Dismissed

Smt Shashikala v. Smt Munirathna

Karnataka HC28 Nov 2023CRL.A/1904/2019

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed an appeal filed by the complainant challenging the acquittal of the accused under Section 138 N.I.Act. The court held that the complainant failed to substantiate her financial capacity to advance the loan, making the presumption under Section 139 unavailable. Consequently, the trial court's acquittal was not perverse. The appeal was dismissed.

What did the court decide?

The criminal appeal filed under Section 378(4) Cr.P.C. stands dismissed.

Smt Shashikala Vs Smt Munirathna — Cheque Dishonour | Karnataka HC (2023)

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1 - NC: 2023:KHC:43004 CRL.A No. 1904 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 28^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR CRIMINAL APPEAL NO. 1904 OF 2019

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BETWEEN:

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SMT. SHASHIKALA, W/O GOVINDARAJU, AGED ABOUT 51 YEARS, R/AT NO.29/1 2^ND ‘A’ MAIN, SHIVANGAR, RAJAJINAGAR, BANGALORE-560 010. …APPELLANT (BY SRI. ADINARAYAN, ADVOCATE) AND:

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SMT. MUNIRATHNA, W/O PEDDANNA, R/AT NO.4-A, 1^ST MAIN ROAD, P.K. COLONY, QUEENS ROAD, SHIVAJINAGAR, BANGALORE-560 051.

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Digitally signed by AND WORKING AT: SOWMYA D ASST. EXECUTIVE ENGINEER, Location: SHIVAJINAGAR SUB-WARD, High Court TANK BUND ROAD, of NEAR GANESH TEMPLE, ULSOOR, Karnataka BANGALORE-560 042. BADGE NO.9124/A

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…RESPONDENT

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(BY SRI. SYED UMMER AND SMT. ASMA PARVEEN .N, ADVOCATES)

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THIS CRL.A IS FILED U/S 378(4) CR.PC PRAYING TO SET ASIDE THE JUDGMENT OF ACQUITTAL ORDER DATED 14.10.2019, PASSED BY THE XIII A.C.M.M.,BENGALURU IN C.C.NO.16558/2017, ACQUITTING THE RESPONDENTS/ACCUSED FOR THE OFFENCE P/U/S 138 OF THE N.I ACT.

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THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by the appellant / complainant under Section 378 (4) of Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C' for short) challenging the judgment of acquittal passed by XIII Additional Chief Metropolitan Magistrate in C.C.No.16558/2017 dated

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14.10.2019.

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For the sake of convenience, the parties herein are referred with original ranks occupied by them before the trial Court.

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The brief factual matrix leading to the case are that the complainant and accused are known to each other for last 20 years; That the accused is working in Bruhat Bangalore Mahangara Palike as Pourakarmika in Shivajinagar Sub-Ward, Tank Bund Road, Bangalore. That

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the accused used to obtain hand loans from complainant as

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per need and used to repay the said loans. That the accused in order to perform her daughter’s marriage has obtained a hand loan of Rs.5 Lakhs from the complainant and agreed to pay the said loan amount at the earliest. She has also issued a cheque bearing No.840441 dated 01.03.2017 for a sum of Rs.5 Lakhs in favour of the complainant. When the complainant presented the said cheque through her bank, the said cheque was dishonored for the reason that ‘payment stopped’ by the drawer.

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The complainant has got issued a legal notice to the accused. Inspite of service of legal notice, the accused failed to make payment of the cheque amount and hence, the complainant has lodged a complaint under Section 200 of Cr.P.C. alleging that the accused has committed an offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'the N.I.Act' for short).

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After recording the sworn statement and after

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appreciating the oral and documentary evidence, the learned Magistrate has taken cognizance of the offence and issued process against the accused. The accused has appeared and was enlarged on bail. The plea under Section 138 of N.I.Act was recorded and accused denied the same.

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The complainant got examined herself as PW1 and one witness was examined on behalf of the complainant as PW2. Further, the complainant has placed reliance on 9 documents viz., Ex.P1 to Ex.P9. After conclusion of the evidence of the complainant, the statement of accused under Section 313 of Cr.P.C. was recorded to enable the accused to explain the incriminating evidence appearing against her in the case of the prosecution. The case of accused is of total denial.

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The learned Magistrate after hearing the arguments and after appreciating the oral and documentary evidence acquitted the accused for the offence punishable under Section 138 of N.I.Act by exercising the powers

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under Section 255(1) of Cr.P.C. Being aggrieved by this judgment of acquittal, the complainant / appellant is before this court by way of this appeal.

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Heard the arguments advanced by the learned counsel for the appellant / complainant and learned counsel for the respondent / accused. Perused the records.

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The learned counsel for the complainant / appellant would contend that accused has approached the complainant through PW2 and availed a loan of Rs.5 Lakhs and as a security and in discharge of the said debt, a cheque came to be issued. He would also assert that a legal notice was issued to both the addresses of the accused and both the notices have been served, but there is no response. He would contend that the cheque and signature

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have been admitted and hence, there is a presumption in favour of the complainant under Section 139 of N.I.Act. Hence, he would contend that the learned Magistrate has erroneously acquitted the accused and hence, he would seek for allowing the appeal by convicting the accused.

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Per contra, the learned counsel for the

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respondent would contend that the complainant is a house wife and she has no financial capacity to advance the loan. He would also contend that in the entire complaint, specific date of advancement of the loan itself is not disclosed and it is hard to accept the contention of the complainant that she has advanced the loan amount without charging interest. Hence, it is asserted that when the financial capacity of the complainant is not established, the presumption under Section 139 of N.I.Act is not available to the complainant and to prove her financial status she has not examined any independent witnesses. Hence, it is submitted that the learned magistrate has appreciated the oral and documentary evidence in its proper perspective and has rightly acquitted the accused. Hence, he would seek to dismissal of the appeal.

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Having heard the arguments and perusing the records, now the following point would arise for my consideration:

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NC: 2023:KHC:43004 CRL.A No. 1904 of 2019

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(i) Whether the judgment of acquittal passed by the learned Magistrate is perverse, arbitrary and erroneous so as to call for any interference by this court?

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It is the specific case of the complainant that the

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accused is a pourakarmika and since many years she is acquainted with her, she availed a loan of Rs.5 Lakhs for performance of marriage of her daughter. She also asserts that she has advanced the loan of Rs.5 Lakhs as she is possessing certain lands in Doddaballapura Taluk wherein certain dispute are there and she is going to get lumpsum amount, after settlement of the dispute and assuring repaying the same, she has issued a cheque Ex.P1, dated - 1.03.2017. There is no dispute of the fact that the cheque belongs to the accused and it bears her signature. Hence, the initial presumption under Section 139 of the N.I.Act is available to the complainant. However, the said presumption is a rebuttable presumption. The accused can rebut the said presumption by cross-examining the

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NC: 2023:KHC:43004 CRL.A No. 1904 of 2019

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complainant or confronting the documents produced by the complainant or by leading independent evidence.

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The accused has disputed the very financial status of complainant. It is settled law that when the financial status is disputed, the initial presumption under Section 139 of N.I.Act is not available to the complainant and the complainant is required to prove her financial status.

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The complainant in her evidence claimed that the accused is working as a sweeper and she used to attend sweeping in a service road near her house and as such, she is acquainted with her. In the complaint, the complainant nowhere asserted when the loan was advanced by her. The entire complaint is completely silent as to the date, month or year of advancement of the loan. What is pleaded is a post dated cheque dated 01.03.2017 was issued. But at the first instance, the complainant is required to establish when exactly the loan was advanced as the offence under Section 138 of N.I.Act is attracted only if it is a legally enforceable

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debt. If the amount was paid three years prior to issuance of cheque, then it becomes a time barred debt and it cannot be enforced but interestingly, the complainant no where asserted when she has advanced the loan. The complainant in her cross-examination admitted that she is not an income-tax assessee. In the cross-examination she tries to improve her case by asserting that in September 2016, she advanced the land loan. Even there she did not disclose the specific date. Even in the legal notice, the date of advancement of the loan is not at all forthcoming and it is hard to accept the contention of the complainant that she is unable to recollect the date of advancement of huge loan of Rs.5 Lakhs.

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The complainant claims that she advanced by loan by way of cash and she asserts that the amount was in her house and she kept this amount for last 20 years. Admittedly, the husband of complainant is working in Syndicate Bank. It is hard to accept the claim of the complainant that she had kept cash of Rs.5 Lakhs in her

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house for 20 years without investment that too being a wife of a banker. Apart from that she claims that she has not charged any interest for this Rs.5 Lakhs. It is very strange to note the conduct of the complainant that she is advancing huge amount of Rs.5 Lakhs to a person who is not closely related to her that too without interest.

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In the further cross-examination, she claimed that she was working as a tailor and her husband is working as an employee in the Syndicate Bank. To prove that she is a tailor and she is earning sufficiently, no documents have been placed on record. She asserts that she contributed Rs.3.5 Lakhs and Rs.1.5 Lakhs was contributed by her husband and the said amount was paid. If this version is accepted, then it is evident that the complainant is not having financial capacity to advance Rs.5 Lakhs at a stretch and she has taken assistance of her husband to the tune of Rs.1.5 Lakhs. But this fact was neither pleaded in the complaint nor in the notice. Even to substantiate the said contention, she has not even

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examined her husband who would have been the best witness in the given circumstances to disclose the financial status of his wife.

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Even the complainant does not know the avocation of the husband of the accused. She claims that the amount was paid in the presence of PW2 and placed reliance on evidence of PW2, but when the financial capacity of the complainant to advance Rs.5 Lakhs is not established, the evidence of PW2 does not have much relevance. Even the complainant did not know from which place the accused hails and further pleads ignorance regarding her income. When the complainant did not know the income of the accused, it is hard to accept her contention that she has advanced Rs.5 Lakhs without any security or interest. Though it is asserted that the loan was availed for the purpose of marriage of the daughter of the accused, complainant pleads ignorance regarding the name of the daughter of the accused itself.

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PW2 is so called eye witness and as observed

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her evidence becomes irrelevant, since, she did not know the date of advancement of loan and she asserts that in the month of September 2016, loan was advanced. Further, the cross-examination of PW2 discloses that when the accused has demanded the loan amount, the complainant has taken two days and later on arranged the amount and paid it. At one breath, she claims that she received the amount and handed over to the accused and in another breath, she pleads that the amount was paid directly by the complainant to the accused. These stands are inconsistent and she is unable to say the specific date, month or year when the loan was advanced in her cross-examination and the same was referred as September 2016 in examinationin-chief which means that she is not the author of the examination-in-chief filed by way of affidavit . Hence, the evidence of PW2 does not assist the complainant in any way.

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The learned counsel for the appellant has placed reliance on a decision of this court in ‘UMRAZ KHAN VS.

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A.JAMEEL AHMED’, LAWS (KAR)-2006-3-67 regarding service of notice. There is no serious dispute regarding principles of law laid down there since, the notice was issued to the last known address and it is deemed service but however, the issue is not regarding service of notice but the issue is with regard to the financial capacity of the complainant to advance the amount of Rs.5 Lakhs, as she asserts that she has taken financial assistance to the tune of Rs.1.5 Lakhs from her husband and he is not examined. Hence, the contention of the complainant that she was capable of paying Rs.5 Lakhs to the accused by way of loan cannot be accepted.

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Further, considering these lacunas in the evidence as well as in the pleading, the conclusion arrived at by the learned Magistrate is also a possible conclusion. Further it is well settled law that when two views are possible, the view beneficial to the accused shall prevail.

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Further, it is also settled principle of law that when the view taken by the learned Magistrate is also a possible view, the appellate court shall not disturb the same unless perversity is forthcoming.

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The learned counsel for the appellant has placed reliance on a decision reported in ‘ SRI.S.M.NATARAJA VS. SRI.B.M.PRAKASH’, ILR 2018 KAR 5431 , but the facts

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and circumstances are different and in view of ‘ RAJA RAM

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THOUGH L.RS VS. MARUTHACHALAM’, 2023 SCC

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ONLINE SC 48 decision, the said principles cannot be made applicable to the facts and circumstances of the case in hand. He has also placed reliance on decision is in

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‘K.N.BEENA VS. MUNIYAPPAN AND ANOTHER’, (2001) 8 SCC 458 and ‘ RANGAPPA VS. MOHAN’, AIR 2010 SC

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1898 . The facts and circumstances of the said cases are entirely different. No doubt the presumption is required to be drawn under Section 139 of the N.I.Act, but once, the financial status is questioned the said presumption is not available. This issue has been discussed in detail in Raja

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Ram’s case referred to supra and in view of the same, the principles enunciated in the above cited decision, will not come to the aid of the complainant / appellant herein in any way.

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As such, the learned Magistrate is justified in acquitting the accused. The view taken by the learned Magistrate cannot be said to be perverse or illegal so as to call for any interference. Hence, the point under consideration is answered in the negative and the appeal being devoid of any merits, needs to be dismissed. Accordingly, I proceed to pass the following:

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ORDER

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The appeal stands dismissed .

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Sd/JUDGE

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List No.: 1 Sl No.: 20

Smt Shashikala v. Smt Munirathna

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Smt Shashikala v. Smt Munirathna

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