Karnataka High Court
Sri Puttappa vs Sri B Rangaswamy on 15 December, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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CRL.A No. 1227 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO.1227 OF 2019 (A)
BETWEEN:
1. SRI PUTTAPPA,
S/O LATE BASAPPA,
AGED ABOUT 67 YEARS,
AGRICULTURIST & BUSINESS,
R/O SANEHALLY VILLAGE,
KASABA HOBLI,
HOSADURGA TALUK,
CHITRADURGA DIST-577527.
...APPELLANT
(BY SMT. SPOORTHY HEGDE N., ADVOCATE)
AND:
1. SRI B RANGASWAMY,
S/O BASAVARAJAPPA,
AGED ABOUT 37 YEARS,
Digitally EMPLOYEE IN PRIMARY HEALTH CENTRE,
signed by
R/O SANTHEBENNURU,
SOWMYA D
CHANNAGIRI TALUK,
Location:
DAVANAGERE DIST-577552.
High Court
of ...RESPONDENT
Karnataka (BY SRI. VIJAYAKUMAR S.C., ADVOCATE)
CRL.A. FILED U/S.378(4) CR.P.C PRAYING TO SET ASIDE
THE JUDGMENT DATED 29.04.2019 PASSED BY THE PRINCIPAL
CIVIL JUDGE AND JMFC HOSADURGA IN C.C.NO.134/2017-
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CRL.A No. 1227 of 2019
ACQUITTING THE RESPONDENT/ ACCUSED FOR THE OFFENCE
P/U/S.138 OF N.I.ACT AND ETC.,
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed under Section 378(4) of Cr.P.C.
by the appellant/complainant challenging the judgment of
acquittal passed by the Principal Civil Judge and JMFC,
Hosadurga, in C.C. No.134/2017, dated 29.04.2019.
2. For the sake of convenience, parties herein are
referred with the original ranks occupied by them before
the Trial Court.
3. The brief factual matrix leading to the case are
as under:
That the accused is well acquainted with the
complainant for a long time and he approached the
complainant on the last week of September 2016 for a
hand loan of Rs.10,00,000/- for his family necessity. The
complainant has advanced hand loan of Rs.10,00,000/- to
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the accused for a period of two months. When the
complainant sought for repayment of the loan amount paid
to the accused, the accused has issued a cheque bearing
No.787267 dated 02.12.2016 of State Bank of Mysore,
Channagiri Branch for a sum of Rs.10,00,000/-. When the
said cheque was presented for encashment, the same was
returned with endorsement as 'funds insufficient'. Then the
complainant has got issued a statutory notice to the
accused but, the accused did not respond the same.
Hence, he filed a complaint under Section 200 of Cr.P.C.
before the learned Magistrate.
4. The learned Magistrate after recording the
sworn statement of complainant has taken cognizance of
the offence and issued process against the accused. The
accused has 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. To prove the guilt of the accused, the
complainant has got examined himself as P.W.1 and the
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brother of accused was examined on behalf of the
complainant as P.W.2. The complainant has also placed
reliance on 12 documents marked at Exs.P.1 to P.12.
After conclusion of the evidence of the complainant the
statement of the accused under Section 313 of Cr.P.C. was
recorded to enable the accused to explain the
incriminating evidence appearing against him and case of
the accused is of total denial. He did not choose to lead
any oral or documentary evidence in support of his
defence.
6. After having heard the arguments and
appreciating the oral and documentary evidence, the
learned Magistrate has acquitted the accused for the
offence under Section 138 of N.I. Act by exercising his
powers under Section 255(1) of Cr.P.C.
7. Being aggrieved by the judgment of acquittal,
the complainant/appellant is before this Court by way of
this appeal.
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8. Heard the arguments advanced by the learned
counsel for the appellant and the learned counsel for the
respondent. Perused the records.
9. The learned counsel for the appellant would
contend that the complainant has advanced a loan of
Rs.10,00,000/- by cash on 26.09.2016 and the same is
evidenced by P.W.2, who is the younger brother of the
accused. It is also asserted that in the discharge of said
debt, the disputed cheque came to be issued and though
financial capacity of the complainant is disputed, it
appears that it is only a formal denial and hence, he would
contend that the learned Magistrate has erroneously
acquitted the accused. Hence, he would seek for allowing
the appeal by convicting the accused.
10. Per contra, the learned counsel for the
respondent would contend that the financial capacity of
the complainant was challenged and the complainant
claims to have grown Pomegranate in his lands. But,
record disclose that he is possessing hardly 35 guntas of
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the land along with his brother and the delivery challan
produced were said to have been issued by one Akram
Basha of Hosadurga but, these delivery challans were from
Chennai. The complainant claims that he planted fifteen
hundred Pomegranate plants and he purchased those
Pomegranate plants from one Subbanna, Bajjappana Hatti,
Hosadurga. But, no documents have been produced. He
would contend that the evidence of P.W.2 is not trust
worthy as relationship between accused and P.W.2 are
strained, though they are brothers. It is contended that
the cheque was issued for maintenance to be paid to the
mother and the said cheques have been misused. As such,
he would contend that the learned Magistrate has
appreciated the oral and documentary evidence in proper
prospective and has rightly acquitted the accused, which
does not call for any interference.
11. Having heard the arguments and perusing the
records, now the following point would arise for my
consideration:
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"Whether the judgment of acquittal passed by
the learned Magistrate is perverse, arbitrary or
erroneous so as to call for any interference by
this Court"?
12. It is the specific contention of the complainant
that the accused has requested loan from him in the last
week of September 2016 and on 26.09.2016 he paid
the amount. It is further asserted by the complainant that
along with accused, his younger brother i.e., P.W.2 also
came for demanding the amount and received the amount
and he has also supported the case of the complainant.
But, quite interestingly in the cross-examination, the
complainant has claimed that in the month of June-2016,
the accused has approached him for advancement of loan
and further asserts that he never asserted regarding
approach of accused in the month of September-2016 in
his complaint or in his legal notice. But, in the complaint
and legal notice, he has specified that the accused was
said to have approached the complainant in the month of
September-2016 last week but, the evidence given by the
complainant/P.W.1 is contrary.
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13. In his initial cross-examination, the complainant
admits that 35 guntas is in joint name of himself and his
brother and in 35 guntas there is coconut groove. But,
subsequently he set up a defence that he planted
Pomegranate trees. When he uprooted the coconut trees
and when he planted the Pomegranate trees is not at all
forthcoming. Though he claims to have to be in possession
of agricultural lands, from Ex.P.10 it is evident that, he is
possessing only 35 guntas jointly in his name along with
his brother. Exs.P.11 and P.12 does not assist him as they
are standing in the name of one Chandrappa. These two
documents are exclusively standing in the name of
Chandrappa and the entries are shown to be on the basis
of partition. The complainant has not produced any other
document to assert that he possesses other lands also.
14. Further the accused has disputed the financial
status of the complainant. The complainant has placed
reliance on Exs.P.6 to P.8. But, Exs.P.6 to P.8 are only
delivery challans issued by M/s.Nashra Fruit Company,
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Chennai. But, the complainant in his cross-examination
claimed that he has sold the Pomegranates to one Akram
Basha of Hosadurga. He never asserted that he has sold
the Pomegranates through the Commission Agent,
Chennai. Even the author of Exs.P.6 to P.8 is not
examined and hence, Exs.P.6 to P.8 does not establish the
claim of the complainant regarding his financial status.
15. The 'cheque' is defined under Section 6 of
Negotiable Instruments Act, 1881 which reads as under:
6. "Cheque". --A "cheque" is a bill of exchange
drawn on a specified banker and not expressed to be
payable otherwise than on demand and it includes the
electronic image of a truncated cheque and a cheque in
the electronic form.
Explanation I. --For the purposes of this section, the
expressions--
(a) "a cheque in the electronic form" means "a
cheque drawn in electronic form" by using any
computer resource and signed in a secure system
with digital signature (with or without biometrics
signature) and asymmetric crypto system; or with
electronic signature, as the case may be:
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(b) "a truncated cheque" means a cheque which
is truncated during the course of a clearing cycle,
either by the clearing house or by the bank
whether paying or receiving payment,
immediately on generation of an electronic image
for transmission, substituting the further physical
movement of the cheque in writing.
Explanation II. --For the purposes of this section, the
expression "clearing house" means the clearing
house managed by the Reserve Bank of India or a
clearing house recognised as such by the Reserve
Bank of India.]
Explanation III. --For the purposes of this section, the
expressions "asymmetric crypto system", " computer
resource", "digital signature", "electronic form" and
"electronic signature" shall have the same meanings
respectively assigned to them in the Information
Technology Act, 2000 (21 of 2000).
16. Admittedly, cheque is a Negotiable Instrument.
Section 138 of N.I. Act mandates that where any cheque
drawn by a person on an account maintained by him with
a banker for payment of any amount of money to another
person from out of that account for the discharge, in
whole or in part, of any debt or other liability.
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17. However, whether in the instant case, the
cheque is a Negotiable Instrument itself, is required to be
considered. On perusal of the cheque/Ex.P.1, it is evident
that it was issued for Rs.10,00,000/. No doubt the
signature on the cheque and that the cheque belongs to
the accused is an undisputed fact. However, it is the
specific defence of the accused that the cheque was issued
to his mother towards payment of maintenance and in
view of the relationship between him and his
brother/P.W.2 and his mother, the same has been misused
by colluding with the complainant.
18. On perusal of the Ex.P.1, there is a specific
endorsement on the cheque that "it is payable at par at all
the Branches of State Bank of Mysuru" and this multicity
cheque is payable up to a maximum of Rs.5,00,000/-.
Hence, it is evident that the validity of the cheque is only
for Rs.5,00,000/- but, the cheque was issued for
Rs.10,00,000/- and hence, in other terms it cannot be
termed as a Negotiable Instrument. Hence, the
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presumption under Section 139 of N.I. Act cannot be
drawn in favour of complainant in view of these lapses.
19. As observed above, the complainant has not
even proved his financial status and the amount is said to
have been paid by cash, which is a doubtful aspect and he
possess hardly seventeen and half guntas of land and
initially he admits that, there was coconut groove in the
said land, but subsequently he claims to have planted
pomegranate trees. When the coconut trees are removed
and when pomegranate trees are planted is not at all
forthcoming. Even for having purchased these trees, no
documents have been produced and the complainant
admits that he is a petty business man. Considering these
aspects, he has failed to substantiate his claim that he was
financially sound to advance the loan amount of
Rs.10,00,000/-. Considering these facts and
circumstances, it is evident that the cheque was not issued
towards any legally enforceable debt.
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20. The learned Magistrate has appreciated the oral
and documentary evidence in detail and has rightly
acquitted the accused. No perversity or illegality is found
in the judgment of acquittal passed by the learned
Magistrate. Under such circumstances, the appeal itself is
devoid of any merits.
21. Considering these facts and circumstances, the
point under consideration is answered in the Negative and
hence, I proceed to pass the following:
ORDER
The appeal stands dismissed.
Sd/-
JUDGE
MS*
