Mr Prakash Shetty vs Sri Venkatesha
2022 Latest Caselaw 1956 Kant

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   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 8TH DAY OF FEBRUARY, 2022

                         BEFORE

    THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

            CRIMINAL APPEAL No. 1237/2018

BETWEEN:

MR. PRAKASH SHETTY
S/O SRI. MANJUNATH
AGED ABOUT 41 YEARS
R/AT, NO.36(7), 1ST MAIN ROAD
1ST STAGE, MANJUNATH NAGAR
BENGALURU-560 010
                                            ....APPELLANT

(BY SRI. N.R. RAGHAVENDRA, ADVOCATE)

AND:

SRI. VENKATESHA
S/O LATE NEELAPPA
AGED ABOUT 45 YEARS
R/AT. NO.106, PIPELINE ROAD
KURABARAHALLI
BENGALURU-560 086

AND ALSO AT
SRI. VENKATESHA
S/O LATE NEELAPPA
AGED ABOUT 45 YEARS
R/AT. NO.204, 7TH CROSS ROAD
MANJUNATH NAGAR
BENGALURU-560 010
                                        .... RESPONDENT

(BY SRI. G.M. GADILINGAPPA, ADVOCATE)
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     THIS APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C.
PRAYING TO SET ASIDE THE JUDGMENT OF ACQUITTAL DATED
30.04.2018 PASSED BY THE XXII ADDL.C.M.M., BENGALURU IN
C.C.NO.9997/2017-ACQUITTING THE RESPONDENT/ACCUSED
FOR THE OFFENCE P/U/S 138 OF N.I.ACT.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 14.01.2022, COMING ON FOR 'PRONOUNCEMENT
OF JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                         JUDGMENT

This appeal is filed by the complainant/appellant under

Section 378(4) of Cr.P.C. against the judgment and order of

acquittal passed by the XXII ACMM, Bengaluru ('trial Court'

for short) in C.C.No.9997/2017 dated 30.04.2018, whereby

the sessions judge has acquitted the accused/respondent

for the offence punishable under Section 138 of Negotiable

Instruments Act, 1881 ('NI Act' for short).

2. For the sake of convenience parties herein are

referred to their original ranks occupied by them before the

trial Court.

3. The brief factual matrix leading to the case are

as under:

That the complainant is running his own bakery in the

name and style of Prakash Tea House(Bakery) and accused

is doing real estate business. That in the first week of

October 2015, the complainant has approached the accused

with an intention to purchase the site and accused has

agreed for the same. That in the second week of October,

2015, the accused has shown the complainant the sites

bearing Nos.36, 37 and 38 in Dwarakanagar,

Chikkabanavar, Bengaluru City and then the complainant

had paid a sum of Rs.12,50,000/- as an earnest amount.

That the accused has failed to get register the sites in

favour of the complainant inspite of persistent demands

made by the complainant and on 05.12.2015 there was an

agreement entered between the parties. Then accused has

issued a cheque dated 05.12.2015 for a sum of

Rs.12,50,000/- after execution of the agreement and asked

the complainant for presenting the cheque for encashment

on 21.02.2017. The complainant has presented the said

cheque on 21.02.2017 and same was returned with a shara

as 'insufficient funds'. Then on 01.03.2017 the complainant

had issued a legal notice to the accused. The accused did

not repay the said amount nor replied to the notice and

hence, the complainant has filed a complaint under Section

200 of Cr.P.C. alleging that accused has committed an

offence under Section 138 of NI Act.

4. After submission of the complaint, the learned

magistrate has recorded the sworn statement and after

appreciating the material records he has taken cognizance

and issued process against the accused. The accused has

appeared through his counsel and was enlarged on bail. The

plea was recorded and accused pleaded not guilty. Then the

complainant got examined himself as PW.1 and also got

examined one witness on his behalf as Pw.2. Further he

placed reliance on 16 documents marked as Ex.P1 to

Ex.P16.

5. After completion of evidence of complainant, the

statement of accused under Section 313 of Cr.P.C. is

recorded to enable the accused to explain the incriminating

evidence appearing against him in the case of the

prosecution. The case of the accused is of total denial.

However, he did not lead any defence evidence.

6. Having heard the arguments and after

appreciating the evidence on record, learned magistrate

came to a conclusion that complainant has failed to prove

that the accused has availed hand loan of Rs.12,50,000/-

from the complainant and in discharge of the same he has

issued a cheque as per Ex.P1. Hence, he has acquitted the

accused of the charge under Section 138 of NI Act.

7. Being aggrieved by this judgment of acquittal the

complainant has filed this appeal.

8. Heard the arguments advanced by both the

counsels and perused the records of the trial Court.

9. Learned counsel for the appellant would contend

that the trial Court has committed an error in acquitting the

accused. He would further contend that there is no

challenge to the signature on the cheque and admittedly

cheque belongs to the accused and the trial Court has

committed an error in not drawing presumption in favour of

the complainant under Section 139 of NI Act. He would

further contend that the trial Court on presumptions and

assumptions has misconceived the evidence and acquitted

the accused which has resulted in miscarriage of justice.

Hence, he would seek for setting aside the impugned

judgment of acquittal by allowing the appeal and convicting

the respondent-accused.

10. Per contra the learned counsel for respondent-

accused would support the judgment of the acquittal passed

by the trial Court. He would contend that the defence of the

accused disclose that the cheque does not belong to him

and the cheque and account number does not tally. He

would further contend that the cheque is in the name of

Prakash Tea Shop but the transaction is alleged with

present complainant and no documents has been produced

to show that the complainant is the sole proprietor. He

would further contend that there is no material evidence to

show that the complainant is having financial capacity to

pay such a huge amount and Ex.P5-Agreement relied does

not substantiate the contention of the complainant. Hence,

he would seek for dismissal of the appeal by confirming the

judgment of acquittal passed by the trial Court.

11. Having heard the arguments and perusing the

records, it is not under serious dispute that complainant is

running a tea shop while accused is doing real estate

business. According to the complainant he approached the

accused in first week of October, 2015 with an intention to

purchase the sites and in second week of October, 2015 the

accused has shown sites bearing Nos.36,37 and 38 in

Dwarakanagar, Chikkabanavar and at that time complainant

had paid Rs.12,50,000/- as earnest amount. It is further

the contention that accused did not execute registered sale

deed and hence, the agreement came to be entered

between them on 05.12.2015 as per Ex.P5 and a cheque

dated 05.12.2015 came to be issued. He would contend

that when the said cheque was presented, it bounced and

hence, this complaint came to be lodged.

12. The complainant all along claimed that he has

paid Rs.12,50,000/- towards purchase of sites. On perusal

of this aspect, it is evident that transaction between the

parties is of civil nature. According to the complainant as

accused failed to execute the sale deed towards repayment

of the earnest amount, this cheque under Ex.P1 came to be

issued. Further the complainant has also relied on Ex.P5

agreement between the parties in this regard. On perusal of

these pleadings and Ex.P5, it is evident that it is an

outcome of sale transaction and matter is of civil in nature.

But the complainant instead of filing a civil suit tried to give

a criminal colour to the transaction which is not permissible

under the law as he had a civil remedy.

13. Though during the course of argument an half-

hearted attempt has been made by the learned counsel for

respondent-accused to dispute the signature and the

cheque as that belonging to accused, the evidence disclose

that no such serious attempt has been made. However, the

accused during the cross examination of complainant has

disputed his signature on the cheque but did not denied that

the cheque belongs to his account. However, it is evident

from the cross examination that he has disputed the

signature on the cheque. Under such circumstances when

the accused has disputed the signature on the cheque-

Ex.P1, the presumption under Section 139 of NI Act cannot

be drawn. No attempt has been made by the complainant to

prove the signature of the accused. However, on perusal of

the signature of the accused on plea and signature on

Ex.P1, it is evident that they are one and the same.

14. However, it is to be noted here that the

complainant all along claiming to be the holder of the

cheque in due course. According to complaint-allegations

the transaction was between complainant and accused. The

complainant also claims that he is running Prakash Tea

House. Admittedly, there is no transaction between the

Prakash Tea Shop and accused. But on perusal of Ex.P1-

Cheque, it is evident that the cheque was not issued in the

name of complainant Prakash, but it was issued in the name

of 'Prakash Tea House'. No evidence is also placed to prove

that the complainant is the sole proprietor of the tea house.

Further the complaint is also not filed by the proprietary

firm. Hence, complainant cannot claim to be the holder of

the cheque in due course.

15. Further all along complainant has placed reliance

on Ex.P5-Agreement. It is pleaded that on 05.12.2015,

Ex.P5 was executed. In Examination in chief also it is stated

that the agreement is said to have been executed on

05.12.2015. Further in legal notice-Ex.P2, the date of

agreement is mentioned as 05.12.2015 itself. But on

perusal of Ex.P5, it is evident that it does not bear any

specific date of execution of the document. But on contrary

the stamp itself was issued on 15.12.2015. When stamp for

Ex.P5 was issued on 15.12.2015, question of execution of the

document on 05.12.2015 i.e., prior to issuance of stamp paper

does not arise at all. Even in the cross examination, PW.1 has

specifically stated that it is executed on 5th or 6th December

2015 but the stamp was issued on 15th December, 2015.

Further PW.1 specifically stated that the accused has got

prepared Ex.P5 and got it notarized when it was brought to

him which clarifies that accused has not signed in the

presence of complainant on Ex.P5 and Ex.P5 was not

executed in his presence.

16. Apart from that on perusal of Ex.P5, it is evident

that on the same day the cheque bearing No.58051 was

issued and even in Ex.P5 there is reference that on the

same day cheque under Ex.P1 was issued and the amount

was agreed to be repaid on 15.01.2016. But Ex.P1-cheque

is dated 21.02.2017. When the cheque was said to have

been issued on 05.12.2015 or 15.12.2015 with an

undertaking to repay the amount on 15.01.2016, there is

no explanation as to why the complainant has got endorsed

the date of issuance of cheque as 21.02.2017. Further the

cheque is also not issued in the name of the complainant

but it was issued in the name of firm 'Prakash Tea House'.

The complainant has also not specifically stated as to on

which exact date he has paid sum of Rs.12,50,000/-. All

these anomalies were not explained by the complainant as

burden is on him to establish this aspect.

17. The complainant has placed reliance on evidence

of PW.2 who is also signatory to Ex.P2. But PW.2 admitted

that at the time of payment of money he was standing

outside and as such his evidence cannot be accepted that

he is an eye witness for payment of amount of

Rs.12,50,000/- by the complainant to the accused.

18. Further the accused has also challenged the

financial status of complainant. The complainant claimed

that he had pledged golden ornaments and availed loan

from bank and other institutions and paid the amount. But

on perusal of Ex.P6 to Ex.P14, it is evident that they were

pertaining to year 2016 and 2017 and the alleged

transaction of payment of money is in the month of October

2015. Though there is an attempt to explain that the pledge

was earlier and it was renewed but no material evidence is

forthcoming and no documents have been produced in this

regard. Hence, these Ex.P6 to Ex.P14 does not establish

that golden ornaments were pledged by the complainant to

secure the amount to be paid to the accused. Apart from

that the complainant though has produced certain Income

tax returns submitted by him, they were not got marked.

Even on perusal of this income tax returns and cross

examination of PW.1, it is evident that this amount of

Rs.12,50,000/- is not shown in income tax returns either

pertaining to firm or pertaining to complainant. The

evidence of PW.2 does establish that the amount of

Rs.12,50,000/- was not paid in his presence. PW.2 in his

chief deposed that Ex.P5 was executed on 15.12.2015 but

complainant all along asserted that it was executed either

5th or 6th of December. The evidence of Pws.1 and 2 is

inconsistent in this regard. Even the cross examination of

PW.2 disclose that he is not aware of execution of Ex.P5 and

as such the evidence disclose that the complainant has

failed to establish his financial status as on the date of the

alleged transaction. The cheque was not presented within

the stipulated period from December 2015, when it was

alleged to have been issued. Further the complainant was

not the holder of the cheque in due course and the cheque

was issued in the name of the firm. Complainant has not

lead any evidence to show that he is the sole proprietor of

the firm. The evidence lead by the complainant does not

inspire the confidence of the Court and the pleadings also in

this regard are inconsistent and contrary to the

documentary evidence Ex.P1 and P5. Further considering

the complaint allegations, it is evident that the dispute

between the parties is of civil in nature and complainant has

tried to give a criminal colour to the transaction instead of

approaching the civil Court. Looking to all these facts and

circumstances, it is evident that the complainant has failed

to bring home the guilt of the accused beyond all

reasonable doubt.

19. Learned magistrate has considered all these

aspects in proper perspective and he has analysed the oral

and documentary evidence in accordance with law. After

appreciating the evidence he has come to a right

conclusion that the complainant has failed to bring home

the guilt of the accused for the offence under Section 138 of

NI Act.

20. Looking to the evidence on record, no perversity

is found so as to interfere with the finding of the trial Court.

It is not possible for this Court to take any other view than

that of the trial Court. Under these circumstances, the

appeal is devoid of any merits and needs to be rejected.

Accordingly, I proceed to pass the following:

ORDER

The appeal is dismissed. The judgment of acquittal dated 30.04.2018 passed by the XXII ACMM, Bengaluru in C.C.No.9997/2017 dated 30.04.2018 for the offence under Section 138 of the N.I Act, is hereby confirmed.

Sd/-

JUDGE

NS