Smt. H K Arunakumari vs Sri V Narasimha Moorthy
2025 Latest Caselaw 5259 Kant

Karnataka High Court

Smt. H K Arunakumari vs Sri V Narasimha Moorthy on 20 March, 2025

Author: H.P.Sandesh

Bench: H.P.Sandesh

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                                                             NC: 2025:KHC:11807
                                                         CRL.A No. 1587 of 2015




                        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.1587 OF 2015

                   BETWEEN:

                   1.    SMT. H.K. ARUNAKUMARI,
                         W/O T.N.RAMAKRISHNA,
                         AGED ABOUT 61 YEARS,
                         PRESENTLY R/AT C/O S.NAGARAJ,
                         HOUSE NO.391,
                         BETWEEN 8TH AND 9TH CROSS,
                         TEKAL MAIN ROAD, JAYANAGAR,
                         KOLAR CITY-563 101.
                                                                    ...APPELLANT

                              (BY SRI. S. VISWESWARAIAH, ADVOCATE)

                   AND:

Digitally signed   1.    SRI. V. NARASIMHA MOORTHY,
by DEVIKA M              S/O VENKATAPPA,
Location: HIGH           AGED ABOUT 60 YEARS,
COURT OF                 R/AT BALLIAGANAHALLI VILLAGE,
KARNATAKA
                         ANDERSONPET POST,
                         KOLAR GOLD FIELDS,
                         KOLAR DISTRICT-563 113.
                                                                  ...RESPONDENT

                              (RESPONDENT SERVED, UNREPRESENTED)

                        THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
                   OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED
                   14.09.2015 PASSED IN CRL.A.NO.76/2014 ON THE FILE OF THE
                   PRL. DISTRICT AND SESSIONS JUDGE, KOLAR BY ALLOWING
                   THE APPEAL AND CONVICT THE RESPONDENT OF THE CHARGES
                   FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF
                   NEGOTIABLE INSTRUMENTS ACT.
                                 -2-
                                             NC: 2025:KHC:11807
                                        CRL.A No. 1587 of 2015




    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. This Court

has issued notice to the respondent and the respondent is

unrepresented.

2. This appeal is filed against the order of acquittal

passed by the Appellate Court in Crl.A.No.76/2014.

3. The factual matrix of the case of the complainant

before the Trial Court is that the complainant and the accused

are known to each other since the accused and her husband

were working as teachers together. That on 02.11.2008, the

accused approached the complainant for loan to meet his family

needs and assured to repay the amount within one month and

offered to issue post dated cheque as security for repayment of

loan. The complainant believing the words of the accused,

advanced a sum of Rs.3 lakhs on 03.11.2008 at Rao's building,

New Extension, Kolar, wherein the complainant and her family

was residing at that time and the accused issued post dated

cheque dated 04.12.2008 and instructed to present the same on

the date mentioned in the cheque. Believing his words, the

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complainant presented the cheque on 10.12.2008 and the same

was returned with an endorsement "funds insufficient". Hence,

legal notice was issued and the same was served and no reply

was given. Hence, the complainant filed the complaint and

cognizance was taken and the accused was secured and he did

not plead guilty and hence the complainant to substantiate her

case examined herself as P.W.1 and got marked the documents

at Exs.P.1 to 7 i.e., original Cheque, bank challan, dishonour

intimation, copy of the legal notice, postal acknowledgment,

postal receipt and complaint filed by the complainant. On the

other hand, the accused examined himself as D.W.1 and

examined one witness as D.W.2 and not produced any

document. The Trial Court having considered the material on

record, accepted the case of the complainant for having lent the

money and notice was served and no reply was given and drawn

the presumption invoking Section 139 of the Negotiable

Instruments Act ('NI Act' for short) and convicted and sentenced

the accused to pay Rs.4 lakhs.

4. Being aggrieved by the said order, an appeal was

filed and the Appellate Court having considered the grounds

urged in the appeal memo and also the contention of the

learned counsel for the appellant, comes to the conclusion that

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the Trial Court committed an error in convicting the accused in

coming to the conclusion that the complainant was not having

source of income to pay the amount of Rs.3 lakhs. The

Appellate Court also made an observation that when the amount

belonging to the husband of the complainant was paid and

according to the complainant, at the time of lending money,

husband of the complainant was present, but not examined her

husband before the Court even for source of income as well as

transaction is concerned. The Appellate Court also made an

observation that when an application was filed by the accused

for summoning her bank statement, the same was resisted and

the application was rejected. The Appellate Court also made an

observation that the accused is at liberty to take any number of

defences, but initial burden is on the complainant and the

complainant cannot take advantage of the inconsistent defence

taken by the accused and reversed the judgment of the Trial

Court by acquitting the accused.

5. Being aggrieved by the said order, the present

appeal is filed before this Court.

6. The learned counsel for the appellant would

vehemently contend that the Appellate Court committed an

NC: 2025:KHC:11807

error in accepting the case of the accused inspite of the cheque

was admitted and notice was served on him and no reply was

given. The learned counsel contend that the Appellate Court

committed an error in coming to the conclusion that the

complainant was not having money to advance the amount of

Rs.3 lakhs. The very approach of the Appellate Court that the

complainant did not examine her husband with regard to lending

of money and also source of income to make the payment of

Rs.3 lakhs is erroneous. The learned counsel contend that the

Appellate Court only proceeded on the premise that the

appellant had no financial capacity to lend the money ignoring

the fact that the husband of the appellant had received Rs.13

lakhs as retirement benefits in the year 2002. The learned

counsel brought to the notice of this Court the very admission

given by D.W.1 in the cross-examination that when a suggestion

was made that the husband of the complainant Ramakrishna

has not received more than Rs.8 lakhs as retirement benefits,

the witness himself says that he received an amount of Rs.15

lakhs. The Appellate Court fails to take note of the fact that

once the defence was taken that the cheque was stolen, no

complaint was given and no intimation was given to the bank

and bank also given the endorsement that the cheque was

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returned for insufficient funds and the same is admitted in the

cross-examination of D.W.1. Inspite of these admissions given

by D.W.1 and also no reply was given when the notice was

served and only afterthought the said defence was taken and to

substantiate the defence that the cheque was stolen also, no

cogent evidence is placed on record and in the absence of

probable defence, the Appellate Court ought not to have

reversed the judgment of the Trial Court.

7. Having heard the learned counsel for the appellant

and also on perusal of the material available on record, the

points that arise for the consideration of this Court are:

(i) Whether the Appellate Court committed an error in reversing the finding of the Trial Court and acquitting the accused and whether it requires interference of this Court?

(ii) What order?

Point No.(i):

8. Having heard the learned counsel for the appellant

and also on perusal of the material on record, this Court has to

take note of the very averments made in the complaint. In the

complaint specific pleading was made by the complainant that

the complainant and the accused are known to each other since

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long time since the complainant's husband and accused were

working together as teachers and relationship among them is

from long back. It is also the case of the complainant that due

to the said relationship, the accused approached the

complainant on 02.11.2008 for financial help, but money was

lent on the next date and as security, the cheque was given on

03.11.2008 mentioning the date as 04.12.2008. It is also not in

dispute that when the cheque was presented, the same was

dishonoured with an endorsement "insufficient funds". The

notice was issued and the same was served and no reply was

given. The defence of the accused is that the cheque which was

signed by the accused was stolen when the complainant came to

the house of the accused to extend the invitation and in order to

substantiate the said defence also, no documentary evidence is

placed on record, except self-explaining evidence of D.W.1 and

examining of D.W.2.

9. It has to be noted that D.W.1 says that he came to

know about the stealing of cheque only after the receipt of

notice and if really the cheque was stolen, the accused would

have taken the defence immediately that the cheque was stolen

and no such defence was taken and no reply was given when

the notice was served and it is not the case of the accused that

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the notice was not served. No intimation was also given to the

bank not to honour the cheque and admittedly, the cheque was

bounced with an endorsement "insufficient funds". Apart from

that, the accused in the cross-examination of P.W.1, made a

suggestion that the cheque was stolen, but nothing is elicited

from the mouth of P.W.1 during the course of cross-

examination. P.W.1 says that when the amount was lent, at

that time, her husband and his friend Prakash were also there.

She also categorically says that in 2002 her husband has

received Rs.15 lakhs as retirement benefits as stated by her

husband, but definitely he has received Rs.13 lakhs. She says

that she gave Rs.3 lakhs to her daughter and her daughter

returned the said amount and the said amount was kept in the

house and the same was given to the accused. It is suggested

that the signature found in Exs.P.1 and 5 there is a difference

and the said suggestion was denied. It is elicited that whenever

any function was there in the house of the accused, she used to

visit the house along with her husband. A suggestion was made

that in 2006 the accused gave invitation for the marriage of his

third daughter and they have attended the marriage and the

same was admitted. When a suggestion was given with regard

to stealing of cheque, the same was denied.