Smt. H K Arunakumari Vs Sri v Narasimha Moorthy

SMT. H.K. ARUNAKUMARI, W/O T.N.RAMAKRISHNA, AGED ABOUT 61 YEARS, PRESENTLY R/AT C/O S.NAGARAJ, HOUSE NO.391, BETWEEN 8^TH AND 9^TH CROSS, TEKAL MAIN ROAD, JAYANAGAR, KOLAR CITY-563 101.

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…APPELLANT

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(BY SRI. S. VISWESWARAIAH, ADVOCATE)

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AND:

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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SRI. V. NARASIMHA MOORTHY, S/O VENKATAPPA, AGED ABOUT 60 YEARS, R/AT BALLIAGANAHALLI VILLAGE, ANDERSONPET POST, KOLAR GOLD FIELDS, KOLAR DISTRICT-563 113.

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…RESPONDENT

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(RESPONDENT SERVED, UNREPRESENTED)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 14.09.2015 PASSED IN CRL.A.NO.76/2014 ON THE FILE OF THE PRL. DISTRICT AND SESSIONS JUDGE, KOLAR BY ALLOWING THE APPEAL AND CONVICT THE RESPONDENT OF THE CHARGES FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT.

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NC: 2025:KHC:11807 CRL.A No. 1587 of 2015

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THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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Heard the learned counsel for the appellant. This Court

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has issued notice to the respondent and the respondent is unrepresented.

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This appeal is filed against the order of acquittal passed by the Appellate Court in Crl.A.No.76/2014.

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The factual matrix of the case of the complainant before the Trial Court is that the complainant and the accused are known to each other since the accused and her husband were working as teachers together. That on 02.11.2008, the accused approached the complainant for loan to meet his family needs and assured to repay the amount within one month and offered to issue post dated cheque as security for repayment of loan. The complainant believing the words of the accused, advanced a sum of Rs.3 lakhs on 03.11.2008 at Rao’s building, New Extension, Kolar, wherein the complainant and her family was residing at that time and the accused issued post dated cheque dated 04.12.2008 and instructed to present the same on the date mentioned in the cheque. Believing his words, the

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complainant presented the cheque on 10.12.2008 and the same was returned with an endorsement “funds insufficient”. Hence, legal notice was issued and the same was served and no reply was given. Hence, the complainant filed the complaint and cognizance was taken and the accused was secured and he did not plead guilty and hence the complainant to substantiate her case examined herself as P.W.1 and got marked the documents at Exs.P.1 to 7 i.e., original Cheque, bank challan, dishonour intimation, copy of the legal notice, postal acknowledgment, postal receipt and complaint filed by the complainant. On the other hand, the accused examined himself as D.W.1 and examined one witness as D.W.2 and not produced any document. The Trial Court having considered the material on record, accepted the case of the complainant for having lent the money and notice was served and no reply was given and drawn the presumption invoking Section 139 of the Negotiable Instruments Act (‘NI Act’ for short) and convicted and sentenced the accused to pay Rs.4 lakhs.

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Being aggrieved by the said order, an appeal was filed and the Appellate Court having considered the grounds urged in the appeal memo and also the contention of the learned counsel for the appellant, comes to the conclusion that

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the Trial Court committed an error in convicting the accused in coming to the conclusion that the complainant was not having source of income to pay the amount of Rs.3 lakhs. The Appellate Court also made an observation that when the amount belonging to the husband of the complainant was paid and according to the complainant, at the time of lending money, husband of the complainant was present, but not examined her husband before the Court even for source of income as well as transaction is concerned. The Appellate Court also made an observation that when an application was filed by the accused for summoning her bank statement, the same was resisted and the application was rejected. The Appellate Court also made an observation that the accused is at liberty to take any number of defences, but initial burden is on the complainant and the complainant cannot take advantage of the inconsistent defence taken by the accused and reversed the judgment of the Trial Court by acquitting the accused.

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Being aggrieved by the said order, the present appeal is filed before this Court.

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The learned counsel for the appellant would

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vehemently contend that the Appellate Court committed an

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error in accepting the case of the accused inspite of the cheque was admitted and notice was served on him and no reply was given. The learned counsel contend that the Appellate Court committed an error in coming to the conclusion that the complainant was not having money to advance the amount of Rs.3 lakhs. The very approach of the Appellate Court that the complainant did not examine her husband with regard to lending of money and also source of income to make the payment of Rs.3 lakhs is erroneous. The learned counsel contend that the Appellate Court only proceeded on the premise that the appellant had no financial capacity to lend the money ignoring the fact that the husband of the appellant had received Rs.13 lakhs as retirement benefits in the year 2002. The learned counsel brought to the notice of this Court the very admission given by D.W.1 in the cross-examination that when a suggestion was made that the husband of the complainant Ramakrishna has not received more than Rs.8 lakhs as retirement benefits, the witness himself says that he received an amount of Rs.15 lakhs. The Appellate Court fails to take note of the fact that once the defence was taken that the cheque was stolen, no complaint was given and no intimation was given to the bank and bank also given the endorsement that the cheque was

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returned for insufficient funds and the same is admitted in the cross-examination of D.W.1. Inspite of these admissions given by D.W.1 and also no reply was given when the notice was served and only afterthought the said defence was taken and to substantiate the defence that the cheque was stolen also, no cogent evidence is placed on record and in the absence of probable defence, the Appellate Court ought not to have reversed the judgment of the Trial Court.

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Having heard the learned counsel for the appellant and also on perusal of the material available on record, the points that arise for the consideration of this Court are:

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(i) Whether the Appellate Court committed an error in reversing the finding of the Trial Court and acquitting the accused and whether it requires interference of this Court?

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(ii) What order?

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Point No.(i):

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Having heard the learned counsel for the appellant and also on perusal of the material on record, this Court has to take note of the very averments made in the complaint. In the complaint specific pleading was made by the complainant that the complainant and the accused are known to each other since

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NC: 2025:KHC:11807 CRL.A No. 1587 of 2015

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long time since the complainant’s husband and accused were working together as teachers and relationship among them is from long back. It is also the case of the complainant that due to the said relationship, the accused approached the complainant on 02.11.2008 for financial help, but money was lent on the next date and as security, the cheque was given on 03.11.2008 mentioning the date as 04.12.2008. It is also not in dispute that when the cheque was presented, the same was dishonoured with an endorsement “insufficient funds”. The notice was issued and the same was served and no reply was given. The defence of the accused is that the cheque which was signed by the accused was stolen when the complainant came to the house of the accused to extend the invitation and in order to substantiate the said defence also, no documentary evidence is placed on record, except self-explaining evidence of D.W.1 and examining of D.W.2.

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It has to be noted that D.W.1 says that he came to know about the stealing of cheque only after the receipt of notice and if really the cheque was stolen, the accused would have taken the defence immediately that the cheque was stolen and no such defence was taken and no reply was given when the notice was served and it is not the case of the accused that

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the notice was not served. No intimation was also given to the bank not to honour the cheque and admittedly, the cheque was bounced with an endorsement “insufficient funds”. Apart from that, the accused in the cross-examination of P.W.1, made a suggestion that the cheque was stolen, but nothing is elicited from the mouth of P.W.1 during the course of crossexamination. P.W.1 says that when the amount was lent, at that time, her husband and his friend Prakash were also there. She also categorically says that in 2002 her husband has received Rs.15 lakhs as retirement benefits as stated by her husband, but definitely he has received Rs.13 lakhs. She says that she gave Rs.3 lakhs to her daughter and her daughter returned the said amount and the said amount was kept in the house and the same was given to the accused. It is suggested that the signature found in Exs.P.1 and 5 there is a difference and the said suggestion was denied. It is elicited that whenever any function was there in the house of the accused, she used to visit the house along with her husband. A suggestion was made that in 2006 the accused gave invitation for the marriage of his third daughter and they have attended the marriage and the same was admitted. When a suggestion was given with regard to stealing of cheque, the same was denied.

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This Court has to take note of the admission given

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by D.W.1 during the course of cross-examination. In the crossexamination, D.W.1 admits the signature on Ex.P.1 and also admits that he is having acquaintance with cheque transaction since he has done the cheque transaction from last 28 years and he used to take salary from the bank account only. He admits that during his examination-in-chief, he did not mention when the cheque was stolen and who had stolen the same and also when he came to know about the stealing of the cheque, he has not given any complaint. But he claims that no notice was served on him and also even gone to the extent of denying the signature on Ex.P.5. He admits that except him, no other person is in the said address and if any notice is addressed to the said address, the same will be served on him. He admits with regard to the construction of the house by the complainant and the amount spent for construction of the house may be Rs.50,000/- to Rs.1 Crore and when a suggestion was made that at the time of retirement, the complainant has received an amount of Rs.8 lakhs as retirement benefits, he volunteers that he has received more than Rs.15 lakhs.

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The Appellate Court while reversing the finding of

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the Trial Court has given the reason that there is no source of

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income to the complainant to lend the amount of Rs.3 lakhs to the accused. The fact that the complainant’s husband had retired as a teacher is not in dispute. P.W.1 says that her husband retired in 2002 and when the Appellate Court comes to the conclusion that there was no capacity for the complainant to lend the amount to the accused, fails to take note of the answer given by D.W.1 during the course of cross-examination admitting the retirement benefit received by the complainant’s husband to the tune of Rs.15 lakhs. Instead of that only discussed the evidence of D.W.1, but not discussed the evidence of D.W.1 when there was an admission on the part of P.W.1 for having received Rs.15 lakhs as retirement benefit and the case of the complainant is that, out of the said amount only, she gave Rs.3 lakhs to the accused. The explanation is also given by the complainant with regard to the source of amount is concerned. It is important to note that the Appellate Court made an observation that the husband of the complainant has not been examined. P.W.1 says that at the time of lending of money, her husband and her husband’s friend Prakash were there. When Ex.P.1 cheque was admitted by the accused and notice was issued and no reply was given, the Appellate Court ought to have taken note of Section 139 of the NI Act, since

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there is a presumption and no doubt, under Section 139 of the NI Act, presumption is rebuttable presumption and the same ought to have been rebutted by placing cogent evidence.

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It is important to note that the accused took the defence that cheque was stolen, but no complaint was given and also no explanation on the part of the accused what made him to sign and keep the cheque in the house. It is his defence that the cheque was stolen when the complainant came to extend the invitation. When the cheque was admitted and signature was admitted by the accused and also answer was given that the complainant’s husband might have received the amount of Rs.15 lakhs as retirement benefit, instead of considering the admission of D.W.1, the Appellate Court committed an error in coming to the conclusion that the husband of the complainant was not examined and also source of income has not been proved and the very case of P.W.1 is that out of the retirement benefit only the amount was lent. The Appellate Court committed an error in coming to such a conclusion and when the question was put to the witness regarding source of income is concerned, she gave the answer spontaneously that out of retirement benefit only she had advanced the amount, that too the amount was given to the daughter and daughter had

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returned the same and the amount was kept in the house and that amount only was given to the accused. However, the Appellate Court got carried away with regard to rejection of the application filed by the accused for recalling of the Bank Manager to produce the bank statement and the same cannot be a ground to come to a other conclusion and the Appellate Court committed an error in making such an observation in reversing the finding of the Trial Court and the order impugned requires to be interfered with. Hence, I answer the point in the affirmative.

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Point No.(ii):

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In view of the discussions made above, I pass the

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following:

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ORDER

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(i) The criminal appeal is allowed.

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(ii) The impugned order of the Appellate Court dated 14.09.2015 passed in Crl.A.No.76/2014 is set aside and the order passed by the Trial Court dated 03.11.2014 passed in C.C.No.42/2009 is restored.

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Sd/- (H.P.SANDESH) JUDGE

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List No.: 1 Sl No.: 59

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MD

Smt. H K Arunakumari v. Sri v Narasimha Moorthy

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Smt. H K Arunakumari v. Sri v Narasimha Moorthy

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