Smt. Lakshmi B Vs Smt. Naveena Shetty

THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE JUDGMENT DATED 07.11.2019 PASSED BY THE COURT OF THE LVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE

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BENGALURU CCH-57 IN CRL.A.NO.312/2017 AND THE JUDGMENT PASSED BY THE COURT OF THE XVIII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BENGALURU DATED 06.02.2017 IN C.C.NO.15012/2014 AND ETC.,

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IN CRL.RP 1418/2019 BETWEEN:

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SMT. LAKSHMI B W/O LATE SHANKAR AGED ABOUT 45 YEARS R/AT NO.717, BAJANE MANE ROAD SAHAKAR NAGAR POST, BENGALURU-560092

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...PETITIONER

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(BY SRI.NISHIT KUMAR SHETTY, ADVOCATE)

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AND:

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SMT. NAVEENA SHETTY D/O GOPA SHETTY AGED ABOUT 42 YEARS R/AT NO.14, 1^ST FLOOR WARD NO.18, 4^TH CROSS NEW BEL ROAD, BENGALURU-560092

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…RESPONDENT

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(BY SRI.BALAJI PRASAD.H, ADVOCATE FOR SMT.SUNITHA.H.SINGH, ADVOCATE)

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THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE JUDGMENT DATED 07.11.2019 PASSED BY THE COURT OF THE LVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE BENGALURU CCH-57 IN CRL.A.NO.311/2017 AND THE JUDGMENT PASSED BY THE COURT OF THE XVIII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BENGALURU DATED 06.02.2017 IN C.C.NO.23131/2014 AND ETC.,

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THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 24.04.2025, THIS DAY ORDER WAS PRONOUNCED THEREIN AS UNDER:

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CORAM: HON'BLE MS JUSTICE J.M.KHAZI

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CAV ORDER

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In these petitions filed under Section 397 of Cr.P.C,

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petitioner who is accused before the trial Court has challenged her conviction and sentence imposed by the trial Court, which came to be confirmed by the Sessions Court by dismissing the appeals filed by her.

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2. For the sake of convenience the parties are

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referred to by their ranks before the trial Court.

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Two separate complaints came to be filed by the complainant against the accused for offence punishable under Section 138 of N.I Act, alleging that she and accused were friends since 10 years. Accused gained

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the confidence of complainant and used to borrow hand loan and repay the same. During the month of January 2013, accused requested complainant to lend Rs.7 lakhs for establishing a Beauty Parlour in Malleshwaram area of

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Bengaluru City. Accordingly, complainant advanced Rs.7 lakhs to her. Again in the month of April 2013, accused requested complainant hand loan of Rs.1 lakh as she was required to pay fee and donation for admitting her daughter to Deeksha Reva College, Sanjaynagar, Bengaluru. She has promised to repay the same in two instalments in between November 2013 to January 2014.

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3.1 However, when accused defaulted repayment and on repeated request and demand, she issued two cheques i.e., 566187 and 566185 for Rs.4 lakhs each dated 04.04.2014 and 07.04.2014, with an assurance of prompt payment on presentation. However, before the due date, accused got issued a legal notice to the complainant alleging that 4 cheques bearing Nos.566173, 566174, 566181 and 566184 are in her custody and demanded to return them. However, the complainant has not received any of those cheques from the accused.

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3.2 When she approached accused regarding the

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said notice, accused said that the notice was sent by mistake and that she can encash cheque Nos.566187 and

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Accordingly, complainant presented the subject cheques on due dates. However, they were dishonoured

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on account of stop payment instructions. In this regard she got issued legal notices dated 21.04.2014 and they are duly served. After receipt of the legal notice, accused vacated the house in Sanjayanagar and shifted to Ramamurthynagar. To harass the complainant accused approached Mahila Sahayavani and after complainant apprised the true facts, the said complaint was dismissed after warning the accused. The accused has not sent reply to the legal notice issued by the complainant. She has also not paid the amount due and hence, the complaint.

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After due service of summons accused has appeared before the trial Court and contested the case by pleading not guilty.

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In both complaints, complainant has given evidence as PW-1 and her brother as PW-2. In C.C.No.15012/2014, she has relied upon Exs.P1 to 57 and in C.C.No.23131/2014, she has relied upon Exs.P1 to 10.

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During the course of her statement under Section 313 Cr.P.C, the accused has denied the

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incriminating evidence led by the complainant.

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Accused has also given evidence in both cases by examining herself as DW-1 and got marked Exs.D1 to 4.

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By a common judgment, the trial Court

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convicted the accused and sentenced her to pay fine of Rs.8,20,000/- with default sentence.

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Aggrieved by the same, accused filed Crl.A.Nos.312/2017 and 311/2017. Both of them came to be dismissed by the Sessions Court and thereby confirming the judgment and order of the trial Court.

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Aggrieved by the concurrent findings of the trial Court and Sessions Court, the accused has filed these petitions contending that they are erroneous and passed without proper appreciation of evidence. They are manifestly bad resulting in serious miscarriage of justice. The complainant has not proved her financial capacity to

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lend Rs.8 lakhs to the accused and she has also not shown the said fact in her income tax returns. The trial Court has

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erroneously held that accused has failed to establish borrowing and repayment of Rs.50,000/-, when the burden is on the complainant to prove her case. The trial Court has also erred in holding that during the relevant point of time accused was in financial distress and that she has failed to rebut the presumption. Viewed from any angle the impugned judgment and order is not sustainable and hence, the petition.

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In support of his arguments, learned counsel for

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accused has relied upon the following decisions:

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i) Ganesan Vs. State, rep. by the Inspector of Police and Anr. ( Ganesan )¹

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ii) G J Raja Vs. Tejraj Surana ( G J Raja )²

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iii) A T Mydeen and another Vs. Assistant Commissioner, Customs Department ( A Mydeen )³

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On the other hand learned counsel for

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complainant would submit that having regard to the fact that the cheques are drawn on the account of the accused

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1 2011 (5) CTC 747

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2 AIR 2019 SC 3817

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3 (2022) 14 SCC 392

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and it bears her signatures and on presentation dishonoured on account of stop payment instructions, presumption under Section 139 of N.I Act is operating, placing the initial burden on the accused to rebut the same. On appreciation of the oral and documentary evidence placed on record by both parties, the Courts below have rightly held that not only accused has failed to rebut the presumption, but also the complainant has proved her case. There is no perversity committed by them calling for interference and pray to dismiss the petitions also.

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In support of his arguments, learned counsel for complainant has relied upon the decision in the case of S. Mohammed Vs. Shekara Poojary (S.Mohammed)⁴ .

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Heard arguments of both sides and perused the record.

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Thus, in these petitions filed under Section 397 of Cr.P.C, accused has challenged the concurrent findings

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4 Crl.RP No.100/2015 dated 26.02.2021.

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of the trial Court and Sessions Court convicting and sentencing her for the offence punishable under Section 138 of N.I Act. While complainant claim that accused borrowed hand loan of Rs.7 lakhs and Rs.1 lakh and towards repayment of total sum of Rs.8 lakhs, she issued two cheques for Rs.4 lakhs each. However, before she could present them for realization, accused got issued a legal notice alleging that while borrowing Rs.50,000/-, at the instance of complainant she had given 4 blank cheques bearing Nos.566173, 566174, 566181 and 566182 and even though she repaid the said loan of Rs.50,000/- with interest, complainant has not returned them and demanded to hand over the same.

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In this regard complainant has contended that

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the two cheques which are the subject matter of complaints are not among the 4 blank cheques bearing Nos.566173, 566174, 566181 and 566182 alleged to have been given by the accused and therefore, she proceeded ahead and presented the subject cheques and on their

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dishonour and on the failure of accused to comply with the same, filed the complaint.

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Thus, by taking a defence that she has borrowed Rs.50,000/- and repaid the same the accused is admitting that there was monetary transaction between her and complainant and they were known to each other since long time. Accused also admit the cheques in question are drawn on her account and bear her signature and on presentation, they came to be dishonoured on account of stop payment instruction, presumption under Section 139 of N.I Act is operating in favour of the complainant and against the accused, placing the initial burden on the accused to rebut the same and establish that they were not issued towards repayment of any legally recoverable debt or liability.

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At the same time, though during the course of cross-examination of the complainant, the accused has also challenged her financial capacity, however, she has not sent reply to the legal notice issued by the complainant. In the light of the same and in view of the

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decision of the Hon'ble Supreme Court in Tedhi Singh Vs. Narayan Dass Mahant ( Tedhi Singh )⁵ , in the absence of reply to legal notice challenging the financial capacity of the complainant, though at the first instance, the complainant need not prove her financial capacity, however, at the trial if the financial capacity of the complainant is challenged, then it is for the complainant to prove the same. In fact in the case of APS Forex Pvt, Ltd Vs. Shakti International Fashion Linkers and others ( APS

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Forex )⁶ the Hon'ble Suprmee Court held that when the accused rises issue of financial capacity of complainant, in support of his probable defence, despite presumption operating in favour of complainant regarding legally enforceable debt under Section 139 of N.I Act, the onus shifts again on the complainant to prove his financial capacity by leading evidence, more particularly, when it is a case of giving loan by cash and thereafter issue of cheque.

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Now, it is to be seen whether complainant has proved her financial capacity. During the course of her

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5 (2022) 6 SCC 735

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6 (2020) 12 SCC 724

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cross-examination, complainant has admitted that at the time when she allegedly advanced the loan to the accused,

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she was not having sufficient funds in her account. However, she has specifically deposed that her brothers and parents used to help her financially, whenever she was in need of money. She has also deposed that she had Rs.3 lakhs in cash with her and she took remaining Rs.4 lakhs from her brother.

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In order to prove that her brother is financially

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sound and had helped the complainant with finance at the relevant point of time, complainant has examined her brother Praveen Shetty as PW-2. He has produced Ex.Ps.11 to 56, which clearly indicates that he is financially sound. Though PW-2 is cross-examined at length, the accused has not succeeded in dislodging his evidence.

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On the other hand, during the course of her evidence, accused has deposed that except Rs.50,000/she has not borrowed any hand loan from complainant and they she had repaid the same in instalments with interest. Her cross-examination reveal that initially she was running

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a Beauty Parlour at Nagashettihalli and during November 2012, she sifted it to Malleshwaram and at that time she

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was in need of financial. She has also stated that for the premises where she was running the Beauty Parlour at Malleswaram, she paid Rs.1,50,000/- as advance. Though she has denied that she had to spend for interior, it is common practice that whenever a new establishment is opened, it requires interiors and incur expenses, especially when accused shifted her Beauty Parlour from Nagashettihalli to Malleswaram which is a posh locality and customers of such area would expect interiors upto the mark.

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During the course of her cross-examination, accused has claimed that if she was in need of any finance her husband was there to take care of it. However, at para No.10 of her cross-examination, accused has admitted that she had filed Crl.Misc.205/2011 against her husband and others under the Protection of Women from Domestic Violence Act, 2005 ('DV Act for short) and she had also

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filed O.S.No.694/2010 for partition against her husband and his relatives.

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This fact clearly indicate that during 2012, when accused was in need of finance, her relationship with her husband had spoilt and having regard to the fact that she had shifted her Beauty Parlour to Malleswaram in November 2012, it probablise the contention of complainant that she was in need of finance to open the Beauty Parlour. The accused has also conceded that her daughter was studying in Deeksha Reva College, Sanjaynagar, Bengaluru, during 2013 and therefore, it also probabilises the case of the complainant that after borrowing Rs.7 lakhs for her business, she also took hand loan of Rs.1 lakh for admitting her daughter to the college. At page No.7 of her cross-examination, accused has stated that when she borrowed loan from the complainant she issued cheque at Ex.P1 and complainant directed her to repay the same within 1 1/2 years.

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Having regard to the fact that both complainant and accused were best of friends knowing each other since

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10 years and complainant was having backing of her brothers and parents and accused was in need of finance, it probabalises that accused borrowed the loan in question.

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Though the accused has claimed that she borrowed Rs.50,000/- from complainant and repaid the same in instalments of Rs.6,000/- p.m, with interest, except her self-serving statement, she has not produced any other evidence. Though in the legal notice at Ex.P6, the accused has claimed that 4 blank cheques bearing Nos.566173, 566174, 566181 and 566184 are with the complainant, admittedly, the subject cheques on the basis of which complaints are filed are not among them. In the said notice she has not referred to the cheque pertaining to these cases. It appears accused was in the habit of borrowing money and issuing cheques to various persons and as such she is not in a position to know which cheques were given to whom. If at all the subject cheques or any other cheques were given to the complainant, at the time of allegedly borrowing Rs.50,000/- and it was repaid with interest, nothing prevented her from taking back the said

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cheques. Though the accused has given stop payment instructions to the Bank, she has not produced the letter addressed to the Bank to ascertain the reasons for such instructions. It would have helped her defence. Therefore this Court has no hesitation to hold that accused has taken false defence and failed to prove the same.

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The trial Court as well as the Sessions Court on appreciation of oral and documentary evidence placed on record have rightly held that the accused has failed to rebut the presumption and at the same time, complainant has proved the allegations against accused and convicted and sentenced her. The findings given and conclusions arrived at by them are consistent with the evidence on record. This Court finds no perversity in the same, calling for interference.

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The accused has also raised a grievance that the trial Court committed error in passing a common judgment and order by clubbing both cases. It is pertinent to note that separate trial was held and both parties have led separate evidence. Only at the final disposal, the trial

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Court has passed common judgment and order. Having regard to the fact that the parties are common, the contention of the complainant as well as the defence of accused are also common, to avoid repetition, the trial Court has clubbed them and disposed of by a common order. This Court finds no illegality or irregularity in the same. It has not resulted in any miscarriage of justice.

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In the result the petitions fail and accordingly, the following:

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ORDER

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(i) Petitions filed by the accused under Section 397 of Cr.P.C is dismissed.

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(ii) The impugned judgment and order dated 06.02.2017 in C.C.No.15012/2014 and C.C.No.23131/2014 on the file of XVIII ACMM, Bengaluru and judgment and order dated 07.11.2019 in Crl.A.No.311/2017 and Crl.A.No.312/2017 on the file of LVI

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Addl.City Civil and Sessions Judge,

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Bengaluru (CCH-57) are confirmed.

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(iii) The Registry is directed to send back trial Court and Sessions Court records along with copy of this order forthwith.

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Sd/(J.M.KHAZI) JUDGE

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RR List No.: 1 Sl No.: 13

Smt. Lakshmi B v. Smt. Naveena Shetty

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Smt. Lakshmi B v. Smt. Naveena Shetty

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