IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL APPEAL No.730 OF 2010 BETWEEN:
Smt. Ramabai, Wife of Sri. Ravindra Singh, Aged about 45 years, Residing at No.4736, 1st Cross, Shivaji Road, N.R.Mohalla, Mysuru. ...Appellant (By Sri.K.S.Sreekantha, Advocate) AND:
Smt. Sheetal N, Wife of Sri. Praveen Kumar, Aged about 35 years, Residing at No.1, Dharimul House, Main Road, K.G.F, Kolar. ...Respondent (By Sri. Sunil M.V. Advocate For Sri. M.R.Vijayakumar, Advocate) This Criminal Appeal is filed under Section 378(4) of Cr.P.C praying to set aside the order dated:05.02.2010 passed by the II Addl. S.J., Mysuru in Crl.A.No.09/09 and confirm the order dated:30.12.2008 passed by the Prl. I Civil Judge, (Jr.Dn) & JMFC, Mysuru in C.C.No.3155/08- convicting the respondent/accused for the offence punishable under Section 138 of N.I.Act.
This Appeal coming on for Hearing, this day, the Court delivered the following:
JUDGMENT The present appellant had instituted a complaint against the present respondent in the Court of the learned Principal Civil Judge (Jr.Dn.) and JMFC., Mysuru (henceforth for brevity hereinafter referred to as the ‘trial Court’) in CC No.3155/2008 for the offence punishable under Section 138 of the Negotiable Instruments Act.
2. It was the summary of the case of the complainant in the trial Court that the accused being her neighbour and with an intention to start the business at Bengaluru through her husband had borrowed a loan of `1,50,000/- from her (complainant) in the month of February 2005, agreeing to repay the said amount in the month of March, 2005. The accused issued a cheque dated 10.03.2005 bearing No.028283 drawn on Vijaya Bank, Mandi Mohalla, Mysuru for a sum of `1,50,000/- to ensure the repayment of the cheque. When the said cheque was presented, the same came to be dishonoured with the shara “account closed”. Later, the complainant got issued a legal notice for which the accused gave an untenable reply, as such, the complainant was constrained to file the case.
In the trial Court, the complainant got herself examined as PW1 and got marked the documents from Exs.P1 to P5. The accused neither led any evidence nor marked any documents in her favour. After hearing both side, the learned trial Judge convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act and sentenced her accordingly.
3. Challenging the judgment of conviction of the trial Court, the accused preferred a criminal appeal in the Court of II Additional Sessions Judge at Mysuru in Crl.A.No.9/2009 (henceforth for the sake of brevity hereafter referred to as the “Lower Appellate Court”). The said Lower Appellate Court by its judgment dated 05.02.2010 allowed the appeal and set-aside the judgment of conviction and order on sentence passed by the trial Court. It is against the said judgment of acquittal, the complainant has preferred this appeal.
4. Learned counsel for the appellant in his argument submitted that the reason given by the Lower Appellate Court that the signature on the cheque would differ from that of the signature of the accused, as such, the issuance of the cheque by the accused is itself a doubtful, is an erroneous finding. Further reasoning of the Lower Appellate Court that the cheque was given not by the accused, but, by her parents which also creates a doubt in the alleged transaction is also erroneous finding.
5. Per contra, learned counsel for the respondent in his argument submitted that the very statement made by none else than the complainant in her cross examination as PW1 that the alleged loan amount was given to the parents of the accused and that the cheque was also given by them, but, not by the accused is a clear proof that no transaction as canvassed by the appellant / complainant has ever taken place.
6. The complainant as PW1 in her examination- in-chief has reiterated the contention taken up by her in her complaint. She has reiterated that the accused who was known to her, in order to facilitate her husband to start a business availed an hand loan of `1,50,000/-
from her. At that time, she had issued the cheque in question, which cheque, came to be dishonoured when presented for realisation. She has also stated that she got issued a legal notice which evinced an untenable reply. She got marked the said cheque, Banker’s endorsement, copy of the legal notice and reply as at Exs.P2, 3, 4 and 5 respectively.
7. Ex.P4 which is the legal notice issued by the complainant at the first instance to the accused immediately after dishonour of the cheque also narrated the alleged transaction as narrated by the complainant in her complaint. However, the said statements made in the legal notice at Ex.P4 was not admitted even to a smaller extent by the accused, who by giving a reply as per Ex.P5 has categorically stated that though the complainant and the parents of the accused were neighbours, but, at no point of time, the accused has availed any hand loan from the complainant, much less, the alleged loan of `1,50,000/- in the month of February, 2005. She has stated that the cheque in question also not been issued by her. However, the cheque kept in the house of her parents by her has reached the hands of the complainant, who making use of the blank cheque has presented the same in the Bank.
8. The defence taken by the accused at the first instance as at Ex.P5, further continued by her in the cross examination of PW1.
9. In the cross examination of PW1, it has been elicited that the parents of the accused were in close intimacy with the complainant and that the complainant kept regularly visiting them. It has also been elicited that the accused got married in the year 2000 itself. Since then, she has been residing in the matrimonial home at K.G.F. It is also brought in the cross examination of PW1 that the husband of the accused has got sufficient income and seldom the accused visits her parents house. It is further elicited that the husband of the complainant was an Autorickshaw driver and that the complainant was only a house wife and was not doing any business.
Apart from eliciting the family background of both side, it was further brought out in the cross examination of the complainant / PW1 that the cheque at Ex.P2 has been given by the parents of the accused, after receiving money. The said statement made by PW1 is not in the form of any admission of a suggestion, but, it is the statement by PW1 herself. By making the said statement, the complainant has made it clear that the cheque in question has not been issued to her by the accused, but, it was given to her by the parents of the accused. This gives more support to the contention taken up by the accused in her reply notice at the very first instance that she had kept few blank cheques in her parents house and some how, the said cheque has reached the hands of the complainant.
10. Secondly, PW1 the complainant in her cross examination has also stated that at no point of time, the husband of the accused has requested her to financially help him or given anything in writing. PW1 in her cross examination has admitted a specific suggestion as true that even the accused has also never requested her to financially help her nor she has given any writing with respect to monitory transaction. To the height of this, the very same complainant as PW1 in her further part of the cross examination has also admitted a suggestion as true that she has collected the cheque belonging to the accused from the parents of the accused. Thus, more than once, the complainant as PW1 in her cross examination, herself has stated that the cheque in question has not been given to her by the accused, but, she has taken it or collected it from the parents of the accused. As per the statement of PW1, herself made in her cross examination, the alleged amount was also said to have been given not to the accused, but, to her parents.
11. That being the case, when it is not the case of the complainant that she has been a holder or holder in due course of the instrument, but, it is her specific case in the complaint that the accused herself has borrowed money from her and it was the accused herself had issued the cheque in question. However, contrary to it, the statements of none else than the complainant (PW1) made in her cross examination, at more than one place that the cheque has been given not by the accused, but, by her parents and that at no point of time, the accused or her husband ever demanded for any financial help for them, would clearly go to show that merely because the complainant is said to have in possession of a cheque as per Ex.P2 which pertains to the accused, by that itself, it cannot lead to believe that there was any legally enforceable debt or liability by the accused towards the complainant. As such, the accused could able to successfully rebut the presumption about the existence of legally enforceable debt that was in favour of the complainant.
12. In such a situation, even though the Lower Appellate Court has given other reasons for setting aside the judgment of conviction and pronouncing the judgment of acquittal, the finding given by it, setting aside the judgment of conviction of the trial Court and pronouncing order of acquittal in favour of the accused cannot be found fault with.
Accordingly, the appeal stands dismissed as devoid of merit.
Sd/- JUDGE GH