Karnataka High Court
P Hanumanthapa vs Rajagopalachar on 14 December, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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CRL.A No. 258 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO. 258 OF 2018
BETWEEN:
P. HANUMANTHAPA,
S/O H POOJARAPPA,
AGED ABOUT 70 YEARS,
R/AT C/O RAJU POOJARY,
N M P T COLONY, QUARTER NO.7,
6TH CROSS, PANAMBUR,
MANGALORE,
D K DISTRICT PIN - 575 003,
PETITIONER DO NOT CLAIM
...APPELLANT
(BY SRI. G. BALAKRISHNA SHASTRY, ADVOCATE)
AND:
RAJAGOPALACHAR,
Digitally TEACHER,
signed by AGED ABOUT 59 YEARS,
SOWMYA D AT GOVT, HIGH SCHOOL,
Location: DADDOOR, BANGARAPET,
High Court
of KOLAR DISTRICT - 563 114.
Karnataka ...RESPONDENT
(BY SRI. P.R. PRABHU, ADVOCATE)
THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT DATED 13.10.2017 PASSED BY THE
I ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K.,
MANGALURU IN CRL.A.NO.314/2012 REVERSING THE
JUDGMENT DATED 20.10.2012 IN C.C.NO.1558/2008 ON THE
FILE OF J.M.F.C.-V COURT, MANGALURU, D.K. BE RESTORED -
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CRL.A No. 258 of 2018
ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
P/U/S 138 OF N.I. ACT.
THIS APPEAL COMING ON FOR FURTHER HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the complainant / appellant
under Section 378(4) of Code of Criminal Procedure
(hereinafter referred to as 'Cr.P.C' for short) challenging
the judgment of acquittal passed by I Additional Sessions
Judge, Mangalore in Crl.A.No.314/2012 dated 13.10.2017,
whereby the Learned Sessions Judge has set aside the
judgment of conviction and order of sentence passed by V
JMFC, Mangalore in C.C.No.1558/2008 for the offences
punishable under Section 138 of Negotiable Instruments
Act, 1881 (hereinafter referred to as 'the N.I.Act' for
short).
2. For the sake of convenience, the parties herein
are referred with original ranks occupied by them before
the trial Court.
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3. The brief factual matrix leading to the case are
as under:
The specific assertion of the complainant is that the
accused is known to him and he has borrowed a loan of
Rs.2 Lakhs through two cheques dated 21.01.2008 and
23.01.2008 respectively to meet his urgent financial
requirements agreeing to repay the loan amount in a short
span. It is further asserted that thereafter, the accused
has issued two cheques dated 31.08.2008 and 01.02.2008
for a sum of Rs.1 Lakh each towards repayment of the
loan with an assurance to the complainant that the
cheques will be honored. When the said cheques were
presented for encashment, they returned unpaid with an
endorsement as 'insufficient of funds'. Thereafter, the
complainant has got issued a legal notice to the accused
and inspite of service of legal notice, the accused has not
paid the cheque amount. Hence, the complainant has filed
a private complaint before the learned Magistrate under
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Section 200 of Cr.P.C. alleging that the accused has
committed an offence under Section 138 of N.I.Act.
4. The learned Magistrate after recording the
sworn statement of complainant has taken cognizance of
the offence and has issued process against the accused.
The accused appeared through his counsel and was
enlarged on bail. The plea under Section 138 of N.I.Act
was recorded and accused denied the same.
5. The complainant was examined as PW1 and
placed reliance on 9 documents marked at Ex.P1 to Ex.P9.
After conclusion of the evidence of the 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 complainant. The case of the accused is of total
denial. However, the accused got examined himself as
DW1 and placed reliance on 3 documents marked at Ex.D1
to Ex.D3.
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6. The learned Magistrate after appreciating the
oral and documentary evidence has convicted the accused
for the offences punishable under Section 138 of N.I.Act
by imposing fine of Rs.3 Lakhs with default sentence.
7. Against this judgment of conviction, accused /
respondent herein approached the I Additional Sessions
Judge, Mangalore in Crl.A.No.314/2012. The Learned
Sessions Judge after re-appreciating the oral and
documentary evidence has allowed the appeal and set
aside the impugned judgment of conviction and order of
sentence passed by the trial court. Against this divergent
opinion taken by the Learned Sessions Judge, the
complainant is before this court by way of this appeal.
8. Heard the learned counsel for the appellant.
Inspite of sufficient opportunities, learned counsel for the
respondent did not appear before the court so as to
advance his arguments. Since, it is a private commercial
transactions between the private parties, it is not
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necessary to appoint the amicus curiae. Perused the
records.
9. Having heard the arguments and perusing the
records, now the following point would arise for my
consideration:
(i) Whether the judgment of acquittal
passed by the learned I Additional Sessions
Judge in Crl.A.No.314/2012 dated 13.10.2017
reversing the judgment of conviction passed
by V JMFC in C.C.No.1558/2008 is perverse,
arbitrary or erroneous so as to call for any
interference by this court?
10. It is the specific contention of the complainant
that the accused has availed a loan of Rs.2 Lakhs in two
installment of Rs.1 Lakh each on 21.01.2008 and
23.01.2008. Further, it is also the specific assertion of the
complainant that the loan was availed by the accused
through a cheque issued by the complainant. It is the
assertion of the complainant that towards discharge of this
legally enforceable liability, accused has issued the
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cheques as per Ex.P1 and Ex.P2 dated 01.02.2008 and
31.01.2008 respectively for Rs.1 Lakh each. There is no
dispute of the fact that the cheques belong to the account
of the accused and they bear the signature of the accused.
Hence, the presumption under Section 139 of N.I.Act is in
favour of the complainant. Further, from Ex.P7 it is
evident that the amount is transferred through bank
account of complainant and the same is evidenced by
entries marked at Ex.P7(a) and Ex.P7(b).
11. It is the specific contention of the accused that
in the year 2007, he has availed a loan of Rs.25,000/-
from complainant and at that time, four blank cheques
were obtained as a security and out of the same, one
cheque was presented for Rs.25,000/- in Bangalore, one
for Rs.1 Lakh in Mangalore and these two cheques are for
remaining Rs.2 Lakhs. He asserts that in respect of cheque
pertaining to Bangalore, he has paid the amount of
Rs.55,000/- and submitted the receipt also. It is the
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contention of the accused that these cheques were handed
over by him when he had availed a loan of Rs.25,000/-.
12. The accused has not produced any material
document to show as to what was his defence in the case
in C.C.No.1390/2008 filed in Bangalore. In this regard, he
has produced Ex.D2, copy of the complaint but Ex.P8 itself
is produced by the complainant, which is the certified copy
of the order sheet in C.C.No.1319/2008, which discloses
that accused was convicted for the offence punishable
under Section 138 of N.I. Act and imposed fine of
Rs.53,000/-. The records also disclose that he has paid
the fine. Hence, the defence which the accused has taken
that blank cheques were issued was negativated in
C.C.No.1319/2008 itself. Even he has not produced the
copy of the judgment or the evidence recorded thereunder
to disclose what defence he has taken in the said case. He
has only produced a copy of the complaint, which discloses
his intention. What prevented him from producing other
relevant documents regarding conviction is not at all
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forthcoming. Hence, it is evident that he has withheld the
material documents in this regard and Ex.D1 to Ex.D3 are
pertaining to these transactions. They will not prove that
the four cheques were issued blank while availing the loan
of Rs.25,000/-.
13. Further, the complainant has also placed
reliance on Ex.P9. Ex.P9 is the receipt of undertaking
wherein the accused acknowledged for having received
Rs.2 Lakhs through two cheques from the complainant and
in respect of these two cheques, he issued Ex.P1 and
Ex.P2. The signature of the accused at Ex.P9 is marked at
Ex.P9(a). This signature is also not disputed by the
accused. The Learned Sessions Judge has considered this
document and gone to the extent of holding that the
accused being a qualified person his contention that he
has signed a blank cheque cannot be accepted, but again
went on holding that the contents of Ex.P9 were not
proved as Ex.P9 is only a supporting document to Ex.P1
and Ex.P2 coupled with Ex.P8 wherein the accused was
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convicted in other criminal case. The observations of the
Learned Sessions Judge that when the complainant filed a
criminal case, question of accused issuing a fresh cheque
or availing loan does not arise is not supported by any
material evidence. On the basis of Ex.D1 to Ex.D3, the
Learned Sessions Judge has proceeded to hold that the
presumption stands rebutted but how that presumption
came to be rebutted and what is the base for the same is
not at all explained by reasons by the Learned Sessions
Judge.
14. On the contrary, the learned Magistrate has
appreciated all this oral and documentary evidence and
held that the accused has issued a cheques towards legally
enforceable debt. Further, the transfer of amount under
Ex.P1 and Ex.P2 under Ex.P7 was subsequent to the
conviction and that clearly discloses that subsequently
relations between the parties were improved which
compelled the accused to pay the entire fine and later on,
the complainant again paid the amount. There is no
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explanation on the part of the accused regarding entries in
Ex.P7 marked at Ex.P7(a) and Ex.P7(b).
15. However, a untenable defence was raised
asserting that in Ex.P7, the amount was paid to Rajagopal,
but the accused is recognized as Rajagopalachar. But
admittedly the accused himself, has produced Ex.D1 to
Ex.D3 wherein, he was prosecuted as Rajagopal and was
convicted thereunder. Hence, it is prima facie evident that
the accused is known by both the names as Rajagopal and
Rajagopalachar and the said defence now raised is
untenable. In the earlier complaint itself accused has
admitted his status and now he cannot dispute this aspect.
16. The learned Magistrate has rightly convicted the
accused by giving proper reasons, but the Learned
Sessions Judge on assumptions and presumptions
erroneously reversed the said finding by acquitting the
accused. The judgment of acquittal passed by the Learned
Sessions Judge suffers from perversity and hence, it calls
for interference as the accused has failed to rebut the
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presumption available in favour of the complainant under
Section 139 of N.I.Act. As such, the appeal filed by the
complainant needs to be allowed. Accordingly, the point
under consideration is answered in the affirmative and
hence, I proceed to pass the following:
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment of acquittal
passed by First Additional Sessions Judge,
Mangalore in Crl.A.No.314/2012 dated
13.10.2017 is set aside. The judgment of
conviction and order of sentence passed by
V JMFC, Mangalore in C.C.NO.1558/2008
dated 20.10.2012 stands restored.
(iii) Send back the records to the learned
Magistrate with a direction to secure the
presence of the accused for recovery of
fine.
Sd/-
JUDGE
SS
