Dismissed

Smt. Geetha Mani v. Sri Ponnalagu

Karnataka HC25 Jan 2022CRL.RP/1257/2015

Case brief

AI extract

What is this about?

In a criminal revision petition under Section 397 Cr.P.C., the High Court dismissed the petition filed by the accused against her conviction and fine for cheque dishonour under Section 138 NI Act, finding no perversity in lower courts' appreciation of evidence regarding the loan transaction and lack of repayment proof.

What did the court decide?

The criminal revision petition was dismissed, affirming the conviction and sentence of fine passed by the lower courts.

Smt. Geetha Mani Vs Sri Ponnalagu — Cheque Dishonour | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF JANUARY, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR

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CRIMINAL REVISION PETITION NO.1257 OF 2015

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BETWEEN:

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Smt. Geetha Mani, Wife of Sri Mani Shetty, Aged about 46 years, Residing at No.37/1, 4^th Cross, Nagappa Block, Srirampuram, Bengaluru-560021.

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…Petitioner

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(By Smt. Archana K.M., Amicus Curiae)

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AND:

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Sri Ponnalagu, Son of Sri Muthuraman, Aged about 62 years, Residing at No.40, 2^nd Cross, Saibabanagar, Sriramapuram, Bengaluru-560021.

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…Respondent (By Sri H.L.Pradeep Kumar, Advocate)

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This Criminal Revision Petition is filed under Section 397 of Cr.P.C., praying to set aside the judgment and sentence dated 28.07.2015 passed in Crl.A.No.1282/2014 in the court of the LVI Additional City Civil and Sessions Judge, Bengaluru and set aside the judgment and sentence dated 20.10.2014 in C.C.No.14318/2011 in the court of the XIII Additional Chief Metropolitan Magistrate, Bengaluru and etc.

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This Criminal Revision Petition coming on for final hearing through video conferencing this day, the Court made the following:

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ORDER

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This revision petition under section 397

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Cr.P.C. has been preferred by the accused in C.C.No.14318/2011 on the file of XIII Additional Chief Metropolitan Magistrate, Bengaluru. Since the trial Court convicted the petitioner for the offence under section 138 of the Negotiable Instruments Act and sentenced her to fine of `3,05,000/- with default sentence of six months simple imprisonment, she approached the Additional City Civil and Sessions Judge, Bengaluru, by filing Criminal Appeal

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No.1282/2014. The learned Sessions Judge by his judgment dated 28.7.2015 dismissed the appeal and confirmed the judgment of the Magistrate. The petitioner has preferred this revision petition challenging the judgment of the appellate Court.

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For the sake of convenience, the parties

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are referred with respect to their position in the trial court.

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It is the case of the complainant that the accused approached him in the month of August 2008 for hand loan of 3,00,000/-. Considering the request, the complainant paid 2,00,000/- by issuing cheque bearing No.668529 dated 20.8.2009 drawn on Canara Bank, Okalipuram Branch, Bengaluru and 1,00,000/- by way of cash. After one year when the complainant demanded the accused to repay the loan, the latter issued a cheque bearing No. 517144 dated 1.9.2010 for 3,00,000/- drawn on ICICI Bank Limited, Malleswaram Branch, Bengaluru. When the complainant presented the cheque for encashment, it was returned on 14.9.2010 with an endorsement ‘funds insufficient’. The complainant thereafter issued a legal notice to the accused on

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21.9.2010. In spite of service of notice on the

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accused, she did not comply with the demand and therefore he initiated action for the offence punishable under section 138 of the Negotiable Instruments Act by filing a complaint in the trial Court.

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The complainant adduced evidence as PW1 and produced 8 documents as Exs.P1 to P8.

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The accused did not enter the witness box rather her husband Mani Shetty adduced evidence as DW1. After appreciating the evidence, the trial Court came to conclusion that the accused issued the cheque for the loan that she obtained from the complainant. Her defence that it was issued as security for the loan obtained by her husband was improbable to be accepted. It is held that Ex.P8 clearly shows that `2,00,000/paid by the complainant to the accused by way of cheque was credited to her account. Moreover it is the clear

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answer of DW1 that when he obtained loan from the complainant, he did not have cheque book and he used his wife’s cheque. Referring to this answer

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it is held by the trial court that even if it is assumed that the husband borrowed the money, the wife had knowledge that she was issuing cheque in connection with a loan transaction. In this view, the complainant has been able to prove that the accused issued the cheque in question for discharging the legally enforceable debt. Even she did not issue any reply to the notice Ex.P3 and there is no probability in the defence put forward.

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The appellate court has also confirmed the findings of the trial court.

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I have heard the arguments of Smt. Archana K.M, Amicus Curiae, appointed for the petitioner and Sri H.L.Pradeep Kumar, learned counsel for the respondent.

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It is the argument of Smt. Archana K.M.,

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that there is a clear admission of PW1 that he lent money to the husband of the accused and this shows that the accused did not borrow money from the complainant. In this view, when there was no transaction between the parties, the cheque in question could not have been issued for discharging legally enforceable debt. It has been elicited from PW1 that the husband has repaid the loan. The cheque in question was issued as a security and once the loan was repaid, the cheque should have been returned to the accused but, it was misused by the complainant. Referring to Ex.P8, it is the argument of amicus curiae that the entire statement of account does not indicate that 2,00,000/- credited to the account of the accused was in connection with the loan that the complainant stated to have given. In the crossexamination of PW1 it is elicited that 2,00,000/was credited to the account of the accused by way

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of overdraft and in this view the complainant’s case that he issued a cheque for `2,00,000/- to the accused cannot be believed. The husband of the accused entered the witness box and adduced evidence as DW1. He stated very clearly that he repaid the entire amount to the complainant and he has not been cross-examined on this aspect. Inference therefore to be drawn is that the evidence of DW1 is believable. Since loan was discharged, it is quite obvious that the complainant might have misused the cheque issued by the accused as a security. Her argument is that if the complainant is supposed to prove his case beyond reasonable doubt, so far as the accused is concerned, it is enough if probability in her case is made out. Therefore, if the entire evidence as a whole is considered, the accused has been able to make out probability in her defence and in this view the trial court ought to have dismissed the complaint. The appellate court has

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also committed an error in confirming the judgment of the trial court. Thus there is an error in both the judgments of the courts and this has to be rectified in this revision.

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Sri Pradeep Kumar argues that Ex.P8 is clear proof for lending Rs.2,00,000/by the complainant to the accused. Another 1,00,000/was paid by way of cash and this is not denied by DW1. In the examination-in-chief itself it is stated by him that he had taken loan for 3,00,000/-. It has further come in the evidence of DW1 that he did not have cheque book and therefore he obtained cheque from his wife. This shows that the accused issued the cheque knowing that there was a transaction of loan between the complainant and her husband. Even if it is assumed that the cheque is issued for security purpose, the clear evidence of DW1 shows that the accused issued the cheque for the loan transaction between her

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husband and the complainant. The accused did not reply to the legal notice issued by the complainant. If according to the accused entire loan had been repaid by her husband, the same should have been brought to the notice of the complainant by issuing reply. In this view, the complainant has been able to prove his case and there is improbability in the defence. Therefore, both the courts have come to conclusion to hold the petitioner guilty of the offence. The judgments cannot be interfered with and hence this revision petition is to be dismissed.

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I have considered the arguments. Since both the courts below have concurrently held on facts that the accused issued the cheque for discharging the liability, unless perversity in appreciation of evidence is made out, there cannot be interference in the revision petition. Now if the points highlighted by the learned amicus curiae

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are considered, what is forthcoming is that

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according to the complainant, in the month of August 2008, the accused approached him for financial assistance of 3,00,000/- and considering her request, he issued cheque bearing No.668529 dated 20.8.2009 for 2,00,000/- and then paid 1,00,000/- by cash. In order to repay this amount, the accused issued a cheque to him for 3,00,000/- drawn on ICICI Bank Limited and the said cheque was dishonoured when it was presented before the bank for want of sufficient funds in the account of the accused.

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Issuance of notice within time and filing of complaint within the prescribed time are not disputed.

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The main documentary evidence that the complainant relies upon is Ex.P.8, to show that `2,00,000/- paid to her by way of cheque was credited. In the complaint, it is stated that the

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complainant issued a cheque bearing No.668529 dated 20.08.2008 to the accused and in Ex.P.8, there is an entry that an amount of 2,00,000/was credited to the account of the accused on 22.08.2008. Cheque number is also mentioned in Ex.P8. As argued by amicus curiae, PW1 might have stated in the cross examination that on 22.08.2008, 2,00,000/- was credited by way of OD; but that answer alone does not dislodge his case, it is just a stray answer. That means the amount of 2,00,000/- that was credited to the account of the accused was in connection with the cheque issued by the complainant. It is true that PW1 has admitted that he had lent money to the husband of the accused and that the accused issued cheque for 2,00,000/- at the time when her husband borrowed money. DW1 is none other than the husband of the accused and in the examination-in-chief, he has stated that he

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borrowed 3,00,000/from the complainant. Therefore if the evidence as a whole is considered, what is forthcoming is probably it was the husband who might have borrowed money from the complainant. But as per Ex.P.8, 2,00,000/- might have been paid to the accused and this `2,00,000/- was none other than the part of loan that her husband had obtained from the complainant. If there was no other transaction, while cross examining PW1, it could have been suggested to him that the loan transaction had nothing to do with the cheque in question, rather suggestions were given to PW1 to the effect that the cheque was issued in connection with the loan transaction with her husband. That means to say that the accused was aware of the loan transaction between the complainant and her husband. Probably in the complaint, it is stated that because the cheque was issued by the wife, the accused approached her for the loan. Of course, the

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evidence adduced by the complainant is not free of discrepancy, but is insignificant and the totality of the circumstances clearly indicate that the accused was aware of the entire transaction. One answer of DW1 in the examination-in-chief itself is enough

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to arrive at a conclusion that the accused knew the transaction between her husband and the complainant. The clear deposition of DW1 is that when he requested for financial assistance of `3,00,000/from the complainant, the latter demanded for a cheque and since he did not have cheque facility, he asked his wife to issue a cheque as per Ex.P.1.

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The second limb of defence is that the entire 3,00,000/- was repaid and suggestions to that effect are given to PW1 in the cross examination. But the same has been denied. DW1 has stated that totally he paid 3,20,000/- and that the complainant did not return the cheque.

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It was argued by the amicus curiae that there was no cross examination on this aspect. But if the cross examination of DW1 is perused, he has stated that after repaying 3,00,000/-, he did not obtain a separate receipt. If according to DW1, if he had really repaid 3,00,000/-, it is not understandable as to why he did not demand for a receipt to be issued. When the complainant could insist on DW1 to issue a cheque at the time when he lent money to him, in the same way, DW1 could have insisted on issuance of receipt when he repaid 3,00,000/-. Therefore, with regard to repayment of 3,00,000/-, there is no convincing evidence and this is nothing but a self serving testimony. Hence even if it is assumed that accused issued a cheque for security purpose in connection with loan transaction between the complainant and her husband, she knowing very well that she issued

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the cheque in that connection and when there is no evidence for repayment of `3,00,000/-, it may

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be stated that on the day when Ex.P.1 was issued, there existed a legally enforceable debt between the complainant and the accused. When the cheque was not honoured for want of sufficient funds in the account of the accused, offence under Section 138 of the Negotiable Instruments Act is attracted. Therefore, I do not find that both the Courts below have come to wrong conclusion to convict the accused for the offence under Section 138 of the N.I.Act.

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If the sentence part is examined, the Magistrate has imposed fine of `3,05,000/-, which is in all probability adequate. Therefore I do not find any good reason to interfere with the judgment of the appellate Court which has confirmed the judgment of the trial Court. Revision petition is therefore dismissed .

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`10,000/- is fixed as fees payable to the amicus curiae and the same is payable by the

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Legal Services Authority. Learned amicus curiae submits that the fee payable to her be transferred to the Advocate’s Welfare Fund. If the amicus curiae files a memo to this effect, the fee payable to her shall be transferred to the Advocate’s Welfare Fund.

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Sd/JUDGE

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ckl/Kmv/-

Smt. Geetha Mani v. Sri Ponnalagu

Case brief

What is this about?

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Smt. Geetha Mani v. Sri Ponnalagu

Case brief

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