Karnataka High Court
Smt Shashikala Achar W/O.V T Achar vs V Madhuchandra on 12 April, 2018
Equivalent citations: AIRONLINE 2018 KAR 1876, 2018 (4) AKR 1
Author: K.Somashekar
Bench: K. Somashekar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF APRIL, 2018
BEFORE
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
CRIMINAL APPEAL NO. 851 OF 2011
BETWEEN
SMT. SHASHIKALA ACHAR,
AGED ABOUT 56 YEARS,
W/O V.T. ACHAR,
R/O NO.8 GROUND FLOOR,
"PANCHAMI" 8TH MAIN,
HOSAKEREHALLI
B.S.K. III STAGE,
DATTATREYA NAGAR,
BENGALURU - 560 085.
AND PRESENTLY R/AT
VANDSE VILLAGE,
KOLLUR ROAD,
KUNDAPURA TALUK,
UDUPI DISTRICT. ... APPELLANT
(BY SRI. RAGHAVENDRA V., ADVOCATE)
AND
V. MADHUCHANDRA,
AGED ABOUT 41 YEARS,
S/O VASUDEVA MURTHY,
RESIDING AT NO.2,
1ST "A" CROSS BANAGIRI NAGAR,
BANASHANKARI III STAGE,
BENGALURU - 85. ... RESPONDENT
(BY SRI. R. SRINIVAS AND SRI. B. GOPALA, ADVOCATES
- ABSENT)
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THIS CRL.A. IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE ORDER DATED
20.07.2011 PASSED BY THE PRESIDING OFFICER, FAST
TRACK COURT - IV, BENGALURU CITY IN CRL.A.NO.
725/2010 CONVICTING THE APPELLANT/ACCUSED FOR
THE OFFENCE PUNISHABLE UNDER SECTION 138 OF
N.I. ACT AND CONFIRM THE ORDER DATED 29.09.2010
PASSED BY THE XXII ACMM AND XXIV ASCJ,
BENGALURU IN C.C.NO. 24880/2007 AND THE
APPELLANT/ACCUSED IS SENTENCED TO PAY FINE OF
RS. 1,60,000/- (RUPEES ONE LAKH SIX THOUSAND
ONLY), FOR THE OFFENCE PUNISHABLE UNDER
SECTION 138 OF N.I. ACT. AND IN DEFAULT TO PAY
FINE, THE APPELLANT/ACCUSED SHALL UNDERGO
SIMPLE IMPRISONMENT FOR TWO MONTHS, OUT OF
THE FINE AMOUNT, AN AMOUNT OF RS. 1,50,000/-
(RUPEES ONE LAKH FIFTY THOUSAND ONLY).
THIS CRL.A. COMING ON FOR HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellant / accused.
2. The counsel for the respondent / complainant has not come forward to address arguments despite of an opportunity given to him. Hence, the appeal is taken up for disposal.
3. This appeal has been preferred by the appellant against the judgment of conviction passed by the First :3: Appellate Court in Crl.A.No.725/2010 reversing the acquittal judgment passed by the Court of the XXII Additional CMM and XXIV Additional Small Causes Judge, Bangalore in C.C.No.24880/2007 for offences under Section 138 of the NI Act.
4. The factual matrix of the appeal are as under:
The appellant herein was the accused before the Trial Court in C.C.No.24880/2007 for the offences under Section 138 of the NI Act. This case arose from PCR No.13483/2007 alleging that accused and the husband of the accused, namely Shri V.T. Achar had obtained a loan from the complainant for a sum of Rs.1,50,000/- by executing an on demand promissory note and consideration receipt dated 6.10.2005. It is further alleged in the complaint that the accused has issued a cheque dated 29.06.2007 drawn on ICICI Bank, Chamarajpet Branch, Bangalore, for a sum of Rs.1,50,000/- towards discharge of their legally enforceable debt. On presentation of the cheque by the complainant through his banker, such cheque was :4: returned on the endorsement of insufficient funds. On the basis of the memo and an endorsement issued by the Bank, the complainant had caused legal notice to the accused dated 19.07.2007 and the same was sent through ordinary post, RPAD as well as through courier on 21.07.2007. However, the legal notice sent through RPAD was returned unserved as 'not claimed' and the notice sent through courier was returned unserved for the reason 'parties shifted'. The accused neither complied with the demand made under the statutory notice nor paid the cheque amount. Therefore, the complainant filed a private complaint against the accused for the offence punishable under Section 138 of the NI Act. On issue of process, the accused appeared before the Trial Court and pleaded not guilty and claimed to be tried. The complainant got himself examined as PW-1 and got marked Exhibits P1 to P11. Subsequent to the closure of the evidence of the complainant, incriminating statement under Section 313 Cr.P.C. was recorded. Subsequently, accused got examined herself as DW-1 and closed the case. Subsequently, on hearing the arguments advanced :5: in that case, the Trial Court acquitted the accused for the offences punishable under Section 138 of the NI Act by order dated 29.09.2010 in C.C.No.24880/2007.
Against the judgment of acquittal passed by the Trial Court in that case, the complainant then preferred an appeal before the First Appellate Court in Crl.A.No.725/2010. The First Appellate Court having gone through the entire evidence on record, allowed the appeal by reversing the acquittal judgment rendered by the Trial Court in C.C.No.24880/2007 and thereby convicted the accused for the offence under Section 138 of the NI Act and sentenced her to pay a fine of Rs.1,60,000/- and in default to pay fine, to undergo simple imprisonment for two months. Out of the fine amount, Rs.1,50,000/- was to be paid to the complainant as compensation as contemplated under Section 357(3) Cr.P.C. and the remaining amount was to be defrayed to the state. It is this judgment which is under challenge in this appeal by urging various grounds.
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5. The learned counsel for the appellant during the course of his argument has taken through the evidence of the complainant and so also the documents as produced by the complainant as at Exhibits P-1 to P-11. Exhibit P- 1 is the cheque, Exhibit P-2 is the on demand promissory note, Exhibit P-4 is the Bank endorsement, Exhibit P-5 is the account statement, Exhibit P-6 is the copy of the legal notice, Exhibit P-8 is the UCP for having issued notice, Exhibit P-9 is the receipt and Exhibits P-10 and P-11 are the returned postal covers.
His contention is that based upon the evidence placed by PW-1 and also the documents as produced by the complainant in order to establish the case, the Trial Court in C.C.No.24880/2007 has appreciated the evidence and has rightly come to the conclusion that the complainant has not established the guilt of the accused. Therefore, the Trial Judge had acquitted the accused for the offences punishable under Section 138 of the NI Act. The First appellate Court in Crl.A.725/2010 has thereafter reversed the conviction and sentence held :7: against the accused, without appreciation of the evidence on record in a proper perspective.
An appeal ought to have been preferred before this Court having jurisdiction under Section 378(4) Cr.P.C. against the judgment of acquittal of the Trial Court. Instead, the said judgment had been challenged by the complainant before the First Appellate Court under Section 374 Cr.P.C. The said judgment has been reversed by the First Appellate Court.
In respect of the point as to whether an appeal can be maintained against the judgment of acquittal for an offence punishable under Section 138 of the NI Act before the jurisdictional Sessions Court under the proviso to Section 374 Cr.P.C., the learned counsel for the appellant brings to the notice of this court a judgment rendered by this court in Crl.P.6072/2014 dated 24.02.2015, wherein it is held that the said point is no longer res-integra, in view of the judgment of the Supreme Court in the case of Damodar S. Prabhu vs. Sayed Babalal H ((2010 (5) :8: SCC 663)). The relevant portion in the said judgment reads as under:
"20. It may be noted here that Section 143 of the Act makes an offence under Section 138 triable by a Judicial Magistrate, First Class (JMFC). After trial, the progression of further legal proceedings would depend on whether there has been a conviction or an acquittal.
In the case of conviction, an appeal would lie to the Court of Sessions under Section 374(3)(a) Cr.PC; thereafter a revision to the High Court under Sections 397/401 Cr.PC and finally a petition before the Supreme Court, seeking special leave to appeal under Section 136 of the Constitution of India. Thus, in case of conviction there will be four levels of litigation.
In the case of acquittal by JMFC, the complainant could appeal to the High Court under Section 378(4) Cr.PC and thereafter for special leave to appeal to the Supreme Court under Article 136. In such an instance, therefore, there will be three levels of proceedings".
6. Since it was a case of acquittal judgment passed by the jurisdictional court relating to the offences under Section 138 of the NI Act, the complainant could have preferred an appeal before the High Court under Section 378(4) Cr.P.C. and thereafter for special leave to the :9: Supreme Court under Article 136 of the Constitution of India. The First appellate court, without having any jurisdiction as contemplated under the Cr.P.C., has entertained the appeal relating to the judgment of acquittal passed by the Trial Court in C.C.No.24880/2007 and hence, the impugned judgment in Crl.A.725/2010 is passed without having any jurisdiction. Hence, in view of the prevailing position of law, the learned counsel submits that the judgment passed by the First Appellate Court in Crl.A.725/2010 requires to be revisited and consequently the impugned judgment requires to be set aside.
7. Learned counsel has also placed reliance in the case of John K. Abraham vs. Simon C. Abraham and another ((2014) 2 SCC 236)), as regards the burden on the complainant to show that he had the means to advance the loan, which is with regard to the merits of the case. The relevant paragraph is extracted as under:
"9. It has to be stated in order to draw the presumption under Section 118 read along with Section 139 of the Negotiable Instruments Act, the burden was heavily upon the complainant to have shown that he had the required funds for having : 10 : advanced the money to the accused; that the issuance of the cheque in support of the said payment advanced was true and that the accused was bound to make the payment as had been agreed while issuing the cheque in favour of the complainant."
8. Having regard to the legal position, I find that the First Appellate Court in Crl.A.No.725/2010, erroneously has reversed the acquittal judgment held by the Trial Court in C.C.24880/2007 without any jurisdiction as contemplated under Section 378(4) Cr.P.C., where the appeal has to lie before this court in a judgment of acquittal passed by the Trial Court. Therefore, there is substance in the contention of the learned counsel for the appellant for interference of the impugned judgment passed by the First Appellate Court for having reversed the judgment of conviction held by the Trial Court in C.C.No.24880/2007.
Accordingly, the judgment rendered by the First Appellate Court in Crl.A.No.725/2010 dated 20.07.2011 is hereby set aside. The appeal is hereby allowed by : 11 : confirming the acquittal judgment rendered by the Trial Court in C.C.No.24880/2007 dated 29.09.2010.
Sd/-
JUDGE KS