High Court dismissed criminal appeal by the drawer against acquittal on cheque bounce. Court held appeal lacked merits as drawer failed to prove legally enforceable debt due to admitted time-barred transaction and inability to prove financial capacity.
Appeal dismissed; acquittal by trial court in C.C.No.13012/2016 confirmed.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF FEBRUARY, 2022
BEFORE
THE HON’BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL No.1813/2017
BETWEEN:
SMT. THEJAVATHI G.N. W/O S.L. PRAKASH DOOR NO.37, 4TH CROSS AMARJYOTHI NAGAR VIJAYANAGAR BENGALURU-560 040
….APPELLANT
(BY SMT. K.L. SUJAYA, ADVOCATE)
AND:
SMT. SAVITHA W/O SHEKAR NO.10, 1ST FLOOR ‘D’ MAIN ROAD, SHIVANAGARA BENGALURU-560 010
…. RESPONDENT
(BY SRI. VENKATESH D. NAIK, ADVOCATE FOR SRI. M. M. ASHOKA, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT DATED 07.04.2017 PASSED BY THE XXII ADDL.C.M.M., NRUPATHUNGA ROAD, BENGALURU IN C.C.NO.13012/2016, ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I. ACT.
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THIS CRIMINAL APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is listed for admission, with the
consent of the learned counsel appearing for the parties on both sides, the same is taken-up for final disposal.
judgment of acquittal dated 07.04.2017 passed by the XXII Additional Chief Metropolitan Magistrate, Bengaluru City, in CC No.13012/2016, whereby the learned Magistrate has acquitted the accused of offence punishable under Section 138 of Negotiable Instruments Act, 1881 (‘NI Act’ for short).
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week of October-2015, the accused has approached the complainant for financial assistance to the tune of Rs.4,00,000/- by assuring repayment within three months from the date of borrowal. As per the request of accused, the complainant has advanced Rs.4,00,000/- as hand-loan in the first week of November, 2015. When the complainant has demanded for repayment, the accused has issued a cheque dated 11.02.2016 for a sum of Rs.4,00,000/- and when the said cheque came to be presented to the Bank, it was bounced with an endorsement ‘Account Closed’. Thereafter a legal notice came to be issued to accused and the same was served, but accused has failed to reply the said legal notice and hence, this complaint came to be lodged.
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enlarged on bail. She has also denied the accusation made against her.
Exs. P1 to P9. After conclusion of evidence of the complainant, the statement of accused under Section 313 of Criminal Procedure Code, 1973 ( ‘Cr.P.C.’ for short) 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. Accused was also got herself examined as DW.1.
learned counsels appearing for the parties on both sides, the learned Magistrate found that the complainant has failed to prove the ingredients of Section 138 of N.I. Act and thereby acquitted the accused the offence punishable under Section 138 of N.I Act. Being aggrieved by this judgment of acquittal, the complainant has filed this appeal.
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8. Heard the arguments advanced by the learned
counsels appearing for the appellant and the respondent. Perused the records.
appellant would contend that the impugned judgment is against the materials on record and the same is liable to be set aside, as it is based on assumptions and presumptions. She would further contend that the trial Court has not properly applied its mind and has failed to appreciate the oral and documentary evidence placed before it. She would also contend that the trial Court has failed to give an opportunity to the complainant to cross-examine DW.1 and as such, the judgment of acquittal is highly illegal and hence, sought for setting aside the impugned judgment.
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of advancement of loan and that there exist any legally enforceable debt. He would further contend that the trial Court has properly appreciated the oral and documentary evidence placed before it and arrived at a just decision of acquitting the respondent herein and as such, the judgment of acquittal does not call for any interference by this Court. Hence, he would seek for dismissal of the appeal.
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view of various complaints being filed by the complainant
against the accused/respondent herein.
“D ºÀt eÉÆvÉUÉ F ¥ÀæPÀgÀtzÀ°è ºÉýgÀĪÀ ºÀt §gÀ¨ÉÃPÉAzÀÄ
ºÁQzÉÝãÉ. D ¥ÀæPÀgÀtUÀ¼À£ÀÄß ¸Á®zÀ ªÀ¸ÀƯÁwUÁV ZÉPï£ÀÄß PÉÆnÖzÀÝgÀÄ. PÁgÀt ¥ÀæPÀgÀt ªÀiÁrzÉÝãÉ. ¸Á® PÉÆqÀĪÀÅzÀ£ÀÄß ºÀvÀÄÛ ªÀµÀð¢AzÀ ªÀiÁqÀÄwÛzÉÝãÉ.”
complainant is illegally doing money lending business.
Apart from that, all along, she claims that, she is doing saree business and she used to purchase sarees in Chickpet. But, she is unable to say about her income from
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the said business. She has not produced any document to show as to what was her income out of saree business. She is unable to say as to what was the avocation of accused. She admits in her cross-examination that, she do not know the income of accused. If complainant does not know the income of accused, it is hard to accept that, she has advanced a hand-loan of such a huge amount of Rs.4,00,000/- that too without charging any interest.
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that her husband was hardly drawing a salary of Rs.34,000/-p.m.. Looking to these facts and circumstances, her financial status to advance a huge amount of Rs.4,00,000/- itself is doubtful. In her earlier crossexamination, it was suggested that, she was doing chit fund and money lending business, which was reported in ‘Hai Bengaluru’ newspaper, but she denied the said aspect. However, her subsequent cross-examination discloses that, she was doing money lending business. All along the complainant has specifically asserted that the loan was advanced in the First week of November-2015. The cheque in question is dated 11.02.2016. Quite contrarily in crossexamination, at the end of Page-6, PW.1 has deposed that, since 2005 accused used to demand for loan and she used to pay Rs.1,00,000/- as and when required and as such in the same year, she has paid Rs.4,00,000/- and at that time, the disputed cheque was obtained by her. This part of cross-examination of PW.1 reads as under:
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“DgÉÆæUÉ 2005 jAzÀ CªÀgÀÄ ¨ÉÃPÀÄ JAzÁUÀ MAzÀÄ ®PÀë gÀÆ ºÀtªÀ£ÀÄß PÉÆqÀÄvÁÛ §A¢zÉÝ. F jÃwAiÀiÁV CzÉà ªÀµÀðzÀ°è £Á®ÄÌ ®PÀë gÀÆ ºÀtªÀ£ÀÄß PÉÆnÖzÉÝ. D ¸ÀªÀÄAiÀÄPÉÌ DgÉÆæ¬ÄAzÀ §gÀªÀtÂUÉAiÀÄ ªÀÄÆ®PÀ K£À£ÀÄß ¥ÀqÉzÀÄPÉÆAr®è. ¤¦.1gÀ ZÀPï£ÀÄß CzÉà ¸ÀªÀÄAiÀÄPÉÌ DgÉÆæ¬ÄAzÀ ¥ÀqÉzÉ.”
If this version is accepted, then the cheque was issued in the year 2005 itself. In that, event the claim made by the claimant is barred by law of limitation, as she has filed case in the year 2016 by putting the date on cheque as 11.02.2016. Her own admission discloses that, cheque under Ex.P1 was issued in 2005 itself, when loan of Rs.4,00,000/- came to be advanced. Hence, the crossexamination of PW.1 completely demolishes the case of the complainant. Apart from that, the cross-examination of complainant came to be deferred on 07.12.2016 and thereafter, she did not appear. Thereafter, on 18.01.2017, PW.1 was absent and cross-examination of PW.1 was taken as ‘closed’ and the matter came to be posted for statement of accused under Section 313 of Cr.PC. Further the accused was got examined herself as DW.1 on 31.01.2017 and on
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01.02.2017, the matter came to be deferred for crossexamination of DW.1 and considering the absence of complainant and her counsel, the cross-examination was taken as ‘Nil’. Hence, the entire evidence of accused was not challenged by the complainant.
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challenged the evidence of accused. Hence, now it is argued that the matter may be remanded. The said contention cannot be accepted, as the complainant has not even offered proper evidence and further, in cross-examination, she has not even revealed her financial status to show that she was capable of advancement of loan of Rs.4,00,000/and she was illegally doing money lending business, which is borne-out from the records itself. The alleged transaction pertaining to cheque under Ex.P1 is also barred by law of limitation as admitted by herself and PW.1 did not offer her further cross-examination and in strict sense, her evidence does not have any relevancy in the eye of law.
Complainant/ appellant herein has failed to prove that accused has issued the cheque under Ex.P1 towards discharge of legally enforceable debt. The accused has rebutted the presumption available in favour of the complainant.
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ORDER
The appeal is dismissed. The judgment of acquittal dated 07.04.2017 passed by the trial Court, viz., XXII Additional Chief Metropolitan Magistrate, Bengaluru, in C.C. No.13012/2016, stands confirmed.
Sd/-
KGR*
3 issues framed by the court
Whether the failure of the complainant to prove the legally enforceable debt despite the admitted time-bar and lack of cross-examination calls for setting aside the acquittal.
Whether the trial court's appreciation of evidence regarding the time-barred loan transaction warrants interference in criminal appeal.
Whether the presumption under Section 138 NI Act survives when the accused successfully rebuts it by showing evidence of a time-barred advance.
2 provisions across 2 enactments
SMT. THEJAVATHI G.N.
SMT. SAVITHA
RAJENDRA BADAMIKAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
