Karnataka High Court
Sri R Ramachandra Reddy vs Smt R Malavathi on 31 January, 2022
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL No. 2099/2017
BETWEEN:
SRI. R. RAMACHANDRA REDDY,
AGED ABOUT 70 YEARS
S/P. LATE G. RAMAKRISHNA REDDY
R/A NO.1169, VIVEK NAGAR
GEETHA ROAD EXTENSION,
ROBERTSONPET POST
KGF-563127
KOLAR DISTRICT.
....APPELLANT
(BY SRI. SIDDHARTH B. MUCHANDI, ADVOCATE)
AND:
SMT. R. MALAVATHI
AGED ABOUT 47 YEARS
W/O. VIJAYKUMAR A.S.
R/A NO.739-3, GANESHPURAM
OPPOSITE GANESHPURAM
SUB-POST OFFICE
ROBERTSONPET
KGF-563127
KOLAR DISTRICT.
.... RESPONDENT
(BY SMT. RAKSHITHA, ADVOCATE FOR
SRI. K. RAGHAVENDRA RAO, ADVOCATE)
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THIS APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C.
PRAYING TO SET ASIDE THE JUDGMENT DATED 04.11.2017
PASSED BY THE SENIOR CIVIL JUDGE AND PRINCIPAL JUDICIAL
MAGISTRATE FIRST CLASS, K.G.F., IN C.C. NO.199/2018,
ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 138 OF N.I. ACT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 13.01.2022, COMING ON FOR 'PRONOUNCEMENT
OF JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The appellant/complainant has filed this appeal under Section 378(4) of Criminal Procedure Code, 1973 ( 'Cr.P.C.' for short) challenging the judgment of acquittal passed in CC No.199/2016 dated 04.11.2017 on the file of the Senior Civil Judge, Principal JMFC, KGF ('trial Court' for short'), against the accused/respondent herein, whereby the learned Magistrate has acquitted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 ( 'N.I. Act' for short).
2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the trial Court.
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3. The brief factual matrix leading to the case is that, the accused-Smt. R. Malavathi has availed hand-loan of Rs.4,80,000/- from the complainant in the first week of December, 2015 and towards repayment of the hand loan, she issued a cheque for Rs.4,80,000/- and when the same was presented by the complainant, it was dishonoured on 11.01.2016 for "Insufficient Funds". It is also alleged that the complainant has got issued a legal notice 11.02.2016 and in spite of service of notice, the accused has not paid the cheque amount and hence, the complainant has filed a complaint before the trial Court under Section 200 of Cr.P.C.
4. After receipt of the complaint, the learned Magistrate has recorded the sworn statement of the complainant. After perusing the documents relied by the complainant, he took cognizance and issued process against the accused. The accused has appeared through her counsel and was enlarged on bail. The accusation under 4 Section 138 of the N.I. Act was read-over and explained to the accused and she pleaded not guilty.
5. The complainant was examined as PW.1 and he has placed reliance on seven documents marked at Exs. P1 to P7. Then the statement of accused under Section 313 of Cr.P.C. was recorded to enable the accused to explain the incriminating evidence appearing against her in the case of prosecution. The case of accused is of total denial and she got herself examined as a Defence Witness (DW.1).
6. After hearing the arguments advanced by both the parties, the learned Magistrate found that the complainant has failed to prove the ingredients of the offence under Section 138 of the N.I. Act against the accused/respondent herein and acquitted her of the charge alleged. Being aggrieved by this judgment of acquittal, the appellant/complainant has filed this appeal.
7. Heard the arguments advanced by the learned counsel for the appellant/complainant and the learned 5 counsel for the respondent/accused. Perused the records of the trial Court.
8. The main contention urged by the learned counsel for the appellant is that, the accused had admitted her signature on the cheque and as such, the trial Court erred in not drawing presumption in favour of the complainant under Section 139 of the N.I. Act. He would also contend that, though the financial capacity of the complainant is disputed, the evidence discloses that the complainant was a retired Police Officer and drawing pension and also an income-tax assessee and as such he is financially sound. The complainant has not led any material rebuttal evidence. Hence, he would contend that the trial Court has misread the evidence and as such, he would seek for interference by this Court, by setting aside the impugned Judgment of acquittal and prayed for convicting the accused/respondent herein.
9. Per contra, Smt. Rakshitha, the learned counsel for respondent/accused would contend that, there was no 6 transaction between the accused and the complainant. But, there was a chit transaction between the accused and the wife of the complainant, as accused was running a chit business, wherein the wife of the complainant was a member. As such, the accused was required to pay her Rs.40,000/- and towards the said payment, this blank cheque was issued. The learned counsel also contend that the evidence discloses that the financial capacity of the complainant to advance such a huge loan amount is disputed and it is hard to accept that such a huge loan is advanced without there being any security and the financial position of the complainant is not sufficient to advance such a huge loan. Hence, she would contend that the financial capacity of the complainant is not established and as such, the presumption under Section 139 of the N.I. Act cannot be drawn and initial burden again shifts on the complainant to prove his financial status, which he has failed to do. Hence, she would contend that the trial Court is justified in acquitting the accused/respondent herein. 7
10. Having heard the arguments and perusing the records it is evident that, the complainant is making the specific allegation that he had advanced hand loan of Rs.4,80,000/- to the accused in the first week of December, 2015. At the out set, it is to be noted here that the complainant has no where pleaded the specific date of advancement of the loan amount. This material pleading is missing. Further, there are no specific pleadings in the complaint as to when exactly the alleged cheque was issued to the complainant, by the accused. The complainant has no where specifically asserted the dates in this regard. The cheque is dated 08.01.2016. But, the allegations were that, in the first week of December, 2015, the loan was advanced.
11. Further, the complainant all along asserted that the said cheque was bounced on 11.01.2016 and he has issued notice on 11.02.2016. In this context, he placed reliance on Ex.P2 to Ex.P4. Ex.P2 is the endorsement of the Banker. On perusal of this document, it is evident that the 8 date of return of the cheque is over-written and it appears that, initially, the date was in a single digit. But, it was converted by over-writing into double digit in order to bring it under the limitation. Under Section 138 proviso (b), the notice was required to be issued within 30 days from the date of dishonour of the cheque. Admittedly, from Ex.P3 it is evident that the notice came to be issued on 11.02.2016. Hence, the cheque ought to have been returned after 11.02.2016. In order to over-come this limitation, it appears there is certain over-writing in Ex.P2. This aspect is not clarified by the learned counsel for the appellant/complainant and none of the witnesses have been examined to explain this lacuna.
12. Admittedly, the accused has not denied her signature on Ex.P1 (Cheque). But, the defence of the accused was that, she had chit transaction with the wife of the complainant and she was required to pay Rs.40,000/- to the wife of the complainant and in respect of the said repayment, she had issued a blank cheque to the wife of 9 the complainant. The accused has also led her evidence in this regard as DW.1. At the same time, the accused has also challenged the financial capacity of the complainant to advance such a huge loan of Rs.4,80,000/- without there being any security.
13. The cross-examination of the complainant discloses that, he was not possessing Rs.4,80,000/- when he said to have advanced the loan. His own admission discloses that he was possessing Rs.2,00,000/- with him and he had secured Rs.2,80,000/- from his son. Admittedly, his pension is Rs.16,000/- p.m., and he is retired 10 years earlier to the alleged transaction. He has not produced any document to show that, he was possessing hard cash of Rs.2,00,000/-. Even otherwise, there is no evidence as to what his son was doing and what is his financial status. Further, his son is also not examined to show that, he had handed-over Rs.2,80,000/- to the complainant so as to advance loan. Hence, when the accused has disputed the financial status of the complainant 10 to advance such a huge loan, it is incumbent on the part of the complainant to explain his financial status. But, though he claimed that he was financially assisted by his son to the tune of Rs.2,80,000/-, the son of the complainant was not examined in this regard by the complainant. The complainant has withheld the best material evidence available to him and as such, an adverse inference is required to be drawn in this regard against him.
14. Apart from that, PW.1 further admitted that the accused had no independent income of her own. When the accused has no independent income of her own, it is hard to accept that the complainant has ventured to advance such a huge amount of Rs.4, 80,000/- to her. On the contrary, he has admitted that, earlier his wife was doing chit business with the accused and hence to some extent, the accused proved the defence set up by her. Considering the admissions made by the complainant regarding his wife involved in chit business with the accused and his financial status, it is evident that the accused has rebutted the 11 presumption available in favour of the complainant. Apart from that PW.1 himself admitted that the contents of the cheque were written by some lady who accompanied the accused. This conduct of the complainant is also creates a doubt regarding the genuineness of the transaction. Further, in the decision reported in Basalingappa Vs. Mudibasappa [(2019) 5 SCC 418], it has been observed by the Hon'ble Apex Court that, when the financial status is disputed, the initial burden is on the complainant to discharge the burden that he/she was financially sound to advance such a huge amount. In the instant case, the complainant has failed to substantiate the said contention. Hence, the evidence establish that the complainant was not financially sound to advance hand loan of Rs.4,80,000/- to the accused. Further, PW.1 in his cross-examination pleaded ignorance regarding his wife having chit business to the tune of Rs.1,20,000/- with the accused. But, very interestingly, he did not deny this aspect. 12
15. As observed above, there is material alteration of the date in Ex.P2 (endorsement) and it directly has bearing on the limitation issue. Merely because the notice has been served and the accused has not replied, it cannot be a ground to admit the claim of the complainant. Apart from that, the complainant himself has got marked Ex.P7 (statement) during cross-examination of accused, wherein there is undertaking given by accused in respect of she being indebted to the complainant and his wife to the tune of Rs.3,00,000/- including the chit fund amount, hand loan and interest. This statement is recorded on 22.09.2016 and this transaction is of 2015 and that too during the pendency of the proceedings. No doubt, the statement under Section 161 of Cr.PC. recorded by the police does not have any relevancy. But, this statement was relied on by the complainant himself and this statement itself demolish the entire case of the complainant regarding he advancing hand loan of Rs.4,80,000/- and if this document is taken into consideration, then the defence of the accused is more probable. The accused need not to prove her case beyond 13 reasonable doubt and the accused is required to prove her defence on the basis of preponderance of probabilities. In the instant case, considering the conduct of PW.1 and admissions made in Ex.P7 and alteration in Ex.P2, it is evident that the complainant has failed to prove the transaction of advancing hand loan of Rs.4,80,000/- to the accused and in discharge of the same, the accused issuing cheque in question under Ex.P1.
16. The trial Court has considered all these aspects in a proper perspective and has properly analyzed the oral and documentary evidence and after appreciating the oral and documentary evidence in a proper perspective, the trial Court has arrived at a just conclusion. Under such circumstances, question of interfering with the judgment of acquittal passed by the trial Court does not arise at all.
17. Looking to the facts and circumstances of the case, the appeal is devoid of any merits and needs to be rejected. Accordingly, I proceed to pass the following:- 14
ORDER The appeal is dismissed. The judgment of acquittal dated 04.11.2017 passed by the trial Court in CC No.199/2016 for the offence under Section 138 of the N.I Act, is hereby confirmed.
Sd/-
JUDGE KGR*