Abdul Rasheed vs Ahmedul Lahkhan And Anr
2021 Latest Caselaw 1553 Kant

                                            CRL.A.200012/2019

                                 -1-



             IN THE HIGH COURT OF KARNATAKA
                    KALABURAGI BENCH

        DATED THIS THE 8TH DAY OF FEBRUARY 2021
                                BEFORE

     THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY

                     CRL.A.No.200012/2019
BETWEEN:

Abdul Rasheed,
S/o Abdul Salam,
Age: 57 years,
Occ: Business,
R/o Birla Area,
Opp: Osman Floor Mill,
Wadi (Jn), Tq: Chittapur,
Dist: Kalaburagi - 585 101.                 ...APPELLANT

(By Sri Ajaykumar.A.K., Adv.)

AND:

1.     Ahmedul Lahkhan,
       S/o Arshulla Khan,
       Age: 37 years,
       Occ: Business,
       R/o Shop No.1,
       Royal Plaza Complex,
       Muslim Chowk,
       Kalaburagi - 585 101.

2.     M.A.Majeedafsar,
       S/o M.A.Hameed Akbar,
       Age: 40 years,
       Occ: Business,
       R/o Shop No.1,
                                                   CRL.A.200012/2019

                                -2-



      Royal Plaza Complex,
      Muslim Chowk,
      Kalaburagi - 585 101.                       ...RESPONDENTS

(By Sri Liyaqat Fareed Ustad, Adv. for R-1;
    Sri Anilkumar D.Chavan, Adv. for R-2)


       This Criminal Appeal is filed under Section 378(4) Cr.PC
praying to set aside the impugned order and judgment of acquittal
dated 14.12.2018 passed by the IV Addl. Civil Judge & JMFC,
Kalaburagi, in Crl. Case No.4021/2016 acquitting the respondents
for the offences p/u/s 138 N.I.Act.

       This appeal coming on for Admission, this day, the Court
delivered the following:

                           JUDGMENT

1. This appeal is filed by the complainant challenging the

judgment and order of acquittal dated 14.12.2018 passed by

the IV Addl. Civil Judge & JMFC, Kalaburagi, in

C.C.No.4021/2016 for the offence punishable under Section

138 of the Negotiable Instruments Act.

2. Brief facts of the case are, the complainant and the

accused are friends and were doing business. The accused

borrowed a sum of Rs.2,25,000/- from the complainant and

towards discharge of the said amount borrowed, they issued CRL.A.200012/2019

a cheque bearing No.042169 dated 16.01.2016 drawn on

Indian Bank, Dharga Branch, Kalaburagi, in favour of the

complainant. On presentation of the cheque, the same was

dishonoured and at the request of the accused, complainant

re-presented the same and even for the second time, the

cheque was dishonoured. Thereafter, complainant issued a

legal notice to the accused persons and called upon them to

make the payment covered under the cheque. The said notice

was served on the accused persons who have given reply to

the said notice. Thereafter, the complainant has filed a

private complaint under Section 200 CR.PC before the

learned Magistrate who after recording the sworn statement

of the complainant, issued summons to the accused persons.

On service of summons, the accused appeared and claimed

to be tried.

3. During the course of trial, the complainant in order to

establish his case, examined himself as PW-1 and got marked

four documents as Exs.P-1 to P-4. After recording the CRL.A.200012/2019

statement of the accused persons under Section 313 Cr.PC,

the matter was posted for defence evidence, but the accused

did not lead any evidence nor did they mark any documents

in support of their case.

4. The Trial Court after addressing the arguments of both

the sides and appreciating the oral and documentary

evidence on record, has passed the impugned judgment and

order of acquittal, thereby acquitting the accused of the

offence under Section 138 of the N.I.Act. Being aggrieved by

the same, the present appeal is filed.

5. Learned Counsel for the appellant submits that the

Trial Court was not justified in passing the impugned

judgment and order of acquittal. The cheque issued by the

accused persons bears their signature and the same is not

disputed by them. Therefore, there is a presumption under

Section 139 of the N.I.Act as against the accused persons.

The Trial Court without appreciating the same has acquitted CRL.A.200012/2019

the accused. He has also relied on the judgment of the Apex

Court in the case of KISHAN RAO VS SHANKARGOUDA - 2018

ACD 813 (SC) in support of hsi arguments.

6. Per contra, learned Counsel for the accused submits

that as a matter of fact, there was an earlier transaction

between the parties, wherein the accused had borrowed a

sum of Rs.6 lakhs from the complainant herein and towards

security for the same, the cheque in question was issued, and

the said amount was repaid to the complainant with interest.

Totally a sum of Rs.6,50,000/- was paid to the complainant.

The cheque in question was issued as a security to the said

transaction, which has now been misused by the

complainant. The payment of Rs.6,50,000/- has been proved

by them and the defence has established their case.

Therefore, the Trial Court has rightly acquitted them.

CRL.A.200012/2019

7. I have carefully considered the rival arguments

addressed at the bar and also perused the entire materials on

record.

8. It is the case of the complainant that the respondents

have borrowed a sum of Rs.2,25,000/- and towards

repayment of the said amount, the cheque in question was

issued by the respondents. Except the cheque, there is no

other document which is produced by the complainant to

prove that an amount of Rs.2,25,000/- was paid to the

accused persons. The specific defence of the accused is that

they had borrowed a sum of Rs.6 lakhs from the complainant

earlier and the said amount has been repaid by them with

interest. This defence has been taken by them at the earliest

point of time while issuing reply notice as per Ex.P-4. Inspite

of the same, the complainant has remained silent about the

said transaction. He has not stated anything about the same

during his examination-in-chief. Even in the course of cross-

examination, he has denied the said transaction. Thereafter, CRL.A.200012/2019

when the accused persons confronted the documents

showing repayment of Rs.6,50,000/- to him on various dates

through cheques dated 13.12.2015, 15.04.2015 and

10.07.2015, the complainant has admitted the same.

Therefore, the defence has proved its case beyond reasonable

doubt. Under the circumstances, no presumption can be

raised as against the accused persons. In the judgment of the

Apex Court in the case of Kishan Rao, the accused had failed

to rebut the presumption raised against him, but in this

case, the accused have rebutted the presumption. Therefore,

the judgment of the Apex Court relied upon by the learned

Counsel for the appellant referred supra, would not be

applicable to the facts and circumstances of this case.

9. Having regard to the overall material available on

record, I am of the view that the Trial Court has rightly

acquitted the accused persons for the offence punishable

under Section 138 of the N.I.Act. Even if two views are

possible, the view taken by the Trial Court should not CRL.A.200012/2019

normally be discharged unless the said judgment is prima

facie illegal. In the case on hand, I am satisfied that the Trial

Court is fully justified in passing the impugned judgment and

order of acquittal having regard to the material on record.

Therefore, the appeal has to fail and is accordingly dismissed.

Sd/-

JUDGE

KK