Karnataka High Court
Smt. Annapoorna vs S.P.Nandish on 21 November, 2022
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF NOVEMBER 2022
BEFORE
THE HON'BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL REVISION PETITION No.844 OF 2016
BETWEEN:
Smt. Annapoorna,
W/o Nagendra,
Aged about 38 years,
R/at No.102/22, 3rd Floor,
Flat No.7, 3rd Main,
Tata Silk Farm,
Basavanagudi,
Bengaluru-04. .. Petitioner
( By Sri Chandrashekar P. Patil, Advocate )
AND:
S.P.Nandish
S/o S.V.Puttaswamaiah,
Aged about 38 years,
C/o Venkatesh,
R/at No.63, Balegaranahalli,
Neraluru Post,
Near City Fashion Tailor,
Anekal, Bengaluru-07,
And also Proprietor of
Sri Ramakrishna Tours and
Travels, No.262, S.C.Road,
Neal Kapali Theatre,
Gandhinagar,
Bengaluru-09. .. Respondent
( By Sri Basavaraju P., Advocate )
Crl.R.P.No.844/2016
2
This Criminal Revision Petition is filed under Section 397
read with Section 401 of Cr.P.C. praying to call for records and
set aside the order dated 5.5.2016, passed by the learned LXVI
Addl.City Civil & Sessions Judge, Bengaluru City, in Crl.Appeal
No.650/2013, confirming the order of conviction dated
07.11.2013, passed by the XV Addl.Chief Metropolitan
Magistrate, Bengaluru City, in C.C.No.21789/2008 in the
interest of justice and equity.
This Criminal Revision Petition is coming on for Admission,
through Physical Hearing/Video Conferencing Hearing, this day
the Court made the following:
ORDER
The present petitioner was accused in C.C.No.21789/2008, in the Court of the learned
XV Addl.Chief Metropolitan Magistrate, Bengaluru City, (hereinafter for brevity referred to as the "trial Court"). By its judgment dated 07.11.2013, the trial Court convicted the accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as `N.I.Act') and was sentenced accordingly.
2. The summary of the case of the complainant in the trial Court was that the complainant is a Proprietor of M/s.Ramakrishna Tours and Travels, Gandhinagar, Crl.R.P.No.844/2016 3 Bengaluru. The accused is well acquainted with him. Since the accused was facing financial problems and induced to lend money to her in the month of April 2008, he lent a sum of `3 lakhs as hand loan. The accused promised to repay the same within a short period of two months. On the persistent demand made by the complainant, the accused issued him a cheque bearing No.868510, dated 02.06.2008, for a sum of `3 lakhs, drawn on Corporation Bank, Jayanagar Branch, Bengaluru, in his favour towards repayment of the said loan amount. The said cheque when presented for realisation by the complainant through his banker returned unpaid with a Banker's endorsement as `funds insufficient' in the account of the drawer. Thereafter, the complainant got issued a legal notice to the accused demanding the payment of the cheque amount. However, the accused in spite of receipt of the notice, did not pay the cheque amount, but, sent an untenable reply, which constrained the complainant to institute a criminal case against the Crl.R.P.No.844/2016 4 accused in the trial Court for the offence punishable under Section 138 of N.I.Act.
3. Since the accused pleaded not guilty, charges were framed against the accused for the alleged offences.
4. The complainant in order to prove his case, got himself examined as PW-1 and got marked documents from Exs.P-1 to P-11. On behalf of the accused, the accused got herself examined as DW-1 and got marked documents from Exs.D-1 and D-2.
5. After hearing both side, the trial Court by its impugned judgment dated 07.11.2013, convicted the accused for the offence punishable under Section 138 of N.I.Act and sentenced her accordingly.
6. Challenging the said order, the accused has preferred an appeal in Criminal Appeal No.650/2013, before the learned LXVI Addl.City Civil and Sessions Judge, Bengaluru City, (hereinafter for brevity referred to as `Sessions Judge's Court), which by its judgment dated Crl.R.P.No.844/2016 5 05.05.2016, dismissed the appeal by confirming the judgment of conviction passed by the trial Court. It is against these judgments of conviction, the accused has preferred this revision petition.
7. The respondent is being represented by his learned counsel.
8. Records from the trial Court and Sessions Judge's Court pertaining to the matter were called for and the same are placed before the Court.
9. Though this matter is listed for admission, with the consent from both parties, the matter was taken up for arguments on main on merits.
10. Heard the arguments of learned counsel from both side. Perused the materials placed before this Court.
11. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the trial Court.
Crl.R.P.No.844/20166
12. After hearing the learned counsel from both side, the only point that arises for my consideration is,-
"Whether the impugned judgments suffer from perversity, illegality, impropriety warranting any interference at the hands of this Court".
13. The learned counsel for the petitioner in his arguments submitted that the complainant is a stranger to the accused. The date of the loan has not been specifically stated in the complaint. He further submitted that the cheque was given to one Sri Chandregowda, who has got the said cheque presented through the complainant, as such, for the alleged misappropriation of the cheque, a police complaint as per Ex.D-1 was also filed against Chandregowda. He further submitted that the complainant himself was a borrower of loan and a defaulter, as such, he had no financial capacity to lend the money. Thus, the presumption formed in favour of the complainant has stood successfully rebutted. However, both the trial Court and Crl.R.P.No.844/2016 7 the Sessions Judge's Court have not appreciated these facts in their proper perspective.
14. Per contra, learned counsel for the respondent in his arguments submitted that the accused at one place has stated that the cheque in question was collected by Sri Chandregowda, whereas, in the evidence, the witness has stated that the cheque and the documents were given to her sister Kanakarathna, who in turn had given the same to Chandregowda, as such, there is variation in the defence taken up by the accused. He further submitted that since the drawership of the cheque in question has not been denied, so also, the dishonour of the cheque when presented for its realisation, the presumption has formed in favour of the complainant about the existence of legally enforceable debt, however, the accused has not produced any cogent material to rebut the presumption. Thus, the impugned judgments does not warrant any interference at the hands of this Court.
Crl.R.P.No.844/20168
15. The complainant in support of his complaint, has got himself examined as PW-1, who in his examination-in- chief filed in the form of affidavit evidence has reiterated the contentions taken up by him in his complaint. In support of his contentions, the complainant got produced and marked the alleged returned cheque at Ex.P-2, Banker's endorsement at Exs.P-3 to P-6, copy of the legal notice at Ex.P-7 and the reply said to have been given by the accused at Ex.P-11.
Per contra, the accused has also by entering into the witness box got herself examined as DW-1, who in her evidence has taken a contention that the complainant is stranger to her and at no point of time, any loan was taken by her from the complainant. She has specifically stated that the cheque along with documents were given to her sister Smt.Kanakarathna, who in turn had given the same to one Sri Chandregowda, the brother-in-law of the complainant, who was working in a Bank and who had promised the accused and to her sister of securing some loan Crl.R.P.No.844/2016 9 to them, however, the said Chandregowda had misused the said cheque by getting the same produced through the complainant.
Though PW-1 and DW-1 were subjected to a detailed cross-examination from the other side, however, they adhered to their original version stated in their examination-in-chief.
16. The contention of the accused that the complainant was totally a stranger to her though has been taken repeatedly by the accused, but, except her self- serving statement, nothing is there on record to show that the complainant was not a known person to her. No doubt, even the accused has also not produced any documents to show her acquaintance with the complainant, however, the undisputed fact that the cheque at Ex.P-2 was drawn by the accused and the payee therein is the accused, would not nurture the contention of the accused that the complainant was a stranger to her.
Crl.R.P.No.844/201610
In addition to the above, though the accused contends that the cheque was given to one Sri Chandregowda and further says that giving of the said cheque was through her sister Smt.Kanakarathna, but, admittedly she has not examined either Sri Chandregowda or Smt.Kanakarathna in her favour. As such, the contention of the accused that the complainant was stranger to her has not been established.
On the other hand, the evidence of PW-1 to the effect that the accused was the drawer of the cheque, which came to be dishonoured when presented for realisation for the reason of insufficiency of funds has not been denied or disputed from the accused side. The evidence of PW-1 that after dishonour of the cheque, he got issued a legal notice to the accused, a copy of which is produced at Ex.P-7 and the same was served upon the accused and that the accused sent a reply as per Ex.P-11, has also not been denied or disputed from the accused side. Thus, a presumption under Section 139 of N.I.Act about the Crl.R.P.No.844/2016 11 existence of legally enforceable debt forms in favour of the complainant. However, the said presumption is rebuttable.
17. In order to rebut the presumption formed in favour of the complainant, as observed above, the accused had taken four defences, firstly, that the complainant was stranger to her, secondly, the cheque was given to the brother-in-law of the complainant by name Chandregowda and that he had misused the said cheque by getting it presented through the complainant, thirdly, she also took up a contention that a police complaint was lodged against the said Chandregowda as per Ex.D-1 and lastly, she also took up a contention that the complainant himself was in financial distress, as such, he had no capacity to lend such a huge amount as loan to her.
The contention of the accused that the complainant was a stranger to her has not been proved as analysed above.
The other contention of the accused that the cheque was given to one Sri Chandregowda and that he got the Crl.R.P.No.844/2016 12 said cheque presented through his brother-in-law i.e., the complainant, has been suggested to PW-1 in his cross- examination and prior to that, even in the reply to the legal notice at Ex.P-11 also, the accused had taken the same contention. In addition to that, the accused has also taken a contention about the alleged financial incapacity of the complainant to lend such a huge amount as loan.
It is needless to say that, to rebut the presumption formed in favour of the complainant, suffice for the accused to make a case of preponderance of probabilities which creates some doubt in the case of the complainant, then, the onus shifts back upon the complainant to prove the existence of legally enforceable debt. As such, it has to be seen whether the accused was successful in rebutting the presumption formed in favour of the complainant about the existence of legally enforceable debt.
The complainant no where in his complaint or in his examination-in-chief as PW-1 has stated that as to when Crl.R.P.No.844/2016 13 the alleged loan of `3 lakhs was given to the accused, however, in his cross-examination, he has come up with the specific date stating that it was on 27.04.2008, he had given the loan of `3 lakhs to the accused in cash in his office at Gandhinagar, Bengaluru. However, admittedly there are no documents to show the alleged loan transaction. The complainant claims himself to be a travel agent, running a business under the Partnership of M/s.Ramakrishna Tours and Travels. No where the complainant has stated as to how and under what circumstance, the accused approached him for a loan of `3 lakhs and being a businessman, how did he lent such a huge sum as a loan without any documentation in that regard.
18. The complainant contends that the loan of `3 lakhs was paid to the accused by him in cash. Undisputedly, the said amount was a huge amount as on the date of the alleged loan in the year 2008. The accused in several places of cross-examination of PW-1 has elicited Crl.R.P.No.844/2016 14 the statements regarding the financial condition and financial incapacity of the complainant. The complainant as PW-1 has specifically admitted in his cross-examination stating that, to show that he had such financial capacity, he has not produced any documents. He further stated that he would produce those documents in case of necessity. However, admittedly he has not produced any documents to show that he was financially sound to lend money. On the other hand, the complainant himself has stated in his cross-examination as PW-1 that in the year 2007 i.e., just in the previous year of the alleged loan transaction, he had availed a loan of `2,54,000/- from M/s.Sriram Finance. His liability to repay the said loan was through monthly installments of a sum of `8,817/-. He further stated in the very same evidence that when he said to have lent money to the accused, there were dues of his installments payable to his financier i.e., M/s.Sriram Finance.
In his further cross-examination, the very same witness has also stated that generally when a person would Crl.R.P.No.844/2016 15 be in financial difficulty or due for the repayment of the loan to somebody else, he would not lend money to other persons. However, he denied a suggestion that he himself being in arrears of payment of loan installment to his lender, he has not paid any loan to the complainant.
Further, a suggestion was specifically made to PW-1 in his cross-examination from the accused side that he had no financial capacity to lend a sum of `3 lakhs to the accused and another sum of `4 lakhs to the sister of the accused by name Smt.Kanakarathna, however, the said suggestion was not admitted as true by the witness. Thus, the accused has successfully elicited from the mouth of the complainant himself that he himself had borrowed a loan of a considerable amount from a financial agency and that he was due with some installments. She could also elicit from the mouth of PW-1 that generally a person who is in financial need or indebted to some person, would not generally lend money to others. In such a circumstance, when at several places the accused has elicited in the Crl.R.P.No.844/2016 16 cross-examination of PW-1 about his financial status and drawn from his mouth that he himself was due to other financial agency for the repayment of the loan, then, it was incumbent upon the complainant to produce some documents to the effect that he was financially in a sound position as on the date of the alleged loan. It is because, he himself had stated in his evidence that he had documents and that in case of necessity, he would produce those documents. Thus, by not producing the documents said to have been available with him, the complainant had enabled the accused to raise a serious doubt in his alleged capacity to lend money.
19. Our Hon'ble Apex Court in Basalingappa -vs- Mudibasappa, reported in (2019) 5 SCC 418, with respect to rebuttal of presumption under Section 139 of N.I.Act, was pleased to observe that, the accused disputing the financial capacity of the complainant to pay the amount, if could able to made out by leading the evidence, then it has to be held that accused has led probable defence. Crl.R.P.No.844/2016 17 Under such circumstances, the burden would be on the complainant to establish his financial capacity.
20. Thus, in the case on hand, the accused apart from entering the witness box and leading evidence as DW-1, has also elicited from the evidence of PW-1 that normally a person who is in arrears of loan would not lend money to others. Further, she made the complainant that it was necessitated for him to produce the documents to show his financial capacity, about which, the witness has stated that he possess the same. On the other hand, since the complainant has failed to either produce any documents or to lead any convincing evidence to show that financially he was sound to lend money, the accused has successfully rebutted the presumption formed in favour of the complainant about the existence of legally enforceable debt.
21. The defence of the accused at the earliest point of time i.e., after receiving the legal notice, she had replied to the legal notice stating that the cheque in question was given to one Sri Chandregowda and that said Crl.R.P.No.844/2016 18 Chandregowda has misused the said cheque by getting the same presented through the complainant, also gains some strength through Ex.D-1, which shows that the accused had filed a complaint before the police in that regard much prior to the alleged dishonour of the cheque. Though the outcome of the said complaint has not been known to the Court since nothing has been placed from the accused side, still, the fact remains that the accused throughout has been denying the alleged loan transaction and contending that the complainant was a stranger to her and the cheque in question had never been given to him. In that regard, her earliest defence taken in the reply, her evidence as DW-1 and more importantly, the statements elicited in the cross-examination of PW-1, would lead to strengthen the defence taken by her, which as a consequence, has successfully rebutted the presumption formed in favour of the complainant under Section 139 of N.I.Act. This aspect, both the trial Court and the Sessions Judge's Court have not considered in their proper perspective and both the Courts by merely accepting the evidence of PW-1 that Crl.R.P.No.844/2016 19 accused had issued the cheque at Ex.P-1 to him and the same stood returned unpaid when presented for realisation, have proceeded to hold that the complainant has proved the alleged guilt against the accused. However, the rebuttal of the presumption by the accused that was formed in favour of the complainant and the onus of the complainant to prove the existence of legally enforceable debt was not at all considered by them. As such, the impugned judgments being perverse and erroneous, deserves interference at the hands of this Court and the accused deserves to be acquitted of the alleged offence.
22. Accordingly, I proceed to pass the following order:
ORDER [i] The Criminal Revision Petition stands allowed. [ii] The impugned judgment of conviction and order on sentence passed by the learned XV Addl.Chief Metropolitan Magistrate, Bengaluru City, in C.C.No.21789/2008, dated 07.11.2013, holding the petitioner herein (accused) guilty of the offence punishable Crl.R.P.No.844/2016 20 under Section 138 of the Negotiable Instruments Act, 1881, and the impugned judgment passed by the learned LXVI Addl.City Civil and Sessions Judge, Bengaluru City, in Criminal Appeal No.650/2013, dated 05.05.2016, confirming the judgment of the trial Court, are hereby set aside;
[iii] The petitioner (accused) - Smt. Annapoorna, wife of Nagendra, residing at No.102/22, 3rd Floor, Flat No.7, 3rd Main, Tata Silk Farm, Basavanagudi, Bengaluru-04, is acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.
Registry to transmit a copy of this order to both the trial Court and also to the Sessions Judge's Court along with their respective records forthwith.
Sd/-
JUDGE bk/