IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B. A. PATIL CRIMINAL APPEAL No.57 OF 2019 BETWEEN:
Smt. Chitra P., W/o Panner Selvam, Aged about 39 years, R/at No.222/9, Krishna Reddy Building, Banahalli Village, Chandapura Post, Anekal Taluku, Bangalore – 560 099. ... Appellant (By Smt. Rukhiabi for Sri. Sangamesh R.B., Advocates) AND:
Smt.Kavitha P., W/o Prakash, Aged about 39 years, R/at Bidarammana Kavalu Village, Tipaturu Taluku, Tumkur District – 572 201. ... Respondent (By Sri. S.N.Bhat, Advocate (Absent)) This Criminal Appeal is filed under Section 378(4) of Cr.P.C. praying to set aside the judgment dated 03.11.2018, passed by the XXIII A.C.M.M., Bangalore City in C.C.No.16443/2017, acquitting the respondent/accused For the offence P/U/S 138 of the N.I.Act.
This Criminal Appeal coming on for admission this day, the Court delivered the following:-
J U D G M E N T This appeal has been preferred by the complainant/appellant being aggrieved by the judgment passed by 23rd ACMM Court, Bengaluru in C.C.No.16443/2017 dated 03.11.2018. Though this case is listed for admission, with the consent of the learned counsel appearing for the appellant the same is taken up for final disposal.
2. I have heard the learned counsel for the appellant. Learned counsel for the respondent remained absent. There is no representation.
3. The factual matrix of the case of the complainant before the Court below are that, accused and the complainant were known to each other.
Husband of the accused was a building contractor and accused was working in garments. Accused approached the complainant in the month of November 2016 for financial help of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand Only) in order to meet out the family necessities and agreed to return the same within three months. As the accused was known to complainant, she paid an amount of Rs.1,14,000/- (Rupees One Lakh Fourteen Thousand Only) as a loan in the month of November 2016. After taking the loan the accused family vacated the house without intimating to the complainant.
4. Subsequently the complainant went to the village of the accused to ask the accused to return the hand loan. At that time she gave a cheque bearing No.382009 dated 27.03.2017 drawn on State Bank of India. Complainant presented the said cheque for encashment through her banker on 28.03.2017. The same was returned on 04.04.2017 with the shara ‘No such Account’. Subsequently met the accused and requested to repay the amount. Accused expressed her financial difficulties and promised to pay the amount. As she did not pay the said amount, on 19.04.2017 a legal notice was issued to show cause for not returning the amount in cheque but the same was not been answered within the stipulated time and as such a private complaint was came to be filed.
5. The trial Court after recording the sworn statement took the cognizance, secured the presence of accused and plea of the accused was recorded. Accused denied the same and claims to be tried. As such the complainant got examined herself as PW-1 and got marked 5 documents. Thereafter the accused was examined by putting incriminating materials as against her. Accused has not led any evidence and marked no documents. After hearing the learned counsel for the parties the same has been dismissed. Challenging the legality and correctness of the judgment, the appellant/complainant is before this Court.
6. The main grounds urged by the learned counsel for the appellant are that the trial Court without properly appreciating the fact and material placed on record has erroneously dismissed the complaint filed by the complainant. It is her further submission that the said cheque Ex.P1 bears the signature of the accused/respondent. Only on the ground that the endorsement, which has been given by the bank clearly goes to show that there is no such account of the accused, as such the same has been dismissed.
7. It is her further submission that an opportunity may be given to the appellant to substantiate her case by leading cogent and acceptable evidence. It is her further submission that the respondent/accused has not stepped into witness box and even she has not denied that she does not hold the account for which the cheque has been issued in her cross examination. In that light, she prays that appeal may be allowed, impugned order may be set aside and matter may be remitted back to the Court below.
8. I have carefully and cautiously gone through the submissions made by the learned counsel and appellant and perused the records including the trial Court records.
9. It is the specific case of the complainant that the accused was known to her and for financial help she has given a loan of Rs.1,14,000/- (Rupees One lakh Fourteen Thousand) and when the complainant went and asked to return the loan, she gave a cheque drawn on State Bank of India. In order to substantiate the case complainant got examined herself as PW-1 and got marked 5 documents. Ex.P1 is the cheque said to have been issued by the respondent/accused. During the course of cross examination of PW-1, the fact of issuance of the cheque has not been denied and it has been further elicited that on the date when the amount was asked to be returned, at that time the cheque has been issued.
10. No doubt as per Section 138 of Negotiable Instruments Act duty cast upon the complainant to prove that any cheque drawn by any person or an account maintained by him with a banker, payment of any amount of money to another person out of the said account or discharge of amount from his account, then under such circumstances, it constitutes an offence. By close reading of Ex.P1 and other materials it appears that the signature on the cheque is that of the accused and accused has also not denied the said signature on the cheque. Then under such circumstances, I am of the considered opinion that no proper and legal evidence has been laid down by the complainant to show that the cheque which was said to have been bears the signature of the accused belongs to the account of the accused as contemplated under Section 138 of Negotiable Instruments Act. During the course of cross examination the said fact has not been denied. Only because the bank has given endorsement that there is no such account of the accused, the complaint has been dismissed.
11. Taking into consideration of the above said facts and circumstances, I am of the considered opinion that in order to lead better evidence by both the parties, if the matter is remitted back to trial Court with a direction that if at all the complainant wants to examine the banker to whom the said cheque belongs and whose account the cheque belongs to, then it is going to meet the ends of justice. In that light the matter requires to be remitted to the Court below.
In the light of the discussion held by me above, the appeal is allowed and judgment and dated 03.11.2018, passed by the XXIII A.C.M.M., Bangalore City in C.C.No.16443/2017, acquitting the respondent/accused For the offence P/U/S 138 of the Negotiable Instruments Act is set aside and the matter is remitted back to the Court below to dispose off the same after giving full opportunity to lead further evidence by the complainant and the accused.
Sd/- JUDGE BVK