Karnataka High Court
K L Krishnegowda vs Balakrishna Raju C on 26 July, 2024
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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NC: 2024:KHC:29395
CRL.A No. 495 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 495 OF 2015
BETWEEN:
K L KRISHNEGOWDA
S/O LATE LINGEGOWDA
AGED ABOUT 52 YEARS
R/AT No. 69/1-2, 1ST CROSS
1ST MAIN ROAD, K B NAGAR
MYSORE ROAD,
BENGALURU - 560 026.
...APPELLANT
(BY SRI A N RADHA KRISHNA, ADVOCATE)
Digitally signed by
LAKSHMINARAYANA AND:
MURTHY RAJASHRI
Location: HIGH
COURT OF BALAKRISHNA RAJU C
KARNATAKA AGED ABOUT 50 YEARS
R/AT No. 1/1, 1ST FLOOR
1ST CROSS, KUMAR COT ROAD
MADHAVANAGAR, KUMARA PARK
BENGALURU - 560 001.
...RESPONDENT
(BY SMT. PAULINE PRIYANKA B, ADVOCATE)
THIS CRL.A. IS FILED U/S.378(4) Cr.P.C PRAYING TO
SET ASIDE THE ORDER DATED:5.3.2015, PASSED BY THE XXIII
ACMM, BANGALORE, IN C.C.No.1738/2013 - ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I.
ACT AND ETC.,
THIS APPEAL COMING ON FOR DICTATING JUDGMENT
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
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NC: 2024:KHC:29395
CRL.A No. 495 of 2015
ORAL JUDGMENT
1. This appeal is filed by the appellant - complainant praying to set aside the judgment of acquittal dated 05.03.2015 passed in C.C. No. 1738/2013 by the XXIII Additional Chief Metropolitan Magistrate, Bengaluru, whereunder the respondent - accused has been acquitted for offence under Section 138 of the Negotiable Instruments Act (for the sake of brevity hereinafter referred to as the N.I. Act).
2. Case of the appellant - complainant is that the respondent - accused is a civil contractor and he placed order for supply of sand to the appellant - complainant. The appellant - complainant had supplied sand on various dates to the respondent - accused. During July 2012 the respondent - accused had issued 3 cheques;
a) 06.08.2012 - Rs.75,000/-
b) 24.09.2012 - Rs.83,000/-
c) 26.09.2012 - Rs.83,000/-
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NC: 2024:KHC:29395
CRL.A No. 495 of 2015
towards cost of sand supplied by the appellant -
complainant to the respondent - accused. The appellant - complainant presented the said 3 cheques and they were returned dishonoured with endorsement `funds insufficient'. The appellant - complainant got issued legal notice calling upon the respondent - accused to pay the amount of the said cheques. The respondent - accused, inspite of service of notice, did not pay the amount mentioned in the said cheques but, had issued reply. As the respondent - accused did not pay the cheque amount, the appellant - complainant had initiated proceedings against him for offence under Section 138 of the N.I. Act.
3. The appellant - complainant, in order to prove his case, has examined himself as P.W.1 and got marked Ex.P.1 to Ex.P.15. Statement of respondent - accused has been recorded under Section 313 of Cr.P.C. The respondent - accused has examined himself as D.W.1 and no documents were marked on his side. The trial Court, after hearing arguments on both sides, formulated points for consideration and after appreciating the evidence on -4- NC: 2024:KHC:29395 CRL.A No. 495 of 2015 record passed the impugned judgment of acquittal which is challenged in this appeal.
4. Heard learned counsel for appellant - complainant and learned counsel for respondent - accused.
5. The respondent - accused had earlier engaged a counsel, but, the said counsel did not turn up at the stage of arguments. Therefore, this Court has appointed a counsel who is on the panel of High Court Legal Services Committee to represent the respondent - accused.
6. Learned counsel for appellant - complainant would contend that the respondent - accused had issued 3 cheques for making payment of amount due in respect of sand supplied by the appellant - complainant to the respondent - accused. Supply of sand has been admitted by respondent - accused in his reply - Ex.P.14 and he has also admitted issuance of 3 cheques in the said reply. He contends that the respondent - accused has mentioned in the said reply that he had made payments but has not produced any documents in that regard. The issuance of -5- NC: 2024:KHC:29395 CRL.A No. 495 of 2015 cheques is admitted by the respondent - accused. The transaction is also admitted. Therefore, there is a presumption under Section 139 of the N.I. Act that the said cheques have been issued for making payment of legally enforceable liability. Said presumption is not rebutted by the respondent - accused. D.W.1 in his chief- examination has stated that after issuance of reply - Ex.P.14 he had paid cash, but, no documents are produced in that regard. Without considering all these aspects learned Magistrate has erred in acquitting the respondent - accused for offence under Section 138 of the N.I. Act. With this he prayed to allow the appeal and convict the respondent - accused for offence under Section 138 of N.I. Act.
7. Learned counsel for respondent - accused would contend that the respondent - accused had admitted supply of sand worth Rs.2,41,000/- and issuance of 3 cheques in his reply - Ex.P.14. In the same reply it is also mentioned regarding payment of Rs.1,70,000/- on different dates, one through cheque and 3 times by cash. -6-
NC: 2024:KHC:29395 CRL.A No. 495 of 2015 P.W.1 in his cross-examination has admitted receipt of Rs.70,000/- paid by respondent - accused through cheque. Said presumption drawn under Section 139 of N.I. Act has been rebutted by the respondent - accused. Considering the said aspect learned Magistrate has rightly acquitted the respondent - accused for offence under Section 138 of N.I. Act. With this she prayed to dismiss the appeal.
8. Having heard learned counsel for the parties, considering the grounds urged and on perusal of record, the following point arises for my consideration.
Whether the trial Court erred in acquitting the respondent - accused for offence under Section 138 of the N.I. Act?
9. My answer to the above question is in the affirmative for the following reasons:
It is the specific case of the appellant - complainant that he had supplied sand worth Rs.2,41,000/- and for making payment of the same, the respondent - accused had issued 3 cheques which are at Ex.P.1 to Ex.P.3. Said 3 -7- NC: 2024:KHC:29395 CRL.A No. 495 of 2015 cheques, on presentment, came to be dishonoured with endorsement `funds insufficient' and the bank endorsements are at Ex.P.7 to Ex.P.9. The appellant - complainant had got issued legal notice dated 17.10.2012
- Ex.P.10 calling upon the respondent - accused to pay the cheque amounts as the cheques issued by him have been dishonoured. Said notice which is sent by registered post has been served on the respondent - accused and the postal acknowledgement is at Ex.P.13. The respondent - accused himself has issued reply to the said legal notice and reply is at Ex.P.14. In reply - Ex.P.14 the respondent
- accused has admitted that appellant - complainant had supplied sand worth Rs.2,41,000/- and he had issued 3 cheuqes, the details of which are mentioned in the said reply tally with the cheques which are at Ex.P.1 to Ex.P.3. The contents of Ex.P.14 - reply to the notice itself admit the supply sand worth Rs.2,41,000/- by the appellant - complainant to the respondent - accused and issuance of 3 cheques by the respondent - accused to the appellant -
complainant which are at Ex.P.1 to Ex.P.3. In the said -8- NC: 2024:KHC:29395 CRL.A No. 495 of 2015 notice respondent - accused has stated that he has made payment of Rs.1,70,000/- out of which he had paid Rs.70,000/- by cheque dated 18.07.2012 and he had made payment by way of cash of Rs.35,000/- on 18.08.2012, Rs.40,000/- on 29.09.2012 and Rs.25,000 /- on 04.10.2012 under cash vouchers. The respondent - accused has not produced the said cash vouchers to establish that he had made those 3 payments by cash. D.W.1 in his cross-examination has admitted that he is having those cash vouchers which are mentioned in Ex.P.14 but, he has not produced them to the Court.
10. P.W. 1 has admitted the receipt of Rs.70,000/- from the respondent - accused through cheque. But the said cheque is dated 18.07.2012 bearing No. 186537 and it is prior to the cheuqes which are at Ex.P.1 to Ex.P.3. Therefore, said payment of Rs.70,000/- cannot be said to be towards supply of sand worth Rs.2,41,000/-. Without considering the said aspect the trial Court has accepted the said admission of P.W.1 regarding receipt of Rs.70,000/-. D.W.1 in his chief examination has stated -9- NC: 2024:KHC:29395 CRL.A No. 495 of 2015 that after issue of reply notice - Ex.P.14 the appellant - complainant came personally and collected the amount. In that regard the respondent - accused has not produced any documents for having made payments to the appellant
- complainant.
11. The transaction between the appellant - complainant and respondent - accused is admitted. Issuance of cheques - Ex.P.1 to Ex.P.3 towards making payment of amount for sand supplied is also admitted. The respondent - accused has failed to prove that he had made payment of the amount due to appellant - complainant. Without considering these aspects the learned Magistrate erred in acquitting the respondent - accused for offence under Section 138 of the N.I. Act. The material on record will establish that cheques issued by the respondent - accused for making payment of legally enforceable liability came to be dishonoured for want of funds and inspite of issuing notice, the amount in the cheques has not been paid by the respondent - accused to the appellant -
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NC: 2024:KHC:29395 CRL.A No. 495 of 2015 complainant. Therefore, the respondent - accused has committed offence under Section 138 of the N.I. Act.
12. In view of the above, the judgment passed by the learned Magistrate acquitting the respondent - accused requires to be set aside and the respondent - accused is required to be convicted for offence under Section 138 of the N.I. Act. In the result, the following;
ORDER
i. The appeal is allowed.
ii. The judgment of acquittal dated 05.03.2015
passed in C.C. No. 1738/2013 by the XXIII Additional Chief Metropolitan Magistrate, Bangalore, is set aside.
iii. The respondent - accused is convicted for offence under Section 138 of the N.I. Act and he is sentenced to pay fine of Rs.2,75,000/- out of which a sum of Rs.2,70,000/- is to be paid to the appellant - complainant as compensation and remaining Rs.5,000/- is to be appropriated as fine to the State.
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NC: 2024:KHC:29395 CRL.A No. 495 of 2015 iv. In default of payment of fine amount, the respondent - accused to undergo simple imprisonment for a period of 6 months.
Sd/-
(SHIVASHANKAR AMARANNAVAR) JUDGE LRS List No.: 1 Sl No.: 15