Karnataka High Court
Sri S P Karthik vs Smt Mahima Mohan Champa on 19 July, 2023
1 Crl.A.No.817/2012
c/w Crl.A.No.818/2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.817 OF 2012
C/W
CRIMINAL APPEAL NO.818 OF 2012
IN CRIMINAL APPEAL NO.817 OF 2012
BETWEEN:
SRI. DR. RAJENDRA S
S/O LATE N SOMASHEKARAIAH
AGED ABOUT 44 YEARS
RESIDING AT #181/B,
1ST CROSS, A BLOCK
BANNIMANTAP
MYSORE - 570 015
...APPELLANT
(BY SRI. SRINIVASA D C, ADVOCATE)
AND:
SMT. MAHIMA MOHAN CHAMPA
W/O DR. SUDARSHAN
AGED ABOUT 37 YEARS
R/A NO.33, 'GEETHA'
VIVEKANANDA ROAD
YADAVAGIRI
MYSORE
.....RESPONDENT
(BY SRI. ABUBACKER SHAFI, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF THE CODE OF CRIMINAL PROCEDURE PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL PASSED
BY THE IV ADDITIONAL I CIVIL JUDGE & JMFC, MYSORE IN
C.C.NO.469/2006 DATED 28.06.2012 AND FURTHER PUNISH
THE ACCUSED/RESPONDENT IN ACCORDANCE WITH
2 Crl.A.No.817/2012
c/w Crl.A.No.818/2012
SECTION 138 OF N.I.ACT, IN THE INTEREST OF JUSTICE AND
EQUITY.
IN CRIMINAL APPEAL NO.818 OF 2012
BETWEEN:
SRI S P KARTHIK
S/O P SRIKANTAPRASAD
AGED ABOUT 35 YEARS
RESIDING AT #35
MODEL HOUSE, 6TH CROSS
JAYALAKSHMIPURAM
MYSORE
...APPELLANT
(BY SRI. SRINIVASA D C, ADVOCATE)
AND:
SMT. MAHIMA MOHAN CHAMPA
W/O DR. SUDARSHAN
AGED ABOUT 37 YEARS
R/A NO.33, 'GEETHA'
VIVEKANANDA ROAD
YADAVAGIRI
MYSORE
.....RESPONDENT
(BY SRI. ABUBACKER SHAFI, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF THE CODE OF CRIMINAL PROCEDURE PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL PASSED
BY THE HON'BLE IV ADDITIONAL I CIVIL JUDGE & JMFC,
MYSORE IN C.C.NO.543/2007 DATED 28.06.2012 AND
FURTHER PUNISH THE ACCUSED/RESPONDENT IN
ACCORDANCE WITH SECTION 138 OF N.I.ACT, IN THE
INTEREST OF JUSTICE AND EQUITY.
THESE CRIMINAL APPEALS HAVING BEEN HEARD AND
RESERVED ON 14.06.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
3 Crl.A.No.817/2012
c/w Crl.A.No.818/2012
JUDGMENT
In these appeals, the complainants have challenged the impugned judgments and orders passed by the trial court acquitting the accused for the offence punishable under section 138 of N.I Act.
2. In these appeals, though the complainant are different, accused is common and she has taken a common defence and relied upon certain common documents which are pertaining to the common defence taken by her. Since common discussion is involved, these two appeals are clubbed together and decided by a common judgment and order.
3. For the sake of convenience, the complainants are referred to by their names and accused is referred as accused.
4. Both complainants are Doctors by profession. In fact it has come in the evidence of accused that her father as well as husband are Doctors and in that way, they are known to each other. Accused and complainant Dr. Rajendra are also relatives.
4 Crl.A.No.817/2012c/w Crl.A.No.818/2012
5. It is the case of complainant Dr.Rajendra that on 08.10.2005 accused for her legal necessity borrowed a sum of Rs.1,00,000/- from him agreeing to repay the same within a short period along with interest at 18% p.a and when she failed to repay the amount within the promised time, on approach and demand by the complainant Dr.Rajendra, she issued a cheque bearing number 861232 dated 02.08.2006. However, when it was presented for encashment, it is dishonored with endorsement 'Funds insufficient'. He got issued a legal notice dated 01.09.2006. Though she has received the notice, she failed to comply with the same. However, she has sent an untenable reply. Without any alternative, he has filed the complaint.
6. It is also the case of the complainant Dr. S.P. Karthik that for her legal necessity accused borrowed a sum of Rs.4,00,000/- promising to repay the same with interest at 12% per annum and on the same day i.e, 08.05.2006, she got issued a post dated 16.08.2006 cheque bearing number 729235. On 14.09.2006, when complainant Dr. S.P.Karthik presented it for realization, it was dishonored for 'Funds insufficient'. He issued a legal 5 Crl.A.No.817/2012 c/w Crl.A.No.818/2012 notice calling upon the accused to repay the amount due under the cheque. In this case also though the accused has received the notice, she has neither complied with it nor sent any reply and therefore the complaint is filed.
7. In both cases, the accused has taken up a defence that the mother of complainant Dr. Rajendra whom the accused has chosen to examine as witness i.e DW-2 Prabhavathi was running chit fund business and accused was a regular participant in the same and every time she bid for the chit DW-2 Prabhavati used to take cheques for double the amount from her and sometimes she used to take blank cheques from her and misusing the same, she got filed these complaints through her son Dr.Rajendra and complainant Dr.S.P.Karthik, who is no other than a friend and student of Dr.Rajendra. In fact, she filed a criminal complaint against DW-2 - Prabhavati, complainant, Dr. Rajendra, Dr.S.P.Karthik, other two persons who also filed complaints against the accused for the offence punishable under Section 138 of N.I. Act and with this defence, accused sought for dismissal of the complaints. 6 Crl.A.No.817/2012 c/w Crl.A.No.818/2012
8. In support of his case complainant Dr. Rajendra examined himself as a PW-1 and relied upon Ex.P1 to 15.
9. In support of his case, complainant Dr.S.P.Karthik has examined himself as PW-1, one witness as PW-2 and relied upon Ex.P1 to 15.
10. During the course of her statement under Section 313 of Cr.P.C, accused has denied the incriminating evidence.
11. In fact, in both cases, the accused has examined herself as DW-1. She has chosen to examine the mother of Dr Rajendra as DW-2. She has relied upon Ex.D1 to 10.
12. Vide the impugned judgment and order, the trial Court has dismissed the complaints.
13. Being aggrieved by the same, the complainants have challenged the impugned judgments and orders contending that they are erroneous, contrary to the facts and evidence on record. In the light of cogent and reliable evidence placed on record by the complainants, the trial 7 Crl.A.No.817/2012 c/w Crl.A.No.818/2012 court has erred in acquitting the accused. The trial Court has failed to draw the presumption under Sections 118 and 139 of N.I. Act. In the light of the said presumption, the onus is on the accused to prove her defence, but she certainly failed to establish the same. Consequently, the impugned judgments and orders are liable to be set aside.
13.1 Though the accused has taken up a specific defence that she had given more than 40 cheques to DW-2 Prabhavathi, as security and in the alleged undertaking i.e Mucchalike (hereinafter referred to as 'Muchhalike'), she has admitted of having received such cheques, in the reply notice at Ex.D7, legal notice sent to DW-2 Prabhavathi as at Ex.D8 as well as in complaint - PCR.No.45/2007 at Ex.D1, filed by the accused against the complainant and others, the accused has not referred to existence of such Muchhalike and it is clearly a concocted document. This document is concocted by the complainant with the help of concerned police after it was referred to investigation by the trial Court. This aspect is not appreciated by the trial Court.
8 Crl.A.No.817/2012c/w Crl.A.No.818/2012
13.2 Though during the investigation, the Investigating Officer has got examined the signature in the Mucchalike, he has not chosen to get the report with regard to the writing of rest of the document. Though in these complaints, the accused has taken up a defence that cheque number 731293 for Rs.1,00,000/- was given to DW-2 Prabhavathi, in Ex.P15 which is the reply notice sent to Dr Mohan Kumar, she has claimed that this cheque along with other cheques was given to Smt. Sarojamma - the mother of Dr.Mohan Kumar as a security for the chit fund business run by her. This itself goes to show that the defence taken by the accused is false and the Mucchalike relied upon by the accused is a concocted document. In fact in the complaint filed against Dr.Mohan Kumar, accused has compromised before the Lok Adalat by paying the amount due to him. Without appreciating all these aspects, the trial Court has erred in dismissing the complaints and prays to allow the appeals, convict accused and sentence her accordingly.
9 Crl.A.No.817/2012c/w Crl.A.No.818/2012
14. In support of his arguments, learned counsel for complainant has relied upon the following decisions:
(i) Sri.N.A. Prabhakar Vs. Mahima Mohan Champa (Prabhakar)1
(ii) Sumeti Vij Vs. M/s Paramount Tech Fab Industries (Sumeti Vij)2
15. On the other hand learned counsel for accused has supported the impugned judgment and order and prays to dismiss the appeal.
16. In support of his arguments, learned counsel for accused has relied upon the following decisions:
(i) Krishna Janardhan Bhat Vs. Dattatraya G.Hegde (Krishna Janardhan Bhat)3
(ii) Kumar Exports Vs. Sharma Carpets (Kumar Exports)4
(iii) M.Senguttuvan Vs. Mahadevaswamy (Senguttuvan)5
(iv) Shashi Prakash Vs. B.Krishna Murthy (Shashi Prakash)6
(v) Kamala S. Vs. Vidyadharan M.J & Anr.
(Kamala)7 1 Crl.A.No.930/2011 2 2021 (1) Kar.L.R 378 (SC) 3 (2008) AIR (SC) 1325 4 (2009) AIR (SC) 1518 5 (2007) ILR (Karnataka) 2709 6 (2004) ILR (Karnataka) 2938 10 Crl.A.No.817/2012 c/w Crl.A.No.818/2012
(vi) Amzad Pasha Vs. H.N.Lakshmana (Amzad Pasha)8
(vii) M/s United Distributors Mangalore Vs. Smt.Geetha K.Rai (M/s United Distributors)9
17. Heard arguments and perused the record.
18. Thus, it is the specific case of the complainants that accused borrowed hand loan of Rs.1,00,000/- and Rs.4,00,000/- respectively and issued the subject cheques towards repayment of the same and on presentation to the Bank, they were dishonored for want of sufficient funds. Though accused admit that the cheques belongs to her, drawn on her account maintained with the Bank and they bear her signature, she has contended that they were not issued in favour of complainants towards repayment of any debt or liability.
19. On the other hand, it is her specific case, DW-2 Prabhavathi - mother of complainant Dr.Rajendra was running chit business and accused was participating in the same regularly and at that time she had collected around 40 cheques some of them were blank and misusing two 7 (2007) 1 DCR 321 8 (2010) 3 KCCR 1950 9 (2011) 3 KCCR 1825 11 Crl.A.No.817/2012 c/w Crl.A.No.818/2012 such cheques the complaints are filed. Having regard to the fact that accused admit that the subject cheques belongs to her drawn on her account and they bear her signature, the presumption under Sections 118 and 139 of N.I.Act is operating in favour of the complainants and consequently, the burden is on the accused to rebut the said presumption. Only after she discharge the said burden, the onus would shift on the complainants to establish the circumstances in which accused issued the cheques. Consequently, it is necessary to examine whether the accused has rebutted the presumption operating against her.
20. During the course of their evidence, complainants who are examined as PW-1 in their respective cases have reiterated the complaint averments. After the subject cheques were dishonored, they have issued legal notice to the accused calling upon her to pay the amount due and it is duly served on her. In fact she has sent reply alleging that DW-2 - Prabhavathi was running chit business and the subject cheques were issued to her and they have been misused. In fact she has given a list of 39 cheques which were allegedly given to DW-2 Prabhavathi. Though 12 Crl.A.No.817/2012 c/w Crl.A.No.818/2012 cheque No.729235 which is the subject matter of C.C.No.543/2007 filed by Dr.S.P.Karthik find place in this list, cheque No.861232 which is the subject matter of C.C.No.469/2006 filed by Dr.Rajendra does not find place in this list.
21. In fact in C.C.No.543/2007, during her cross- examination accused has admitted that in her reply at Ex.P15 (C.C.No.469/2006), to the legal notice sent to Dr.Mohan Kumar who is complainant in C.C.No.982/2007, she has stated that cheque No.731293 dated 24.03.2007 which is the subject matter of the said case, is issued to his mother Sarojamma, who was allegedly running a chit fund business. The same cheque number find place in Ex.P7, which is reply notice sent to complainant Dr.Rajendra, containing the list of cheques allegedly given to his mother i.e., DW-2 Prabhavathi. This very fact indicate that the accused has taken up a false defence alleging that DW-2 Prabhavathi as well as Sarojamma were running chit fund business and they have collected number of cheques from her by way of security and misusing some of them, filed criminal cases against her.
13 Crl.A.No.817/2012c/w Crl.A.No.818/2012
22. In fact as per Ex.P8 to 15, accused has compromised with Dr.Mohan Kumar and consequently, C.C.No.982/2007 filed by him came to be dismissed as settled. Before the Lokadalath, both parties have admitted that the amount due under the cheque is paid by the accused and received by the complainant i.e., Dr.Mohan Kumar. However, on this aspect, accused has denied that amount due was paid and claimed that the said case was compromised without she paying the alleged amount due under the said cheque. Her evidence is contrary to the documents i.e., compromise entered into before the Lokadalath.
23. Now coming to the defence of the accused that DW-2 - Prabhavathi was collecting cheques from her and some of them were blank; though accused repaid the amount due under the chits bid by her, she did not return the cheques and when accused insisted upon, DW-2 Prabhavathi gave an undertaking (Mucchalike) as per Ex.D6 (C.C.No.469/2006) and Ex.D4 (C.C.No.543/2007) and misusing them has got filed several complaints. In fact accused has filed a private complaint against DW-2 14 Crl.A.No.817/2012 c/w Crl.A.No.818/2012 Prabhavathi, Dr.S Ashok, complainants - Dr.Rajendra, Dr.S.P.Karthik and one N.A.Prabhakar alleging offences punishable under Section 143, 406, 420, 465, 468 r/w Section 149 I.P.C. It was referred to the jurisdictional police and after conducting investigation, the concerned police filed charge sheet in C.C.No.50/2008.
24. It appears during investigation accused has produced the Mucchalike in question before the Investigating Officer and it is seized through mahazar. In fact the Investigating Officer has referred it to handwriting expert and the disputed signature therein is compared with admitted/proved signature of DW-2 Prabhavathi. The handwriting expert has given the report that the disputed signature in the Muchhalike is that of DW-2 Prabhavathi. However, except the interested testimony of the accused that the Muchhalike was given by DW-2 Prabhavathi, there are no independent witnesses for the execution of the same. Accused has not disclosed whether the writing in the Mucchalike is also in the handwriting of DW-2 Prabhavathi. She has also not stated in whose handwriting the said document is written.
15 Crl.A.No.817/2012c/w Crl.A.No.818/2012
25. Of course, complainant and DW-2 Prabhavathi have denied that any such Mucchalike was executed by DW-2 Prabavathi. Though the Investigating Officer has chosen to get the signature in the Mucchalike examined by the handwriting expert, he has not conducted any investigation to ascertain whether the writing therein is also in the handwriting of DW-2 Prabhavathi or in the handwriting of someone else. Consequently, the accused has failed to establish that DW-2 Prabhavathi has executed the Mucchalike admitting the receipt of several cheques from DW-2 Prabhavathi and some of them were blank.
26. As already discussed in the present case accused has taken up a defence that several cheques were collected by DW-2 Prabhavathi. Simultaneously, she has claimed that Sarojamma - the mother of Dr.Mohan Kumar, who had also filed a complaint against accused has also collected several blank cheques from her and some of these cheques are common. This itself falsifies the defence of the accused. It is relevant to note that according to the accused the Mucchalike is dated 15.07.2005. The 16 Crl.A.No.817/2012 c/w Crl.A.No.818/2012 complainants issued legal notice to the accused and filed complaint subsequent to the said date. However, in her reply notice the accused has not at all referred to execution of Mucchalike by DW-2 Prabhavathi admitting receipt of several cheques, including few blank cheques.
27. In this regard in her affidavit evidence, accused had deposed that though as per the Mucchalike, DW-2 Prabhavathi agreed to return the cheques, she demanded additional money and when accused did not agree for the same, she refused to return the cheques. With regard to not referring to the Muchhalike in her reply notice, DW-2 Prabhavathi has deposed that she has misplaced the same and forgotten about it when reply notice was sent. Having regard to the allegations that nearly 40 blank cheques were collected by DW-2 Prabhavathi and not returning the same and when insisted upon, allegedly executing the Mucchalike and several complaints were filed based on such blank cheques allegedly issued in favour of DW-2 Prabhavathi, at any stretch of imagination, it cannot be accepted that accused would forget about it.
17 Crl.A.No.817/2012c/w Crl.A.No.818/2012
28. This very fact creates a doubt as to whether such a Mucchalike was executed by DW-2 Prabhavathi or there is substance in the allegations made by complainants that in collusion with the Investigating Officer, accused has concocted it. In the absence of proof of execution of the said document, with cogent and convincing evidence, this Court is inclined to accept the contention of the complainants that it is a document concocted for the purpose of criminal complaint in C.C.No.50/2008 filed against DW-2 Prabhavathi and others and therefore, it does not find place mention in her reply notice.
29. Of course, during the course of her evidence, DW-2 Prabhavathi has denied that she was conducting chit fund business, accused was one of the participants and she used to collect blank cheques from her and has executed the Muchhalike. Her evidence is not of any help to improve the defence of the accused.
30. As evident from the National Judicial Data Grid (NJDG) C.C.No.50/2008 filed by the accused against complainants and others including DW-2 Prabahvathi is dismissed on 16.07.2020 and they are acquitted of all the 18 Crl.A.No.817/2012 c/w Crl.A.No.818/2012 charges. In fact accused has filed Crl.A.No.144/2020 against the said judgment and order before the Prl.District and Sessions Judge, Mysuru and vide judgment and order dated 31.08.2021, the said appeal is also dismissed. She has not further challenged the said orders. Consequently, the allegations against DW-2 Prabhavathi and others that blank cheques were taken from accused and they were being misused is stand disproved.
31. During her cross-examination accused has conceded that as soon as she paid the bid amount due from her, there was no impediment to get back the alleged cheuqes given to DW-2 Prabhavathi by way of security. Admittedly, accused has not made any such attempt to get them back. This also falsifies her defence. The accused has also contended that sometimes DW-2 Prabhavathi paid her bid amount in cash and sometimes by way of cheques. She has also deposed that she used to pay the chit instalments sometimes in cash and on other occasions through cheques. The accused has not chosen to produce any Bank documents to evidence this fact which would have corroborated her defence that DW-2 Prabhavathi was 19 Crl.A.No.817/2012 c/w Crl.A.No.818/2012 running chit fund business and in that connection was taking blank cheques from the accused and they were misused by her.
32. Prabhakar, is also an appeal against the present accused Smt.Mahima Mohan Champa. In the said appeal rejecting the defence taken by her the Co-ordinate Bench of this Court allowed the appeal, set aside the judgment of acquittal passed by the Sessions Court and confirmed the conviction imposed by the trial Court.
33. So far as the decisions relied upon by the accused are concerned, they are not applicable to the facts and circumstances of the present case.
34. As held by the Hon'ble Supreme Court in Sumeti Vij, it is well settled that the proceedings under Section 138 of N.I.Act are quasi-criminal in nature, and the principles which apply to acquittal in other criminal cases are not applicable in the cases instituted under the N.I.Act.
35. Thus, from the above discussions, this Court is of the considered opinion that accused has failed to rebut the presumption under Sections 118 and 139 of N.I.Act, 20 Crl.A.No.817/2012 c/w Crl.A.No.818/2012 even on preponderance of probabilities. On the other hand in the light of presumption under Sections 118 and 139 of N.I.Act and through the oral and documentary evidence placed on record, the complainants have proved the allegations against accused beyond reasonable doubt. The trial Court without examining the oral and documentary evidence in proper perspective has committed error in holding that the charge leveled against accused is not proved and thereby acquitting her. Having regard to the fact that the findings of the trial Court are contrary to the evidence placed on record and as such perverse, these are fit cases to interfere by this Court.
36. When the Court comes to the conclusion that the charge leveled against the accused is proved beyond reasonable doubt for the offence punishable under Section 138 of N.I.Act and the appeal is allowed by setting aside the impugned judgment and order of acquittal, the next question would be to what punishment the accused is liable.
37. The punishment prescribed for the offence under Section 138 of the N.I.Act is imprisonment for a term 21 Crl.A.No.817/2012 c/w Crl.A.No.818/2012 which may extend to two years or with fine which may extend to twice the amount of cheque or with both. The hand loan availed by the accused is Rs.1,00,000/- in C.C.No.469/2006 and Rs.4,00,000/- in C.C.No.543/2007. The transaction between the complainant and accused is of the years 2005 and 2006, respectively. Despite availing hand loan from the complainant, accused has taken up a false defence and driven the complainant to indulge in litigation in all these 18-19 years. Taking into consideration these aspects, I am of the considered opinion that sentencing accused to pay fine in a sum of Rs.2,00,000/- in C.C.No.469/2006 and Rs.6,00,000/- in C.C.No.543/2007, in default of paying the fine sentencing her to undergo imprisonment for a period of six months each would meet the ends of justice and accordingly, I proceed to pass the following:
ORDER
(i) Appeals filed by the complainants under Section 378(4) of Cr.P.C are allowed. The impugned judgment and order dated 28.06.2012 in C.C.No.469/2006 and C.C.No.543/2007 on the file of IV Addl.
I Civil Judge & JMFC., Mysuru, is set aside. 22 Crl.A.No.817/2012 c/w Crl.A.No.818/2012
(ii) Accused is convicted for the offence punishable under Section 138 of the N.I.Act and sentenced to pay fine in a sum of Rs.2,00,000/- in C.C.No.469/2006 and Rs.6,00,000/- in C.C.No.543/2007, in default of payment of fine, to undergo imprisonment for a period of six months each.
(iii) The entire fine amount realized is ordered to be paid to the complainants by way of compensation.
(iv) The Registry is directed to return the trial
Court records along with copy of this
judgment forthwith.
Sd/-
JUDGE
RR