Karnataka High Court
Sri. Dharmalingaiah vs Sri.T.Giriyappa @ Girish on 4 December, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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CRL.A No. 158 of 2018
NC: 2023:KHC:43626
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO. 158 OF 2018
BETWEEN:
SRI. DHARMALINGAIAH,
S/O GURUSIDDAIAH,
AGED ABOUT 47 YEARS,
RESIDING AT NO.87,
17TH MAIN ROAD, LAKSHMINAGARA
J.C. NAGARA, KURUBARAHALLI,
BENGALURU - 560 022.
...APPELLANT
(BY SRI. SHIVA KUMAR U, ADVOCATE)
AND:
SRI. T. GIRIYAPPA @ GIRISH,
S/O LATE THIMMAIAH,
AGED ABOUT 54 YEARS,
Digitally signed RESIDING AT NO.34/1,
by CHAITHRA
P 22ND MAIN ROAD,
Location: HIGH J.C. NAGARA, KURUBARAHALLI,
COURT OF
KARNATAKA BENGALURU - 560 086.
ALSO WORKING AT
FOREMEN TRAINING INSTITUTE,
LAGGERE, TUMKUR ROAD CROSS,
BENGALURU - 560 022.
...RESPONDENT
(BY SRI. L.S. MANJUNATH, ADVOCATE)
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CRL.A No. 158 of 2018
NC: 2023:KHC:43626
THIS CRL.A IS FILED U/S 378(4) OF CR.P.C PRAYING TO
SET ASIDE THE ORDER OF ACQUITTAL VIDE JUDGMENT DATED
16.12.2017 PASSED IN C.C.NO.20218/2016 BY THE XXII
A.C.M.M., BANGALORE THEREBY PASS AN ORDER OF
CONVICTION DIRECTING THE ACCUSED TO PAY DOUBLE THE
CHEQUE AMOUNT i.e.,RS.11,20,000/- IN RESPECT OF CHEQUE
BEARING NO.869163 DATED 11.07.2016 DRAWN ON
'KARNATAKA BANK LIMITED', JAYANAGARA, 4tH BLOCK,
BANGALORE-560011 FOR RS.5,60,000/- DRAWN IN FAVOUR
OF THE COMPLAINANT AND ORDER FOR IMPRISONMENT OF
THE ACCUSED-ACQUITTING THE RESPONDENT/ACCUSED FOR
THE OFFENCE P/U/S 138 ON N.I ACT.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 378(4) of the Cr.P.C. is
filed by the complainant challenging the judgment of
acquittal passed by the XXII Additional Chief Metropolitan
Magistrate, Bengaluru in C.C.No.20218/2016, dated
16.12.2017.
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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:
The complainant and the accused are known to each
other and on the said acquaintance, the accused had
approached the complainant for lending him a sum of
Rs.6,00,000/- and on 14.03.2016, the complainant lent
him a sum of Rs.6,00,000/- in cash. The accused assured
for repayment of the same within two months and on
10.06.2016, he repaid a sum of Rs.40,000/- and agreed to
repay the balance of Rs.5,60,000/- within one month i.e.,
on 02.07.2016. When the complainant approached the
accused for repayment of the balance amount, the
accused had issued a cheque bearing No.869163 for a sum
of Rs.5,60,000/- dated 11.07.2016 drawn on Karnataka
Bank Ltd., Jayanagara 4th Block Branch, Bengaluru-560
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011. When the said cheque was presented on 11.07.2016,
it was returned with an endorsement 'Payment Stopped'
by the drawer as well as for 'Insufficient of Funds'. On
04.08.2016, the complainant issued a notice to the
accused and inspite of service of notice, the accused did
not repay the cheque amount and issued an untenable
reply. Hence, complainant filed a complaint alleging that
the accused has committed an offence punishable under
Section 138 of the Negotiable Instruments Act, 1881 (for
short '138 of N.I. Act').
4. After recording the sworn statement and after
appreciating the documentary evidence, the learned
Magistrate has taken cognizance of the offence punishable
under Section 138 of the N.I. Act, and issued process
against the accused. The accused appeared through his
counsel and was enlarged on bail.
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5. The plea under Section 138 of the N.I. Act was
recorded and the same was read over and explained to the
accused. He pleaded not guilty.
6. The complainant has got examined himself as
PW.1 and placed reliance on 6 documents marked at
Exs.P1 to Ex.P6. After conclusion of the evidence of the
complainant, the statement of the accused under Section
313 of the Cr.P.C. was recorded to enable the accused to
explain the incriminating evidence appearing against him
in the case of the complainant. The case of the accused
was of total denial. The accused later on got examined
himself as DW.1 and also got examined 3 witnesses as
DWs.2 to 4 and placed reliance on 6 documents marked at
Exs.D1 to Ex.D6.
7. After hearing the arguments and after
appreciating the oral and documentary evidence, the
learned Magistrate acquitted the accused for the offence
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punishable under Section 138 of N.I. Act by exercising the
powers under Section 255(1) of Cr.P.C.
8. Being aggrieved by this judgment of acquittal,
the complainant is before this Court by way of this appeal.
9. Heard the learned counsel for the
appellant/complainant. Learned counsel for
respondent/accused did not appear before this Court, so
as to advance his arguments. Perused the records.
10. Learned counsel for the complainant/appellant
would contend that, the trial Court has mainly acquitted
the accused on the ground that, the complainant did not
plead regarding financial source to advance a huge loan of
Rs.6,00,000/- to the accused. He would also assert that,
the financial status of the complainant was never
challenged and hence the question of the complainant,
pleading and proving of the said aspect does not arise at
all as the presumption under Section 139 of the N.I.Act is
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in favour of the complainant. Hence, he would seek for
setting aside the judgment of acquittal and convicting the
accused/respondent herein.
11. Having heard the arguments and perusing the
records, now the following point would arise for my
consideration:
"Whether the judgment of acquittal
passed by the learned Magistrate is perverse,
arbitrary and erroneous so as to call for any
interference by this Court".
12. It is the specific contention of the complainant
that on 14.03.2016, the accused borrowed a sum of
Rs.6,00,000/- from complainant and on 10.06.2016 he
repaid an amount of Rs.40,000/- and agreed to repay the
balance amount of Rs.5,60,000/- within a period of one
month. It is the specific assertion that, later on, the
accused had issued a cheque under Ex.P1 dated
11.07.2016 for a sum of Rs.5,60,000/-, which is
admittedly dishonored.
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13. There is no serious dispute of the fact that, the
cheque belongs to the account of the accused and it bears
his signature. Hence, the initial presumption under Section
139 of the N.I. Act, is in favour of the complainant that the
cheque was issued towards legally enforceable debt.
14. It is the specific assertion of the complainant
that the debt was pertaining to the year 2016. The
accused issued a reply to the legal notice issued by the
complainant as per Ex.P6, wherein, he has specifically
asserted that in the year 2008, there were transactions
between the complainant and the accused and the
complainant under the guise of obtaining the loan,
obtained two cheques from accused and in the year 2008
itself he issued intimation to the bank for stop payment.
He would also assert that, one cheque bearing No.869164
was presented for encashment in the year 2008 which was
bounced and hence, a legal notice came to be issued,
which was properly replied. Hence, it is the specific
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assertion of the accused that the transaction is not
pertaining to the year 2016 as asserted by the
complainant and he would contend that the cheque was
issued in the year 2008 which is misused by the
complainant.
15. The complainant got examined himself as PW.1.
In his examination-in-chief, he has reiterated all the
complaint allegations. In spite of reply notice given by the
accused as per Ex.P6, in the entire complaint, the
complainant no where pleaded about the transaction of the
year 2008 and he has not disclosed or given any
explanation to the reply notice. In the cross-examination
he claims that, he is working in a travel agency and
further asserts that he is owning a vehicle and earns
Rs.50,000/- per month and he is having an agricultural
land and earns Rs.10,000 to 15,000/- per annum. He
further asserts that, he is an Income Tax assessee and if
the complainant is an Income Tax assessee, nothing
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prevented him from producing relevant documents. On the
contrary, the complainant asserts that he paid the amount
in cash.
16. In the cross-examination, the complainant has
specifically admitted that except the present transaction
he had no other transactions with the accused.
Interestingly, in the further cross-examination though he
initially denied regarding lodging of a complaint in
Mahalakshmipuram Police Station, Bengaluru, but
however, later on he admitted that he lodged a complaint
in this regard. He further admits that in respect of
dishonour of cheque on 17.12.2008, he had issued a
notice on 09.01.2009. Though he asserts that in the year
2008 cheques bearing Nos.869163 and 869194 were
issued, but the reply notice was issued by the accused as
per Ex.D3 which discloses that it was pertaining to a
cheque No.869164. Notice was issued on 09.01.2009 and
when the complainant specifically asserted that, there
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were no earlier financial transactions between him and the
accused, he did not explain regarding Ex.D3 and for what
purpose cheque No.869164 came to be issued.
17. The accused has further placed reliance on
Ex.D1 which was the notice issued by the complainant
dated 17.12.2008 wherein, again it is pertaining to the
bouncing of cheque No.869164 and he had not disclosed
as to why this cheque bearing No.869164 was issued in
the year 2008. The cheque in this case marked at Ex.P.2 is
cheque bearing No.869163 i.e., just one serial earlier. If
the contention of the complainant is accepted, then it is
very difficult to digest the fact that the accused issued a
subsequent cheque earlier and the cheque bearing the
earlier serial number was issued in the year 2016, as
admittedly the cheque bearing at serial No.869164 was
issued in the year 2008 itself. Apart from that, the
complainant specifically asserts that except this present
transaction, he had no other financial transactions with the
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accused. In that event, he did not explain as to why the
cheque bearing No. 869164 was issued in the year 2008.
18. The accused has placed reliance on Ex.D2, and
the learned counsel for the complainant invites the
attention regarding material corrections made in Ex.D2.
Even if Ex.D2 dated 20.12.2008 is ignored, there is no
explanation as regards Ex.D6 which is a certificate issued
by Karnataka Bank Ltd, wherein, it is specifically asserted
that on 21.12.2008 a letter was received for stop payment
pertaining to cheque Nos.829163 and 829164. The
evidence on record discloses that the complainant has not
approached the Court with clean hands. Looking to this
conduct of the complainant and his admissions, the
defence raised by the accused is more probable and as
such, the presumption available in favour of the
complainant under Section 139 of the N.I.Act stands
rebutted.
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19. The complainant in such event of the matter, is
required to prove his financial status and his capacity to
pay the amount, but no such evidence is forthcoming.
20. Learned Magistrate appreciated all these facts
and circumstances in proper prospective and has rightly
acquitted the accused for the offence punishable under
Section 138 of the N.I.Act. The complainant is required to
prove his case beyond all the reasonable doubt, but the
accused is required to prove his defence only on the basis
of preponderance of probability. In the instant case, the
accused/respondent herein has discharged the said burden
and hence, the complainant has failed to prove the fact
that the cheque was issued towards legally enforceable
debt, but the defence of the accused that, the cheque was
issued in the year 2008 appears to be more probable.
Looking to these facts and circumstances, the
complainant/appellant has failed to substantiate his claim.
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As such, the point under consideration is answered in the
negative. Accordingly, I proceed to pass the following:
ORDER
The appeal stands dismissed.
Sd/-
JUDGE
URN
CT: BHK
