Sri T R Sampathu vs Sri Srinivasa
2022 Latest Caselaw 3313 Kant

                           1


   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 25TH DAY OF FEBRUARY, 2022

                        BEFORE

    THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

             CRIMINAL APPEAL No.1649/2017
BETWEEN:

SRI. T.R. SAMPATHU
S/O RAJAPPA
AGED ABOUT 45 YEARS
R/O TIRUMALAPURA VILLAGE
KASABA HOBLI, HOLENARASIPURA TALUK
HASSAN DISTRICT-573 201
                                             ....APPELLANT
(BY SRI. SUMANTH L. BHARADWAJ, ADVOCATE)

AND:

SRI. SRINIVASA
S/O VARADAIH
AGED ABOUT 45 YEARS
MANGALAPURA VILLAGE
KASABA HOBLI,
HOLENARASIPURA TALUK
HASSAN-573 201
                                           .... RESPONDENT
(BY SRI. K. SRIRAMULU M, ADVOCATE FOR
    SRI. B. LETHIF, ADVOCATE)

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT DATED
01.09.2017 PASSED BY THE CIVIL JUDGE AND JUDICIAL
MAGISTRATE     FIRST   CLASS,     HOLENARASIPURA     IN
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C.C.NO.675/2013-ACQUITTING THE RESPONDENT/ACCUSED
FOR THE OFFENCE P/U/S 138 OF N.I. ACT.

     THIS CRIMINAL APPEAL HAVING BEEN HEARD    AND
RESERVED FOR JUDGMENT ON 16.02.2022, COMING ON FOR
'PRONOUNCEMENT JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:

                          JUDGMENT

Though this appeal is listed for admission, with the

consent of the learned counsels appearing on both sides,

the same is taken up for final disposal.

2. The complainant/appellant has filed this appeal

under Section 378(4) of Criminal Procedure Code, 1973

('Cr.P.C.' for short) challenging the judgment of acquittal

dated 01.09.2017 passed by the Civil Judge and JMFC,

Holenarasipura ('trial Court' for short) in C.C. No.675/2013,

whereby the learned Magistrate has acquitted

accused/respondent herein for the offence 138 of N.I. Act.

3. For the sake of convenience, the parties herein

are referred with the original ranks occupied by them

before the trial Court.

4. The brief factual matrix leading to the case is

that, the complainant and accused are acquainted with each

other and the respondent borrowed loan of Rs.3,00,000/-

on 25.11.2013 for his legal necessities. It is the further

case of the complainant that, towards repayment of the

said loan, the accused has issued a cheque dated

28.03.2013 drawn on Post Office, Holenarasipura and when

the complainant has presented the said cheque, it was

returned with an endorsement 'Insufficient Funds'. Later

on, the complainant has got issued a legal notice on

30.03.2013 demanding repayment of the loan amount and

to the said notice, the accused has given an evasive reply.

Hence, he lodged a complaint under Section 200 of Cr.P.C.

alleging that, accused has committed an offence under

Section 138 of the Negotiable Instruments Act, 1881 ( 'N.I.

Act' for short).

5. Learned Magistrate after taking cognizance has

recorded the sworn statement of the complainant and

issued process against the accused. The accused has

appeared through his counsel and enlarged on bail. The

accusation was read-over and explained to accused and he

pleaded not guilty and claimed to be tried.

6. The complainant was got examined himself as

PW.1 and placed reliance on five documents marked at

Ex.P1 to Ex.P5. After conclusion of evidence of the

prosecution, the statement of accused under Section 313 of

Cr.P.C. was recorded to enable him to explain the

incriminating evidence appearing against him. The case of

accused is of total denial. He did not choose to lead any

oral or documentary evidence in support of his defence.

7. After having heard the arguments and on

perusing the records, the learned Magistrate has come to a

conclusion that, the complainant has failed to establish that

accused has committed offence under Section 138 of N.I.

Act by issuing a cheque in respect of legally enforceable

debt and thereby acquitted the accused/respondent herein.

Being aggrieved by he judgment of acquittal, complainant

has approached this Court by filing this appeal.

8. Heard the arguments advanced by the learned

counsel for appellant and respondent. Perused the records.

9. Learned counsel for the appellant would contend

that the reasons assigned by the trial Court for acquitting

the accused are based on principles of law of equity and

justice. He would further contend that the trial Court has

failed to note that, no rebuttal evidence is adduced by the

accused and since signature on the cheque is admitted, the

presumption ought to have been drawn in favour of the

complainant and when presumption is not rebutted, the trial

Court ought to have convicted the accused. He would

contend that, accused has not led any evidence to rebut the

presumption and the trial Court has ignored these material

aspects and hence he would contend that the judgment of

acquittal is perverse and calls for interference by this Court.

Hence, he would seek for allowing the appeal by setting

aside the impugned judgment of acquittal and sought for

convicting the accused.

10. Per contra, the learned counsel for the

respondent/accused would contend that the financial

capacity of the complainant to advance Rs.3,00,000/- itself

is in dispute and the complainant has not produced any

material document to show his financial status. Further, he

would also contend that the postal intimation regarding

endorsement on cheque was not placed on record and on

perusal of Ex.P1 and endorsement at Ex.P1(b) it is evident

that the cheque was bounced on 19.02.2007. But, the

postal seal was got obtained on 28.03.2013 and a false

complaint came to be lodged. He would also contend that

the endorsement at Ex.P1(b) is again supported by the

reply notice-Ex.P5 and hence, he would contend that,

presumption cannot be drawn in favour of the complainant

in view of the fact that his financial status itself is disputed.

11. Having heard the arguments of the learned

counsels appearing on both sides and on perusing the

records, it is the contention of the complainant that, on

25.01.2013 , the accused has availed loan of Rs.3,00,000/-

and for repayment of the said amount, he has issued Ex.P1.

It is further asserted that, when the said cheque was

presented for encashment, it was returned on 28.03.2013.

This is a specific case made out by the complainant. The

cross-examination reveals that, the accused has not denied

his signature on the cheque. The disputed cheque is

marked at Ex.P1 and the cheque is also dated 28.03.2013.

But, it is important to note here that, though there is a seal

dated 28.03.2013 of the Post Office, but regarding bouncing

of the cheque on 28.03.2013, no endorsement was issued

by the Postal Department. On the contrary, on perusal of

endorsement at Ex.P(1)(b), it is evident that the said

cheque was bounced for 'Insufficient Funds' on 19.02.2007

itself. When the cheque is dated 28.03.2013, why it was

bounced on 19.02.2007 itself is not at all forthcoming and it

is for the complainant to explain these lacunas. The

complainant could have produced an intimation of the Post

Office regarding bouncing of the cheque. On the contrary,

considering these aspects, the defence set-up by the

accused in reply notice (Ex.P5) appears to be more

probable, in view of the fact that about five years back

cheques were issued and they were being misused.

12. Further, all along, the complainant has

contended that, he has advanced loan of Rs.3,00,000/- to

accused on 25.01.2013. In cross-examination though he

claimed that, he is an agriculturist and he possess three

acres of land and from each acre, his annual income is

Rs.50,000/-, but, no piece of material is produced to show

that he is possessing three acres of land and he is getting

income from that land. Further, he admits that, it is the

dry land and as such, earning annual income of Rs.50,000/-

from dry land is not acceptable, unless the complainant

leads any material evidence. It is hard to accept the

contention of the complainant that he has advanced

Rs.3,00,000/- without any document and he has also not

placed any material evidence to show his financial status.

Even no document is produced to show that the cheque was

bounced on 28.08.2013. The postal endorsement date at

Ex.P1(b) is 19.02.2007. In that event, the cheque ought to

have been issued much earlier itself. The complainant has

failed to establish existence of any legally enforceable debt

as on the date of issuance of cheque and material

documents regarding dishonor of the cheque on a particular

date is also not established. Under such circumstances, the

ingredients of Section 138 of NI are not proved by the

complainant. The learned Magistrate has considered all

these aspects and has appreciated the oral and

documentary evidence in detail by analyzing them. Hence,

it is evident that the judgment of acquittal does not call for

any interference by this Court, as it does not suffer from

any illegality or perversity. Under such 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 01.09.2017 passed by the trial Court viz., the Civil JMFC, Holenarasipura, in CC No. 675/2013, stands confirmed.

Sd/-

JUDGE

KGR*