Karnataka High Court
Miss M Shobha vs Smt M N Sareyu on 27 November, 2018
Equivalent citations: AIRONLINE 2018 KAR 2345
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF NOVEMBER, 2018
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL APPEAL No.603 OF 2010
BETWEEN:
Miss..M.Shobha
D/o.Sri Muthappa, 31 years
R/a. No.1420/203, I main
Cholur Palya Magadi Road
Bengaluru - 560 023. ... Appellant
( By Sri.G.B.Nandish Gowda, Advocate
for Sri.R.B.Sadasivappa, Advocate )
AND:
Smt. M.N.Sareyu
W/o.Sri Srinivas, 45 years
R/a No.53, 7th Cross,
Shreyas Colony, J.P.Nagar
Bengaluru - 560 078. ... Respondent
(By Sri K.J.Kamath, Advocate for
M/s.Kamath and Kamath, Advocates)
This Criminal Appeal is filed under Section 378(4) of
Cr.P.C praying to set aside the impugned judgment
dtd.06.03.2010, passed by the XX Additional Chief
Metropolitan Magistrate, Bengaluru City, in
Crl.A.No.603/2010
2
C.C.No.19230/2005 - acquitting the respondent/accused for
the offence punishable under Section 138 of Negotiable
Instrument Act.
This Criminal Appeal having been heard and reserved
for Judgment on 20.11.2018, this day the Court delivered the
following:
JUDGMENT
The present appellant was the complainant in the Court of learned XX Addl.Chief Metropolitan Magistrate, Bengaluru City, (hereinafter for brevity referred to as `trial Court'), who had instituted a criminal case against the present respondent in C.C.No.19230/2005, under Section 200 of Code of Criminal Procedure (hereinafter for brevity referred to as `Cr.P.C.'), for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as `N.I.Act').
2. The summary of the case of the complainant in the trial Court was that the accused was well acquainted and working in the office of the KGID, Bengaluru. In Crl.A.No.603/2010 3 order to meet her financial difficulties, accused borrowed a hand loan of a sum of `2,80,000/- from the complainant, agreeing to repay the same within three months. Towards repayment of the loan amount, the accused issued a cheque bearing No.996449, dated 10.2.2005, for a sum of `2,80,000/-, drawn on Post Office Savings Bank, GPO, Bengaluru, in favour of the complainant. When the said cheque was presented by the complainant for realisation through her Banker, it returned dishonoured with an endorsement `insufficient funds'. Thereafter, the complainant got issued a legal notice dated 21.4.2005 to the respondent/accused. Since the accused did not comply the demand made in the notice and also not repaid the loan amount, the complainant was constrained to file a complaint against her for the offence punishable under Section 138 of N.I.Act.
Crl.A.No.603/20104
3. The accused appeared in the matter and contested. In order to prove the alleged guilt against the accused, the complainant got herself examined as PW-1 and got marked the documents from Exs.P-1 to P-7. The accused got herself examined as DW-1 and got marked the documents from Exs.D-1 to D-2. After hearing both side, the trial Court by its impugned judgment dated 6.3.2010, acquitted the accused for the offence punishable under Section 138 of N.I.Act. It is against the said judgment of acquittal, the complainant has preferred this appeal.
4. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court.
5. It is the contention of the appellant, as well the argument of learned counsel for the appellant/ complainant that the trial Court fastened the burden of proving the existence of legally enforceable debt upon Crl.A.No.603/2010 5 the complainant without giving her the benefit of presumption under Section 139 of N.I.Act. Further, it failed to notice that the accused could not rebut the legal presumption existing in favour of the complainant. It also did not notice that the accused had failed to establish the defence taken up by her. Thus, the judgment under appeal deserves to be set aside and the complaint deserves to be allowed as prayed.
6. Learned counsel for the accused/respondent in his argument submitted that there is a contradiction in the legal notice at Ex.P-4 to that of the evidence of PW-1 with respect to the specific date of issuance of the cheque. Further, there is also difference in the alleged date of presentation of the cheque for realisation. In the said circumstances, the judgment of the trial Court which is a well considered one, does not warrant any interference at the hands of this Court. Crl.A.No.603/2010 6
7. The complainant as PW-1 in her examination-in- chief has reiterated the contentions taken up by her in her complaint. She has stated that the accused being in acquaintance with her, has availed a hand loan of `2,80,000/- from her to meet her financial difficulties, towards the repayment of which, she had given the cheque in question, which came to be dishonoured when presented for realisation. She has got marked the said cheque at Ex.P-2 and Bankers endorsement at Ex.P-3. It is thereafter, she issued a legal notice as per Ex.P-4, the postal receipts of which, she has produced at Exs.P-5 & P-6. However, the said postal cover was returned with a postal shara `addressee absent, returned to sender'. She has produced the said returned postal cover and marked it as Ex.P-7.
In her cross-examination, the witness has given some more details regarding the alleged transaction by Crl.A.No.603/2010 7 stating that the alleged hand loan was given to the accused in November, 2004, when the accused demanded for a hand loan of `3 lakhs, however, since she (PW-1) had only a sum of `2,80,000/- with her, she had given the said amount in cash. She has also stated that since twelve to thirteen years, she has been running a Canteen and doing tailoring business also. However, she has stated that she has no licence from the Corporation to run the said business. She has stated that her monthly income was at `10,000/- to `15,000/-. She has also stated that she has not secured any document to show that the loan was given. However, the witness has stated that as she had friendship with the accused, she did not insist for any documents for loan transaction. The denial suggestion put to her from the accused side was not admitted as true by the witness.
Crl.A.No.603/20108
8. On the other hand, the accused got herself examined as DW-1, wherein she denied the alleged loan transaction with the complainant. On the other hand, she stated that in the year 2001, her colleague one Sri Subbachari introduced her to Smt.Manjulamma, from whom, she borrowed a loan of `10,000/- and as a security for the same, she issued two blank cheques to her bearing Nos.996449 and 996447. Though the said loan was cleared, said Smt.Manjulamma did not return the cheques, stating that they have been misplaced and that would be returned to the accused at a later date. Further, the said Smt.Manjulamma by misusing one of those two cheques, has got instituted the present case through her daughter i.e., the complainant. In that regard, the accused got produced the counterfoils of the cheque at Ex.D-1 and the relevant page of it at Ex.D-1(a). Crl.A.No.603/2010 9
DW-1 was subjected to a detailed cross-
examination from the complainant side, where the suggestion made to the witness that the accused had borrowed a hand loan from the complainant to meet the medical expenses of her husband was denied by the witness. The other suggestions made by the complainant to establish the alleged loan transaction were also denied by the witness. However, the witness has stated that the mother of the complainant was got introduced to her through one Sri Subbachari and that she has no inconvenience to examine the said Sri Subbachari. The witness has also stated that she did not make any attempt to collect back the alleged second cheque stated to have been given by her to the said Smt.Manjulamma, till date. The witness has also stated that she has not issued any notice to the said Smt.Manjulamma after the alleged repayment of loan to Crl.A.No.603/2010 10 her in the year 2002, demanding for return of the cheques said to have been given to her as a security.
9. The above evidence of the complainant, as well the accused, go to show that the complainant has specifically and categorically stated that the accused was a person known to her, which has not been denied by the accused. The complainant has also stated that the alleged hand loan was given to the complainant in November 2004 and that she had financial source as she was running a Canteen and doing tailoring business since twelve to thirteen years.
The said statement of the witness, which has not been specifically denied from the accused side, go to show that the complainant had the source of funds to lend the alleged cheque amount to the accused, who was known to her. Even otherwise, when the accused has not denied that the cheque in question at Ex.P-2 Crl.A.No.603/2010 11 pertains to her, so also, the drawer's signature therein, then, unless it is established that the cheque has never been issued by her to the complainant, the legal presumption under Section 139 of N.I.Act. operates in favour of the complainant.
10. In the instant case, though the accused took the defence stating that the cheque in question was issued by her not to the complainant, but, to her mother Smt.Manjulamma as a security towards a loan of `10,000/- said to have been availed by the accused, but, except making a suggestion to that effect, the accused has not produced any corroborative evidence either oral or documentary in that regard. When, in fact, the accused, as DW-1, in her cross-examination, clearly stated that she had no problem in summoning and examining one Sri Subbachari, who was said to be a person introduced said Smt.Manjulamma to the accused, but, has failed to Crl.A.No.603/2010 12 summon and examine the said Sri Subbachari in support of her contention.
Further the accused also did not summon the said Smt.Manjulamma and examined her to get support to her case. Moreover, the accused did not even produce any document to show that she had availed a loan of `10,000/- from said Smt.Manjulamma and as a security for the said loan transaction, the cheque in question was issued to her. Thus, when the accused had every opportunity to examine two important witnesses who were very material to establish her defence, the accused has not proceeded to do so.
11. On the other hand, the complainant apart from producing the cheque in question at Ex.P-2 and having the legal presumption in her favour, has also stated that she had a source of funds to lend the cheque amount to the accused since she (PW-1) was running a Canteen Crl.A.No.603/2010 13 and doing tailoring business since twelve to thirteen years. In that way, in addition to the legal presumption operating in her favour, the complainant also could able to show the source of funds and that the cheque was given to her by the accused towards repayment of the loan.
12. It is also the contention of the learned counsel for the accused that in the legal notice at Ex.P-4, it is stated that the cheque in question was not issued on the date of the loan, but, after the lapse of the stipulated time for repayment of the loan, which was three months from the date of the alleged loan, whereas, PW-1 in her cross-examination has stated that the cheque in question was issued at the time of receiving the loan amount by the accused.
No doubt, such a discrepancy can be noticed between Ex.P-4, which is a copy of the legal notice said Crl.A.No.603/2010 14 to have been issued by the complainant to the accused, with the evidence of PW-1. However, what matters is the pleading and the evidence led. The pleading of the complainant in the form of her complaint is that after the alleged date of return of the loan amount, at the demand made by the complainant for repayment of the loan, the accused issued the cheque in question. The evidence of PW-1 as complainant also has come in consonance with the same. Further, the alleged discrepancy in Ex.P-4 has not been confronted to PW-1 in her cross-examination from the accused side. Thus, the minor discrepancy that has crept in Ex.P-4 cannot by itself be enlarged to the extent of disbelieving the case of the complainant.
13. The other contention taken up by the learned counsel for the accused in his argument is that according to the complainant, the cheque in question Crl.A.No.603/2010 15 was tendered for presentation on 9.3.2005, whereas, the cheque return memo at Ex.P-3 is dated 10.2.2005, as such, the said discrepancy also makes the case of the complainant a doubtful one.
No doubt, the evidence of PW-1 is to the effect that the cheque in question was presented for realisation on 9.3.2005 and the said cheque came to be returned with an endorsement on 10.3.2005. But, a cheque return memo at Ex.P-3 shows the date of return of the cheque as 10.2.2005. But, the very same cheque return memo at two places has got the postal seal and collecting Bankers clearing Rubber Stamp, which are dated 10.3.2005. Thus, the hand-written portion of the date of return of the cheque as 10.2.2005 has to be necessarily taken as a simple mistake committed by the Bank, when in fact, the official stamps put by the Bank and the Post Office, which are the account holders of the Crl.A.No.603/2010 16 parties, makes it clear that the date of dishonour of the cheque was 10.3.2005.
14. Thus, from the evidence of PW-1 and the materials placed by her, it is clear that the accused has issued a cheque at Ex.P-2 to the complainant. The same came to be dishonoured with an endorsement `insufficient funds' when presented for realisation by the complainant. Further, it is also established that the complainant had source of fund to lend money and that the accused towards repayment of the debt, had issued the cheque at Ex.P-2 to the complainant. However, the trial Court enlarging the simple omission of the complainant that the specific period or the date of alleged loan was not mentioned by the complainant either in her legal notice or in her examination-in-chief, has totally disbelieved the case of the complainant. Crl.A.No.603/2010 17
15. Further, the trial Court also put the burden of proving the alleged legally enforceable debt upon the complainant. However, the said aspect has been made clear by the Hon'ble Apex Court in the case of Rangappa -vs- Sri Mohan reported in {2010 (11) SCC 441}, by holding that once the issuance of cheque is established by the complainant, the legal presumption that the cheque was issued by the accused towards discharge of legally enforceable debt or liability towards the complainant is a mandatory presumption in favour of the complainant under Section 139 of N.I.Act.
16. Thus, in the instant case, since the issuance of cheque has been established, the legal presumption also operates in favour of the complainant. Since the Court below did not consider these aspects, the same resulted in the trial Court passing an erroneous judgment. Thus, the judgment in question deserves to be set aside and it has Crl.A.No.603/2010 18 to be held that the complainant has proved beyond reasonable doubt that the accused has committed an offence punishable under Section 138 of N.I.Act.
Accordingly, the Appeal stands allowed. The judgment of acquittal dated 6.3.2010, passed by the learned XX Addl.Chief Metropolitan Magistrate, Bengaluru City, in C.C.No.19230/2005, is set aside. The respondent/ accused by name - Smt.M.N.Sareyu, W/o. Sri Srinivas, residing at No.53, 7th Cross, Shreyas Colony, J.P.Nagar, Bengaluru, is convicted for the offence punishable under Section 138 of N.I.Act.
To hear on the sentence and for pronouncement of order on sentence, call the matter at 2.30 p.m. Sd/-
JUDGE bk/ Crl.A.No.603/2010 19 ORDER ON SENTENCE Heard the learned counsel from both side on sentence part.
While the learned counsel for the appellant/ complainant submits for awarding maximum sentence for the offence for which the respondent/accused is convicted, the learned counsel for the respondent/accused submitting that accused is a family holder and a respectable person in society, prays for taking a lenient view.
It is the sentencing policy that the sentence ordered should not be either exorbitant nor for name sake for the proven guilt. It must be proportionate to the guilt for which the accused is found guilty of.
Considering the facts and circumstances of the case, the accused is sentenced to pay a fine of `3,00,000/- (Rupees Three lakhs only) within three Crl.A.No.603/2010 20 weeks from today, and in case of default of payment of fine, to undergo a simple imprisonment for a period of six months. In case of payment of fine amount, a sum of `2,80,000/- be paid to the complainant - Miss.M.Shobha,, and remaining sum of `20,000/- be taken to the account of the State.
The Registry is directed to transmit a copy of this judgment to the trial Court forthwith, which Court to proceed further in the matter for issuance of warrant of conviction if necessary and proceed in accordance with law.
The entire copy of this judgment also be delivered to the respondent immediately free of cost.
Sd/-
JUDGE bk/