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CRL. A NO.126 OF 2018 C/W CRL. A NO.127 OF 2018 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.126 OF 2018 C/W CRIMINAL APPEAL NO.127 OF 2018
IN CRIMINAL APPEAL NO. 126 OF 2018:
BETWEEN:
SRI. K. V. BHASKAR MURTHY S/O. LATE V. VENKATANARAYANA, AGED ABOUT 59 YEARS, RESIDING AT NO.245, 6TH MAIN, 4TH BLOCK, JAYANAGAR, BENGALURU-560 011.
…APPELLANT (BY SRI. SACHIN V.R., ADVOCATE)
AND:
SRI. K. LAKSHMINARASIMHA MURTHY S/O. SRI. KRISHNAPPA, AGED ABOUT 50 YEARS, RESIDING AT NO.248, 6TH MAIN, JAYANAGARA 4TH BLOCK, BENGALURU-560 011.
…..RESPONDENT
(BY SRI.K.R. NAGARAJ, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (4) OF CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE A) THE JUDGMENT AND ORDER DATED 11.12.2017 PASSED BY THE HON'BLE XXII ACMM, BENGLURU; B) CONSEQUENTLY ALLOW THE COMPLAINT IN C.C. NO. 10202 / 2016 AND THEREBY CONVICT THE ACCUSED PERSONS;
CRL. A NO.126 OF 2018 C/W CRL. A NO.127 OF 2018 2 C)PASS ANY SUCH ORDER AS THIS HON'BLE COURT DEEMS FIT TO PASS IN THE CIRCUMSTANCES OF THIS CASE IN THE ENDS OF JUSTICE.
IN CRIMINAL APPEAL NO. 127 OF 2018:
BETWEEN:
SRI. K. V. BHASKAR MURTHY S/O. LATE V. VENKATANARAYANA, AGED ABOUT 59 YEARS, RESIDING AT NO. 245, 6TH MAIN, 4TH BLOCK, JAYANAGAR, BENGALURU-560 011. …APPELLANT (BY SRI.SACHIN V.R., ADVOCATE)
AND:
SMT. K. LALITHA W/O. SRI. K. LAKSHMINARASIMHA MURTHY, AGED ABOUT 44 YEARS, RESIDING AT NO.248, 6TH MAIN, JAYANAGARA 4TH BLOCK, BENGALURU-560 011. …..RESPONDENT (BY SRI.K. R. NAGARAJ, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (4) OF CODE OF CRIMINAL PROCEDURE PRAYING TO A)SET ASIDE THE JUDGMENT AND ORDER DATED 11.12.2017 PASSED BY THE HON'BLE XXII ACMM, BENGALURU; B)CONSEQUENTLY ALLOW THE COMPLAINT IN C.C. NO. 10203/2016 AND THEREBY CONVICT THE ACCUSED PERSONS; C)PASS ANY SUCH ORDER AS THIS HON'BLE COURT DEEMS FIT TO PASS IN THE CIRCUMSTACES OF THIS CASE IN THE ENDS OF JUSTICE.
THESE CRIMINAL APPEALS HAVING BEEN HEARD AND RESERVED ON 28TH JUNE OF 2023, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
CRL. A NO.126 OF 2018 C/W CRL. A NO.127 OF 2018 3 J U D G M E N T & ORDER ON I.A.No.2/2023
These appeals filed u/sec.378(4) of Code of Criminal Procedure (for short, ‘Cr.P.C.’), are by the complainant challenging the impugned judgment and orders dated 11.12.2017 in C.C.No.10202 and 10203 of 2016, whereby both complaints filed by the complainant for the offence punishable u/sec.138 of N.I. Act, came to be dismissed. 2. In the said complaints, complainant is common, whereas accused are different. However the accused are husband and wife and the transaction through which these complaints arose is same. The accused are joint account holders. In respect of the cheque signed and issued by the husband, C.C.No.10202 of 2016 and in respect of the cheque signed and issued by the wife, C.C.No.10203 of 2016 came to be filed. Though separate complaints were filed and separate evidence is led in both cases and the trial Court has disposed off them separately, having regard to the fact that the parties are common and the transaction between
CRL. A NO.126 OF 2018 C/W CRL. A NO.127 OF 2018 4 the complainant and accused is common, it would be appropriate to club these two appeals and dispose off by a common order. 3. For the sake of convenience, the parties are referred to by their rank before the trial Court and wherever necessary accused are referred with suffix of their names. 4. It is the case of the complainant that accused K.Lakshminarasimha Murthy and accused K.Lalitha are husband and wife. The complainant and accused are neighbours residing next to each other. Accused are joint owners of site No.248, 6th Main, 4th Block Jayanagar, Bengaluru-11. During April 2014, accused planned to construct a residential building. As complainant and accused are family friends, well-wishers and close to each other, accused requested complainant to help them financially in a sum of Rs.1.25 crores by way of hand loan so that they could complete the construction. After frequent interactions, deliberations and discussions, accused offered to sell 2nd floor of the construction for a
CRL. A NO.126 OF 2018 C/W CRL. A NO.127 OF 2018 5 sum of Rs.2 crores and Rs.1.25 crores which they are borrowing from the complainant would be treated as advance and for some reason if they could not sell the 2nd floor, they would return the hand loan with interest. 4.1 In this regard, complainant paid Rs.50 lakhs on 02.04.2014 and an agreement of sale and memorandum of understanding dated 02.04.2014 was entered into between the parties. Accused issued undated cheque No.976840 for Rs.50 lakhs. 4.2 Complainant paid Rs.25 lakhs/- on 09.06.2014. In this regard amendment to agreement dated 02.04.2014 and memorandum of understanding of even date 09.06.2014 was executed. Accused issued an undated cheque No.467970 for Rs.25 lakhs 4.3 Complainant paid Rs.25 lakhs/- on 08.09.2014. In this regard on 08.09.2014 amendment to agreement dated 02.04.2014 and memorandum of understanding dated 12.09.2014 was executed. Accused took back cheque No.976840 and 467970 and issued an
CRL. A NO.126 OF 2018 C/W CRL. A NO.127 OF 2018 6 undated consolidated cheque for Rs.1 crore signed by accused-K.Lalitha. 4.4 Complainant paid Rs.25 lakhs/- on 24.11.2014. In this regard amendment to agreement dated 02.04.2014 and memorandum of understanding of even date 24.11.2014 was executed. Accused issued an undated cheque No.473215 for Rs.25 lakhs/- signed by accused-K.Lakshminarasimha Murthy. 4.5 With the timely hand loan provided by the complainant, accused completed the construction before the end of March 2015. Infact, the complainant and his wife attended the house warming ceremony. However they came to know that accused have already leased the 2nd floor during November 2014 itself, which they had agreed to sell to the complainant. They did not bother to response to queries of the complainant. Sensing some danger, complainant addressed a letter dated 11.12.2015 to the accused with a request to repay the amount due. Though it is duly served, accused have neither paid the money nor sent any reply.
CRL. A NO.126 OF 2018 C/W CRL. A NO.127 OF 2018 7 4.6 When things stood thus, to his shock and surprise, complainant received summons in O.S.No.450 of 2016 which is a suit filed by the accused for permanent injunction alleging illegal interference. In the said suit, accused have not even whispered about the monitory transaction between them and the complainant. When enquired, accused expressed that they are not interested in selling the property. They directed the complainant to present the cheques for Rs.1.25 crores and get the money due. 4.7 Accordingly, on 09.03.2016 complainant presented cheque No.473215 for Rs.25 lakhs issued by accused-K.Lakshminarasimha Murthy. However it is returned with endorsement ‘funds insufficient’. 4.8 Similarly on 09.03.2026 complainant presented the cheque No.466349 for Rs.1 crore issued by accused-K.Lalitha. It was returned dishonoured on the ground ‘payment stopped by drawer’. 4.9 Hence, complainant got issued a legal notice dated 17.03.2016 through RPAD and speed post.
CRL. A NO.126 OF 2018 C/W CRL. A NO.127 OF 2018 8 Accused have received the notices sent through RPAD, but the one sent through courier is returned with endorsement ‘door locked’. However instead of complying with the legal notice, the accused have sent untenable reply dated 04.04.2016. 4.9(a) In the reply notice, the accused have admitted receipt of hand loan in a sum of Rs.1.25 crores. They have denied that they offer to sell 2nd floor for Rs.2 crores. They admitted receipt of letter dated 11.12.2015 sent by complainant demanding repayment of the amount. Accused have claimed that they have repaid the entire sum of Rs.1.25 crores and alleged that complainant has misused the cheques given by them by way of security. 4.10 In the light of the fact that accused have failed to comply with the legal notice and have taken up a false defence, without any alternative, the complainant is forced to file separate complaints.
CRL. A NO.126 OF 2018 C/W CRL. A NO.127 OF 2018 9 5. After due service of summons, accused have put in their appearance through counsel. They have pleaded not guilty and claimed trial. 6. In C.C.No.10202 of 2016, complainant has examined himself as PW1 and got marked Exs.P1 to 14. 6.1 During the course of his statement u/sec.313 Cr.P.C., accused-K.Lakshminarasimha Murthy has denied the incriminating evidence brought on record by the complainant. 6.2 Accused-K.Lakshminarasimha Murthy has stepped into the witness box by examining himself as DW1 and got marked Exs.D1 to 7. 7. In C.C.No.10203 of 2016, complainant has examined himself as PW1 and got marked Exs.P1 to 14. 7.1 During the course of her statement u/sec.313 Cr.P.C., accused-K.Lalitha has denied the incriminating evidence brought on record by the complainant.
CRL. A NO.126 OF 2018 C/W CRL. A NO.127 OF 2018 10 7.2 Accused-K.Lalitha has stepped into the witness box by examining herself as DW1 and got marked Exs.D1 to 4. 8. Vide the impugned judgment and order, the trial Court has dismissed both complaints. 9. Being aggrieved by the impugned judgments and orders, the complainant is before this Court contending that the defence taken by the accused does not appeal to the law of commonsense and is false. The trial Court has not bestowed its attention to the inconsistency in the defence taken by the accused and thereby rendered its judgment which is erroneous and liable to be set aside. The trial Court has not appreciated the falsehood of the defence taken by the accused. Having taken up a defence that the loan is discharged, the accused have failed to prove it and in the light of the same, the trial Court has erred in holding that the cheques were issued only for security purpose and therefore, the accused are not liable to be prosecuted.
CRL. A NO.126 OF 2018 C/W CRL. A NO.127 OF 2018 11 10. The trial Court has also failed to appreciate the fact that the sale deeds at Ex.D3 to 6 are between the accused persons and their relatives and the accused have failed to prove that through the sale deeds, they have received sale consideration and repaid the amount due to the complainant. The trial Court has not appreciated the same and fell into error in dismissing the complaints and prays to allow the appeals, set aside the impugned judgments and orders of the trial Court, convict the accused and punish them in accordance with law. 11. In support of his arguments, learned counsel for complainant has relied upon the following decisions: i. Sunil Todi and others V/s State of Gujarat and another (Sunil Todi)1 ii. Sripati Singh (since deceased) through his son Gaurav Singh V/s State of Jharkhand and another (Sripati Singh)2
1 AIR 2020 SC 147 2 AIR 2021 SC 5732
CRL. A NO.126 OF 2018 C/W CRL. A NO.127 OF 2018 12 iii. Sampelli Satyanarayana Rao V/s India Renewable Energy Development Agency Limited (Sampelli Satyanarana Rao)3 iv. Uttam Ram V/s Devinder Singh Hudan and another (Uttam Ram)4 v. T.Vasanthkumar V/s Vijayakumari (Vasanthkumar)5 vi. M.S.Srikara Rao V/s H.C.Prakash (Srikara Rao)6
On the other hand, learned counsel representing the accused supported the impugned judgment and order and submitted that appreciating the oral and documentary evidence placed on record, the trial Court has come to a correct conclusion and there are no justifiable grounds to interfere and prays to dismiss the appeals and confirm the judgment and order of the trial Court.
3 2016 SCC 458 4 AIR Online 2019 SC 1285 5 2015 AIR SCW 3040 6 ILR 2013 KAR 4493
CRL. A NO.126 OF 2018 C/W CRL. A NO.127 OF 2018 13 13. In support of his arguments, learned counsel for accused has relied upon the following decisions: i. Criminal Revision Petition No. 106/2005 dated 1/11/2006(Del.H.C) (Virender Singh v/s Laxmi Narain & another) Cases Referred: (a) Mohd. Salimuddin v/s Misri Lal(1986)2 SCC 378, (b) Sita Ram V/s Radha Bai, (1968)1 SCR 805, (c) Kuju Collieries Ltd., V/s Jharkhand Mines Ltd., (1974)2 SCC 533, (d) Tarsem Singh v/s Sukhminder Singh, 1998(2) All MR 528(s.c.), (1998)3 SCC 471,
ii. 2005 Cri.L.J.4095 (Kerala H.C.) J.Daniel v/s State of Kerala, Money Lending without License iii. 2010 Cri.L.J. 1217 (Bom. H.C.) Anil Baburao Kataria V/S Purshottam Prabhkar Kawane Citation of Security Cheques iv. (2008)7 Supreme Court Cases 137, Sudhik Kumar Bhalla v/s Jagdish Chand and others,
v. ILR 2008 KAR 3635 K.Narayana Nayak V/s Sri. M.Shivarama Shetty,
Any violation of terms agreement Claim Before Civil Court,
vi. ILR 2006 KAR 3579 M/s Sathavahana Ispat Ltd v/s Umesh Sharma and others,
CRL. A NO.126 OF 2018 C/W CRL. A NO.127 OF 2018 14 vii. 2009 Supreme (Kar) 535 A. Venkatesh Bhat v/s Rohidas Shenoy
U/s 118(a) & 139 of N.I. Act, Presumption, Standard of preponderance of probabilities
viii. (2009)2 Supreme Court Cases 513 Kumar Exports v/s Sharma Carpets,
ix. (2013)3 Supreme court cases 86 Vijay v/s Laxman and another x. (2019)5 Supreme Court cases 418 Basalingappa v/s Mudibasappa,
xi. Criminal Appeal No. 1497/2022 Dashrathbhai Trikambhai Patel v/s Hitesh Mahendrabhai Patel and another. 7. Mere marking of document as an exhibit does not dispense with its proof.
xii. AIR 1971 SUPREME COURT 1865 Sait Tarajee Khimchand and others v/s Yelamarti Satyam and others. 14. In both appeals, the complainant has filed I.A.No.2/2023 u/sec.391 Cr.P.C. to permit him to produce the following documents: i. Copy of final order dated 16.09.2021 passed in MFA No.6685 of 2016 c/w WP No.52331 of 2016 –Annexure-A.
CRL. A NO.126 OF 2018 C/W CRL. A NO.127 OF 2018 15 ii. Copy of the statement of objections filed by the present respondent in RFA No.406 of 2022 dated 06.01.2023–Annexure-B. iii. Certified copy of entire order sheet in RFA No.406 of 2022–Annexure-D. iv. Copy of legal notices issued by the respondent dated 18.05.2022-Annexure-D and D1. v. Copy of the reply dated 02.06.2022 of the appellant-Annexure-E.
In support of the application, the complainant has sworn to the effect that these documents have come into existence after the completion of the trial. In MFA No.6685 of 2016 c/w W.P.No.52331 of 2016, this Hon’ble Court reversed the order dated 23.08.2016 on I.A.No.1 and 2 in O.S.No.3090 of 2016 and held that the observations made therein are premature. In RFA No.406 of 2022, which was filed by the accused against the order passed in O.S.No.3090 of 2016, the Hon’ble Division Bench of this Court observed the fact that accused have admitted receipt of hand loan of Rs.1.25 crores and
CRL. A NO.126 OF 2018 C/W CRL. A NO.127 OF 2018 16 claimed discharged. Annexure-C is certified copy of entire order sheet in RFA No.406 of 2022. Annexure-D and D1 are the legal notices dated 18.05.2022 issued by accused and Annexure-E is reply dated 02.06.2022 sent by complainant. Since these documents are admitted documents, no prejudice would cause to the accused and prays to allow the application. 16. The accused have not filed any objections to this application. Infact, the learned counsel for accused has fairly conceded that since these documents pertains to judicial proceedings between the parties, the Court can look into them. 17. Heard elaborate arguments of both sides and perused the record. 18. Thus, it is the definite case of the complainant that accused who are husband and wife borrowed hand loan of Rs.1.25 crores in four installments i.e. Rs.50 lakhs on 02.04.2014, Rs.25 lakhs on 09.06.2014, Rs.25 lakhs on 08.09.2014 and Rs.25 lakhs on 24.11.2014 to complete the construction of their house and issued
CRL. A NO.126 OF 2018 C/W CRL. A NO.127 OF 2018 17 undated cheques. Though they agreed to sell 2nd floor of the construction for a sum of Rs.2 crores and executed agreement of sale promising to treat the amount so received by way of hand loan as advance, later when they leased the 2nd floor to some other person, the complainant has not pressed for sale of 2nd floor and on the other hand, demanded repayment of the hand loan. 19. It is the also the case of complainant that after complainant advanced Rs.50 lakhs on 02.04.2014 and Rs.25 lakhs on 09.06.2014, the accused issued undated cheque No.976840 for Rs.50 lakhs at Ex.D2 and 467970 for Rs.25 lakhs at Ex.D1 (marked in C.C.No.12202/2016) by way of security. However on 12.09.2014, when complainant advanced further sum of Rs.25 lakhs, accused took back cheque No.976840 and 467970 and accused-K.Lalitha issued a consolidated cheque No.466349 for Rs.1 crore at Ex.P1 (C.C.No.12203/2016). On 24.11.2014, when complainant advanced further sum of Rs.25 lakhs, accused- K.Lakshminarasimha Murthy issued undated cheque
CRL. A NO.126 OF 2018 C/W CRL. A NO.127 OF 2018 18 No.473215 for Rs.25 lakhs at Ex.P1 (C.C.No.12202/2016). 20. It is further contention of the complainant that when accused aborted his chance of purchasing one floor of construction made by them, he insisted upon the accused to return the hand loan and on their instructions presented the cheques at Ex.P1 of both complaints, which were issued by way of security for realization. While the cheque issued by accused-K.Lakshminarasimha Murthy was dishonoured for ‘insufficient funds’, the one issued by accused-K.Lalitha was dishonoured on the ground of ‘stop payment instructions’. 21. Though the accused have admitted borrowing hand loan of Rs.1.25 crores from the complainant for construction purpose, they have denied of having agreed to sell one floor of the construction for Rs.2 crores. Accused have admitted issue of undated cheques at Ex.P1 of both complaints, but they have pleaded discharge by claiming that they have repaid the hand loan along with interest.
CRL. A NO.126 OF 2018 C/W CRL. A NO.127 OF 2018 19 22. As noted earlier the complainant is not enforcing his right with regard to the sale agreement and consequently confined his relief to dishonour of the subject cheques. In the light of the specific defence taken by the accused and having regard to the fact that they admit issue of subject cheques, drawn on their account maintained with their banker and that they bear their signatures, as held by the Hon’ble Supreme Court in Kumar Exports, Srikara Rao, Vijaya, Vasanthkumar, Basalingappa, Uttam Ram and Dashrathbhai, presumption u/sec.118 and 139 of N.I. Act that the subject cheques were issued towards repayment of legally recoverable debt or liability is attracted and therefore, initial burden is on the accused to rebut the presumption i.e. to prove that the subject cheques were issued only for security and they have discharged the loan and as such instead of returning the subject cheques to them, to make unlawful gain, the complainant has presented them for encashment and on their dishonour chosen to file the complaints to harass them. Only after the accused rebut the presumption, the burden would
CRL. A NO.126 OF 2018 C/W CRL. A NO.127 OF 2018 20 shift on the complainant to prove his case. Ofcourse, while the accused are required to rebut the presumption by preponderance of probabilities, it is for the complainant to prove his case beyond reasonable doubt. 23. Though the subject cheques are stated to be issued by way of security, as held by the Hon’ble Supreme Court in Sampelli Satyanarayan Rao, Sripati Singh and Sunil Todi, when the accused fails to discharge his liability, the right of the complainant to recover the amount due through the cheque issued by way of security would become enforceable. Merely labeling a cheque as security would not obviate its character as instrument designed to meet legally enforceable debt or liability, once agreement between the parties provided for which money is due and payable. The cheque furnished as a security is covered under provisions of Section 138 of N.I.Act. 24. Despite admitting borrowing loan of Rs.1.25 crores, issue of subject cheques by way of security and claimed discharge, the accused have cross-examined the
CRL. A NO.126 OF 2018 C/W CRL. A NO.127 OF 2018 21 complainant elaborately touching the validity of various documents executed by them as per Ex.P8 and capacity of the complainant to advance huge sum of Rs.1.25 crores to them and whether these facts are reflected in his income tax returns etc., which is an exercise in futile in the light of their admission of having borrowed Rs.1.25 crores. 25. In the light of admission by the accused that they have borrowed hand loan of Rs.1.25 crores from the complainant and claimed discharge, the dispute between the parties boiled down to the issue whether the accused have succeeded in establishing due discharge of the hand loan taken from the complainant. 26. During the course of their evidence, both accused who are examined as DW1 in their respective cases have deposed that they repaid Rs.1.25 crores by selling their property through 3 sale deeds to different purchasers and accumulated Rs.50 lakhs in cash and they withdrew remaining Rs.75 lakhs from their bank account and in all paid Rs.1.25 crores to the complainant.
CRL. A NO.126 OF 2018 C/W CRL. A NO.127 OF 2018 22 The 3 sale deeds through which accused have claimed to have accumulated Rs.50 lakhs in cash are marked as Exs.D4 to 6 in C.C.No.10202/2016. 27. As admitted during his cross-examination by accused-K.Lakshminarasimha Murthy, for construction purpose in addition to borrowing Rs.1.25 crores from the complainant, he has borrowed Rs.1.9 crores from one Jayaram and for recovery of the same, he has filed O.S.No.7996/2016. He had borrowed Rs.3 lakhs from Smt.Gayatri w/o Prem Babu. He has admitted that Prem Babu has filed C.C.No.17862/2016 for dishonour of cheque in a sum of Rs.23 lakhs. He has conceded that in O.S.No.450/2016 filed by him against the complainant he has pleaded that to repay Rs.1 crores taken from the complainant, he had taken loan of Rs.1 crore from bank. He has also admitted that for recovery of Rs.1.25 crores complainant filed O.S.No.3090/2016 and in the said suit also he has taken up a contention that he would take loan from bank and repay the money due to the complainant. He has admitted that the contents of
CRL. A NO.126 OF 2018 C/W CRL. A NO.127 OF 2018 23 Ex.P14 request letter sent by complainant are correct and he has not sent any reply to the same. He has also admitted that in Ex.P7-reply notice, he has claimed that he has repaid Rs.1 crore and only Rs.25 lakhs is due to the complainant. 28. Accused-K.Lakshminarasimha Murthy has also admitted that the purchasers of Ex.D5 to 7 are his brother and nephews. He has also admitted that in Ex.D6 though it is stated that said consideration is paid through cheque and demand draft, the numbers of cheque and demand drafts are left blank. Similarly in Ex.D5 also the cheque number and date through which the purchaser has allegedly paid the sale consideration are left blank. Though he has denied that Ex.D7 does not reflect the realization of cheque and demand draft as reflected in sale deeds at Exs.D5 and 6, in the next breath he has claimed that the cheques and demand drafts might have been credited to his other account. Admittedly accused have not produced account statement of their other account. Though he has denied that Ex.D4 to 6-sale
CRL. A NO.126 OF 2018 C/W CRL. A NO.127 OF 2018 24 deeds are concocted, as admitted by him they were not produced in the civil suit. 29. The perusal of cross-examination of accused- K.Lakshminarasimha Murthy makes it amply clear that the accused have failed to prove that they have discharged loan of Rs.1.25 crores taken from the complainant. The documents relied upon by them are contrary to the defence taken by them. They have failed to prove that they were in receipt of Rs.50 lakhs in cash from the purchaser of their property and they were also in possession of another sum of Rs.75 lakhs in cash and they paid the same to the complainant towards discharge of loan of Rs.1.25 crores taken from him. Ofcourse they have not led any evidence to prove that they have also paid interest for the said hand loan. 30. At the outset it is relevant to note that complainant who has lent Rs.1.25 crores to the accused has paid substantial sum by way of cheques and demand draft barring a meager amount through cash as detailed in Ex.P8. Though initially the relationship between the
CRL. A NO.126 OF 2018 C/W CRL. A NO.127 OF 2018 25 complainant and accused was cordial, after the accused leased out the 2nd floor to some third person without intimation to the complainant, their relationship stained. Accused has gone to the extent of filing suit against the complainant for permanent injunction to restrain him alleging that he brought rowdies etc. Such being the case at any stretch of imagination it cannot be accepted that accused would pay a huge sum of Rs.1.25 crores to the complainant by way of cash. A prudent person would never take the risk of complainant denying receipt by way of cash. 31. If really the accused have repaid the said loan, they could have done it either through cheque or demand draft by which they would have proof. Atleast the accused could have taken an acknowledgment for having repaid such huge sum of Rs.1.25 crores. From the oral and documentary evidence placed on record and in the light of cross-examination of the accused, this Court has no hesitation to hold that the accused have taken a false defence of discharge and have miserable failed to
CRL. A NO.126 OF 2018 C/W CRL. A NO.127 OF 2018 26 prove the same even by preponderance of probabilities. In Sudhik Kumar Bhalla and K Narayan Naik on facts, the contention of accused that the cheques were issued by way of security was upheld. Since the accused have failed to prove the repayment of hand loan taken from the complainant, there defence that the subject cheques were issued by way of security cannot be accepted and therefore these decisions are not applicable to the facts and circumstances of the present cases. Since the complainant has not pressed for his right to claim property of the accused i.e., a floor in the construction put up by them by way of sale agreement, the other decisions are not relevant. 32. The findings of the trial Court is contrary to the oral and documentary evidence placed on record and as such perverse. The trial Court has failed to appreciate the evidence led by the parties in its right perspective and thereby fell into error, calling for interference by this Court. In the result, the appeals filed by complainant deserves to be allowed and the accused are liable to be
CRL. A NO.126 OF 2018 C/W CRL. A NO.127 OF 2018 27 convicted for the offence punishable u/sec.138 of N.I. Act. 33. When the Court comes to the conclusion that the charge levelled against the accused is proved for the offence punishable under Section 138 of N.I.Act and the appeal is allowed by setting aside the impugned judgment and order of acquittal, the next question would be to what punishment accused are liable. 34. The punishment prescribed for the offence under Section 138 of the N.I.Act is imprisonment for a term which may extend to 2 years or with fine which may extend to twice the amount of cheque or with both. In the present case, so far as accused-K.Lakshminarasimha Murthy is concerned, the cheque amount is Rs.25 lakhs. So far as accused-K.Lalitha is concerned, the cheque amount is Rs.1 crore. Though accused promised to repay the hand loan with interest ranging from 18 to 24%, they have not repaid either the principle or interest. They have taken up a false defence that they have repaid the same with interest. Taking into consideration all these
CRL. A NO.126 OF 2018 C/W CRL. A NO.127 OF 2018 28 aspects, this Court is of the considered opinion that it would be appropriate to sentence the accused to pay fine which shall be double the cheque amount. In default of paying the fine sentencing the accused to undergo imprisonment for a period of 1 year would meet the ends of justice and accordingly, the following: ORDER (i) I.A.No.2/2023 filed in both appeals are allowed. The documents produced with I.A.No.2/2023 are taken on record. (ii) Both appeals filed by the complainant under Section 378(4) of Cr.P.C. are allowed. The impugned judgment and order dated 11.12.2017 in C.C.No.10202/2016 and C.C.No.10203/2016, on the file of XXII ACMM, Bengaluru are set aside. (iii) Accused-K.Lakshminarasimha Murthy and K.Lalitha are convicted for the offence punishable under Section 138 of the N.I.Act.
CRL. A NO.126 OF 2018 C/W CRL. A NO.127 OF 2018 29 (iv) Accused-K.Lakshminarasimha Murthy is sentenced to pay fine in a sum of Rs.50 lakhs. In default of payment of fine, he shall undergo imprisonment for a period of 1 year. (v) Similarly accused-K.Lalitha is sentenced to pay fine in a sum of Rs.2 crores. In default of payment of fine, she shall undergo imprisonment for a period of 1 year. (vi) The entire fine amount is ordered to be paid to the complainant by way of compensation. (vii) Registry is directed to return the trial Court records along with copy of this judgment forthwith.
Sd/- JUDGE
RR/CLK/KGK