IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE K. N. PHANEENDRA CRIMINAL APPEAL NO.1083/2010 (A) BETWEEN JAYASHREE MOUNESHWAR V.
W/O MOUNESHWAR SHIRASAPPA KAMMAR NO.18, 1ST FLOOR, 1ST MAIN ROAD SHARADA NAGAR YELAHANKA NEW TOWN BENGALURU – 560 064 … APPELLANT (BY SRI. G. NATARAJ, ADVOCATE) AND SMT. R. PUSHPAVATHI W/O SATHYANARAYANA NO.1457, EWS, III PHASE YELAHANKA NEW TOWN BENGALURU – 560 004 … RESPONDENT (BY SRI. B. V. BADRINATH, ADVOCATE [ABSENT]) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT DATED 22.7.2010 PASSED BY THE P.O. FTC-II, BENGALURU IN CIMINAL APPEAL NO.490/2009 ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I.ACT, AND CONFIRM THE ORDER DATED 19.05.2009, PASSSED BY 12TH ACMM BENGALURU IN CC NO.4005/2007.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 27.02.2019 COMING ON FOR ‘PRONOUNCEMENT OF JUDGMENT, THIS DAY K.N.PHANEENDRA, J., DELIVERED THE FOLLOWING:
JUDGMENT This appeal is preferred against the judgment of acquittal passed by the City Fast Track (Sessions) Judge, Bengaluru City, FTC-II, in Criminal Appeal No.490/2009 dated 22.7.2010.
2. The trial Court i.e., 12th Addl. CMM Court, Bengaluru City, in CC No.4005/2007 has in fact vide judgment dated 19.5.2009, convicted the accused (respondent herein) for the offence punishable under section 138 of the Negotiable Instruments Act and sentenced the accused to pay a fine of Rs.2,15,000/- failing which to undergo simple imprisonment for four months and also awarded an amount of Rs.2,13,000/- as compensation payable to the complainant u/s.357 of Cr.P.C. and the balance amount of Rs.2,000/- payable to the State. Aggrieved by the said judgment of conviction and sentence passed by the trial Court, the respondent herein has preferred an appeal before the City Fast Track (Sessions) Judge, Bengaluru City, FTC-II, in Criminal Appeal No. 490/2009 and the same was allowed and the respondent herein was acquitted for the offence punishable under section 138 of the Negotiable Instruments Act. Being aggrieved by the said judgment of acquittal, the complainant has preferred an appeal before this court.
3. Before adverting to the grounds urged before this court, it is just and necessary to have the brief factual matrix of the case. For the purpose of convenience and to avoid confusion and repetition of facts, we would like to retain the ranks of the parties as per their ranks before the Trial Court.
4. The Appellant herein is the complainant before the Trial Court has filed a complaint against the respondent herein who is the accused before the Trial Court for the alleged offence punishable u/s.138 of the Negotiable Instruments Act.
5. It is the case of the complainant that the accused has taken hand loan from the complainant a sum of Rs.2 lakhs, which was kept by her out of the retirement benefit of her husband and she gave that amount as loan to the accused with an understanding that the accused would repay the said amount along with interest within short time. In spite of repeated requests and demands, the said amount was not paid. However, on 27.11.2006, the accused has issued a cheque bearing No.666364 in favour of the complainant and the said cheque was presented with the bankers of the complainant which was drawn on Kalpatharu Grameena Bank, Yelahanka Branch and the said cheque was returned with an endorsement ‘insufficient funds’. After issuance of notice to the accused, as the said notice was vaguely answered by the accused, a complaint was lodged before the Trial Court. The accused in pursuance of the summons issued by the Trial Court after taking cognizance appeared before the court and contested the proceedings. This court recorded the plea of the accused as he pleaded not guilty and claim to be tried, the Trial Court put the accused on trial.
6. The complainant in order to prove the guilt of the accused examined herself as PW-1 and got marked Exhibits P-1 to P-8. The accused also examined two defence witnesses as DWs.1 and 2 and got marked Exhibits D-1 to D-4 on her side and closed the defence evidence. After appreciating the oral and documentary evidence on record, the Trial Court has convicted the accused for the above said offence and imposed the punishment as noted supra.
7. I have carefully examined the judgment of the Trial Court. The Trial Court mainly relying upon the presumption under Sections 118 and also 139 of the Negotiable Instruments Act, has come to the conclusion with regard to the existence of legally recoverable debt and the same has not been rebutted by the accused. Therefore, the Trial Court has convicted the accused. The appellate court in fact has re-appreciated the evidence on record and came to the conclusion that the evidence of the prosecution witnesses and the defence evidence if it is carefully examined, it clearly discloses that by means of preponderance and probabilities, the accused has rebutted the presumption raised u/s.118 and 139 of Negotiable Instruments Act. Therefore, holding that the complainant herself had no money and there is serious inconsistency in the evidence of PW-1 with regard to the possessing of such huge money to be paid to the accused as loan. After analysis of evidence the Court has observed that on overall analysis of the material which show that actually the accused had taken loan from a witness DW-2 and repaid the said amount for the discharge of the said amount, the disputed cheque was issued by the accused to DW-2 Nirmala and in turn as the accused complainant and the said Nirmala were close to each other and close friends, the accused told the complainant to take back the cheque to handover the same to the accused. In that context, the said Nirmala has given the said cheque to the hands of the complainant and the same has been misused. This has been probabalised by the evidence of Nirmala DW-2. Therefore, giving benefit of doubt, the appellate court has acquitted the accused. Against which order, the present appeal is preferred.
8. Of course, in the grounds of appeal as elaborated by the learned counsel in his arguments, it is contended that the appellate court has not properly invoked the presumption u/ss.118, 119 and 139 of the Negotiable Instruments Act. Of course, if these provisions are read, it clearly discloses that unless the contrary view is proved, the court has to presume that the Negotiable Instrument had been made or drawn for consideration. Further, the same has been issued by the appellant/accused in favour of the complainant for repayment of any debt or liability.
The said existence of debt or liability also has to be presumed u/s.139 of the Negotiable Instruments Act. Therefore, this court has to examine whether by means of preponderance of probabilities, the accused has rebutted the said presumption as held by the appellate court.
9. It is a well recognized and time tested principle of criminal jurisprudence that, the complainant has to prove his case beyond reasonable doubt. The burden on the complainant is heavy in order to prove the guilt of the accused including taking advantage of the presumptions under law. Once the presumption is raised u/s.118 and 139 of the Negotiable Instruments Act, the initial presumption has to be raised in favour of the complainant that, the said cheque was duly issued by the accused for repayment of any debt or liability in favour of the complainant. But the said presumption can be rebutted by means of Preponderance of probabilities either the accused leading evidence on his side or eliciting important aspects during the course of cross examination of the complainant and the witnesses if any and also by means of production of any documents or by means of relying upon the documents produced by the complainant herself. There is no hard and fast rule or any straight jacket formula is there as to how the accused has to rebut the said presumption in order to secure acquittal. It would suffice if the accused is able to create a doubt in the case of the prosecution, that itself is sufficient to shift the burden back on the complainant to establish the case beyond reasonable doubt.
10. Bearing in mind the above said principles, now let me see what is the materials available on record. The Trial Court in fact has observed that the complainant has shown that she has given an amount of Rs.2 lakhs to the accused. There is no dispute by the accused with regard to the cheque being issued by her, but not to the complainant, but in favour of one Nirmala with reference to some loan transaction between the accused and Nirmala. Further, the signature on the cheque has not been denied by the accused very fairly accepted the cheque being belonged to the accused. But it is categorically stated that, the complainant had no money for payment of such huge amount of Rs.2 lakhs in favour of the accused.
In this context the version of the complainant is that, her husband was retired from service in 2000 and she had kept the money in the Joint account of herself and her husband and the same has been paid. However, in the course of evidence, she has categorically admitted that in the year 2000, her husband retired from service and she received an amount of Rs.2 to 2.5 lakhs and the husband has received the amount and the said amount was kept in the Bank account in the account of the complainant as well as her husband. The said account was kept in a joint account and the said account was operated by her husband. It is further stated that out of the said amount, they have purchased a house No.1586. In the course of cross examination, it is further admitted that she was also working as Anganawadi worker and getting an amount of Rs.1,500/- per month, but she was not regularly receiving the said amount but once in 2 or 3 months, she used to get that amount. Her husband was also getting an amount of Rs.6,000/- per month as salary and they also have to pay an amount of Rs.1,600/- towards rent in respect of their house. It is also admitted that during the relevant point of time, she has taken a loan of Rs.40,000/-
from one Nagamani. Very peculiarly, she has stated that she has actually taken loan of Rs.40,000/- from one Nagamani and she gave that amount to the accused along with an amount of Rs.1,60,000/- which was with her. It is further stated in the cross examination that an amount of Rs.1,60,000/- was given to her by her husband’s brother in the year 2005 and she kept that cash amount in her house and the said amount was given to the accused as loan. In the complaint, very peculiarly enough except stating that she has given an amount of Rs.2 lakhs to the accused but she has not stated about the source of that particular amount. On the other hand, at one stretch she has stated that she had money with her, but in another stretch she has stated that the said amount was given by Ramakrishna, husband’s brother of the complainant and she had kept the said amount in the house. Further, it is stated that the complainant has taken that money for the purpose of constructing the first floor of their house. But they have not constructed the first floor and kept that money in their house and the same amount was given to the accused. She has never stated that whether she has repaid the amount of Rs.40,000/- to the said Nagamani.
Therefore, the first appellate court after appreciating the same has come to the conclusion that there is a doubt with regard to the existence of any money with the complainant as on that particular date in the year 2006. The said Ramakrishna has also not been examined before the court to substantiate the above said aspect with regard to the capacity of the complainant to give that much of huge amount stating that her family itself was not so affluent because she was only getting an amount of Rs.1,500/- and her husband was getting Rs.6,000/- as salary and out of that, they are paying Rs.1,600/- as rent and their two sons were studying and they have to pay the school fees and other things and they have to maintain the family with that amount. Therefore, whether that such huge amount could have been given by the complainant in favour of the accused, was the doubt, not clarified and proved by the complainant by cogent pleadings and evidence.
11. Apart from the above, the accused has also examined herself before the court. In the course of examination in chief, the accused has reiterated the said aspect that she has taken loan from Nirmala a sum of Rs.10,000/- in the year 2005 and he has issued a blank cheque as a security for repayment of the said loan amount in favour of Nirmala and in fact she has completely repaid the said amount to Nirmala in the month of October 2006 and requested said Nirmala to return the cheque to the complainant. Complainant is also a friend of Smt. Nirmala and as well as the accused. The complainant has also borrowed a sum of Rs.5,000/- from Nirmala about 2 to 3 years ago in this connection all the three persons are known to each other. Due to their acquaintance the complainant happen to meet Nirmala on 27.10.2006 and at that time, the accused was also there and requested the said Nirmala to handover the cheque with a view to collect it later, as Nirmala had assured to return the said cheque later to the accused. Therefore, the complainant after receiving the said cheque instead of handing over the same to the accused has mis-used the said cheque. Apart form that the said Nirmala has also re-iterated the above said aspects. In the course of cross examination, nothing worth has been elicited except putting her suggestion that she was not given any cheque to the complainant but accused herself has given cheque to the complainant. Even accepting the same, when the accused has shown before the court with regard to the financial difficulties of the complainant and also non examination of the said Ramakrishna who has given such huge amount of Rs.1,60,000/- it is very difficult for the court to come to a definite conclusion that the complainant has such capacity to pay the said amount as she is a house wife. The circumstance of the family of the complainant shows that she has also indebted an amount of Rs.80,000/- from Nagamani and she do not know whether she has repaid the amount or not and out of the meager amount of pension and her salary of Rs.1,500/- whether they can able to pay such huge amount to the complainant. So by means of these doubts, the accused has successfully probabalised that the complainant had actually did not own such huge amount to pay the said amount to the accused. Further, the doubt arises as to what was the necessity for the complainant to take Rs.40,000/- loan from Nagamani and pay the said amount to the accused. Along with another amount of Rs.1,60,000/- which she was having, is not properly accounted by the complainant . Therefore, when the presumption raised is discharged by the accused by means of some probabilities, and then the complainant has to prove the existence of Legally Recoverable Debt from the accused. There is no further evidence led by the complainant to clarify this particular doubt created in the mind of the court. Therefore, the appellate court in fact re-appreciating the evidence on record has come to the conclusion that the accused has rebutted the presumption raised in favour of the complainant at the initial stages.
12. Looking to the above said factual aspects and circumstances, there are two views available on the face of the record. One view which is taken by the Trial Court and another view which is taken by the first appellate court. Both the views are on the basis of the evidence on record. Factual aspects have been appreciated by both the courts. Therefore, when two views are available, the appellate court has appreciated the oral and documentary evidence along with the presumptions raised and held that the presumption has been rebutted. Therefore, the said view that it is also possible and a plausible view, it is in favour of the accused, in any opinion, has to be preferred. Therefore, I do not find any strong reasons to interfere with the judgment of the appellate court in holding that the complainant has not proved the case against the accused beyond reasonable doubt and therefore, the judgment of acquittal passed by the First Appellate Court, in my opinion, need not be interfered with. Hence, I proceed to pass the following:
ORDER The Appeal is dismissed.
Sd/-
JUDGE PL*