Karnataka High Court
H.N. Sujatha vs P.C. Shivaraju on 23 August, 2023
1 CRL. A NO.542 OF 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.542 OF 2011
BETWEEN:
H.N.SUJATHA
AGED ABOUT 35 YEARS,
D/O LATE NAGAPPA,
R/AT NO.200,
C/O SUBRAMANI, 10TH CROSS,
SUBRAMANYAPURA POST,
BENGALURU - 560 061.
...APPELLANT
(BY SRI. SURESH SUBBAIAH, ADVOCATE)
AND:
P.C. SHIVARAJU
S/O CHENNIGOWDA,
AGED ABOUT 40 YEARS,
R/AT BANAVASI VILLAGE,
RAMANAGARA DISTRICT.
.....RESPONDENT
(BY SRI. G M SRINIVASA REDDY, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE
THE JUDGMENT OF ACQUITTAL IN CRL.A.NO.456/2010,
DATED 25.02.2011 PASSED BY THE FAST TRACK (SESSIONS)
COURT-XVII, BENGALURU CITY AND CONFIRM THE
JUDGMENT DATED 24.05.2010 PASSED BY THE XIV - ADDL.
CHIEF METROPOLITAN MAGISTRATE, BENGALURU IN
C.C.NO.17667/2008 ACCORDINGLY TO MEET THE ENDS OF
JUSTICE AND EQUITY.
2 CRL. A NO.542 OF 2011
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED ON 19.06.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
1. Being aggrieved by the dismissal of her complaint filed under Section 200 Cr.P.C. against the respondent/accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'the N.I.Act'), by the Sessions Court, thereby reversing the judgment and order of conviction imposed by the Trial Court, appellant who is the complainant has filed this appeal under Section 378(4) of the Criminal Procedure Code.
2. For the sake of convenience, the parties are referred to by their rank before the Trial Court.
3. It is the case of the complainant that accused is no other than her husband. Both of them are working as teachers in Government Primary School. Due to some misunderstanding, they are living separately. However, when they were living together, at the instance of 3 CRL. A NO.542 OF 2011 accused, she borrowed loan of Rs.50,000/- from UCO Bank and Rs.25,000/- from BDCC Bank and gave it to the accused. She also paid a sum of Rs.1,25,000/- as hand loan to the accused to clear hand loans incurred by him. On her repeated request and demand, accused issued her a cheque for Rs.2,00,000/- towards the entire amount due to her. However, when she presented the same for realisation, it was dishonoured on the ground of insufficiency of funds. She got issued a legal notice to the accused. Instead of complying with the said notice, accused has sent an evasive reply. Without any alternative, she is forced to file this complaint.
4. After due service of notice, the accused has appeared through counsel and contested the matter. He pleaded not guilty and claimed the trial.
5. In order to bring home guilt to the accused, the complainant has examined herself as PW1. She has relied upon Exs.P1 to 13.
4 CRL. A NO.542 OF 2011
6. During the course of his statement under Section 313 Cr.P.C., the accused has denied the incriminating evidence.
7. On the other hand, the accused has examined himself as DW1 and relied upon Exs.D1 to D8.
8. Accepting the case of the complainant, the Trial Court convicted the accused and sentenced him to pay fine of Rs.1,51,000/- in default to undergo simple imprisonment for three months.
9. Accused challenged the same before the Sessions Court in Crl.A.No.456/2010. Vide the impugned judgment and order, the Sessions Court acquitted the accused.
10. Being aggrieved by the same, the complainant is before this Court contending that the Sessions Court has not appreciated the oral and documentary evidence placed on record in right perspective. Having regard to the fact that the cheque in question belongs to the accused and it bears his signature, presumption under 5 CRL. A NO.542 OF 2011 Sections 118 and 139 of N.I.Act is operating in favour of the complainant. However, the Sessions Court has failed to appreciate this fact. It has also failed to appreciate the fact that being the wife of accused, the complainant helped him to come up in life by providing financial assistance and prays to allow the appeal, set aside the impugned judgment and order and restore the judgment and order of the Trial Court.
11. On the other hand, the learned counsel for accused submitted that there is no relationship of husband and wife between the accused and the complainant. In fact, complainant is the wife of one Manjunatha. Since the complainant and accused were colleagues, she had access to the signed blank cheque belonging to the accused and misusing the same, the complainant has chosen to file a false complaint. After appreciating the oral and documentary evidence, the Sessions Court has come to a correct conclusion that the allegations are not proved and reversed the order of Trial Court and prays to dismiss this appeal also. 6 CRL. A NO.542 OF 2011
12. Heard arguments of both sides and perused the record.
13. Thus, it is the specific case of the complainant that accused is no other than her husband and both of them are working as teachers in Government Primary School and in order to help him financially, she borrowed two loans from banks and also advanced hand loan of Rs.1,25,000/- to him. To repay the same, he issued the subject cheque for Rs.2,00,000/-. However, it came to be dishonoured for insufficient funds in his account and therefore she filed the complaint.
14. Except the fact that they are working as school teachers in a Government Primary School, the accused has disputed the rest of the case of the complainant. According to him, he is married to one Sudhamani about 18 years back and having three daughters aged 17 to 12 years. In fact, complainant is married to one Manjunatha. Taking advantage of her access to the Almirah, where teachers keep their belongings, the complainant has stolen a signed blank 7 CRL. A NO.542 OF 2011 cheque belonging to him and misusing it and has filed a false complaint. In order to harass him, the complainant is in the habit of filing false complaints against him and also given petitions to his employer and this is one such example.
15. Having regard to the fact that the accused admitted that the subject cheque belongs to him, drawn on his account maintained with his banker and it bears his signature, presumption under Section 139 of the N.I.Act is operating in favour of the complainant and against the accused. Consequently, burden is on the accused to rebut the presumption, in the event of which, the burden shifts to the complainant to prove her case.
16. In order to prove her relationship with the accused and also that she borrowed loan from banks, the complainant has relied upon Exs.P10 to P12, which are the notices sent by Raitara Seva Sahakari Bank, Kanakapura. In Ex.P10, while the complainant is shown as the principal borrower, accused is shown as the surety. She is also described as the wife of accused. 8 CRL. A NO.542 OF 2011 Ex.P13 is the election ID card, wherein she is shown as the wife of the accused. However, during the course of her cross-examination, the complainant has admitted that she was married to one Manjunatha. Though the complainant has claimed that she has secured divorce from the said Manjunatha, no such documents are produced.
17. Ex.D1 is the certified copy of the order passed in Mis.No.4/2008 on the file of Principal Civil Judge and JMFC, Kanakapura under the provisions of Protection of Women from Domestic Violence Act. It was a petition filed by the complainant against the accused and his father seeking various reliefs under the provisions of Protection of Women from Domestic Violence Act. However it came to be dismissed by observing that the complainant has failed to prove that she is the wife of the accused. Exs.D2 to D7 are the remand application, FIR, complaint, order sheet and judgment in C.C.No.1544/2008. Similarly, Exs.D8 to D10 are the order sheet, FIR and complaint in Cr. No.326/2009 9 CRL. A NO.542 OF 2011 lodged by the complainant against the accused. These are the criminal proceedings initiated by the complainant against accused. In both cases, accused is acquitted.
18. In all these proceedings, the contention of the complainant that she is the wife of accused is negatived. Except the interested testimony of the complainant, there is no other evidence to establish that the complainant is the legally wedded wife of accused and in that capacity, in order to help him financially, complainant borrowed loan from the banks and also paid Rs.1,25,000/- as hand loan out of the savings to the accused and towards the payment of the same, accused has issued the subject check.
19. On the other hand, through preponderance of probabilities, the accused has proved that he is a married person, having three daughters and complainant had access to his signed blank cheque and misusing the same, she has filed the complaint. In fact, in Ex.P2 while the signature of the accused is in black ink, the rest of the writing is in blue ink and it probabalise the defence of 10 CRL. A NO.542 OF 2011 the accused that it was a signed blank cheque and the complainant has misused the same.
20. Though the Trial Court has rightly held that complainant had no financial capacity to lend Rs.2,00,000/- to the accused, only on the fact that she has borrowed loan of Rs.75,000/- from the Bank, the Trial Court has come to a wrong conclusion that she had paid Rs.75,000/- to the accused. As colleagues, the possibility of accused having stood as guarantor to the loan borrowed by the complainant cannot be ruled out. At the most it could be held that complainant and accused were in live in relationship. Having regard to the fact that the complainant has taken up a false contention that she and accused are married and at the same time has failed to prove that she had given financial assistance to the accused to the tune of Rs.2,00,000/, appreciating the oral and documentary evidence placed on record, the Sessions Court has rightly set aside the order of the Trial Court and acquitted the accused. In the light of oral and documentary evidence placed on record, 11 CRL. A NO.542 OF 2011 this Court is of the considered opinion that there are no justifiable grounds to interfere with the impugned judgment and order. In the result, the appeal fails and accordingly the following:
ORDER The appeal filed by the complainant is dismissed. The impugned judgment and order of the Sessions Court setting aside the judgment and order of the Trial Court is confirmed.
Registrar is directed to send back the Trial Court records along with copy of this order forthwith.
Sd/-
JUDGE RR/KGK