Karnataka High Court
Smt L Shantha Bai vs Sri G Venkatesh on 1 March, 2023
Author: P.N.Desai
Bench: P.N.Desai
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CRL.A No. 1374 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE P.N.DESAI
CRIMINAL APPEAL NO. 1374 OF 2012
BETWEEN:
SMT L SHANTHA BAI
AGED ABOUT 45 YEARS
WIFE OF SUNDAR RAO
RESIDING AT NO. 10/14-9M
PARK ROAD, JEEVANAHALLI
COX TOWN
BANGALORE-560005
...APPELLANT
(BY SRI. B R VISWANATH.,ADVOCATE)
AND:
SRI G VENKATESH
AGED ABOUT 45 YEARS
SON OF GOVINDASWAMY
RESIDING AT NO.10/10
7TH MAIN ROAD, ITC COLONY
Digitally signed by CROSS ROAD, JEEVAHALLI (COX TOWN)
NAGARATHNA M
Location: HIGH
BANGALORE-56005
COURT OF
KARNATAKA
...RESPONDENT
(BY SRI. J PRAKASH.,ADVOCATE)
THIS CRL.A. FILED U/S.378(4) CR.P.C BY THE ADV.
FOR THE APPELLANT PRAYING THAT THIS HON'BLE
COURT MAY BE PLEASED TO SET ASIDE THE JUDGEMENT
AND ORDER OF ACQUITTAL DATED 30.01.2012 PASSED BY
THE XXIII A.C.M.M., BANGALORE IN C.C.NO.28954/2008-
ACQUITTING THE RESPONDENT/ACCUSED FOR THE
OFFENCE P/U/S.138 OF IPC.
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CRL.A No. 1374 of 2012
THIS APPEAL, COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal arises out of the judgment of acquittal passed by XV Additional Judge Court of Small Causes and 23rd Additional Chief Metropolitan Magistrate, Mayo Hall Unit, Bengaluru, wherein the accused was acquitted for the offence punishable under Section 138 of the N.I. Act.
2. The appellant was the complainant before the Trial Court and respondent was the accused and they will be referred as per their respective ranks held before the Trial Court for the sake of convenience in this appeal.
3. The brief case of the complaint before the Trial Court is that the respondent / accused was known to complainant for several years. The respondent informed that he is forming layout in Bengaluru and offered to sell the sites. Believing his words, the -3- CRL.A No. 1374 of 2012 complainant has paid Rs.15,00,000/- for purchase of sites in the layout formed by the respondent in February, 2002. Thereafter, the respondent went on giving evasive reply and he failed to show any such layout. Appellant demanded re-payment of the money. Accused postponed it, but subsequently issued a cheque bearing No.516184 dated 03.01.2008 for a sum of Rs.15,00,000/- drawn on City Bank, Bengaluru towards discharge of liability. When said cheque was presented it was returned unpaid with the endorsement 'funds insufficient'. Then, appellant / complainant issued a statutory demand notice. But the respondent failed to comply with the demand. Hence, she lodged the complaint.
4. Before the Trial Court, the appellant got examined herself as P.W.1 and examined one P.L. Prakash, her brother, as P.W.2, got marked six documents as Exs.P1 to P6. Respondent got examined himself as D.W.1 and after hearing the arguments, -4- CRL.A No. 1374 of 2012 learned ACMM acquitted the accused. Aggrieved by the same, the complainant has filed this appeal.
5. Heard learned counsel for the appellant Sri. B.R. Vishwanath and respondent's counsel - Sri. J. Prakash.
6. Learned counsel for the appellant argued that the learned ACMM has failed to appreciate that the amount was paid for purchase of sites in and around Bengaluru and it was paid in cash. Learned ACMM failed to appreciate that the cheque was issued for discharge of liability in return of the amount paid by the appellant. Learned counsel also argued that once the issuance of cheque is admitted and signature is admitted, it gives a presumption under Section 139 of the N.I. Act. Therefore, the Trial Court is not justified in acquitting the accused. On the other hand, the accused has failed to rebut the said presumption. The findings of the -5- CRL.A No. 1374 of 2012 learned Trial Court are contrary to the evidence on record.
7. The learned counsel further argued that there is no explanation by the accused as to why the cheque in question was in custody of the appellant and why appellant was shown as payee. Therefore, when the accused has failed to rebut such presumption, the Trial Court is not justified in acquitting the accused. In support of his arguments, learned counsel relied on Judgment of Hon'ble Supreme Court of India in UTTAM RAM Vs. DEVINDER SINGH HUDAN & ANR in CRIMINAL APPEAL NO. 1545 OF 2019 (arising out of SLP (CRL) NO.3452 OF 2019), DATED 17.10.2019 and relied on paras 20 and 21 wherein the Supreme Court has dealt with the mandate of presumption of consideration in terms of Section 139 of the N.I. Act and observed that once the cheque is issued, onus shifts on the accused on proof of issuance of cheque to rebut the presumption that the cheque was -6- CRL.A No. 1374 of 2012 issued not in discharge of any debt or liability in terms of Section 138 of the N.I. Act. The Supreme Court has also referred to its earlier decisions in that case. Learned counsel also relied on another decision of the Supreme Court in P. RASIYA Vs. ABDUL NAZEER AND ANOTHER in Crl. A. Nos.1233-1235 of 2022 (Arising out of SLP(Crl.) Nos. 7430-7432/2022) dated 12.08.2022 regarding the presumption under Section 139 of the N.I. Act wherein the Supreme Court has held that it is a statutory presumption and it is for the accused to prove the contrary. He also relied on para 7 therein. It reads as under:
"7. Feeling aggrieved and dissatisfied with the judgment and orders passed by the Appellate Court affirming the conviction of the accused under Section 138 of the N.I. Act, the accused preferred three different Revision Applications before the High Court. By the impugned common judgment and order, the High Court has reversed the concurrent findings recorded by both the courts below and has acquitted -7- CRL.A No. 1374 of 2012 the accused on the ground that, in the complaint, the Complainant has not specifically stated the nature of transactions and the source of fund. However, the High Court has failed to note the presumption under Section 139 of the N.I. Act. As per Section 139 of the N.I. Act, it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for discharge, in whole or in part, of any debt or other liability. Therefore, once the initial burden is discharged by the Complainant that the cheque was issued by the accused and the signature and the issuance of the cheque is not disputed by the accused, in that case, the onus will shift upon the accused to prove the contrary that the cheque was not for any debt or other liability. The presumption under Section 139 of the N.I. Act is a statutory presumption and thereafter, once it is presumed that the cheque is issued in whole or in part of any debt or other liability which is in favour of the Complainant/holder of the cheque, in that case, it is for the accused to -8- CRL.A No. 1374 of 2012 prove the contrary. The aforesaid has not been dealt with and considered by the High Court. The High Court has also failed to appreciate that the High Court was exercising the revisional jurisdiction and there were concurrent findings of fact recorded by the courts below."
8. Learned counsel also relied on another decision of this Court reported in 2022 (3) AKR 381 (M.S. SATHYA NARAYANA Vs. LINGARAJE URS) wherein the Co-ordinate Bench of this Court at para 17 and 18, relying on the decision of the Supreme Court as referred above, has held that the defence that cheque was stolen was not proved. Relying on these three decisions, learned counsel for the appellant has prayed to allow the appeal.
9. As against this, learned counsel for the respondent supported the Judgment of the Trial Court and also argued that the learned trial Judge has rightly come to the conclusion that the accused has no such -9- CRL.A No. 1374 of 2012 financial necessity, there was no such transaction. The accused has no sites at all. No notice was issued asking him to execute any such sale deed in respect of any such site. If it was a transaction for agreement of sale, then it is for the appellant to file a suit for specific performance and not a criminal case. The accused has given a rebuttal evidence stating that he has not entered into any agreement nor he is owner of any sites. Complainant does not have any such capacity to lend Rs.15,00,000/- nor accused has received any such amount. On the other hand husband of complainant is working in State Bank of Mysuru. At that time, the husband of the complainant has insisted to hand over blank signed cheques to him and also xerox copy of his identity card to get the loan sanctioned in his favour which he handed over. The said cheque was misused and now a false case has been filed. Learned counsel for the respondent argued that the Trial Court has considered all the aspects. Therefore the complainant
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CRL.A No. 1374 of 2012has failed to prove that the cheque was issued for discharge of any legally recoverable debt or liability or any other amount. The husband of complainant was not examined. The writings in cheque are disputed. The accused defence is probable. Therefore, he has successfully rebutted the presumption. The principles stated in the decisions relied on by the appellant are not applicable. Therefore, he prayed to dismiss the appeal. In support of these arguments, learned counsel relied on decisions of the Hon'ble Supreme Court of India in AIR 2015 SC (Criminal) 333 in the case of K. SUBRAMANI Vs. K. DAMODARA NAIDU, wherein the supreme Court has construed that the complainant had no source of income to lend Rs.14,00,000/- to accused and acquitted the accused. In that case, the decision of the Supreme Court in RANGAPPA Vs. SRI. MOHAN reported in AIR 2010 SC 1898 was also referred and he relied on para nos.8 and 9 therein. Further the learned counsel also relied on another decision of the
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CRL.A No. 1374 of 2012Hon'ble Supreme Court of India in AIR 2019 SC 1983 in the case of BASALINGAPPA Vs. MUDIBASAPPA, wherein the Hon'ble Supreme Court of India has considered the rule of presumption arising under Section 139 of the N.I. Act. But held that failure to prove financial capacity is a matter to be taken into consideration when the financial capacity is denied. He relied on para 24 of the said Judgment. With these main arguments prayed to dismiss the appeal.
10. Perused the records, the appeal memo and evidence.
11. The point that arises for consideration is that whether the Judgment of acquittal passed by the Trial Court is perverse, illegal and needs any interference by this Court?
12. The complainant got examined herself as PW-1. In her examination-in-chief, she has reiterated the complaint averments and in the cross examination
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CRL.A No. 1374 of 2012she has admitted that she is doing Tailor business and she stopped the said work as she is not well. She has further stated that she is earning a sum of Rs.10,000/- to Rs.12,000/-. But she has not produced any documents in this regard. She is not an income tax payee. She is not doing any work except tailoring work. She has also admitted that her husband is working in State Bank of Mysore as a Computer Operator. She has stated that the wife of the accused used to come to her house, so she knew the accused. It is stated that the accused is working in a Hotel as a Manager and his family background is good. She has further stated that she has given the amount to the accused to get a site in Hennur cross from some other person. It was informed to her about the site in the year 2006. She has also admitted that before purchasing the site, she has verified the document. She further states that site measures 30x40 and values Rs.7,00,000/- as told by the accused. She states that she had got the money
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CRL.A No. 1374 of 2012and her mother has also given her Rs.8,00,000/- for Aarshina Kumkum. She has also stated that accused has executed an agreement. Her husband has not signed as a witness. There is no clause in the said agreement regarding registration of the sale deed. She did not say when the said agreement was executed. She do not know when the amount was given. PW-1 states that she has returned the agreement. Her evidence shows that without verifying anything according to her she has given the amount. She did not know exactly when she has given the amount. She simply states that in the month of February, 2007, the accused has informed that he is forming layout and he has offered to sell the sites. But she says that she intend to purchase a site from some other person, for that she has paid the amount. If at all the complainant intend to purchase any site from any other person at Hennur cross, she could have made an agreement with that person, who is the owner, but not with this
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CRL.A No. 1374 of 2012accused. According to her she knew this in the year 2006 itself. But she states that she has paid the amount in cash in the year 2007 and she again states that her husband was the only person present when she had given the amount. She has given the cheque in February 2008 i.e., one year she had kept quiet. She has also presented the cheque to the Bank where her husband was working. Definitely, she would know whether the accused has kept any amount in the Bank or not. She has admitted that she has not verified regarding any layout nor she has enquired with anybody. She never enquired how the accused formed the sites and when he developed it. If she has given the entire amount of Rs.15,00,000/-, why there is no registration of the sale deed in respect of the said sites is not forthcoming. She has not issued notice to the accused to get registered the sale deed on the basis of the agreement. She has changed the version stating that accused informed that he will get the site from the
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CRL.A No. 1374 of 2012third person. She has denied the suggestion that there is no such agreement, that is why she has not produced the same. She has also admitted that she has filed a case against one Rajendra and for that purpose she has gone to the police station. She has stated that she do not know whether Rajendra is the brother of accused. She has filed a civil suit i.e., in respect of recovery of Rs.2,00,000/-.
13. The evidence of the complainant discloses that she has no financial capacity. When there is no material on record to show that the accused was forming any such site or layout, how could she give such huge amount in cash is not forthcoming. She states that the money was paid in front of her husband. The defence of the accused was that he has given the blank cheque to the husband of the complainant. But the husband of the complainant was not examined. There is nothing on record to show that how the complainant had arranged for such huge amount. She
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CRL.A No. 1374 of 2012states that Rs.8,00,000/- was given by her parents. She examined her younger brother one P.L.Prakash - PW-2. He has stated that he used to keep all savings with his mother and mother has given Rs.8,00,000/- to his sister to purchase the property in the month of January 2007. It is not stated that the said amount was given for Aarshina Kumkum as stated by the brother of the complainant P.L.Prakash. In his cross examination, he has stated that he is working as a Project Manager in SAP Labs and he is having wife, daughter and is living with his parents. He is an income tax assessee. He states that in the year 2006, the complainant told that she intends to purchase a site and so she asked Rs.8,00,000/-. He has not seen any documents regarding the site. He has stated that himself and his mother both have given the amount to the complainant i.e, his amount and the amount received by his mother from rent and that she has given it to the complainant in their house and her husband was also present at that
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CRL.A No. 1374 of 2012time. But complainant husband was not examined. PW-2 states that the two sites is 30x40' and the value of the said site itself is Rs.15,00,000/-. This again is contrary to the evidence of the complainant who states that there are two sites and value of the both sites is Rs.15,00,000/-. So his evidence is not corroborating with the evidence of the complainant.
14. Against this, the accused got examined himself. He stated that he never executed any such agreement nor he borrowed any amount from the complainant. Accused deposes that the husband of the complainant was working in State Bank of Mysore in Computer Division and for obtaining loan the husband of the complainant had handed over site papers and also xerox copy of the identity card to her husband to get the loan sanctioned. But he did not avail the loan. The accused has denied the circumstances regarding the borrowing the amount and giving the cheque for the said amount. He has admitted that he has received the
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CRL.A No. 1374 of 2012legal notice, but he has not issued the reply as Sundar Rao/complainant's husband is his friend. He has not lodged the complaint against the Sundar Rao, husband of the complainant. It is suggested that the complainant tried to settle the matter thrice, but he has denied. So these are all evidence on record.
15. It is settled principle of law that initial burden of proving the case is on the complainant. In the case on hand, the signature of the complainant on the cheque is admitted by the complainant. The account is also belongs to the accused. In view of the provisions of the Negotiable Instrument Act, there is a presumption in favour of the complainant as held by the Hon'ble Supreme Court in the case of BIR SINGH VS. MUKESH KUMAR - 2019 (4) SCC 197, even a blank cheque is signed and handed over to the accused, it would attract the presumption.
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CRL.A No. 1374 of 2012
16. Learned counsel for the appellant has relied upon the decision in the case of UTTAM RAM v. DEVINDER SINGH HUDAN & ANR SUPRA wherein the Hon'ble Supreme Court has referred to the provisions of Section 138 of the Negotiable Instrument Act and also in the case of KUMAR EXPORTS (SUPRA) wherein the Hon'ble Supreme Court has held that mere denial of existence of debt will not serve any purpose but accused may adduce evidence to rebut the presumption. It is further stated that to rebut the statutory presumption an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration
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CRL.A No. 1374 of 2012and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumption, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration of which did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that their debt not exist. Apart from adducing direct evidence to prove that the cheque in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumption of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the
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CRL.A No. 1374 of 2012presumption arising under Section 118 and 139 of the Act.
17. In RANGAPPA V. SRI.MOHAN supra, the Hon'ble Supreme Court has held that the presumption under Section 139 of the Act include the existence of a legally enforceable debt or liability. Of course, it is in the nature of a rebuttable presumption it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested.
18. In ROHITBHAI JIVANLAL PATEL v.
STATE OF GUJARAT AND ANOTHER supra, the Hon'ble Supreme Court has held that it is presumed that the cheque in question were drawn for consideration and the holder of the cheque i.e., the complainant received the same in discharge of an existing debt. The onus, therefore, shifts on the accused - appellant to establish a probable defence so as to rebut such a presumption.
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CRL.A No. 1374 of 2012
19. Learned counsel for the appellant also relied upon the decision in P.RASIYA v. ABDUL NAZER AND ANR supra, wherein at paragraph No.7, the Hon'ble Supreme Court has considered the presumption arising under Section 138 of the Act.
20. Learned counsel also relied on the decision of coordinate bench of this Court in M.S.Sathya Narayana V. Lingaraje Urs reported in 2002(3) AKR 381 wherein the Coordinate Bench has referred to the various decisions of Hon'ble Supreme Court and at paragraph No.17 and 18 held as under:
"17. Regarding loss of cheque and also rebuttal of the presumption is concerned, the Apex Court in the judgment in the case Uttam Ram V. Devinder Singh Hudan and another reported in (2019) 10 SCC 287 : (AIR Online 2019 SC 1285), held that inconsistencies regarding the amount due, not made out, as amount due
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stood crystallized in written document against which cheque in question was issued. The defence that the cheque book was lost/stolen or that cheque was misused was completely without basis.
18. The Apex Court in the judgment in the case of Bir Singh v.
Mukesh Kumar, reported in (2019) 4 SCC 197 : (AIR 2019 SC 2446) held that presumption is rebuttable and onus lies on drawer to rebut it by adducing cogent evidence to the contrary."
21. In this case, the complainant has given her sworn statement she has produced the cheque, bank endorsement and legal notice. Therefore, the initial burden is discharged by the complainant. Then the burden shifts on the accused to rebut the said presumption. It is not that if once the complainant gives his/her evidence and produced the cheque, the offence
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alleged is stated to have been proved, unless the accused prove his burden and rebut presumption by probable defence.
22. As stated above the accused can rebut the said presumption by two ways one is by way of cross-
examining the complainant and witness of complainant and other by way of leading his defence evidence, so that he can show by preponderance of probability that his defence is probable one.
23. In this regard, the learned counsel for the respondent has relied on the decision of Hon'ble Supreme Court in the case of Basalingappa Vs. Mudibasappa reported in AIR 2019 SC 1983 wherein the Hon'ble Supreme Court has referred to its earlier decision in the case of Rangappa Vs. Mohan reported in (2010) 11 SCC 441 and at paragraph Nos.23 and 24 it is held as under:
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"23. We having noticed the ratio laid down by this Court in the above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:
(i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
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CRL.A No. 1374 of 2012
(iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.
(v) It is not necessary for the accused to come in the witness box to support his defence.
24. Applying the preposition of law as noted above, in facts of the present case, it is clear that signature on the cheque having been admitted, a presumption shall be raised under Section 139 that the cheque was issued in discharge of debt or liability. The question to be looked into is as to whether any probable defence was raised by the accused. In cross-examination of PW 1, when the specific question was put that cheque was issued in relation to loan of Rs 25,000 taken by the accused, PW 1 said that he does not remember. PW 1 in his evidence admitted that he retired in 1997 on which date he received monetary benefit of Rs 8 lakhs, which was encashed by the complainant. It was also brought in the evidence that in the year 2010, the complainant entered into a sale agreement for which he paid an amount of Rs 4,50,000 to Balana Gouda towards sale consideration. Payment of Rs
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CRL.A No. 1374 of 20124,50,000 being admitted in the year 2010 and further payment of loan of Rs 50,000 with regard to which Complaint No. 119 of 2012 was filed by the complainant, copy of which complaint was also filed as Ext. D-2, there was burden on the complainant to prove his financial capacity. In the year 2010- 2011, as per own case of the complainant, he made payment of Rs 18 lakhs. During his cross- examination, when financial capacity to pay Rs 6 lakhs to the accused was questioned, there was no satisfactory reply given by the complainant. The evidence on record, thus, is a probable defence on behalf of the accused, which shifted the burden on the complainant to prove his financial capacity and other facts.
24. Therefore, in the case of Basalingappa's supra, the Hon'ble Supreme Court found that the finding of the Trial Court that the complainant has not proved his financial capacity cannot be termed as perverse and accordingly accused was acquitted. The decision of this Court in Crl.A.No.200042/15 dated 4.7.2018 was reversed and the decision of Hon'ble Supreme Court in the case of Kishan Rao Vs.
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CRL.A No. 1374 of 2012Shankargoud - AIR 2018 SC 3173 is distinguished. Further learned counsel also relied on the decision of Hon'ble Supreme Court of India reported in AIR 2015 SC (Criminal) 333 in the case of K. SUBRAMANI Vs. K. DAMODARA NAIDU, wherein the complainant therein has failed to show the source of income to lend huge amount of Rs.14,00,000/-. The Hon'ble Supreme Court in the case of Rangappa supra considering the reverse burden and held that the complainant has no source of income to lend such huge amount and the complainant has failed to prove that there is a legally recoverable debt to be recoverable by the accused. Hence, the accused was acquitted.
25. Therefore, considering the evidence on record and the principles stated by the Hon'ble Supreme Court in the above referred decisions, if the present appeal is considered and the evidence is considered, admittedly, as per the complainant, she intend to purchase a site in the layout which is stated to have
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CRL.A No. 1374 of 2012been formed by the accused. But there is no such layout either formed by the accused nor there is any such record to show that he is a real estate agent. Once she states that she intend to purchase two sites and her brother states that they were intending to purchase only one site. When there is no record to show that the accused is having any property, the question of accused promised the complainant to get a site does not arise. Complainant is doing tailoring work. There is no records to show that such a huge amount of Rs.15,00,000/- was kept with her. She has not produced any bank account extract. Complainant states that her husband was present when the money was given. The defence of the accused is that the husband of complainant was working in State of Bank Mysuru and he has promised to get some loan and he has taken blank cheque, his ID card and payslips are misused. But the husband of the complainant was not examined. On the other hand, the brother of the complainant was examined whose
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CRL.A No. 1374 of 2012evidence does not help the complainant as discussed above.
26. Generally no ordinary prudent man will pay entire consideration amount as the advance to purchase a site without there being any records that too such a huge amount of Rs.15,00,000/-.There is no suggestions put to the accused that any agreement of sale was executed and such an agreement was either shown or taken back by him. No such suggestions are made to the accused in his cross examination by complainant side. On the other hand, only in the cross-examination, the complainant states that there was an agreement and by issuing blank cheque, the accused has taken back the agreement. No prudent man will believe that such things exists.
27. It is contention of the complainant that her mother has given a sum of Rs.8,00,000/- to her, but to prove the same, her mother is also not examined.
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CRL.A No. 1374 of 2012When there is no record to show that the accused was a real estate business person or having any such land, the question of he forming any layout and agreeing to sell the two sites in favour of the complainant does not arise. Without seeing the layout or any layout forming or any document, no prudent man will give such amount of Rs.15,00,000/- that too by cash. The complainant herself do not know the exact date, when she has given the amount to the accused and no person will keep quiet for one year by giving such huge amount of cash without any records. Therefore, the transaction of complainant appears to be not legal and believable one. If the conduct of the prudent man in a given circumstances is considered under Section 114 of the Indian Evidence Act, it is evident that no prudent man act in such a manner in such a situation. On the other hand, it is all along the contention and defence of accused that it is the husband of the complainant who has taken the cheque, ID card and payslips of accused
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CRL.A No. 1374 of 2012on the premise of getting sanctioned loan to him, as the husband of complainant is working in bank. The husband of the complainant has not come before the Court and he was not examined by the complainant for the reasons best known to her. Therefore, the Trial Court has rightly drawn inference that the accused has placed probable defence and the reubutted the presumption arising in favour of the complainant.
28. Though initial burden was discharged by the complainant, the accused by way of cross-examining the PW-1 and also by leading his defence evidence has probalise his case and shown before the Court that there is no legally recoverable debt or liability. The Hon'ble Supreme Court in Basalingappa's case referred supra has dealt with the effect of complainant failing to show her financial capacity. Therefore, in view of the principles stated in the above referred decisions, if the judgment of Trial Court is considered, it is evident that the learned ACMM has elaborately considered the
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CRL.A No. 1374 of 2012evidence and relied on the decisions relied by both sides and has rightly appreciated the evidence of PW.2. The complainant changes her version stating that accused promised to get the site out of the layout formed by other person. If that was the case, there was no necessity to pay Rs.15,00,000/- to the accused and complainant could have directly entered into agreement with the owner of the site. The non-examination of husband of complainant itself is fatal to the case. Admittedly, the husband of complainant is working in State Bank of Mysuru, wherein the cheque was presented and how the accused and complainant are known to each other is also not forthcoming.
29. Therefore, the defence of the accused that he approached the husband of the complainant and her husband promised to get loan sanction so accused gave blank cheque, payslip and identity card and the same is now misused, probablise the defence of the accused particularly in view of non-examination of husband of
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CRL.A No. 1374 of 2012complainant. Apart from that absolutely there is nothing to show that the complainant has any such financial capacity to lend such huge amount of Rs.15,00,000/-. Therefore, in the light of principles stated in the above referred decisions, if the present appeal is considered, in my considered view, there is no ground to interfere with the finding of the learned ACMM.
30. It is the settled principles of law that this Court being the Appellate Court will not interfere unless it is shown that the finding of acquittal by the Trial Court is illegal, perverse and not based on settled principles regarding the appreciation of evidence. In the light these principles, if the present appeal is considered, in my considered view, there is no ground to interfere with the finding of the learned ACMM. Accordingly, the appeal being devoid of merit, it liable to be dismissed.
31. Hence, I pass the following:
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ORDER
1. The appeal filed by the complainant/appellant under Section 378(4) of Cr.P.C. stands dismissed.
2. Consequently, the judgment and order of acquittal dated 30.01.2012 passed by XV Additional Judge Court of Small Causes and 23rd Additional Chief Metropolitan Magistrate, Mayohall Unit, Bengaluru -in C.C.No.28954/2008 against the respondent/accused is hereby confirmed.
3. Bail bond, if any, executed by the accused, the same shall stand cancelled.
4. Office is directed to send back the records to the trial court.
5. No order as to costs.
Sd/-
JUDGE SAC / VMB/ HJ List No.: 1 Sl No.: 24