IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL APPEAL No.1013 OF 2010 BETWEEN:
Smt. V.Kamalamma W/o. Shri. Shivaramaiah, Aged about 59 years, R/a D.No.52/2, 25th Cross, 6th Block, Jayanagar, Bengaluru-82. …Appellant (By Sri. Vijay Bhonsle, Advocate for Sri. M.V.Vedachala, Advocate) AND:
Smt. Venkatalakshmamma, Aged about 47 years, Staff Nurse, Ayurvedic Hospital, Malavalli, Mandya District. …Respondent (By Sri. P.D. Subramanya, Advocate) This Criminal Appeal is filed under Section 378(4) of Cr.P.C praying to set aside the order dated:05.08.2010 passed by the P.O., FTC-V, Bengaluru in Crl.A.553/08 – acquitting the respondent/accused for the offence punishable under Section 138 of N.I.Act.
This Criminal Appeal coming on for Hearing this day, the Court delivered the following:
JUDGMENT In the complaint filed by the present appellant under Section 200 of Code of Criminal Procedure, against the present respondent, for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as `N.I.Act’), the learned XV Addl.Chief Metropolitan Magistrar, Bengaluru City, (hereinafter for brevity referred to as `trial Court’), in C.C.No.28033/2005, pronounced the judgment of conviction, convicting the present respondent/accused on 13.6.2008. Against the same, the present respondent, as an accused, preferred Criminal Appeal No.553/2008, before the learned Fast Track (Sessions) Judge-V, Bengaluru City, (hereinafter for brevity referred to as `lower Appellate Court’), which by its impugned judgment dated 5.8.2010, allowed the appeal and set aside the judgment of conviction passed by the trial Court. It is challenging the judgment of acquittal passed by the lower Appellate Court, the appellant/complainant has preferred this appeal.
2. The summary of the case of the complainant in the trial Court is that the complainant and the accused are working in the same department. At the request of the accused, the complainant gave her a hand loan of `1,50,000/- to meet her urgent need. The accused had agreed to repay the same within six months. However, the accused failed to repay the amount as promised. At the demand made by the complainant for the repayment of the loan, the accused issued a cheque bearing No.726163, dated 25.5.2005, drawn on Corporation Bank, S.C.Road, Bengaluru, for a sum of `1,20,000/- in favour of the complainant towards partial discharge of the loan amount. When presented for realisation, the said cheque came to be dishonoured with the reason “funds insufficient”. Thereafter, the complainant got issued a legal notice to the accused demanding the payment of the cheque amount, which demand was also not met by the accused. Thus, it constrained the complainant to institute a criminal case against the accused/respondent for the offence punishable under Section 138 of N.I.Act.
3. In order to prove her case, the complainant got herself examined as PW-1 and got marked documents from Exs.P-1 to P-7. The accused got herself examined as DW-1 and got examined her husband – Sri G.Murali as DW-2 and three other witnesses as DWs.3 to 5 i.e., SriB.Suresh, Sri Ranghadhama and Smt.Susheelamma respectively and got marked a Passbook pertaining to her alleged bank account at Ex.D-1. After hearing both side and appreciating the evidence led before it, the trial Court by its impugned judgment dated 13.6.2008, convicted the accused for the alleged offence and sentenced her accordingly.
Challenging the same, the accused preferred a Criminal Appeal before the lower Appellate Court which by its judgment dated 5.8.2010, allowed the appeal and set aside the judgment of conviction passed by the trial Court and acquitted the accused of the alleged offence. It is against the said judgment of acquittal passed by the lower Appellate Court, the appellant/complainant has preferred this appeal.
4. Heard the learned counsel from both side and perused the material placed before this Court.
5. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court.
6. The learned Counsel for the appellant/ complainant in his argument submitted that it is an admitted fact that the complainant and accused were knowing each other since they were working in the same Department of Health. The issuance of cheque at Ex.P-2 by the accused is also not in dispute. The defence taken by the accused that the said cheque was issued by her husband in favour of one Sri R.Basavaraj and said Basavaraj colluding with the complainant had got a false case filed, has not been established by the accused by examining the said Basavaraj or eliciting any favourable statement by PW-1 in her cross-examination. DW-2 is a got up witness and DWs.3 to 5 are interested witnesses who does not knowanything about the transaction in question, but, have come forward only to help DW-1. He further submitted that admittedly DW-1 was in inimical terms with PW-1. Thus, the trial Court has rightly convicted the accused of the alleged offence and the act of lower Appellate Court in reversing the conviction was uncalled for.
7. Though the respondent was being represented with her counsel, however, this Court noticing that the said learned counsel for the respondent had remained absent for few dates of hearing and did not proceed with the matter, through the order dated 25.1.2019, appointed Sri.P.D.Subramnaya, learned counsel and panel advocate in the panel of Legal Services Committee of this Court, as a counsel for the respondent to defend her interest.
8. Learned panel advocate for the respondent in his arguments submitted that the complainant has not given any details as to the date when the loan was given and manner and the place and how the loan was given. DW-2 to DW-5 have clearly and specifically stated that the cheque in question was issued to one Sri Basavaraj and the same cheque was misused by the complainant. Learned counsel further submitted that the accused has taken a specific defence that the cheque in question has never been issued to the complainant has been substantiated by the evidence led from defence side. As such, the lower Appellate Court has rightly set aside the judgment of conviction of the trial Court.
9. From the evidence of the parties, the undisputed fact remains that the complainant and the accused being the colleagues, working in the same Department of Health i.e., in Sri Jayachamarajendra Institute of Indian Medicines, Bengaluru, knew each other. The accused has not denied that the cheque in question at Ex.P-2 belongs to her and duly executed by her. It is also not in dispute that the said cheque when presented for realisation by the complainant, the same came to be dishonoured by her banker with an endorsement “funds insufficient” as per Ex.P-3. After which the complainant got issued a legal notice to the accused as per Ex.P-4 demanding the payment of the cheque amount. It is in these undisputed facts, the evidence led by the parties requires to be analysed.
10. PW-1 in her examination-in-chief in the form of affidavit evidence has reiterated the contentions taken up by her in the complaint and stated that the accused who was known to her, had availed a loan of `1,50,000/- from her in April-May 2004 and towards part repayment of the said loan amount, had issued the cheque in question, which came to be dishonoured when presented.
In her cross-examination, she has stated that she had availed KGID loan in the year 2002 and GPF loan in the year 2003 for the performance of marriage of daughter of her sister. However, since she did not spend the money for the said purpose, she had retained the same with her, which she lent to the accused at her request. The suggestion made to her in her cross- examination that husband of the accused Sri.G.Murali had availed a loan of `10,000/- from Pump Operator of the Hospital by name Basavaraj and at that time, a cheque was given to said Basavaraj as a security and the said cheque given to Basavaraj has been misused by the complainant, which resulted in the present complaint, was not admitted as true by PW-1.
11. The accused as DW-1 in her examination-in- chief has at the outset denied that she had availed a hand loan of `1,50,000/- from the complainant. However, she had taken a defence that her husband had issued the cheque in question to one Sri Basavaraj, Pump Operator, when he availed a loan of `10,000/- from Basavaraj. The cheque in question was issued as a security, however, the said cheque was misused by the complainant.
As a second defence, DW-1/accused also taken a defence that her husband’s younger sister was proposed to be given in marriage with adopted son of the complainant. Since the same was not materialised, complainant developed ill-will against her and as a revenge, has filed a false case.
Thirdly, DW-1 has also taken a defence that the cheque bearing No.726165 issued by her in the year 2002 has been encashed in the same year as could be seen in Ex.D-1 – her passbook. The cheque in question is with number 726163, as such, it should have been issued at an earlier time, but, not in the year 2005. However, in her cross-examination, the accused has denied all the defence taken by PW-1.
12. The accused also got her husband one Sri G.Murali, examined as DW-2, who supported the contentions taken up by his wife i.e., accused, by reiterating the same in his affidavit evidence also.
13. DW-3, DW-4 and DW-5 who were also shown to be working in the very same hospital have stated that husband of accused had issued the cheque to one Sri Basavaraj, Pump Operator, as a security when DW-2 had availed loan from him.
14. The issuance of cheque at Ex.P-2 by the accused is not in dispute. Admittedly, the cheque has returned unpaid with the Banker’s endorsement “funds insufficient”. In such a situation, when it is prima facie shown that the cheque in question was issued by the drawer to the payee, under Section 139 of N.I.Act, a presumption forms in favour of the complainant. The Hon’ble Apex Court in Rangappa –vs- Sri Mohan, reported in {2010 (11) SCC 441}, has also observed that, issuance of the cheque would create a presumption with respect to legally enforceable debt in favour of the payee of the cheque, however, the said presumption is rebuttable. The accused has examined herself and other four witnesses to rebut the said presumption by taking various defence, including the denial of the alleged loan transaction.
15. The first defence of the accused is that the cheque in question was issued by her husband to one Sri Basavaraj, as a security when her husband availed a loan of a sum of `10,000/- from said Basavaraj. No where, DW-1 or DW-2 in their evidence stated as to what made DW-2, the husband of the accused, to issue a blank cheque, that too, belonging to his wife, to Basavaraj as a security rather than issuing the cheque of his own account.
Secondly, even according to the accused and her witnesses, the said Basavaraj was a Pump Operator working in the very same establishment. When the accused could able to examine DW-3, DW-4 and DW-5 as her witnesses, who were also working in the same establishment, nothing is stated by her as to what problem she had in examining the said Basavaraj who would have been an important witness on her side to prove her alleged defence. Non-examination of said Basavaraj leads to a serious doubt in the alleged defence taken by the accused.
Thirdly, even though the evidence of DW-3, DW-4 and DW-5 are to be believed to the extent that DW-2, the husband of the accused, had issued a cheque to one Sri Basavaraj as a security, but, evidence of none of these three witnesses mentions that the said cheque issued as a security is the very same cheque which is at Ex.P-2.
Fourthly, though the accused has taken a contention that the said Basavaraj in collusion with the complainant had got the present case falsely filed through the complainant, but, no material is placed regarding the alleged collusion between said Basavaraj and the complainant. Merely because the complainant has admitted that she knows Basavaraj working as a Pump Operator, by that itself it cannot be inferred that there was any collusion between said Basavaraj and the complainant which has ended up in the alleged cheque alleged to have been given to Basavaraj, resulting in misusing by the complainant. As such, the first defence of the accused that the cheque in question was given to one Sri Basavaraj as a security is not acceptable.
The second defence of the accused that sister of DW-2 by name Brinda G., was proposed to be given to the adopted son of the complainant in marriage and since the same could not materialise, a rivalry erupted between the complainant and the accused, is also confined to only a bear suggestion made by the accused to PW-1 and nothing beyond it. The said suggestion has been clearly denied by PW-1. In the absence of any material to show the alleged rivalry on the part of the complainant, the said defence also does not help the accused in any manner.
Lastly, the defence of the accused is that the cheque bearing No.726165 when is said to have been encashed in the year 2002, its previous numbered cheque which is in question and bearing No.726163 cannot be expected to be issued in the year 2005, is also not acceptable for the reason that, primarily though DW-1 has taken that defence in her examination-in- chief, but, no suggestion to that effect has been put to PW-1 in her cross-examination.
Further, even the said defence has also confined only to a statement without there being any material to show that the cheque in question which is at Ex.P-2 was issued prior to issuance of the alleged cheque bearing No.726165. Learned counsel for the accused did not able to convince the Court about any rule or mandate or obligation on the part of a bank account holder/drawer of the cheque that he/she shall issue cheque only in the order of seriatim of the cheque numbers. The drawer of the cheque being the author of the instrument would be at discretion to issue any of the cheque which he/she is in possession not necessarily bound by its serial numbers and in seriatim. Therefore, the third defence taken up by the accused is also not convincing.
17. Learned counsel for the accused in his argument also submitted that the complainant has not been able to establish her capacity to lend the amount which is a huge amount. The accused has not made any suggestion regarding the alleged incapacity of the complainant to lend money to PW-1 in her cross- examination.
Per contra, PW-1 herself has given the details about her capacity stating that she had availed a loan from KGID and GPF though for other purpose, but, was not utilised for the said purpose, as such, retained that money with her. She has also produced Ex.P-7, a loan recovery notice from KGID to show that she had availed a loan of `87,390/- from it. Thus, when the accused has not seriously disputed the alleged capacity of the complainant to lend and not even given any reply to the legal notice taking such a defence and also not suggested about her defence about the alleged incapacity to PW-1 in her evidence, per contra, when the complainant as PW-1, apart from her oral evidence, also produced Ex.P-7 to show that she had availed a substantial amount as loan from KGID, then the capacity of PW-1 to lend the loan amount in question cannot be suspected.
18. Even though the trial Court has analysed these evidentiary aspects in its proper perspective and pronounced the judgment of conviction, however, the lower Appellate Court being carried away with a notion that the complainant has to prove beyond reasonable doubt the existence of a legally enforceable debt, has expected the complainant to prove the alleged loan transaction and existence of liability from the accused like in a civil suit. In the said process, it ignored the the presumption under Section 139 of N.I.Act, which comes to the aid of the complainant. This has led the lower Appellate Court passing an erroneous judgment of setting aside the trial Court’s judgment of conviction and pronouncement of acquittal order in favour of the accused.
19. Since in view of the above analysis, the said judgment passed by the lower Appellate Court is now found to be erroneous and that of the trial Court found to be in conformity with law and the evidence placed before it, the judgment under appeal deserves to be set aside and the judgment of the trial Court requires to be confirmed.
20. Accordingly, I proceed to pass the following order:
ORDER The Appeal is allowed. The judgment of acquittal passed by the learned Fast Track (Sessions) Judge-V, Bengaluru City, in Criminal Appeal No.553/2008, dated 5.8.2010, is set aside and the judgment of conviction passed by the learned XV Addl.Chief Metropolitan Magistrate, Bengaluru City, in C.C.No.28033/2005, dated 13.6.2008, is confirmed.
The Registry is directed to transmit a copy of this judgment to the trial Court forthwith along with lower Court records, to enable it to proceed further in the matter in accordance with law.
An entire copy of this judgment also be delivered to the respondent immediately free of cost.
Considering the effort put by the learned counsel for the respondent from the panel of High Court Legal Services Committee, Bengaluru, it is recommended to the Committee to consider the remuneration/honorarium payable to the learned counsel at `5,000/-.
Sd/- JUDGE bk/-