears
on behalf of the respondent on the direction of this
Court to assist the Court.
Sd/-
(H.P.SANDESH)
JUDGE
MD
