Karnataka High Court
Shri.Shashidhar S/O ... vs Shri.Mallappa S/O Tamanappa ... on 7 February, 2022
Bench: M.Nagaprasannapresided Bymnpj
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 7TH DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
CRIMINAL APPEAL NO.100291/2015
BETWEEN:
SHASHIDHAR
S/O SHIVSHARNAPPA MALIPATIL
AGE: 38 YEARS, OCC: LEGAL OFFICER
SRIRAM CHITS(K) PVT. LIMITED,
BAGALKOTE
R/O: BASV NILAY, NEAR RURAL POLICE
STATION, LAXMI NAGAR, BAGALKOTE
TQ: & DIST: BAGALKOTE.
...APPELLANT.
(BY SHRI N L BATAKURKI, ADVOCATE.)
AND:
MALLAPPA S/O TAMMANNAPPA GANIGER
AGE: 50 YEARS, OCC: BUSINESS
C/O: GIRISH MEDICALS MUDALAGI
TQ: GOKAK, DSIT: BELAGAVI
...RESPONDENT.
(BY SMT. P G NAIK, ADVOCATE.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF
THE CODE OF CRIMINAL PROCEDURE, 1973, SEEKING TO ADMIT THE
APPEAL AND CALL FOR THE RECORDS FROM COURT BELOW AND SET
ASIDE THE JUDGMENT DATED 17.10.2015, PASSED BY ADDL. CIVIL
2
JUDGE & JMFC, BAGALKOTE, IN C.C.NO.1012/2010 AND CONVICT
THE ACCUSED/RESPONDENT HEREIN, FOR THE OFFENCE
PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS
ACT, 1881, ETC.,.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellant is before this Court calling in question the
judgment and order passed by the Additional Civil Judge &
JMFC, Bagalkote, in Criminal Case No.1012 of 2010 dated 17th
October, 2015, by which the trial Court has acquitted the
respondent of the offence punishable under Section 138 of the
Negotiable Instruments Act, 1881 ('the Act' for short).
2. Heard Shri N.L.Batakurki, the learned counsel
appearing for the appellant and the Smt.P.G.Naik, the learned
counsel appearing for the respondent.
3. Brief facts leading to the filing of the present appeal,
as borne out from the pleadings, are as follows:-
For the sake of convenience the description of parties will
be referred to as obtaining in the trial Court. The complainant
and accused are close relatives. Following such acquaintance,
the accused appears to have approached the complainant and
requested him to advance hand loan of Rs.1,25,000/- for his
family necessities. The complainant appears to have advanced
the loan of Rs.1,25,000/- to the accused. It is the case of the
complainant that since he was a close relative of the accused,
he did not insist on execution of any agreement on the ground
that he would pay back the amount within a short span of time.
The complainant claims to have made repeated requests and
demands but the accused did not pay back the amount.
4. On 15-8-2009, the accused issued a cheque bearing
No.008059 for a sum of Rs.1,25,000/- drawn on Mudalagi
Co-operative Bank Limited, in order to discharge the liability.
When the cheque was presented on 28.08.2009, it was returned
with an endorsement payment stopped by the drawer. After
receipt of the endorsement, a statutory notice was caused upon
the accused and later proceedings were instituted by
registration of a complaint under Section 200 of the Code of
Criminal Procedure, 1973, for offence punishable under Section
138 of the Act.
5. The complainant in order to prove his case marked
about 4 documents as Exs. P1 to P4 and examined himself as
PW.1. On the other hand, the accused marked documents as
Exs.D1 to D21 and examined himself as DW.1. Based upon the
documents produced and evidence let in, the trial Court by its
judgment dated 17th October 2015, acquitted the accused of the
offence punishable under Section 138 of the Act. It is this order
that is called in question in the subject appeal.
6. The learned counsel appearing for the
appellant/complainant would submit that the very act of the
accused issuing the cheque is evidence enough to show that it
was legally enforceable and dischargeable debt. On the other
hand, the learned counsel representing the respondent/accused
would support the judgment passed by the trial Court acquitting
the respondent on the ground that it was not a legally
enforceable debt and there was no occasion for the accused to
have borrowed the money or given a cheque towards that
amount.
7. I have given my anxious consideration to the
submissions made by the respective learned counsel appearing
for the parties and perused the material on record.
8. The afore-narrated facts are not in dispute and are,
therefore, not reiterated. The reason for issuance of a cheque is
what is to be noticed in the case at hand. The accused got
himself examined as DW.1 and deposed that he has not
borrowed any loan from the complainant and there was no need
to borrow any amount. The complainant did not cross-examine
DW.1. Therefore, the evidence that was let in by the accused
remained unchallenged. On the documents side the accused
produced Ex.D1 which would show that he was a landlord
owning lands. Ex.D5 demonstrates that during the year 2007 he
had supplied sugarcane to Vishwanath Sugar and Steel
Industries Limited, Bellad Bagewadi, from which he has received
a sum of Rs.1,11,973/-. Ex.D6 demonstrates that he has
supplied sugarcane to Godavari Biorefineries for an amount of
Rs.1,45,000/- and likewise he has produced several receipts of
sugarcane trade.
9. Therefore, on a perusal of the said documents what
could be unmistakeably gathered is that the accused himself
between 2007 and 2010 had sufficient funds in his bank account
and there was no occasion for him to borrow any loan much less
in a sum of Rs.1,25,000/- from the complainant. All this
evidence that was produced before the trial Court has gone un-
rebutted. The trial Court by considering all the documents that
were produced and by rendering cogent reasoning rejected the
claim of the complainant that the cheque was issued on
15.08.2009 by the accused against a legally dischargeable debt,
notwithstanding the fact that the accused had admitted his
signature in Ex.P1. But, the presumption under the Act being
rebuttable, it has been duly rebutted by the accused before the
trial Court against which there is no evidence produced by the
complainant. It is germane to notice the following reasoning
rendered by the trial Court which is in my considered view is
cogent for having passed the order of acquittal.
22. Further during the course of cross
examination the PW1 has deposed DgÉÆæ vÁ£ÀÄ
AiÀiÁªÀ GzÉÝñÀPÁÌV ZÉPU
À ¼
À £
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À ÃPÀgtÀ UÉƽ¸À¨ÁgÀzAÉ zÀÄ
¨ÁåAQUÉ ¤zÉÃð²¹zÀÝgÀÄ JA§ §UÉÎ £À£UÀ É UÉÆwÛ®.è Then,
complainant does not know what is the reason for
dishonor of cheque. And he does not know for
what reason the accused has issued the stop
payment instruction.
23. The accused got examined himself as
D.W.1. In his examination-in-chief he has deposed
that he has not borrowed any loan from the
complainant and there is no occasion for the
accused person to borrow loan from the
complainant because of the reason that he is
having sufficient income from his business and as
well as from the agriculture lands. There by the
question of executing cheques in favor of the
complainant will not arise at all.
24. However it is important to note
that the complainant has not cross examined
the DW1. As the DW1 is not cross examined
his chief examination evidence remained
unchallenged. Hence it has to be presumed
that the averments made in the chief
examination of DW1 are true.
25. Accused has produced Ex.D1 from his
side. On perusal of Ex.D1, it shows that he is
having land. On perusal of Ex.D5 it shows that
during the year 2007 he supplied sugarcane to the
Vishwanath Sugar and Steel Industries Limited
Bellad bagewadi and out of that he has received an
amount of Rs.1,11,973/- in the year 2007.
Similarly on perusal of Ex.D6 it shows that he has
supplied sugarcane to Godavari Biorefineries and
from supply of sugarcane he got Rs.1,45,982/- in
the year 2008 in which the alleged transaction is
made. On perusal of Ex.D7 it shows that in the
year 2010 he supplied sugarcane worth of
Rs.1,73,248/- to Godavari Biorefineries. There by
on perusal of these documents it shows that since
2007 to 2010 the accused person was having
sufficient income from his agricultural lands.
There by there is no occasion for the accused
person to borrow loan from the complainant. There
by the accused has rebutted the presumption
U/sec.139 of N.I.Act and he has proved that there
is no transaction between him and the complainant
and he has also proved that he was having
sufficient income from his agricultural lands and
from his business and there is no occasion for him
to avail loan from complainant. However, it is very
important to note that the complainant has not
cross-examined the D.W.1. As D.W.1 is not cross-
examined the testimony of the D.W.1 remained
unchallenged and there is no reason to disbelieve
the version of the D.W.1 made in his cross-
examination.
26. On perusal of the averments made in
the complaint it is ascertained that accused has
issued a cheque in favour of the complainant on
15.08.2009. However, in C.C.No.288/10 which is
filed by the same complainant against the same
accused in that case, a reply was issued on
26.05.2009. After receiving reply notice, thereafter
cheque was issued. If that is the case before
accepting the cheque he could have inquired all
things. In reply notice given in C.C.No.288/10 of
this complainant, it has been stated that no cheque
is with the complainant. The cheque involved in
this case is given subsequent to the issuing of reply
notice i.e., on 15.08.2009. then there was an
opportunity to the complainant to enquiry
regarding this matter.
27. On perusal of all these documents it is
clear that there was no transaction between the
accused and the complainant and the accused has
not issued cheque in favour of the complainant in
order to discharge the loan amount and more over
the accused has rebutted the presumption drawn in
favour of the complainant.
28. Even though the accused has admitted
the signature on the cheque Ex.P1, but he has
rebutted the presumption drawn under section 139
of N.I.Act and he has proved that there was no
debt which is illegally enforceable in between him
and the complainant.
29. The advocate for complainant has relied
upon case reported in 2015 CCC 156 in a case
between Gurpadaswamy Vs. M. Partha and in this
case it was held that Presumption mandated by
Section 139 of the Act does indeed include
existence of legally enforceable debt or liability-
Presumption was however a rebut table-On perusal
of the said case it is true that the presumption
U/sec.139 is helpful to the complainant. However,
the said presumption is rebuttable presumption.
Here in the instant case the accused has rebutted
the existence of legally enforceable debt.
10. Therefore, for the aforesaid reasons, I do not find
any ground to interfere with the order of acquittal. The appeal
lacks merit and is dismissed.
SD
JUDGE
Mrk/-
