Sri T R Nagaraju vs Sri Sannahonnappa
2021 Latest Caselaw 6178 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 15TH DAY OF DECEMBER, 2021

                      BEFORE:

      THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

         CRIMINAL APPEAL NO.1158 OF 2018

BETWEEN

SRI T.R.NAGARAJU
S/O RAMAIAH
AGED ABOUT 38 YEARS
R/O TAVARAKERE VILLAGE
SIRA TALUK - 572 139
TUMAKURU DISTRICT                         ...   APPELLANT

[BY SRI V.B.SIDDARAMAIAH, ADVOCATE]

AND

SRI SANNAHONNAPPA
S/O GOVINDAPPA
AGED ABOUT 61 YEARS
R/O TAVARAKERE VILLAGE
SIRA TALUK - 572 139
TUMAKURU DISTRICT

RETIRED AS PHYSICAL TEACHER
GOVT SCHOOL, HUNASEHALLI VILLAGE
SIRA TALUK, TUMAKURU DISTRICT         ...   RESPONDENT

[BY SRI SHIVARUDRAPPA SHETKAR, ADVOCATE]

                         ***

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT
DATED 08.06.2018 PASSED BY THE ADDITIONAL CIVIL
JUDGE AND JMFC, SIRA IN C.C.NO.1923/2012 - ACQUITTING
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THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138
OF N.I. ACT.

       THIS CRIMINAL APPEAL COMING ON FOR ADMISSION
THROUGH PHYSICAL HEARING/VIDEO CONFERENCE, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                           JUDGMENT

This appeal is against the judgment and order of

acquittal passed by the trial Court, acquitting the

accused/respondent of an offence punishable under Section

138 of Negotiable Instruments Act, 1881 (hereinafter

referred to as 'N.I Act' for short).

2. Heard the learned counsel for appellant and

learned counsel for respondent and perused the material

on record.

3. The gist of the complaint is that the

complainant and the accused are known to each other. In

the first week of October 2011, the accused for the purpose

of his legal necessity requested the complainant to pay a

sum of Rs.3,00,000/- and therefore the complainant paid

the said amount to him on 15.10.2011. The accused had

agreed to repay the amount within two months but he did

not keep his promise and became a defaulter. After several

requests, accused issued a cheque bearing No. 523617

dated 20.12.2011 for the said amount, drawn on Canara

Bank, Tavarekere, Sira Taluk, Tumkur District. The said

cheque was presented to the bank as requested by the

accused, through his banker namely Kaveri Kalpatharu

Grameena Bank, Sira on 05.01.2012 for encashment.

However, the said cheque was dishonoured on 14.01.2012

for funds insufficient. The same was informed to the

complainant by his banker on 18.01.2012. Thereafter, the

complainant issued a legal notice to the accused on

24.01.2012 by RPAD and inspite of receipt of the notice,

accused failed to reply to the said notice and also failed to

repay the amount mentioned in the cheque within the

stipulated time and therefore the accused committed an

offence under Section 138 of N.I. Act.

4. The specific defence taken by the accused

before the trial Court is that there was financial transaction

between himself and complainant's parents. On

25.03.2009, he entered into an agreement as per Ex.D1

with complainant's mother namely Indramma and received

a sum of Rs.1,10,000/-. In this connection, he issued the

cheque in question as security. He repaid the loan amount

of Rs.1,10,000/- to Indramma, but the cheque was not

returned, as such he issued Ex.D2- notice. Instead of

returning the said cheque, the same was presented by the

complainant. It is also contended that the complainant had

no financial capacity to lend such a huge amount to the

accused and there was no transaction between the

complainant and accused.

5. Learned counsel for appellant has contended

that it is not disputed by the accused that the cheque does

not belong to him and even the signature on the cheque is

also not disputed and therefore the presumption under

Section 139 of N.I. Act has to be raised, when the

dishonour of cheque is established. He contends that

Ex.D1 stated to be the agreement entered between the

accused and complainant's mother has not been proved

since one of the signatory to the said agreement namely K.

Adimurthy has not been examined by the defence. He

therefore contends that the trial Court was not proper in

acquitting the accused relying on the documents marked by

the defence.

6. If it is proved that the cheque belong to the

accused and if the signature in the cheque is also not

disputed, then a legal presumption would arise in favour of

the complainant that the said cheque has been issued by

the accused in discharge of a debt or liability. However,

the said presumption is rebuttable in nature. In the case

on hand, the specific defence taken by the accused is that

the cheque in question marked as Ex.P1 was issued as

security to complainant's mother at the time of availing

loan of Rs.1,10,000/- from her and inspite of repaying the

said loan amount, the cheque was not returned and it was

misused by the complainant.

7. The defence has got marked Ex.D1. As per the

said document the accused received a sum of

Rs.1,10,000/- from Indramma i.e., complainant's mother

on 15.05.2008. The accused has got examined DW.2 i.e.,

wife of one K. Adimurthy who is a witness to the said

document-Ex.D1. DW.2 in her evidence has stated that

she is aware that there was financial transaction between

the accused and complainant's parents and in this

connection Ex.D1 was executed on 08.04.2009 and her

husband K. Adimurthy is a signatory to the said document.

She has identified the said signature. In the cross-

examination it is not disputed by the complainant the she is

not the wife of K. Adimurthy. PW.1 has admitted in his

cross-examination that the accused was doing financial

transaction with his parents.

8. It is relevant to see that the cheque number

mentioned in Ex.D1 is the same cheque alleged to have

been issued by the accused to the complainant/appellant.

Further, the defence has got marked Ex.D2, a notice issued

by the accused to parents of the complainant for returning

the said cheque No.523617. It is clearly mentioned in the

said notice that on 15.05.2008, the accused received a sum

of Rs.1,10,000/- from them for interest at 5% and at that

time the said cheque was given as security and inspite of

receipt of full amount the cheque was not returned. The

said notice at Ex.D2 is dated 05.07.2010, which is much

prior to the presentation of the cheque by the complainant.

Hence, the complainant's case that the accused approached

him in the month of first week of October 2011 and

requested for a sum of Rs.3,00,000/- and he paid the said

amount on 15.10.2011 and in discharge of the said liability

the accused issued the cheque in question appears to be

doubtful.

9. By adducing defence evidence, the accused has

been able to rebut the presumption available in favour of

the complainant and therefore, the findings recorded by the

trial Court cannot be said to be either perverse or illegal.

Hence, the appeal fails. Accordingly, it is dismissed.

Sd/-

JUDGE HB/-