Karnataka High Court
Sri V Sanjeeva vs Sri D Mukunda Naik on 18 December, 2021
Bench: Mohammad Nawaz
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF DECEMBER, 2021
BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL No.1572 OF 2017
BETWEEN:
SRI. V. SANJEEVA
S/O. SHIVAIAH
AGED ABOUT 60 YEARS,
R/AT NO.31, 2ND MAIN
14TH CROSS, S.P. EXTENSION
MALLESHWARAM
BENGALURU-560 003. ... APPELLANT
[BY SRI. DEEPAK WAGLE M. ADVOCATE FOR
SRI. KESHAVA BHAT A., AND
SRI. G.L. MOHAN MAIYA, ADVOCATES-PH]
AND:
SRI. D. MUKUNDA NAIK
AGED ABOUT 52 YEARS
A.P.S. COMMERCE COLLEGE
N.R.COLONY, BENGALURU-560 019. ... RESPONDENT
[BY SRI. D. NAGARAJA REDDY, ADVOCATE-PH]
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF CR.P.C, PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
DATED 12.06.2017 PASSED BY THE XVI ADDL. C.M.M.,
BANGALORE IN C.C. NO.27054/2015 - ACQUITTING THE
RESPONDENT/ACCUSED FOR OFFENCE P/U/S 138 OF THE N.I. ACT.
THIS CRIMINAL APPEAL COMING ON FOR ADMISSION
THROUGH VIDEO CONFERENCE/PHYSICAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
2
JUDGMENT
This is a complainant's appeal against the
Judgment and Order dated 12.06.2017 passed in C.C.
No.27054/2015 by the trial Court, acquitting the
accused/respondent of an offence punishable under
Section 138 of the Negotiable Instruments Act
[hereinafter referred to as 'N.I. Act' for short].
2. Heard both side and perused the records of
the case.
3. The complainant has stated that he was
working at A.P.S. Commerce College, N.R.Colony,
Bengaluru, and the accused was also an employee of the
said college, as such both of them were colleagues and
knew each other. The accused had borrowed a sum of
`2,63,000/- from him, to meet his urgent necessities and
in discharge of the same, issued a cheque dated
17.06.2015 bearing No.785949, drawn on the Karnataka
State Cooperative Apex Bank Limited, Jayanagara Market
Complex Branch, Bengaluru. When the said cheque was
presented through his banker, the same came to be
returned dishonoured due to 'Funds Insufficient' in the
account of the accused on 25.06.2015. The accused was
called upon to make the payment by issuing a legal
notice on 20.07.2015 through RPAD. The accused gave
untenable reply to the said notice and failed to honour
the cheque. Hence, committed an offence punishable
under Section 138 of the N.I. Act.
4. Accused has admitted that both of them were
working at APS Commerce College. He has taken a
specific defence that he had borrowed a sum of
`2,68,000/- from the complainant between 06.04.2011
and 04.08.2012 on various occasions and towards
security, he had issued three blank cheques, one bearing
No.776380 drawn on SBM., Basavanagudi Branch,
Bengaluru and two cheques bearing Nos.785949 and
785950, both drawn on The Karnataka State Co-
operative Apex Bank, Jayanagara Branch. Subsequently,
he repaid a sum of `75,000/- on 01.02.2013 and
`25,000/- on 26.03.2013 by way of cheque and sought
time to repay the remaining amount of `1,68,000/-.
However, the complainant remitted two out of three
cheques issued by him as stated above i.e, one bearing
No.776320 drawn on SBM for `2,02,000/- and other
cheque bearing No.785950 drawn on The Karnataka
State Co-operative Apex Bank in the name of his wife
Smt. Prameela R.Bhat for an amount of `1,40,500/-.
Both the cheques got dishonoured and therefore the
complainant and his wife issued two legal notices on
01.07.2013 in respect of those two cheques.
Subsequently, the matter was settled for a sum of
`1,95,000/-, out of which a sum of `1,68,000/- being the
principal amount and an amount of Rs.27,000/- towards
interest was paid to the complainant in the year 2013
itself. At the time of settlement, two cheques in respect
of which the complainant got issued the legal notices
were returned by him. However, in spite of repeated
request, the cheque in question was not returned and on
the other hand, the same was misused and a false
complaint was filed.
5. Before the trial Court, the complainant was
examined as P.W.1. He has got marked Exs.P1 to 10.
The accused got himself examined as D.W.1 and got
marked Exs.D1 to 5.
6. It is the contention of the learned counsel for
the appellant that the cheque belong to the accused and
the signature on the said cheque is also not in dispute
and therefore there is a legal presumption in favour of
the complainant. He would contend that the accused has
admitted that there were financial transactions with the
complainant and he has admitted that the cheque in
dispute belongs to him and it bears his signature. He
contends that the accused has not led any evidence
regarding settlement and payment of `1,95,000/- to the
complainant in the year 2013, as such the accused has
failed to rebut the presumption.
7. The accused who is examined as D.W.1 has
admitted that the cheque in dispute belongs to him and
it bears his signature. However, he has stated that after
the settlement with the complainant, he has not
borrowed any loan nor there was any financial
transaction with him.
8. In the cross-examination, P.W.1 has stated
that out of the loan amount of `2,63,000/-, he paid some
amount by way of cash and some amount by way of
cheque. As per Ex.P3 i.e. legal notice, the said amount
was paid to the accused between 26.04.2011 and
04.08.2012. P.W.1 has admitted the documents marked
by defence viz. Exs.D1 to 5. The defence taken by the
accused is set-out in the reply notice at Ex.P10. The
complainant has admitted that he has returned the
cheques referred to in Exs.D2 and 3. In the reply notice,
the accused has taken a specific defence that he
borrowed a sum of `2,63,000/- from the complainant
from 26.04.2011 to 04.08.2012. In the complaint, there
is no mention as to when a sum of `2,63,000/- was paid
by the complainant to the accused. Though it is stated
that the said amount was paid by way of cash as well as
through cheques, no documents are forthcoming.
9. The averments in Ex.D2 goes to show that the
complainant has claimed that the accused had borrowed
a total sum of `1,68,000/- and towards repayment of the
sum including interest, he issued a cheque dated
26.06.2013 bearing No.776380 drawn on SBM
Basavanagudi Branch, Bengaluru, for a sum of
`2,02,000/-. Further, the averments in Ex.D3 shows
that the complainant's wife claimed that the accused had
borrowed a total sum of `1,00,000/- from her by way of
two installments of `50,000/- each on 08.04.2011 and
19.08.2011 respectively promising to pay the said
amount with interest at 18% p.a. In this regard, the
accused is said to have issued a cheque dated
17.06.2013 bearing No.785950 drawn on The Karnataka
State Co-operative Apex Bank Limited, Jayanagara
Market Complex Branch, Bengaluru, for a sum of
`1,40,500/-. According to the accused, subsequent to
dishonour of those two cheques, there was a settlement
between the parties and as per the said settlement he
cleared the said amount by paying `1,50,000/- and
another sum of `45,000/-. P.W.1 in his cross-
examination has stated that the said settlement was not
towards the present transaction.
11. The trial Court has taken into consideration
that the pass book of the accused was confronted and
marked as Ex.D4, in which relevant entries dated
01.02.2013 by way of cheque `75,000/- and on
26.02.2013 by way of cheque `25,000/- are marked as
Ex.D4(a) and Ex.D4(b) respectively. The complainant in
his cross-examination has denied that after receipt of the
legal notices as per Ex.D2 and 3, the accused had
returned `1,00,000/- as per the relevant entries. On the
other hand, he has stated that the said entries are not
related to the present case. Therefore in such
circumstances, the onus is once again shifted to him to
prove the existence of any other transactions, in respect
of which the said payments are made by the accused.
However, the complainant has failed to prove about any
other transactions as claimed.
12. In the cross-examination of P.W.1, for the
first time he has stated that the accused had initially
taken Rs.2,68,000/-. Even in Ex.P3-legal notice, it is
mentioned that the accused had executed necessary
documents at the time of receiving the loan amount
which is reiterated in the evidence. However, in the
cross-examination, he has stated that he has not
collected any documents from the accused at the time of
lending loan to him.
13. From the above evidence and material on
record, the trial Court has rightly come to the conclusion
that the complainant has miserably failed to prove his
case beyond reasonable doubt. The defence taken by
the accused is more probable and reliable and the
presumption available in favour of the complainant has
been rebutted by the defence by adducing evidence and
also by way of cross-examination of the complainant. No
grounds are made out to interfere with the impugned
Judgment of acquittal passed by the trial Court. Hence,
Criminal Appeal is dismissed.
Sd/-
JUDGE
Ksm*
