Basavanneppa S/O Ningappa ... vs Prakash Ramanna Kampli
2021 Latest Caselaw 3089 Kant

            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

         DATED THIS THE 02ND DAY OF AUGUST, 2021

                         BEFORE

       THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

              CRIMINAL APPEAL NO.2787/2012

BETWEEN:

BASAVANNEPPA S/O NINGAPPA HULUGUR,
AGE: 52 YEARS, OCC: PROP.
MAHALAXMI TRADING COMPANY,
LAXMESHWAR, TQ.SHIRAHATTI, DIST: GADAG.
                                             ...APPELLANT

(BY SRI.DEEPAK C.MAGANUR, ADV.)

AND:

SRI.PRAKASH RAMANNA KAMPLI,
AGE: MAJOR, OCC: BUSINESS,
HOUSE NO.193, BHAIRAVA NIWAS,
NEAR SYNDICATE BANK, VISHWESHWARANAGARA,
HUBLI, TQ.HUBLI, DIST: DHARWAD.
                                      ...RESPONDENT

(BY SMT.GIRIJA HIREMATH, ADV. FOR
    SRI.G.I.GACHCHINAMATH, ADV.)

      THIS APPEAL IS FILED UNDER SECTION 378(4) OF
CR.P.C. TO SET ASIDE THE ORDER OF ACQUITTAL DATED
04.07.2011 PASSED BY THE LEARNED PRL. SENIOR CIVIL
JUDGE AND CJM, GADAG IN C.C.NO.31/2005 AND CONVICT
THE ACCUSED.

      THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
                                      2




                               JUDGMENT

This appeal is filed under Section 378(4) of Cr.P.C.

by the complainant who was appellant before the trial

court, against the judgment of acquittal passed by the

Principal Senior Civil Judge & CJM, Gadag in

C.C.No.31/2005 dated 04.07.2011 whereby the learned

Magistrate has acquitted the accused/respondent herein.

2. The brief facts of the case of the

appellant/complainant are that, he has filed a private

complaint against the respondent/accused alleging the

offence punishable under Section 138 of Negotiable

Instruments Act. According to the complainant, there was

transaction between the appellant/complainant and the

respondent/accused in respect of supply of greengram and

other food grains and accordingly, the

appellant/complainant has supplied greengram worth

Rs.3,00,000/-. The respondent/accused herein has issued

four cheques in respect of repayment of price of the

greengram for Rs.75,000/- each and one such cheque

pertaining to this case when presented was dishonoured.

After issuing notice, the proceedings came to be initiated.

3. The trial court after detailed trial after

recording evidence and appreciation held that there is no

legally enforceable debt and further held that the

appellant/complainant has failed to establish the

transaction between himself and the respondent/accused

herein and thereby accepted the defence set up by the

respondent/accused herein in respect of his clerk misusing

the cheques and acquitted him of the offence punishable

under Section 138 of N.I.Act. This order is being

challenged in this appeal.

4. Heard the arguments of the learned counsel for

the appellant/complainant and the learned counsel for the

respondent/accused. Perused the records.

5. The learned counsel for the

appellant/complainant would argue that the trial court has

committed an error in appreciating the evidence on record

and failed to consider that there is a presumption in favour

of the complainant/appellant under Section 139 of N.I.Act

and it is for the respondent/accused to rebut the said

presumption. He would submit that the trial court has

casted negative burden on the appellant/complainant

without forming any presumption in favour of the

appellant/complainant and thereby it has lead to

miscarriage of justice. He would also submit that there

were earlier series of proceedings arising out of the same

transaction in Crl.A.Nos.2544, 2545 and 2546 of 2009 and

the respondent herein was convicted there and this

complaint is out of the same course of transaction, but

quite interestingly, the learned Magistrate has taken

inconsistent view and hence, he would seek for setting

aside the impugned judgment of acquittal and sought for

convicting the respondent/accused.

6. Per contra, learned counsel appearing for the

respondent/accused would contend that the trial court has

appreciated the oral and documentary evidence and the

appellant has failed to prove that there was a legally

enforceable debt and hence, she would support the trial

court's acquittal judgment.

7. Having heard the arguments and perusing the

records, it is to be noted herein that the

respondent/accused has not disputed that the cheque

belongs to his account. Further, he has also admitted his

signature on the cheque. He simply set up a defence that

P.W.3 who was working as his clerk has obtained signature

on the blank cheques and they were misused by the

appellant/complainant. He would also contend that now

P.W.3 has left the job with him and hence, he would

contend that the cheque is obtained by misrepresentation.

When the respondent/accused has admitted his signature

on the cheque and when the cheque belongs to him,

admittedly the appellant/complainant is a holder of the

cheque in due course under Section 118 of N.I.Act. Hence,

the presumption under Section 139 of N.I.Act is in favour

of the appellant/complainant and it is for the

respondent/accused to rebut the said presumption, which

is mandatory and statutory presumption. The

respondent/accused did not lead any defence evidence for

rebutting the presumption and he can rebut the

presumption by available material, but mere denial does

not amount to rebuttal of the presumption.

8. Admittedly, there is no dispute of the fact that

appellant/complainant and respondent/accused were

dealings in food grains. Further, very importantly in

respect of the same transaction, the other three

complaints filed by the present appellant/complainant

against the respondent/accused in C.C.Nos.232, 233 and

234 of 2005 wherein the transaction was upheld and the

respondent/accused was convicted by the trial court. The

respondent/accused challenged this conviction in

Crl.A.Nos.11, 12 and 13 of 2007 before the District and

Sessions Judge, Gadag and the learned Sessions Judge by

doubting regarding existence of legally recoverable debt,

has set aside the conviction order by acquitting the

respondent/accused. The said acquittal judgments

challenged before this court in Crl.A.Nos.2544, 2545 and

2546 of 2009 and this court by order dated 07.07.2007

allowed the appeals and set aside the impugned judgment

of acquittal. In the said cases, the trial court has convicted

the respondent/accused with two years rigorous

imprisonment with fine of Rs.1,02,000/-, in default with

further imprisonment of six months in each cases.

However, this court only to that extent modified the order

by setting aside the order of imprisonment and directed to

pay fine of Rs.1,02,000/- as ordered by the learned

Magistrate. The judgments passed by this court in

Crl.A.Nos.2544, 2545 and 2546 of 2009 have reached

finality and admittedly they are pertaining to this

transaction of Rs.3,00,000/- in respect of greengram and

four cheques were issued and in three cheques, the matter

ended in conviction and in this case, it is ended in

acquittal.

9. Very strangely, the trial court while considering

the transaction has dealt it as if a civil case and casted

burden on the appellant/complainant to prove the

transaction ignoring the presumption under Section 139 of

N.I.Act. This Court relying on the decision rendered by the

Apex Court in the case of Krishna Janardhan Bhat Vs

Dattatraya G.Hegde (2008) 4 SCC 54, held that initial

presumption is in favour of the complainant. In the case of

Rangappa Vs Mohan (2010 CRI.L.J. 2871), the Hon'ble

Apex Court has made the things more clear from Krishna

Janardhan Bhat's case (supra) and held that drawing

presumption is mandatory and accused is required to

prove and rebut the said presumption by showing that

there is no legally enforceable debt. In the present case,

the respondent/accused set up a defence that P.W.3 who

was working as clerk has misused the cheques which were

signed by him. But the said ground was already negatived

in earlier cases, which were discussed in Crl.A.Nos.2544,

2545 and 2546 of 2009. Hence, now it is not open for the

trial court to observe that there is no transaction between

the parties and in fact the burden is on the

respondent/accused to establish that there was no

transaction and cheque was not issued in discharge of

legally enforceable debt.

10. The trial court committed an error apparent on

the face of the records by casting burden on the

appellant/complainant against the mandatory requirement

under Section 139 of N.I.Act. It is further observed that, in

earlier cases that the decree is already obtained by the

appellant/complainant in respect of payment of the

amount. Under these circumstances, the learned

Magistrate has erred in holding that there is no legally

enforceable debt and committed an error in acquitting the

respondent/accused. The judgment of acquittal passed by

the learned Magistrate is erroneous, illegal and capricious

and as such, it calls for interference by this court in this

appeal.

11. Learned counsel for the respondent/accused

submits that lenient view may be taken. But however, in

earlier cases arising out of the same transaction, the

respondent/accused was imposed fine of Rs.1,02,000/-

and the High Court has only set aside the imprisonment of

two years. There are no mitigating circumstances to take a

different view. Hence, the fine will meet the ends of

justice. Accordingly, I proceed to pass the following:

ORDER

The appeal is allowed. The impugned order of

acquittal dated 04.07.2011 passed by the Principal Senior

Civil Judge & CJM, Gadag in C.C.No.31/2005 is set aside.

The respondent/accused is convicted for the offence

punishable under Section 138 of N.I.Act and he is

sentenced to pay a fine of Rs.1,00,000/-, which shall be

deposited within three months before the trial court, failing

which, he is required to undergo simple imprisonment for

six months.

Out of the fine amount recovered, Rs.90,000/- shall

be paid to the appellant/complainant under Section 357 of

Cr.P.C. as compensation and Rs.10,000/- shall be credited

to the State Treasury.

Sd/-

JUDGE MBS/-