Dismissed

D M Nagarajasetty v. Smt Vasundara Radha

Karnataka HC1 Aug 2024CRL.A/540/2013

Case brief

AI extract

What is this about?

Appeal against acquittal under Section 138 NI Act. The court found the complainant failed to prove financial capacity to lend Rs.4,50,000 or the existence of a legally recoverable debt, rebutting the presumption, and upheld the acquittal.

What the court decided

AI extract

D M Nagarajasetty Vs Smt Vasundara Radha — Cheque Dishonour | Karnataka HC (2024)

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1 - NC: 2024:KHC:30357 CRL.A No. 540 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE M G UMA CRIMINAL APPEAL NO. 540 OF 2013 (A)

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BETWEEN:

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D.M. NAGARAJASETTY S/O LATE MUDDUNAGAIAH SETTY, AGED ABOUT 62 YEARS, RESIDING AT NO.120, GROUND FLOOR, 80 FEET MAIN ROAD, S.B.M. COLONY, BANGALORE - 560 050

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…APPELLANT

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(BY SRI. H.S. CHANDRASHEKAR, ADVOCATE)

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Digitally signed by NANDINI B G Location: high court of karnataka

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AND:

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SMT. VASUNDARA RADHA KRISHNA, W/O. RADHAKRISHNAN, AGED BOUT 69 YEARS, RESIDING AT NO.61, CHAMUNDESHWARI LAYOUT, VIDYARANYAPURA MAIN ROAD, BANGALORE - 560 097

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…RESPONDENT (BY SRI. R PRABHAKARA, ADVOCATE (ABSENT))

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THIS CRIMINAL APPEAL IS FILED U/S.378(4) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF ACQUITTAL DATED 07.03.2013 PASSED BY THE XVIII A.C.M.M. AND XX A.S.C.J., BANGALORE IN C.C.NO.3612/2003 - 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 FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE M G UMA

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NC: 2024:KHC:30357 CRL.A No. 540 of 2013

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ORAL JUDGMENT

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The complainant in C.C.No.3612/2003, on the file of learned XVIII Additional Chief metropolitan Magistrate, Bangalore is impugning the judgment dated 07.03.2013, acquitting the accused for the offences punishable under Section 138 of Negotiable Instruments Act.

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Learned counsel Sri. H.S. Chandrashekar for the appellant submitted that he has filed written arguments and the same may be considered in the light of the oral and documentary evidence placed before the Court. Perused the materials on the record including the Trial Court records.

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In view of the rival contentions urged by the learned counsel for both the parties, the point that would arise for my consideration is:

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“Whether the appellant has made

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out any grounds to allow the appeal?"

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My answer to the above point is in ‘Negative’ for the following:

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3 - NC: 2024:KHC:30357 CRL.A No. 540 of 2013

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R E A S O N S

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It is the specific contention taken by the appellant - complainant before the Trial Court that the accused was known to him and he had requested for a hand loan and accordingly, he had lent a sum of Rs.4,50,000/- (Rupees Four Lakhs Fifty Thousand Only) to the accused during August-2002. Towards discharge of the said hand loan, the accused had issued the cheque as per Ex-P1 for Rs.4,50,000/- (Rupees Four Lakhs Fifty Thousand Only) on 16.11.2002. The same was presented for encashment on 27.11.2002 and it was dishonored as there was insufficient funds in the account. At the request of the accused, the cheque was again presented for encashment, but even then it was dishonored as there was insufficient funds. Legal notice was issued to the accused as per Ex-P6 and the same was served on the accused. The accused had not repaid the cheque amount but had issued the reply as per Ex-D2 with false allegations. Thereby, the accused has committed the offence punishable under Section 138 of NI Act.

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To prove his contention, the complainant examined

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himself as PW-1 and got marked as Ex-P1 to Ex-P22. The accused examined himself as DW-1 and got examined two

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4 - NC: 2024:KHC:30357 CRL.A No. 540 of 2013

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witnesses as DWs-2 and 3 and got marked as Exs-D1 to 15 in support of his contention.

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The complainant who is examined as PW-1 states that he is running a Chit Fund business and he is paying income tax. Cash of Rs.4,50,000/- (Rupees Four Lakhs Fifty Thousand Only) was with him as he was earning Rs.6,000/- to 7,000/per month and he used to spend Rs.5,000/- per month, out of which he saved Rs.4,50,000/- (Rupees Four Lakhs Fifty Thousand Only) and kept it aside for performing the marriage of his daughter. But the accused requested for hand loan and he paid the same during August-2002. It is interesting to note that even according to the complainant, he had performed his daughter marriage during September-2002. Later in the cross examination, witness states that he was having income of about Rs.2,00,000/- to Rs.3,00,000/- per annum and was saving huge amount. He also offers to produce necessary documents to show his income and to probabalise lending of the amount. But no such records are produced before the Trial Court for the reasons best known to the complainant.

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5 - NC: 2024:KHC:30357 CRL.A No. 540 of 2013

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Lending an amount of Rs.4,50,000/- (Rupees Four Lakhs Fifty Thousand Only) during August-2002 is considerably a huge sum. When the complainant states that he was only having income of Rs.6,000/- to Rs.7,000/- per month and use to spend Rs.5,000/- for his personal expenses, it is hard to believe that the complainant had saved Rs.4,50,000/- (Rupees Four Lakhs Fifty Thousand Only) to perform the marriage of his daughter had lent it to the accused that to when the marriage of his daughter was fixed during September-2002. There is absolutely no reasonable explanation for the same. Therefore, it could be stated that the complainant had not proved his financial capacity nor lending of the amount. Even though, the accused has taken different defence, he has not probabalized the same. However, the fact remains that the complainant has not probabalized his contention by proving lending of the amount and existence of legally recoverable debt. Under such circumstances, the presumption under Section 139 of NI Act, stands rebutted from the evidence that is elicited during cross examination of PW-1. cannot be raised. When the complainant himself has failed to discharge his burden of proving lending of the amount and existence of legally recoverable debt, the

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6 - NC: 2024:KHC:30357 CRL.A No. 540 of 2013

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burden will not again shift on the accused. Under such circumstances, the accused is entitled to be acquitted.

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I have gone through the impugned judgment of acquittal passed by the Trial Court. It has taken into consideration the oral and documentary evidence placed before it and has arrived at the right conclusion. I do not find any illegality or perversity in the judgment impugned. Hence, I am of the opinion that no grounds are made out to entertain the appeal.

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Accordingly, I answer the above point in the

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negative and proceed to pass the following:

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ORDER

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The appeal is dismissed.

Sd/-

(M G UMA) JUDGE

SPV

List No.: 1 Sl No.: 25

D M Nagarajasetty v. Smt Vasundara Radha

Case brief

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D M Nagarajasetty v. Smt Vasundara Radha

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