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NC: 2023:KHC:33224 CRL.RP No. 164 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF SEPTEMBER, 2023 BEFORE THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR CRIMINAL REVISION PETITION NO. 164 OF 2016 BETWEEN:
VARALAKSHMAMMA, W/O LATE DODDARANGAIAH, AGED 49 YEARS, R/T BHEIND NAGALINGESHWARA TEMPLE, C/O SIDDAPPA, GUBBI TOWN-572 216, TUMAKURU DISTRICT. …PETITIONER (BY SRI. HARISH N.R, ADVOCATE FOR SRI. PATEL .D KAREGOWDA, ADVOCATE)
AND:
UMESH S/O BHEEMAIAH, AGED 43 YEARS, R/AT BEHIND ITI INDUSTRIAL WORKSHOP, GUBBI TOWN, GUBBI TALUK-572 216, TUMAKURU DISTRICT. …RESPONDENT (BY SRI. NABEEL, ADVOCATE FOR SRI. H.V. MANJUNATHA, ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER PASSED BY THE VI ADDL. DIST. AND S.J., TUMAKURU IN CRL.A.NO.43/2015 DATED 23.01.2016 AND THE JUDGMENT AND SETNENCE PASSED BY THE PRL. CIVIL JUDGE AND JMFC, GUBBI IN C.C.NO.88/2013 DATED 11.08.2015 BY ALLOWING THE ABOVE PETITION.
Digitally signed by SOWMYA D Location: High Court of Karnataka
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NC: 2023:KHC:33224 CRL.RP No. 164 of 2016
THIS PETITION COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This revision petition filed by the accused under Section 397 read with Section 401 of Criminal Procedure Code, 1973 (hereinafter referred to as ‘the Cr.P.C.’ for short) challenging the judgment of conviction and order of sentence passed by Principal Civil Judge and JMFC Gubbi in C.C.No.88/2013 and confirmed by VI Additional District and Sessions Judge, Tumkur in Crl.A.No.43/2015. 2. For the sake of convenience, the parties herein are referred with original ranks occupied by them before the trial Court. 3. The brief factual matrix leading to the case are that the complainant and accused are acquainted with each other and accused has approached the complainant for financial assistance to meet her legal necessity and accordingly, as per her request,
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complainant has advanced a hand loan of Rs.5 Lakhs on 02.02.2012. That accused has issued a post dated cheque dated 15.07.2012 drawn on Canara Bank, Tumkur and also agreed to repay the amount with interest within five months at the rate of half percent per month. The accused failed to repay the loan amount and hence, the complainant as per request of the accused, presented the said cheque for encashment and it returned with an endorsement as “funds insufficient”. The complainant has got issued a legal notice to the accused and same was served, but accused has failed to pay the cheque amount. Hence, a complaint came to be filed. 4. On the basis of the complaint, the learned Magistrate has taken cognizance of the offence and has issued process against the accused. The accused has appeared through his counsel and was enlarged on bail. He denied the accusation under Section 138 of the
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NC: 2023:KHC:33224 CRL.RP No. 164 of 2016
Negotiable Instruments Act, 1881 (hereinafter referred to as 'the N.I Act' for short). 5. The complainant was got examined himself as PW1 and two witnesses were examined on behalf of the complaint as PW2 and PW3. He has also placed reliance on 7 documents marked at Ex.P1 to Ex.P7. After conclusion of the evidence of the complainant, the statement of the accused under Section 313 of the Cr.P.C. is recorded to enable the accused to explain the incriminating evidence appearing against her in the case of the complainant. The case of accused is of total denial and she has disputed that she has issued the cheque to the complainant. Thereafter, the accused got examined herself as DW1 and her daughter was examined as DW2. She placed reliance on 12 documents marked at Ex.D1 to Ex.D12. 6. After hearing the arguments and after appreciating the oral and documentary evidence, the
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learned Magistrate convicted the accused for the offence under Section 138 of the N.I.Act and sentenced her to pay a fine of Rs.5,05,000/- with a default sentence. Being aggrieved by the judgment of conviction and order of sentence, the accused approached VI Additional District and Sessions Judge, Tumkur in Crl.A.No.43/2015. The learned Sessions Judge after re- appreciation of the oral and documentary evidence dismissed the appeal by confirming the judgment of conviction and order of sentence passed by the learned Magistrate. Being aggrieved by these concurrent findings, the accused is before this court by way of this revision. 7. Heard the arguments advanced by the learned counsel for the revision petitioner / accused and the learned counsel for respondent / complainant. Perused the records.
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The learned counsel for the revision petitioner would contend that the cheque was stolen from her house in view of the rivalry between herself and her brother in respect of partition suit. It is further asserted that the accused has disputed the signature on the cheque and no steps were taken by the complainant to get the signature compared with that of her admitted signature. It is further asserted that the financial capacity of the complainant was disputed to advance huge loan of Rs.5 Lakhs in the year 2012 and this defence was taken initially in reply notice and same defence was taken in the evidence also and she has also led her evidence. It is further asserted that the accused has also lodged a complaint regarding theft committed in her house by complainant and her sister in law in view of the rivalry pertaining to partition suit. He would further assert that the evidence on record discloses that the complainant has no financial capacity to advance loan and admits that he himself is in the habit of taking
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loan from others. When the financial status is disputed, the burden shifts on the accused to prove his financial status and presumption under Section 139 of N.I.Act is not attracted. Hence, he would contend that the complainant has failed to prove that the cheque was issued towards legally enforceable debt and further asserts that both the courts below have failed to appreciate this aspect and have erroneously convicted the accused, which has resulted in miscarriage of justice. Hence, he would seek for allowing the revision. 9. Per contra, the learned counsel for the respondent would support the judgment of conviction and order of sentence passed by the trial Court. He would contend that the evidence of the complainant discloses that he has got financial capacity and he was capable of saving more than Rs.3 Lakhs per year and the cheque belongs to the accused and the signature is not got verified by the accused and hence, the
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NC: 2023:KHC:33224 CRL.RP No. 164 of 2016
presumption under Section 139 of N.I.Act is in favour of the complainant, which is not rebutted. He would further contend that the complaint and other things were after though story created after issuance of legal notice and hence, no importance can be given to these documents. As such, he would seek for dismissal of the revision. 10. Having heard the arguments and perusing the records, now the following point would arise for my consideration: “Whether the judgment of conviction and order of sentence passed by the trial court and confirmed by the appellate court suffers from perversity, illegality and arbitrariness so as to call for any interference by this court?
It is the specific contention of the complainant that the accused is known to him and she has approached him for advancement of hand loan of
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Rs.5 Lakhs on 02.02.2012 for her legal necessity and he has advanced the said loan and she has issued a cheque dated 15.07.2012 and further agreed to repay the loan amount within five months with interest at the rate of half percent per month.
On perusal of the complaint as well as the examination in chief, there is absolutely no pleading to the effect that the complainant has advanced loan of Rs.5 Lakhs to the accused as per her request dated 02.02.2012. A simple pleading is in respect of the accused approaching the complainant and issuing cheque, but the corresponding pleading regarding advancement of loan either by way of cash or other mode in not forthcoming either in the complaint or in his evidence.
Further, it is the defence of the accused that the cheque was stolen from her house in connivance with Manjula i.e., her sister in law since, she had filed a
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partition suit against her brother. The accused placed reliance on Ex.D3 to Ex.D5 in this regard. But Ex.D3 to Ex.D5 were subsequent to the issuance of notice and no much importance can be attached to Ex.D3 to Ex.D5. 14. The learned counsel for the complainant would contend that the accused has not rebutted the presumption by raising a probable defence. However, the complainant himself no where asserted regarding advancement of the hand loan to the accused. In the cross-examination, the complainant claims that he is working as carpenter contract work and further asserts that his annual income is Rs.1.5 Lakhs to Rs.2 Lakhs. He further claims that his entire family is depending on the said income and he further asserts that he could save more than Rs.3 Lakhs annually from agricultural income and contract work. But he has not produced any documents to show that he is having any agricultural lands in Gubbi. He further claims that he is not an
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income tax assessee. Hence, his contention that he is saving annually Rs.3 Lakhs cannot be accepted. 15. On the contrary, in the further cross- examination dated 14.08.2014 he admitted that for education of his children, he has obtained the income certificate, but he has not produced the income certificate. Since, he admits regarding obtaining income certificate for the education of his children, it presupposes that he comes under economically weak category. In the further cross-examination, he has further admitted that he has also indebted to other persons. 16. Considering these aspects, it is evident that the complainant has failed to substantiate his contention that he is financially sound to advance huge loan of Rs.5 Lakhs. No doubt, the accused has not proved her defence, but since, the complainant has failed to prove her financial status and further failed to
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assert regarding advancement of the loan itself, question of drawing presumption under Section 138 of N.I.Act in favour of the complainant does not arise at all. As such, the evidence on record clearly establishes that the complainant has failed to prove that the cheque in question was issued towards legally dischargeable debt. 17. Both the courts below have failed to appreciate the oral and documentary evidence in its proper perspective and have erroneously on the basis of the fact that the cheque belongs to the accused and the signature has been proved, proceeded to convict the accused/revision petitioner. Both the courts below have failed to consider the lack of material pleading in the complaint itself regarding advancement of the loan and further ignored the financial status of the complainant. Hence, the judgment of conviction and order of sentence passed by both the courts below are erroneous and
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perverse. Hence, they call for interference by this court. Considering these facts and circumstances, the point under consideration is answered in the affirmative. Hence, I proceed to pass the following: ORDER (i) The revision petition is allowed.
(ii) The judgment of conviction and order of sentence *dated 11.08.2015 passed by the Principal Civil Judge and JMFC, Gubbi, in C.C.No.88/2013 and confirmed by the VI Additional District and Sessions Judge, Tumakuru, in Crl.A.No.43/2015 dated 23.01.2016 are hereby set aside. (iii) The accused/revision petitioner is acquitted for the offence under Section 138 of NI Act and bail bonds executed stand cancelled. (iv) The amount deposited by the accused / revision petitioner shall be refunded to the complainant.
Sd/- JUDGE
SS *Corrected vide court order dated 12.03.2024