Karnataka High Court
K Manikandan vs Smt Subhashini on 28 November, 2024
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NC: 2024:KHC:49267
CRL.A No. 157 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL APPEAL NO. 157 OF 2013 (A)
BETWEEN:
K MANIKANDAN,
S/O SRIL SHEKARAN NAIR,
AGED ABOUT 50 YEARS,
R/AT # 55, 1ST CROSS,
R P LAYOUT, VIJINAPURA,
DORRAVANINAGAR,
BANGALORE - 560 016
...APPELLANT
(BY SRI. J. PRAKASH, ADVOCATE)
Digitally signed
by NANDINI B
G
AND:
Location: high
court of
karnataka SMT. SUBHASHINI,
W/O LATE SRI PADMANABHAN,
AGED ABOUT 38 YEARS,
NO.172/3, 2ND CROSS,
VIVEKANANDA NAGAR,
BSK III STAGE,
BANGALORE - 560 085
...RESPONDENT
(BY SRI. C. PATTABI RAMAN, ADVOCATE)
THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER DATED 06.09.2012 PASSED BY
THE ADDL. S.J., P.O., F.T.C.-III, MAYO HALL, BANGALORE IN
CRL.A.NO.25167/2011 - ACQUITTING THE RESPONDENT/ACCUSED
FOR THE OFFENCE P/U/S 138 OF N.I.ACT AND CONFIRM THE ORDER
DATED 25.08.2011 PASSED BY THE V ADDL. JUDGE COURT OF
SMALL CAUSES & 24TH ACMM., BANGALORE IN C.C.NO.28153/2006.
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NC: 2024:KHC:49267
CRL.A No. 157 of 2013
THIS CRL.A., COMING ON FOR HEARING - INTERLOCUTORY
APPLN, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE M G UMA
ORAL JUDGMENT
The complainant in CC No.28153/2006 on the file of the learned V Additional Judge Court of Small Causes and 24th ACMM, Bangalore (for short 'the Trial Court'), who was the respondent in Crl.A.No.25167/2011 on the file of the learned Additional Sessions Judge and PO, FTC III Mayo Hall, Bengaluru (for short 'the First Appellate Court) is impugning the judgment of the First Appellate Court dated 06.09.2012 allowing the appeal and acquitting the accused by setting aside the judgment dated 25.08.2011 passed by the Trial Court convicting the accused for the offences punishable under Section 138 of Negotiable Instruments Act, 1881 (for short 'NI Act').
2. For the sake of convenience, the parties shall be referred to as per their rank and status before the Trial Court.
3. Brief facts of the case are that, the complainant has filed the private complaint in PCR No.4965/2005 against the accused alleging commission of the offence punishable under -3- NC: 2024:KHC:49267 CRL.A No. 157 of 2013 Section 138 of NI Act. The complainant contended that the accused is running chit business and the complainant was introduced to the accused by his friends. During 2004, the accused requested the complainant to lend an amount of Rs.6,00,000/- assuring to repay the same during February 2005. Accordingly, the complainant had lent an amount of Rs.6,00,000/-. When the complainant demanded to repay the loan amount, the accused had issued cheque dated 10.04.2005 for Rs.6,00,000/-, towards discharge of the legally enforceable debt. When the cheque was presented for encashment, the same was dishonored as funds insufficient. When this fact was brought to the notice of the accused, he requested for representing the cheque. Accordingly, the cheque was represented, but again the cheque was dishonored as there was insufficient funds, in the account of the accused. Legal notice was issued calling upon the accused to repay the cheque amount. The accused managed to evade the service of notice and returned it with an endorsement as addressee left. Thereby, the accused has committed an offence punishable under Section 138 of NI Act. Accordingly, the complainant -4- NC: 2024:KHC:49267 CRL.A No. 157 of 2013 requested the Trial Court to take cognizance of the offence and to initiate legal action.
4. The Trial Court took cognizance of the offence and registered CC No.28153/2006 against the accused for the offences punishable under Section 138 of NI Act. The accused appeared before the Trial Court and pleaded not guilty. The complainant examined himself as PW1 and got marked Exs.P1 to 6. The accused denied all the incriminating materials available on record, examined herself as DW1 and got marked ExD1 to 3 in support of her contention. The Trial Court after taking into consideration all these materials on record, came to the conclusion that the complainant is successful in proving the guilt of the accused beyond reasonable doubt. Accordingly, accused was convicted for the offence punishable under Section 138 of NI Act and sentenced her.
5. Being aggrieved by the same, accused has preferred the appeal in Crl.A.No.25167/2011. The First Appellate Court on re-appreciation of materials on record, came to the conclusion that the accused after admitting the cheque and her signature raised probabale defence that the -5- NC: 2024:KHC:49267 CRL.A No. 157 of 2013 complainant has not proved lending of amount and therefore, the accused is entitled for acquittal. Accordingly, the appeal was allowed. The impugned judgment of conviction passed by the trial Court was set aside. The accused was acquitted. Being aggrieved by the same, the complainant is before this Court.
6. Heard Sri. J.Prakash, learned counsel for the appellant and Sri.C.Pattabi Raman, learned counsel for the respondent. Perused the materials including the Trial Court on records.
7. Learned counsel for the appellant contended that the complainant has specifically contended that during 2004, the accused had availed loan of Rs.6,00,000/- and towards discharge of the same, cheque as per Ex.P.1 was issued for Rs.6,00,000/-. When the cheque was presented twice at the instance of accused, it was dishonored as there was insufficient funds. Even though legal notice was returned unserved as the accused has left the address, the complainant has specifically stated that the accused managed to return the cheque with such endorsement after knowing its contents. The notice in question was issued to the last known address and the very -6- NC: 2024:KHC:49267 CRL.A No. 157 of 2013 same address is mentioned in the complaint and the accused is duly served with summons. Therefore, it is clear that the accused had evaded service of legal notice.
8. Learned counsel submits that the accused has categorically admitted cheque Ex.P.1 belongs to her and it bears her signature. When the accused admits issuance of cheque, the legal presumption will arise and burden shifts on the accused to rebut the legal presumption. Even though the accused has stepped into the witness box and deposed before the Court, she is not successful in rebutting the presumption. Under such circumstance, the Trial Court was right in convicting the accused. But the First appellate Court on re-appreciation of material on record, acquitted the accused on flimsy grounds. Therefore, he prays for allowing the appeal.
9. Per contra, learned counsel for the respondent opposing the appeal submitted that even though the accused admits cheque Ex.P.1 belongs to her bank account and it bears her signature, she raised a probable defence by examining herself as DW1 and producing Ex.D1 to 3 Ex.D2 is the complaint filed by the very same complainant with the police -7- NC: 2024:KHC:49267 CRL.A No. 157 of 2013 referring to an amount which is due to him as Rs.1,20,000/- from the accused. The complainant has deposed in CC No.22922/2005 as PW1 and stated that an amount of Rs.5,25,000/- was due from the accused. But during cross examination, the complainant in the present case as PW1 states that an amount of Rs.3,75,000/-was due to be paid by the accused. There is inconsistency in the contention taken by the complainant. Moreover, there is no reason for not referring to the loan lent during 2004 in any of the documents. Under such circumstances, the First Appellate Court was right in acquitting the accused. There are no reasons to interfere with the said judgment. Accordingly, he prays for dismissal of the appeal.
10. In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is:
"Whether the impugned judgment of acquittal passed by the First Appellatel Court suffers from perversity or illegality and calls for interference by this Court?"-8-
NC: 2024:KHC:49267 CRL.A No. 157 of 2013 My answer to the above point is in the 'negative' and pass the following:
REASONS
11. It is the specific contention of the complainant that the accused who was running chit business had approached the complainant during 2004 and availed loan of Rs.6,00,000/-. Towards repayment of the said amount, she issued the cheque Ex.P1 dated 10.04.2005 for Rs.6,00,000/-. The cheque was presented twice for encashment at the instance of accused. It came to be dishonored as funds insufficient. Inspite of issuance of legal notice, the cheque amount is not paid. Thereby, the accused has committed the offence punishable under Section 138 of NI Act.
12. The accused appeared before the Trial Court and put forth her defence that legal notice is not served on her. Ex.P6 is the envelope returned unserved as the addressee left. But the address mentioned in Ex.P6 and in the complaint filed before the Trial Court are one and the same. Admittedly, the summons was served on the accused. Under such circumstances, the contention of the complainant that the accused deliberately evaded the summons could be accepted. -9-
NC: 2024:KHC:49267 CRL.A No. 157 of 2013
13. The accused has taken a defence admitting issuance of cheque Ex.P1 as it belongs to her bank account and it bears her signature. Once the accused admits issuance of cheque with her signature, the presumption under Section 139 of NI Act would arise. The initial burden on the complainant gets discharged and the burden shifts on the accused to rebut the legal presumption. In order to rebut the legal presumption, the accused has cross examined PW1. During cross examination, PW1 has stated that he filed a complaint against accused during January 2005 wherein he has mentioned that an amount of Rs.3,75,000/- was due to him. The said complaint is produced by the accused as per Ex.D2, where he has stated that only an amount of Rs.1,20,000/- is due from the accused. Moreover, in Ex.D2 complaint filed by the complainant against the accused on 10.01.2005 there is reference to as many as 23 other persons with details of the amount that is due to each of them. But strangely, the complainant has not referred to the loan amount of Rs.6,00,000/- that was due to be paid by the accused. The contention of the complainant has not taken any reasonable as to why this loan amount was not included in Ex.D2. I do not
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NC: 2024:KHC:49267 CRL.A No. 157 of 2013 find any reason for the complainant in not mentioning the loan amount of Rs.6,00,000/- which was said to have been lent during 2004, in the complaint Ex.D2 dated 10.01.2005, which was just about 3 months earlier to issuance of the cheque Ex.P1 which is dated 10.04.2005. When the complainant refers to as many as 23 other persons to contend that various amounts are due to all of them and an amount of Rs.1,20,000/- only was due to him, I do not find any justification for not mentioning the loan amount of Rs.6,00,000/-.
14. Even while deposing before the criminal court in CC No.22922/2005 as per Ex.D3, complainant never refers to the loan amount for Rs.6,00,000/-. But on the other hand, states that a sum of Rs.5,25,000/- was due to him and therefore he filed the complaint. These inconsistent defence and suppression of the fact of lending huge amount of Rs.6,00,000/- to the accused in Ex.D2 and D3 assumes importance and it probabalises the defence taken by the accused that she had not borrowed any amount from the complainant. Once the accused probabalises her defence, the burden again shifts on the complainant to prove actual lending of the amount. According to the complainant, he had lent Rs.6,00,000/- during 2004 in
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NC: 2024:KHC:49267 CRL.A No. 157 of 2013 cash. The date and month of lending is not forth coming in the complaint nor it is found in reference either in Ex.D2 or D3 under such circumstances, it is held that the complainant had not proved lending of the amount and the existence of legally enforceable debt. Under such circumstances, the accused is entitled for acquittal.
15. I have gone through the impugned judgment passed by the First Appellate Court. The First Apellate Court has taken all these facts and circumstances into consideration and acquitted the accused. I do not find any reason to interfere with the same. Accordingly, I answer the above point in the negative and proceed to pass the following:
ORDER The appeal is dismissed. Registry to send back the Trial Court records with the copy of this judgment.
Sd/-
(M G UMA) JUDGE BH: List No.: 2 Sl No.: 1