Karnataka High Court
Smt Jayalakshmma vs Smt Shashikala W/O Ramesh on 5 October, 2020
Equivalent citations: AIRONLINE 2020 KAR 2359, 2021 (1) AKR 427
Author: H.P.Sandesh
Bench: H.P. Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL APPEAL No.348/2011
BETWEEN:
SMT. JAYALAKSHMMA,
W/O G. NAGENDRAPPA,
HINDU, MAJOR,
R/O SUNNAGARA CIRCLE,
BEHIND MATCH FACTORY,
HIRIYUR TOWNW. ... APPELLANT
(BY SRI VINAYAKA S. KOTI, ADVOCATE)
AND:
SMT. SHASHIKALA,
W/O RAMESH,
K.S.R.T.C. EMPLOYEE,
KSRTC COMPLEX AND DEPOT,
CHITRADURGA. ... RESPONDENT
(BY SMT. P.V. KALPANA, ADVOCATE - AMICUS CURIAE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (4)
OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED
07.12.2010 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC,
HIRIYUR IN C.C.NO.44/2007 ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFENCE PUNISHABLE UNDER
SECTION 138 READ WITH 142 OF N.I. ACT.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
This appeal is filed challenging the judgment of acquittal dated 07.12.2010 passed in C.C.No.44/2007, on the file of the Senior Civil Judge and JMFC, Hiriyur.
2. The parties are referred to as per their original rankings before the Trial Court to avoid the confusion and for the convenience of the Court.
3. The factual matrix of the case is that the accused had borrowed a sum of Rs.40,000/- from the complainant for her legal necessity on 03.03.2007 and in order to discharge the said liability she had issued post dated cheque for an amount of Rs.40,000/- dated 03.04.2007. When the said cheque was presented, it was dishonoured. Hence, legal notice was issued. Inspite of service of notice, no reply was given by the accused. Hence, the complaint was filed. The complainant in order to substantiate the averments of the complaint, examined herself as P.W.1 and other two witnesses as P.W.2 and P.W.3 and got marked the documents at Exs.P.1 to 9. The accused has not adduced any evidence. However, got marked the documents at Ex.D.1 and Exs.D.1(a) to D.1(c) 3
4. The Trial Court after considering both oral and documentary evidence placed on record, acquitted the accused. Hence, the present appeal.
5. The main contention of the learned counsel for the appellant/complainant in this appeal is that the Trial Court has committed an error in holding that there is no material to show that the complainant has advanced to the accused, when the cheque as well as notice itself stood proof of the borrowing. The accused failed to lead any evidence to the effect that the defence which had been taken during the cross-examination of P.W.1. The Trial Court ought to have presumed that the contents of the cheque in the light of the provisions of Section 118 of the Negotiable Instruments Act ('N.I. Act' for short) that the cheque was given in discharge of the legally recoverable debt. The Trial Court has completely slipped into error in not considering the vital aspects of the case and the casual conduct of the accused in not intimating to the bank nor lodging the case before the police regarding the cheque which was lifted by the husband of the complainant.
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6. The learned counsel for the complainant in support of his contentions submits that notice was issued and the same was served on the accused, but no reply was given. The Trial Judge ought to have invoked the presumption for having issued the cheque. In support of his contentions, he relied upon the judgment of the Hon'ble Supreme Court in the case of RANGAPPA v. MOHAN reported in AIR 2010 SC 1898 and brought to my notice paragraph No.7 of the judgment regarding presumption in case of no reply is given.
7. The learned counsel also relied upon the judgment of the Supreme Court in the case of BIR SINGH v. MUKESH KUMAR reported in 2019 (1) Kar.L.R 689, wherein it is held that under Sections 138 and 139 if a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence.
8. The learned counsel also relied upon the judgment of the Hon'ble Apex Court in the case of M/S. SHREE 5 DANESHWARI TRADERS v. SANJAY JAIN AND ANOTHER reported in AIR 2019 SC 4003 and brought to my notice paragraph No.17 of the judgment that it is for the accused to adduce the evidence in rebuttal of the evidence of the complainant under Section 139 of the Act. The counsel also brought to my notice paragraph No.16 that once the cheque is issued by the drawer, a presumption under Section 139 of the NI Act in favour of the holder would be attracted.
9. The learned counsel also relied upon the judgment of this Court in the case of C.N. DINESHA v. SMT. C.G. MALLIKA reported in 2017 (3) AKR 365. Referring this judgment, the learned counsel brought to the notice of this Court paragraph No.10 of the judgment.
10. The learned counsel also relied on the judgment of this Court in the case of N. MANJEGOWDA v. N.V. PRAKASH reported in 2017 (2) AKR 465. Referring this judgment, the learned counsel brought to my notice the principle, wherein it is held that plea of loss of signed cheque in bus - no complaint lodged with police station - failure to produce acceptable 6 rebuttal evidence showing how cheque came in possession of complainant - order to pay fine, proper.
11. Per contra, the learned counsel appearing for the respondent/accused submits that on perusal of Ex.P.3, it is clear that the address is mentioned. The accused is an employee of KSRTC and not mentioned the specific date on what date the amount was advanced and also brought to notice of this Court that the complainant's name is mentioned as Jayalakshamma and the cheque, which is marked as Ex.P.1 also mentions as Jayalakshamma. There is a discrepancy in the name of the complainant Jayalakshamma or Jayalakshmamma. The very transaction itself is doubtful.
12. The learned counsel would also submit that the husband of the complainant was also working in the KSRTC and the accused got the cheque through the complainant's husband. The husband of the complainant instead of getting one cheque, he has collected two cheques and misused the said cheque and the signature available on the cheque does not belong to the accused.
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13. The learned counsel would submit that through P.W.2, document Ex.D.1 was confronted to the witness and the signature available on Ex.D.1 and cheque Ex.P.1 are not similar and there is a difference and the same is elicited from the mouth of the witness. The Trial Court has discussed in detail with regard to the discrepancy in the name and also discrepancy in the signatures and hence there are no reasons to interfere with the findings of the Trial Court.
14. Having heard the arguments of the learned counsel for the appellant/complainant and the learned counsel for the respondent/accused and on perusal of the records, the points that arise for the consideration of this Court are:
(i) Whether the Trial Judge has committed an error in acquitting the accused for the offence punishable under Section 138 of the N.I. Act?
(ii) What order?
15. Having perused the complaint averments, it is the specific case of the complainant that on 03.03.2007, the accused had borrowed an amount of Rs.40,000/- and in order to discharge the liability she had issued post dated cheque dated 8 03.04.2007. When the cheque was presented, the same was dishounoured and notice was issued. There is no dispute with regard to the fact of dishounour of the cheque and also no dispute with regard to the issuance of notice. The accused also admits the issuance of notice and no reply was given. The complainant to substantiate the case, reiterated the averments in the evidence and was subjected to cross-examination.
16. In the cross-examination, questions are put with regard to the discrepancy of the name Jayalakshamma and Jayalakshmamma and also the names found in the bank account. P.W.1 also admits that in her service records her name is recorded as Jayalakshmamma. It is suggested that Ex.P.1(a) signature does not belongs to the accused and the same is denied. The defence was raised in the cross-examination of P.W.1 that the accused has requested the husband of the complainant to go and collect the cheque from her house and the said suggestion was denied. The other suggestion was put to the witness that two cheques were collected by her husband and one of the said cheque was misused. The said defence was categorically denied by P.W.1.
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17. No doubt P.W.2 and P.W.3 are examined, who are the official witnesses. The defence have not led any evidence before the Court. First of all, though the accused has set up the defence that husband of the complainant has collected two cheques and misused one cheque and filed this complainant, no positive evidence is placed before this Court. The said defence was taken during the course of the trial and the specific question was put to P.W.1 and she categorically denied the same.
18. The other contention of the accused is that the signature does not belong to the accused. When the accused has taken the specific defence that the signature available in Ex.P.1 does not belongs to the accused, the accused ought to have obtained the scientific report whether the said signature belongs to her or not and the same has not been done. The accused does not dispute the fact that the cheque belongs to her account. Though the defence was taken that the cheque was gone to the custody of the complainant, no complaint was given even after coming to know that he has collected two cheques and also the very defence is that the accused got collected the cheque through the husband of the complainant and what made the 10 accused to collect the cheque through the husband of complainant, there is no explanation. The very theory that the complainant's husband has collected two cheques from the residence of the accused is also not supported by any material. Mere Taking the defence is not enough and the accused has to rebut the case of the complainant by adducing the evidence and the same has not been done. The very cheque belongs to the accused is not in dispute and though disputed the signature, not sent the said document for handwriting expert. Apart from that, when the notice was issued against the accused and the same was served, no reply was given.
19. The Apex Court in the judgment in the case of Rangappa (supra) in paragraph No.7 categorically held that a perusal of the record shows that the accused had belatedly taken up the defence of having lost a blank cheque at the time of his examination during trial. Prior to the filing of the complainant, the accused had not even replied to the notice sent by the complainant since that would have afforded an opportunity to raise the defence at an earlier stage. All of these circumstances led the High Court to conclude that the accused had not raised a probable defence to rebut the statutory presumption. 11
20. In the case on hand, notice was served and no reply was given. Really if the cheque was misused by the husband of the complainant, whenever a notice was served on the accused, the accused ought to have given the reply and the same has not been done. It is the normal conduct of a person that when a demand is made contending that on account of issuance of cheque when the cheque was dishonoured and demanded money, an ordinarily prudent man will immediately give reply and the same has not been done. In the case on hand also, though a defence was taken that the signature does not belongs to the accused, reply was not given and the contention that cheque was collected by the husband of the complainant was belatedly raised at the time of cross-examination of P.W.1 and not adduced any evidence. Mere taking the defence is not enough. In the cross-examination of P.W.1, nothing is elicited to disbelieve the case of the complainant. No doubt in the absence of rebuttal evidence, if the case of the complainant is doubtful, the Court can come to the conclusion that transaction is very doubtful. But in the case on hand, nothing is elicited from the mouth of P.W.1 regarding transaction is concerned and also accused has not led any evidence.
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21. This Court in its judgment in the case of Manjegowda (supra), has held that no complaint is lodged with the police station regarding loss of signed cheque. Failure to produce acceptable rebuttal evidence showing how cheque came in possession of complainant and this Court did not find any substance in the arguments of the accused.
22. Having taken note of the principles laid down in the judgment referred supra, it is clear that the defence was taken that the cheque was obtained through the husband of the complainant and no complaint is given and no acceptable rebuttal evidence has been adduced by the accused.
23. Having taken note of the material available on record, the Trial Court has committed an error in coming to the conclusion that the complainant has not proved the case against the accused. First of all, no reply was given and defence was raised at the time of cross-examination of P.W.1 and nothing is elicited in the cross-examination of P.W.1 to disbelieve the case of the complainant and more emphasis is given with regard to the discrepancy in the name of the complainant as Jayalakshamma or Jayalakshmamma and no logical evidence is 13 adduced before the Trial Court regarding how the cheque of the accused came into the possession of the complainant. Though defence theory is setup and the same is not proved leading any cogent evidence. Hence, I am of the opinion that the Trial Court has committed an error in acquitting the accused.
24. In view of the discussions made above, I pass the following:
ORDER
(i) The appeal is allowed.
(ii) The judgment of acquittal dated 07.12.2010 passed in C.C.No.44/2007, on the file of the Senior Civil Judge and JMFC, Hiriyur, is hereby set aside.
(iii) The accused is convicted for the offence punishable under Section 138 of the N.I. Act.
The accused is sentenced to undergo
imprisonment for a period of six months.
(iv) The accused is directed to pay a sum of
Rs.80,000/- within four weeks from today. If the accused fails to pay the amount within the time stipulated, she shall be subjected to sentence in accordance with law.14
(v) The office is directed to pay the fee of Rs.3,000/- to amicus curiae.
Sd/-
JUDGE MD