IN THE HIGH COURT OF KARNATAKA AT: BANGALORE
CRL. APPEAL No. /2020
IN
IN THE COURT OF THE XXIII ADDL CHIEF METROPOLITON
MAGISTRATE AT: BANGALORE
C.C. No. 2099/2018
IN THE HIGH COURT OF KARNATAKA AT: BANGALORE
CRL. APPEAL No. /2020
RANK OF THE PARTIES BEFORE
BETWEEN:- TRAIL COURT/HIGH
COURT
VEENA RAVIKUMAR
W/o.Ravikumar,
Aged about 34 years,
R/at No.107, ‘Sumukha Building’,
12th Main Road, 9th Block,
2nd Stage, Nagarabhavi,
Bengaluru-72. …Complainant/Appellant
AND
L.PRAKASH,
S/o. Lakshminarayana,
Aged about 48 years,
‘Ori Flame’, No.20/3, Ground Floor,
Kaushika Plaza, 80 Feet Road,
2nd Stage, KHB Colony,
Basaveshwaranagar, Bangalore-79.
…..Accused/Respondent
MEMORUNDAM OF CRIMINAL APPRAL UNDER SECTION
378(4) OF THE CODE OF CRIMINAL PROCEDURE CODE
1. The address of the parties for the purpose of issue of notice
from this Hon’ble Court is as stated in the cause title and the
appellant can also be served through her Advocate Sri.Ravi.
J. S, No.116, 4th block, 7th cross, Doddabommasandra,
Vidyarnayapura, bangalore-97.
2.The appellant aggrieved by the Judgment under appeal
dated 07/07/2020 passed in CC No.2099/2018 on the file of
the XXIII Addl Chief Metropolitan Magistrate, Bangalore,
preferred above appeal.
FACTS IN BRIEF
3. The case of the appellant is that, the respondent wife and
appellant well known to each other accordingly the
respondent is also well known to the appellant and they are
family friend of the appellant, in this background in the 1 st
week of July 2017 respondent approached the appellant for
financial help and pleaded to lend a sum of Rs. 6,00,000/- to
him, to meet his personal needs. The respondent and his
wife being family friend of the appellant, there was nothing
to disbelieve the respondent, therefore appellant agreed to
lend the respondent but she pleaded her difficulties to lend
sum of Rs. 6,00,000/- to respondent and she agreed to lend
hand loan sum of Rs.3,00,000/-. Hence the appellant agreed
and lent sum of Rs. 3,00,000/- to respondent by way of cash
on 22/07/2017, from the money which appellant saved from
long time. The respondent also promised the appellant to
return the money in the first week of November 2017.
4. The appellant submits that, she approached the respondent
in 1st week of November 2017 with repayment request at
that juncture the respondent issued cheque bearing No.
067874 for sum of Rs.3,00,000/- dated 01/11/2017 draw on
Axis Bank Ltd, Basaveswaranagar Branch, Bangalore and
respondent assured the appellant that, the cheque will
honoured without fail. Accordingly the appellant presented
the cheque for encashment through her banker on its
cheque date but to appellant shock same was returned for
“Insufficient funds” on bankers memo dated 6/11/2017. The
appellant immediately called respondent and informed the
same at that juncture respondent pleaded sorry and
requested for time and he kept postponing giving one or
other reason. Hence the appellant on 14/11/2017 issued
legal notice demanding to repay the cheque amount within
15 days, but the respondent refused to receive the notice
and the same was within the knowledge of respondent but
also the respondent not complied the demanded notice nor
reply to the notice. Hence the appellant without any
alternative remedy available to her approached jurisdiction
trail court for appropriate orders.
5. The appellant submits that, in support of her case she
adduced her evidence and marked Ex-P-1 to Ex-P-6(a) and
the Hon’ble trail court took cognizance of the offence and
issued summons to the respondent. The respondent
appeared before the trail court through his advocate and
took bail and contested the matter. The respondent in his
plea admitted his signature in cheque and further he
pleaded he don’t know the appellant. Thereafter the
respondent adduced his evidence through affidavit and
marked documents from Ex-D-1 to Ex-D-6. The respondent
took new defence in his evidence that he took hand loan
sum of Rs.20,000/- from the appellant at that juncture the
appellant took 2 cheques as a security and the respondent
repaid the hand loan barrowed by him from the appellant
and he requested the appellant to return the security cheque
and that juncture the appellant pleaded those cheques was
kept somewhere else and she unable to trace them
immediately and she promised to return the same when she
trace them, hence the respondent dint take the issue
seriously and he kept quit and he not took any steps to take
back those cheques, now the appellant misusing those 2
cheques colluding with her father, both managed to file 2
different cases against respondent to make unlawful gain.
The defence taken by the respondent in his plea and
evidence is contradictory and not one and same.
6. The appellant submits that, the trail court without
appreciating the evidence of appellant and documents
available on record is pleased to acquittal the respondent
from the case, hence appellant approached this Hon’ble
court along with separate application seeking permission to
appeal. Copy of the Judgment dated 07/07/2020 passed in
CC No.2099/2018 produced herewith as Annexure-A.
GROUNDS
7. The judgment under appeal in not proper and correct its
labile to be set-aside by convicting the accused.
8. The trail court failed to see the contradictory statements of
the accused, without application of mind disposing the case
in casual manner is arbitrary. The trail court failed to see
that, in the initial stage accused in his plea stated that,
complainant not know to him but in later stage the accused
take contradictory defence complainant know to him this
itself creates testimony of the accused.
9. The appellant submits that, she has fulfilled all the required
ingredients of the Act, hence presumption
required/mandatory to be drawn in her favour, unless
contrary proved and accused discharge the burden. Bare
denial of the facts and labiality by the accused will not
rebuttal the burden on complainant, the defence raised by
the accused was not probable. The Hon’ble supreme court in
the case of Anil Sachar V/S Shreenath Spinners Pvt.
Ltd, reported in Laws(SC)-2011-7-82, wherein it has held
that if the accused fails to rebut the presumption available
under section 139 of N.I.Act then the conviction of the
accused is must. This Hon’ble court may kindly note that, the
accused in his plea and cross examination admits his
signature on the cheque and also, he admits financial
transaction between the complainant in extent to 20,000/-.
Hence once the accused admits his signature on the cheque
and transaction between the complainant, its mandatory to
dawn presumption in favor of complainant. The Hon’ble
supreme court in the case of Rangappa V/S Sri. Mohan, in
Crl. Appeal No. 1020/2010 held as follows:-
Rangappa V/S Sri. Mohan
“In the course of the trail proceedings, the
accused had admitted that the signature on
the impugned cheque was indeed his own.
Once this facts has been acknowledged,
section 139 of the act mandates a
presumption that the cheque pertained to a
legally enforceable debt or liability.”
“once the cheque relates to the account
of the accused and he accepts and admits
the signatures on the said cheque, then
initial presumption as contemplated u/s 139
of the N. I. Act has to be raised by the court
in favour of the complainant. The
presumption referred to in section 139 of
the N. I. Act is a mandatory presumption
and not a general presumption.”
10. It submitted that, The respondent also claims and alleged
that, appellant was not capable of lending loan, and she was
no source of income to lend the respondent. It may kindly
seen that, bare denial of source of income of the complainant
will not rebuttal the burden on complainant, the defence
raised by the accused was not probable. This Hon’ble court
may kindly note that, the accused taken defense that,
complainant was doing money lending business and he took
hand loan sum of Rs. 20,000/- from complainant at that
juncture he handed over the subject cheque as a security
cheque, this itself shows complainant was capable was
lending the amount and she had sufficient source of income.
The accused alleging that complainant was doing money
lending business and other side accused alleging that,
complainant was not capable of lending loan and she dint had
source of income will not be acceptable. Bare denial of the
source of income will not rebuttal burden on the complainant
and accused defence was not probable. The accused in his
plea state that, complainant don’t know to him and further he
plead that, for the first time he seeing the complainant in the
court, these contradictory statements can’t be rebuttal the
burden.
11. The trail court casual accepting the defence of the accused
that, appellant was doing lending business and acquitting
from the offence is not correct, it may kindly note that if
complainant was doing any lending business without license it
has to be attract separate offenses under IPC but it will not
bare drawing presumption in complainant favour.
12. The appellant submits that, bare denial of source of income of
the complainant will not rebuttal the burden and the Hon’ble
Supreme court of India in the case of Rohitbhai Jivanlal Patel
V/S State of Gujarat and another in Crl Appeal No.508/2019
held as follows:-
“once the presumption under section 139 is
drawn, complainant need not prove source
of funds till accused discharge his burden,
but the trail court drew presumption that
the cheques were issued for a legally
enforceable debt based on the admission of
signature in cheques by the accused. The
trail court however proceeded to hold that
there was no documentary evidence to
show source of the amount, transaction was
not reflected in records and income tax
returns etc, based on such findings, the trail
court held the complainant case to be not
proved and acquitted the accused. If the
transaction in question was not reflected in
the accounts and income-tax returns, that
would at best hold the lender liable for
action under the income-tax laws but, if the
complainant succeeds in showing the
lending of amount, the existence of legally
enforceable debt cannot be denied- The
result of discussion in the forgoing is that
the major considerations on which the trail
court chose to proceed clearly show its
fundamental error of approach where, even
after drawing the presumption”
13. It submitted that, The further defence of the respondent is
that, the demand notice was not served on him and the
demand notice was not sent to his residential address. This
Hon’ble court may kindly note that, the demand notice
issued to accused was retune to sender as “Refused” its
deem to be presumed that demand notice served on
accused and same itself shows demand notice send to
correct address, in the above circumstance it clearly shows
that, the accused intensely refused the demand notice and
the same was within the knowledge of accused. It’s well
settled law that, if the demand notice send to correct
address if the same returned to sender for various reasons it
needs to be presumed that, demand notice served on the
accused. The accused defence is that, complainant not send
demanded notice to his residential address and she sent
same to is business place. There is no bar by the law sending
demand notice to accused business place nor no law
mandate that, demand notice needs to be sent only to
accused residential address, the law says the demand notice
needs to be served where accused person is available. The
Hon’ble supreme court in its judgment ,reported in
(2014)12SCC page 685 held that,
“Notice sent to correct address by registered
post. Unless the contrary is proved, notice is
deemed to have been delivered at the time at
which the letter would have been delivered in
the letter would have been delivered in the
ordinary course of business,”
14. The accused further alleged and contended that, accused
took financial help from the complainant to extent sum of
Rs.20,000/- at that juncture he handed over the 2 black
cheques to complainant, now the complainant and her father
misused the security cheque and both have filled case
against him through same advocate. It may kindly see that
there is no bar in the law to avail service of the same
advocate, but the trail court in casual manner accepted
respondent defence and acquitted him, in this background
the complainant case can’t be throw out when she fulfilled
the ingredient of the section 138 of the Act.
15. The trail court failed to see that, accused in his evidence and
at the time of his cross examination stated that, accused
took financial help from the complainant to extent sum of
Rs.20,000/- at that juncture he handed over the 2 black
cheques to complainant, now the complainant and her father
misused the security cheque and both have filled case
against him. But in the accused plea he contended that, he
don’t know the complainant and for the first time he seeing
the complainant in the court and he further plead that he
don’t know how the cheque is came to complainant hands
and also he admits his signature and handwriting in the
cheque, hence, the accused contradictory statements in his
plea and in his chief examination and cross, can’t be
accepted and its proves that, this is only a set of story for
the case to escape from the liability.
16. The appellant submits that, in the above all discussed
circumstances, the complainant proves existence of legally
recoverable debts and enforceable liability and the accused
failed to rebuttal the burden on complainant but the trail
court failed to appreciate the evidence and documents
available on record and The trail court did not focus its mind
to the real issue involved in the case and has reached an
erroneous conclusion. Hence this appeal.
17. The appellant also may kindly permit to argue on additional
grounds at the time of arguments.
18. The appellant not filled any other appeal or petition before
any other court nor pending for the same relief sought
herein.
PRAYER
WHEREFORE, the appellant most respectfully prays that this
Hon’ble court be pleased to
a) Call for the records in CC No.2099/2018 on the file of the
XXIII Addl Chief Metropolitan Magistrate, Bangalore.
b) Set aside the judgment of acquittal dated 07/07/2020 passed
in CC No.2099/2018 on the file of the XXIII Addl Chief
Metropolitan Magistrate, Bangalore, by convicting the
respondent for the offence punishable under section 138 of
the N.I.Act.
c) Apart from passing orders, as to remand for fresh trail or
such other orders deemed fit in the circumstances of the
case, in the ends of justice.
Bangalore Advocate for Appellant
Date:-
IN THE HIGH COURT OF KARNATAKA AT: BANGALORE
CRL. APPEAL No. /2020
BETWEEN:-
VEENA RAVIKUMAR …Complainant/Appellant
AND
L.PRAKASH, …..Accused/Respondent
INDEX
Sl Particulars Page No
No
1 Synopsis
2 Memorandum of Criminal Appeal under section
378(4) of CRPC
3 Annexure-A Copy of the judgments dated
07/07/2020 passed in CC No.2099/2018.
4 Vakalatham
5 I A No.1/2020 seeking permission leave to
appeal
Bangalore Advocate for
appellant
Date:-
IN THE HIGH COURT OF KARNATAKA AT: BANGALORE
CRL. APPEAL No. /2020
BETWEEN:-
VEENA RAVIKUMAR …Complainant/Appellant
AND
L.PRAKASH, …..Accused/Respondent
SYNOPSIS
Sl.N Date Events
o
1 20/01/2018 The appellant preferred private complaint
against respondent for the offence
committed under NI Act. Sworn
statement was recorded cognizance of
the offense taken and case was
numbered as CC No.2099/2018.
2 07/07/2020 The trail court is pleased to pass the
judgment acquitted the respondent in the
case under appeal.
FACTS IN BRIEF
1. The case of the appellant is that, the respondent wife and
appellant well known to each other accordingly the
respondent is also well known to the appellant and they are
family friend of the appellant, in this background in the 1 st
week of July 2017 respondent approached the appellant for
financial help and pleaded to lend a sum of Rs. 6,00,000/- to
him, to meet his personal needs. The respondent and his
wife being family friend of the appellant, there was nothing
to disbelieve the respondent, therefore appellant agreed to
lend the respondent but she pleaded her difficulties to lend
sum of Rs. 6,00,000/- to respondent and she agreed to lend
hand loan sum of Rs.3,00,000/-. Hence the appellant agreed
and lent sum of Rs. 3,00,000/- to respondent by way of cash
on 22/07/2017, from the money which appellant saved from
long time. The respondent also promised the appellant to
return the money in the first week of November 2017.
2. The appellant submits that, she approached the respondent
in 1st week of November 2017 with repayment request at
that juncture the respondent issued cheque bearing No.
067874 for sum of Rs.3,00,000/- dated 01/11/2017 draw on
Axis Bank Ltd, Basaveswaranagar Branch, Bangalore and
respondent assured the appellant that, the cheque will
honoured without fail. Accordingly the appellant presented
the cheque for encashment through her banker on its
cheque date but to appellant shock same was returned for
“Insufficient funds” on bankers memo dated 6/11/2017. The
appellant immediately called respondent and informed the
same at that juncture respondent pleaded sorry and
requested for time and he kept postponing giving one or
other reason. Hence the appellant on 14/11/2017 issued
legal notice demanding to repay the cheque amount within
15 days, but the respondent refused to receive the notice
and the same was within the knowledge of respondent but
also the respondent not complied the demanded notice nor
reply to the notice. Hence the appellant without any
alternative remedy available to her approached jurisdiction
trail court for appropriate orders.
3. The appellant submits that, in support of her case she
adduced her evidence and marked Ex-P-1 to Ex-P-6(a) and
the Hon’ble trail court took cognizance of the offence and
issued summons to the respondent. The respondent
appeared before the trail court through his advocate and
took bail and contested the matter. The respondent in his
plea admitted his signature in cheque and further he
pleaded he don’t know the appellant. Thereafter the
respondent adduced his evidence through affidavit and
marked documents from Ex-D-1 to Ex-D-6. The respondent
took new defence in his evidence that he took hand loan
sum of Rs.20,000/- from the appellant at that juncture the
appellant took 2 cheques as a security and the respondent
repaid the hand loan barrowed by him from the appellant
and he requested the appellant to return the security cheque
and that juncture the appellant pleaded those cheques was
kept somewhere else and she unable to trace them
immediately and she promised to return the same when she
trace them, hence the respondent dint take the issue
seriously and he kept quit and he not took any steps to take
back those cheques, now the appellant misusing those 2
cheques colluding with her father, both managed to file 2
different cases against respondent to make unlawful gain.
The defence taken by the respondent in his plea and
evidence is contradictory and not one and same.
4. The appellant submits that, the trail court without
appreciating the evidence of appellant and documents
available on record is pleased to acquittal the respondent
from the case, hence appellant approached this Hon’ble
court
Bangalore Advocate for Appellant
Date:-
IN THE HIGH COURT OF KARNATAKA AT: BANGALORE
CRL. APPEAL No. /2020
BETWEEN:-
VEENA RAVIKUMAR …Complainant/Appellant
AND
L.PRAKASH, …..Accused/Respondent
AFFIDAVIT VERIFYING THE CRIMINAL APPEAL
I, VEENA RAVIKUMAR, W/o. Ravikumar, Aged about 34 years,
R/at No.107, ‘Sumukha Building’, 12th Main Road, 9th Block, 2nd
Stage, Nagarabhavi, Bengaluru-72, do hereby solemnly swear and
state as under:-
1. I am the appellant herein and am aware of the facts of the
case.
2. The averments made in the memorandum of criminal appeal
accompanying this affidavit are true and correct to the best
of my knowledge, information and belief.
What is stated above is true and correct to the best of my
knowledge and information and this is my name and signature.
Identified by me Deponent
Advocate
Date:-
Bangalore
IN THE HIGH COURT OF KARNATAKA AT: BANGALORE
CRL. APPEAL No. /2020
BETWEEN:-
VEENA RAVIKUMAR
W/o.Ravikumar,
Aged about 34 years,
R/at No.107, ‘Sumukha Building’,
12th Main Road, 9th Block,
2nd Stage, Nagarabhavi,
Bengaluru-72. …Complainant/Appellant
AND
L.PRAKASH,
S/o. Lakshminarayana,
Aged about 48 years,
‘Ori Flame’, No.20/3, Ground Floor,
Kaushika Plaza, 80 Feet Road,
2nd Stage, KHB Colony,
Basaveshwaranagar, Bangalore-79.
…..Accused/Respondent
APPLICATION SEEKING GRANT OF SPECIAL LEAVE TO
APPEAL UNDER SECTION 378(4) OF THE CODE OF
CRIMINAL PROCEDURE CODE
1.The appellant aggrieved by the Judgment under appeal
dated 07/07/2020 passed in CC No.2099/2018 on the file of
the XXIII Addl Chief Metropolitan Magistrate, Bangalore,
desires to challenge the same hence preferred above
appeal. The appellant craves the indulgence of this Hon’ble
court for reiterating the ground he has made out in the
memorandum of appeal to avoid repetition.
2. The case of the appellant is that, the respondent wife and
appellant well known to each other accordingly the
respondent is also well known to the appellant and they are
family friend of the appellant, in this background in the 1 st
week of July 2017 respondent approached the appellant for
financial help and pleaded to lend a sum of Rs. 6,00,000/- to
him, to meet his personal needs. The respondent and his
wife being family friend of the appellant, there was nothing
to disbelieve the respondent, therefore appellant agreed to
lend the respondent but she pleaded her difficulties to lend
sum of Rs. 6,00,000/- to respondent and she agreed to lend
hand loan sum of Rs.3,00,000/-. Hence the appellant agreed
and lent sum of Rs. 3,00,000/- to respondent by way of cash
on 22/07/2017, from the money which appellant saved from
long time. The respondent also promised the appellant to
return the money in the first week of November 2017.
3. The appellant submits that, she approached the respondent
in 1st week of November 2017 with repayment request at
that juncture the respondent issued cheque bearing No.
067874 for sum of Rs.3,00,000/- dated 01/11/2017 draw on
Axis Bank Ltd, Basaveswaranagar Branch, Bangalore and
respondent assured the appellant that, the cheque will
honoured without fail. Accordingly the appellant presented
the cheque for encashment through her banker on its
cheque date but to appellant shock same was returned for
“Insufficient funds” on bankers memo dated 6/11/2017. The
appellant immediately called respondent and informed the
same at that juncture respondent pleaded sorry and
requested for time and he kept postponing giving one or
other reason. Hence the appellant on 14/11/2017 issued
legal notice demanding to repay the cheque amount within
15 days, but the respondent refused to receive the notice
and the same was within the knowledge of respondent but
also the respondent not complied the demanded notice nor
reply to the notice. Hence the appellant without any
alternative remedy available to her approached jurisdiction
trail court for appropriate orders.
4. The appellant submits that, in support of her case she
adduced her evidence and marked Ex-P-1 to Ex-P-6(a) and
the Hon’ble trail court took cognizance of the offence and
issued summons to the respondent. The respondent
appeared before the trail court through his advocate and
took bail and contested the matter. The respondent in his
plea admitted his signature in cheque and further he
pleaded he don’t know the appellant. Thereafter the
respondent adduced his evidence through affidavit and
marked documents from Ex-D-1 to Ex-D-6. The respondent
took new defence in his evidence that he took hand loan
sum of Rs.20,000/- from the appellant at that juncture the
appellant took 2 cheques as a security and the respondent
repaid the hand loan barrowed by him from the appellant
and he requested the appellant to return the security cheque
and that juncture the appellant pleaded those cheques was
kept somewhere else and she unable to trace them
immediately and she promised to return the same when she
trace them, hence the respondent dint take the issue
seriously and he kept quit and he not took any steps to take
back those cheques, now the appellant misusing those 2
cheques colluding with her father, both managed to file 2
different cases against respondent to make unlawful gain.
The defence taken by the respondent in his plea and
evidence is contradictory and not one and same.
5. The appellant submits that, the trail court without
appreciating the evidence of appellant and documents
available on record is pleased to acquittal the respondent
from the case, hence appellant approached this Hon’ble
court as judgment under appeal is perverse and illegal and is
not based on the material on record. The appellant is
aggrieved by the judgment under appeal prepared above
appeal. The appellant has vailed grounds to urge, which he
has set out in the memorandum of criminal appeal.
6. The appellant instituted complainant in trail court she is
bound to seek special leave of this Hon’ble court as required
under section 378(4) of the Code Of Criminal Procedure Code
to appeal against the judgment of the acquittal. Hence, she
has filed this application.
7. The respondent will not suffer any prejudice if this hon’ble
court grants special leave to appeal against the judgment of
the trail court. While the appellant will be put to irreparable
loss and injury, more so as she has both legal and factual
grounds in support of her case, if this hon’ble court refuses
to grant such leave.
Wherefore the appellant prays this Hon’ble court to be pleased to
grant special leave to her to file a criminal appeal challenging the
judgment of acquittal dated 07/07/2020 passed in CC
No.2099/2018 on the file of the XXIII Addl Chief Metropolitan
Magistrate, Bangalore, in the ends of justice.
Bangalore Advocate for appellant
Date:-
IN THE HIGH COURT OF KARNATAKA AT: BANGALORE
I A No. /2020
in
CRL. APPEAL No. /2020
BETWEEN:-
VEENA RAVIKUMAR …Complainant/Appellant
AND
L.PRAKASH, …..Accused/Respondent
AFFIDAVIT VERIFYING THE APPLICATION FOR GRANT
OF SPECIAL LEAVE
I, VEENA RAVIKUMAR, W/o. Ravikumar, Aged about 34 years,
R/at No.107, ‘Sumukha Building’, 12th Main Road, 9th Block, 2nd
Stage, Nagarabhavi, Bengaluru-72, do hereby solemnly swear and
state as under:-
1. I am the appellant herein and am aware of the facts of the
case.
2. The averments made in the application accompanying this
affidavit are true and correct to the best of my knowledge,
information and belief.
What is stated above is true and correct to the best of my
knowledge and information and this is my name and signature.
Identified by me Deponent
Advocate
Date:-
Bangalore
