IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER 2019 BEFORE THE HON’BLE MR.JUSTICE ASHOK S. KINAGI Criminal Appeal No. 351 of 2012 BETWEEN:
SMT. K. V. SHOBHA W/O. VISHWANATH MAJOR, WORKING AS ANM AT GOVT. GENERAL HOSPITAL TIPTUR (BY SRI. M. DAYANAND PATIL, ADV. FOR M/S. PATIL LAW CHAMBERS, ADVS.) AND:
SMT. INDRAMMA W/O. KUMAR MAJOR, WORKING AS ANM AT HONAVALLI PHC HONAVALLI HOBLI TIPTUR TALUK (BY SRI. S. NAGARAJA, ADV.) …APPELLANT ... RESPONDENT THIS CRIMINAL APPEAL IS FILED UNDER SECTION 397 AND 401 CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 15.06.2011 PASSED BY THE P.O., FTC, TIPTUR IN CRL.A.NO.149/2007 AND ORDER DATED 16.11.2007 PASSED BY THE PRL. CIVIL JUDGE (JR.DN.) AND JMFC, TIPTUR IN C.C.NO.1578/2003.
THIS CRIMINAL APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The appellant/complainant being aggrieved by the judgment passed in Crl.A.No.149/2007 dated 15.06.2011, has filed the present appeal.
2. Brief facts of the case are as under:
That the respondent has borrowed a sum of Rs.1,50,000/- from the appellant on 24.02.2003 and after demand, respondent has issued a cheque bearing No.0722149 dated 22.04.2003, drawn on State Bank of Mysore, Tiptur Branch, and the appellant presented the said cheque for encashment, but the same returned dishonored with endorsement “not arranged for”, on 22.04.2003. Appellant got issued a legal notice dated 25.04.2003, calling upon the respondent to pay a sum of Rs.1,50,000/- within the prescribed period mentioned in the legal notice. The said notice was duly served on the respondent. But the respondent neither replied to the said notice nor paid the amount as claimed in the cheque. The complainant filed a complaint under Section 200 of Cr.P.C. for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.
The trial Court took cognizance and issued summons to the respondent. Respondent appeared and was enlarged on bail and did not plead guilty and claimed to be tried. In order to prove the contents of the complaint, the appellant examined herself as PW-1 and got marked documents as Exs.P1 to P8 and closed her side. Statement of the accused under Section 313 of Cr.P.C was recorded and the respondent examined herself as DW.1 and got marked documents as Exs.D1 and D2.
The trial Court after considering the materials on record and after appreciating the documents, and by drawing presumption under Sections 118 and 139 of the N.I.Act, convicted the respondent and sentenced her to pay a fine of Rs.1,55,000/-, in default to undergo simple imprisonment for 45 days, vide order dated 16.11.2007.
The respondent aggrieved by the said order filed the Criminal Appeal No.149/2007 before the Fast Track Court, Tiptur.
The Appellate Court after re-appreciating of evidence, allowed the appeal and set aside the judgment of conviction passed by the trial Court and acquitted the respondent for the offence punishable under Section 138 of the N.I.Act.
The appellant aggrieved by the judgment passed by the Appellate Court in Crl.A.No.149/2007 dated 15.06.2011, has filed the present appeal.
3. Heard arguments of learned counsel for the parties and perused the records.
4. Learned counsel for the appellant submits that the appellant has lent a sum of Rs.1,50,000/- to the respondent on 24.02.2003, and the respondent in discharge of the said debt, has issued the cheque on 24.04.2003 and the said cheque returned dishonoured with an endorsement “not arranged for” and thereafter legal notice was issued. Though the said legal notice was served on the respondent, she has neither replied to the said notice nor paid the amount and the trial Court has rightly drawn a presumption under Sections 118 and 139 of the N.I.Act and the Appellate Court has committed an error in reversing the judgment of the trial Court.
5. Learned counsel for the respondent supports the impugned judgment.
6. The initial burden lies on the appellant to prove that he has lent an amount of Rs.1,50,000/- to the respondent. In the present case, except the evidence of PW-1 i.e., the appellant, she has not placed any materials to show that the appellant has advanced a sum for Rs.1,50,000/- to the respondent. Per contra, the respondent examined herself as DW-1 and has deposed that the appellant kidnapped her daughter and the respondent has lodged a police complaint against the appellant on 11.01.2003, as per Ex.D1 and copy of the endorsement issued by the police dated 17.02.2003, is produced at Ex.D2.
7. Firstly, the appellant has failed to prove that she has advanced a loan of Rs.1,50,000/- to the respondent and not produced any records to show that as on the date of lending the money, she was possessing sufficient amount with her. Secondly, when the respondent has lodged a police complaint against the appellant, the question of respondent requesting the appellant to advance hand loan does not arise. The relationship of appellant and respondent cannot be said to be cordial. As observed above, respondent has lodged a criminal case against the appellant for kidnapping her daughter. No prudent man would think of lending money to the person who has lodged a criminal case against her. The appellant, in order to take revenge against the respondent, has filed a false complaint.
8. From a bare perusal of Ex.P1 i.e., cheque, the name, amount (both in words and figures) and the date are filled with black ink and the signature is in blue ink. This creates a doubt in regard to issuing of cheque and also the said cheque towards discharge of legal enforceable debt. The said cheque has been misused by the complainant. The complaint filed by the appellant is counter to the complaint lodged by the respondent.
9. The Appellate Court, after considering the evidence as well as documents produced by the respondent, has rightly held that the appellant has failed to prove beyond all reasonable doubts that the cheque issued is towards discharge of legal debt and has rightly acquitted the respondent. I do not find any grounds to interfere with the impugned order. In view of the above said reasons, I proceed to pass the following:
Order The appeal is dismissed.
Sd/-
Judge RD