Dismissed

Sri. G K Girish v. Smt. Sridevi Rao

Karnataka HC19 Dec 2023CRL.A/418/2018

Case brief

AI extract

What is this about?

On appeal by the complainant under Section 378(4) Cr.P.C. against a judgment of acquittal in a cheque dishonor case under Section 138 NI Act, the High Court held that the accused's defense was probable given discrepancies in the loan claim and account ownership.

What did the court decide?

The criminal appeal filed under Section 378(4) Cr.P.C. was dismissed, upholding the acquittal of the respondent.

Sri. G K Girish Vs Smt. Sridevi Rao — Cheque Dishonour | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON’BLE MR. JUSTICE RAJENDRA BADAMIKAR

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CRIMINAL APPEAL No.418/2018

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BETWEEN:

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SRI. G.K. GIRISH, S/O SRI. KENCHAPPA, AGED ABOUT 34 YEARS, RESIDING AT NO.17/4, 1^ST MAIN, 2^ND CROSS, AREKEMPANAHALLI, WILSON GARDENT, BENGALURU-560 027.

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….APPELLANT

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(BY SRI. M.S. MANJANNA, ADVOCATE)

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AND:

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SMT. SRIDEVI RAO, W/O SRI. VENKAT, AGED ABOUT 44 YEARS, R/AT NO.50, 2^ND CROSS, VENUGOPALA LAYOUT, R.T. NAGAR, BENGALURU-560 032.

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…. RESPONDENT

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(BY SRI. RAJAGOPALA NAIDU, ADVOCATE)

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THIS APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C. PRAYING TO CALL FOR THE RECORDS IN C.C.NO.22684/2015, ON THE FILE FO THE LEARNED XXI ACMM, BENGALURU AND FURTHER SET ASIDE THE JUDGMENT DATED 03.05.2017.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 13.12.2023, COMING ON FOR ‘PRONOUNCEMENT OF JUDGMENT’ THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed by the complainant under Section 378(4) of Cr.P.C. challenging the judgment of acquittal passed by the XXI ACMM, Bengaluru, in CC No.22684/2015 dated 03.05.2017.

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

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The accused-Smt. Sridevi Rao is a friend of complainant-Sri. G.K. Girish and during the month of September 2013, the accused-Smt. Sridevi Rao approached the complainant for seeking financial assistance to make improvement of her business and other legal necessities.

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The complainant has advanced loan to the extent of Rs.13,00,000/- in three installments i.e, a sum of Rs.4,40,000/paid by way of self-cheque bearing No.0493043 dated 15.10.2013 and Rs.2,80,000/- by way of

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self-cheque bearing No.0204197 dated 12.06.2014 both are drawn on Corporation Bank, S.C. Road Branch, Bengaluru and also paid a sum of Rs.5,80,000/- by way of cash on 16.08.2014. The accused assured repayment of the said amount to the complainant within six months from 16.08.2014. But, she did not repay the amount within the time assured. When the complainant demanded for repayment of amount, the accused has issued four cheques for Rs.1,50,000/-, Rs.2,00,000/-, Rs.8,00,000/and Rs.1,50,000/- all dated 28.05.2015 drawn on Sree Charan Souhardha Co-operative Bank, City Market Area Branch, Bengaluru, towards discharge of her legally enforceable liability. When the said cheques were presented to the Bank, they were returned unpaid with an endorsement ‘Funds Insufficient’. Then the complainant got issued a statutory notice against the accused and in spite of the same, the accused failed to repay the cheque amounts and hence, the complainant has lodged a complaint before the learned Magistrate for the offence under Section 138 of the Negotiable Instruments Act, 1881 ( for short, ‘N.I. Act’).

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The learned Magistrate after recording the sworn statement, has taken cognizance of the offence and issued process against the accused. The accused appeared through her counsel and was enlarged on bail. The plea of accused under Section 138 of the N.I. Act was recorded and accused denied the same.

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The complainant got examined himself as PW.1

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and placed reliance on Exs.P1 to P15. After conclusion of 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 complainant. The case of accused is of total denial and it is asserted that, in fact the complainant himself is indebted to the accused and the payments through RTGS were regarding repayment of a part of debt amount and not the loan advancement as asserted by the complainant. The accused has got examined herself as DW.1 and placed reliance on Exs.D1 to D10.

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The learned Magistrate after hearing the

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arguments and after appreciating the oral and documentary evidence has acquitted the accused for the offence under Section 138 of the N.I. Act by exercising powers under Section 255(1) of Cr.P.C. Being aggrieved by the said judgment of acquittal, the complainant 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 the learned counsel for the respondent/accused. Perused the records.

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Learned counsel for the appellant/complainant would contend that amount to the extent of Rs.13,00,000/was advanced in three installments on 15.10.2013, 16.06.2014 and 16.08.2014 in a sum of Rs.4,40,000/-, Rs.2,80,000/and Rs.5,80,000/respectively and in discharge of the said liability, the disputed cheques under Exs.P1 to P4 came to be issued. It is further argued that Exs.P14 and P15 clearly disclose that the amount Rs.4,40,000/- and Rs.2,80,000/- was received by the

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accused and the supplementary deed of the Trust produced by the complainant was subsequent to the proceedings. It is also asserted that the ID Card pertaining to the complainant and income-tax returns were lost by the complainant and accused produced them, but proper custody is not explained. He would contend that since the cheques have been admitted and signature is being that of accused, the presumption under Section 139 of N.I. Act is in favour of the complainant and accused has failed to rebut the said presumption by raising a probable and tenable defence. Hence, he would contend that the learned Magistrate has failed to appreciate these facts and circumstances in proper perspective and has erroneously acquitted the accused, and as such he would seek for allowing the appeal by convicting the accused/respondent herein.

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Learned counsel for the respondent/accused would contend that in fact, the cheques at Exs.P1 to P4 are of the year 2015 and account of the accused was closed long back

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and transaction is not proved. It is asserted that, though receipt of the amount by way of self-cheques to the tune of Rs.4,40,000/- and Rs.2,80,000/- are admitted, it is not the loan amount, but it is pertaining to repayment of loan by the complainant himself, as he has secured loan of Rs.30,00,000/- from accused. It is asserted that there is no evidence regarding payment of Rs.5,80,000/- by way of cash and the transaction itself is not proved. He would also contend that the Legal Notice at Ex.D7 discloses that said the legal notice was issued to the accused demanding the amount due to the complainant to the tune of Rs.30,00,000/- and there is no monetary transaction pertaining to complainant advancing the loan. He would also invite the attention of the Court to Ex.D3 asserting that the account statement discloses that the account belongs to one Prof. M.S. Nanjunda Rao Foundation and the accused was prosecuted in her individual capacity without making the said Trust as a necessary party and hence, it is asserted that the prosecution is bad in law, as offence under Section 138 of the N.I. Act is not attracted.

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The learned counsel for the respondent/accused

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has also invited the attention of the Court to Exs.D9 and D10 pertaining to the complaint in Crime No.301/2016 which was lodged by one M.S. Balamba N. Rao, the complainant therein, against present complainant and one Venkatesh Reddy regarding theft of cheques and other documents from the house of the M.S. Balamba N. Rao and forgery. Hence, it is asserted that there is no evidence to show that the claim is a legally enforceable liability and hence, it is argued that the learned Magistrate has properly appreciated the oral and documentary evidence and rightly acquitted the accused, which does not call for any interference. Hence, he would seek for dismissal of 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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Whether the judgment of acquittal passed by the trial Court is perverse, erroneous and arbitrary so as to call for any interference by this Court?

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It is the contention of the complainant that

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accused has availed loan of Rs.13,00,000/- in three installments at Rs.4,40,000/-, Rs.2,80,000/- and Rs. 5,80,000/-. It is asserted that the first two installments dated 15.10.2013 and 12.06.2014 were paid by way of selfcheque and 3^rd installment of Rs.5,80,000/- was paid by cash on 16.08.2014. On the contrary it is the specific defence of the accused that, in fact the complainant is due to pay Rs.30,00,000/- to the accused and the payment of Rs.2,80,000/- and Rs.4,40,000/- were admitted and it is asserted that they were regarding repayment of partial debt amount due to the accused.

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The complainant was examined as PW.1. The disputed cheques are produced at Exs.P1 to P4 and there is no serious dispute that these cheques bear the signature of accused. But, straightaway the presumption under Section 139 of N.I. Act cannot be drawn since the account does not belong to accused, but it belongs to the Trust.

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The complainant/PW.1 in his examination chief

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has reiterated the complaint allegations. When he has paid Rs.2,80,000 and 4,40,000/- by way of cheque, what made him to pay Rs.5,80,000/- by cash is not at all explained by him. Further, it is also relevant to note here that the bank statement of account produced by the complainant does not pertaining to the period of third transaction dated 16.08.2014. The complainant has not produced any document to show that he was holding cash of Rs.5,80,000/- as on that date of the said transaction, so as to advance said the amount.

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The other important issue is that the cheques at Exs.P1 to P4 were said to have been issued on the same day and they are all bearing date 28.05.2015. But, there is no explanation as to why four cheques were issued and if at all there was a due, the complainant could have received the single cheque from accused. These anomalies are also not explained by the complainant.

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It is the specific defence of accused that the

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complainant was due to accused to the extent of Rs.30,00,000/- and two payments of complainant by way of cheques were towards repayment of the part of debt due to accused. It is further specific assertion of accused that the complainant along with his friend one Sri.Venkata Reddy was residing as a tenant in the house belonging to the accused and at the that time the cheques at Exs.P1 to P4 were stolen. However, the complainant has disputed that

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he was staying in the house belonging to accused as a tenant. But, on perusal of Ex.D5 it is evident that the address given there is that of the accused. Though the complainant asserts that Ex.D5 was stolen and it was lost along with other documents and they were being misused by the accused, but the authenticity of Ex.D5 was not disputed. Further, Ex.D6 is also undisputed, wherein the address of account holder is shown to be as that of accused. Hence, the contention of the complainant, he was not residing as a tenant in the house belong to accused holds

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no water. This is again corroborated with the complaint filed at Exs.D9 and D10.

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But, however these proceedings are independent

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proceedings. The question whether the defence raised by accused is probable or not is required to be considered. Considering the conduct of the complainant, the defence of accused appears to be more probable rather than the assertions of complainant.

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Apart from that, Ex.D5-ID Card is in the name of the complainant and there the complainant is shown to be Personal Assistant to MLC and it was issued by the Karnataka Legislative Council Secretariat. The complainant has no where asserted that he was designated as a Personal Assistant to any MLC and during the course of argument. Learned counsel for appellant/complainant admits that the complainant has never worked as Personal Assistant, but is submitted that only to have easy access, this ID Card was obtained. Then it is evident that the complainant has gone to the extent of obtaining ID Card by giving false

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information to the Government and hence, the genuineness of his case itself is in stake.

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It is further important to note here that the complainant claims that he advanced loan of Rs.13,00,000/to the accused. But Ex.D1 is the Income Tax Returns submitted by the complainant and his total annual income is shown to be Rs.3,25,880/-. When his total income itself is Rs,3,25,880/-, question of the complainant advancing loan to the tune of Rs.13,00,000/- does not arise at all. Further, the learned counsel for appellant asserted that the complainant has lost this document along with other documents, it was not produced from proper custody. But, when the document was produced, it was not objected for marking and further the genuineness of the document was not challenged. The document at Ex.D1 completely falsifies the financial status of the complainant to advance loan of Rs.13,00,000/- by way of cash.

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The other most important issue raised by the

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accused is that the cheques do not belong to her and it is

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pertaining to the Trust. In this regard the accused has produced Ex.D3 and Ex.D3 is undisputed document. It shows that it is pertaining to Current Account No.2292 and it is issued by Sree Charan Souhardha Co-operative Bank Limited and account is standing in the name of Prof. M.S. Nanjunda Rao Foundantion. This document establishes that the Current Account 2292 is in the name of M/s. Nanjunda Rao Foundation and two persons were authorized to operate the Bank Transaction including the accused. But, the Trust is not made as a party and the amount was never paid to the Trust, and there is no transaction between the complainant and Trust.

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Section 138 of the N.I. Act states that the cheque is to be drawn by a person on the account maintained by him/her with Banker. But, in the instant case, the cheques are belonging to the Trust of Prof. M.S. Nanjunda Rao Foundation. Admittedly Exs.P1 to Ex.P4 are pertaining to Current Account No.2292 and Ex.D3 clearly establishes that the cheques are pertaining to the Trust.

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Admittedly the said Trust is not made as a party. Considering the fact of defence of accused that the complainant along with his friend has stolen the cheques when they were staying as tenants in the house belonging to her, appears to be more probable defence rather than the assertion of the complainant regarding advancement of loan, in view of the fact that the cheques do not belong to accused in her individual capacity.

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The learned Magistrate in this regard has placed reliance on a decision reported in 2010(4) KCCR 2876 (Shivappa Reddy Vs. C.K.Jagannath) and held that the complaint itself is not maintainable. The records clearly disclose that the account is pertaining to the said Trust and there is no transaction between the Trust and the complainant. But, the cheques belong to the Trust and accused was prosecuted in her individual capacity and the Trust is not a party. Under such circumstances, the offence under Section 138 of N.I. Act is not attracted.

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Considering all these facts and circumstances, and considering the financial status of the complainant and the fact that cheques belonging to the Trust and it is evident that the presumption under Section 139 of the N.I. Act is not at all available to the complainant and he is required to prove his case beyond all reasonable doubt. But the records disclose that the complainant has not placed any material to show regarding advancement of loan of Rs.13,00,000/- to the accused in three installments, especially the 3^rd installment by way of cash to the tune of Rs.5,80,000/-.

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The learned Magistrate has appreciated the oral and documentary evidence in proper perspective and has rightly acquitted the accused. No illegality or perversity is found in the judgment of acquittal passed by the learned Magistrate so as to call for any interference by this Court. As such, I am constrained to answer the point under consideration in the negative and 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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KGR*

Sri. G K Girish v. Smt. Sridevi Rao

Case brief

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Sri. G K Girish v. Smt. Sridevi Rao

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