Karnataka High Court
Sri K Suresh Shettigar vs Sri Ganesh Acharya on 8 December, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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CRL.A No. 1295 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO. 1295 OF 2019
BETWEEN:
SRI. K. SURESH SHETTIGAR,
S/O SRI. LINGAPPA SHETTIGAR,
AGED ABOUT 71 YEARS,
R/AT DOOR NO.2-3-86 E 2
INDRAPRASTHA GARADI ROAD,
BANNANJE, UDUPI-576 101.
...APPELLANT
(BY SRI. PRASANNA .V.R, ADVOCATE)
AND:
SRI. GANESH ACHARYA,
FATHER'S NAME NOW KNOWN TO THE APPELLANT,
AGED MAJOR,
R/AT NEAR VEERA VITTALA TEMPLE,
MATADANGADI, UDYAVARA VILLAGE,
Digitally UDUPI TALUK AND DISTRICT-576 105.
signed by ...RESPONDENT
SOWMYA D (BY SRI. HAREESH BHANDARY .T, ADVOCATE)
Location: THIS CRL.A FILED U/S.378(4) CR.P.C PRAYING TO SET
High Court ASIDE THE IMPUGNED JUDGMENT DATED 23.02.2019 PASSED
of BY THE III ADDITIONAL CIVIL JUDGE AND JMFC, UDUPI IN
Karnataka C.C.NO.2286/2015 - ACQUITTING THE
RESPONDENTS/ACCUSED FOR THE OFFENCE P/U/S 138 OF THE
N.I ACT.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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CRL.A No. 1295 of 2019
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 III Additional Civil Judge and JMFC, Udupi
in C.C.No.2286/2015 dated 23.02.2019.
2. For the sake of convenience, the parties herein are
referred with 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 a taxi driver and carrying
business for many years in Udupi. He has developed intimacy
and friendship with accused. In the month of October 2012, the
accused persuaded the complainant to pay a sum of
Rs.1,50,000/- for his urgent need. In view of the repeated
persuasion and the trust reposed upon him, the complainant on
18.10.2012 paid a sum of Rs.1 Lakh and on 30.10.2012 a
further sum of Rs.50,000/- was paid. The accused promised the
complainant to repay the said amount within 6 months from
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October 2012. After expiry of six months period, accused failed
to repay the loan amount and when the complainant insisted
for the same, he has issued a cheque bearing No.790098 drawn
on Indian Overseas Bank, Manipal dated 12.05.2015 for a sum
of Rs.2,25,000/-, which is compounded with interest at the rate
of 18% per annum on principal amount of Rs.1,50,000/-.
When the said cheque was presented for encashment, it was
returned for 'insufficient of funds'. Thereafter, the complainant
got issued a legal notice to the accused and the same was
served on the accused, but he did not repay the loan amount.
Hence, complainant has filed the complaint under Section 200
of Cr.P.C. against the accused alleging that accused has
committed an offence under Section 138 of N.I.Act.
4. After recording the sworn statement and after
perusing the documentary evidence, the learned Magistrate has
taken cognizance of the offence under Section 138 of N.I.Act
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 is recorded and accused
denied the same.
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5. The complainant got examined himself as PW1 and
placed reliance on 5 documents marked at Ex.P1 to Ex.P5. After
conclusion of the evidence of the complainant, the statement of
accused under Section 313 of Cr.P.C was recorded to enable
him to explain the incriminating evidence appearing against
him in the case of the complainant. The case of accused is of
total denial.
6. After hearing the arguments and after appreciating
the oral as well as documentary evidence, the learned
Magistrate has acquitted the accused for the offence punishable
under Section 138 of N.I.Act by exercising his powers under
Section 255(1) of Cr.P.C. Being aggrieved by this judgment of
acquittal, the appellant is before this court by way of appeal.
7. Heard the arguments advanced by learned counsel
for the appellant / complainant and the learned counsel for the
respondent / accused. Perused the records.
8. The learned counsel for the appellant would contend
that the amount was paid on 18.10.2012 and 30.10.2012 by
way of bank transfer and the same has not been challenged
disputing the advancement of loan. The post dated cheque was
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issued towards discharge of legally recoverable debt including
the interest portion for Rs.2,25,000/- and the legal notice
though served was not responded and presumption available in
favour of the complainant under Section 139 of N.I.Act is not
rebutted. It is also asserted by the learned counsel for the
appellant that during the cross-examination, the accused has
admitted due to the extent of Rs.50,000/- and hence, he would
contend that the learned Magistrate has committed an error in
acquitting the accused. Hence, he would seek for allowing the
appeal by setting aside the impugned judgment of acquittal by
convicting the accused.
9. Per contra, the learned counsel for the respondent
would support the judgment of acquittal passed by the trial
court. He would contend that though the accused has admitted
availment of loan, the legally enforceable debt is not for
Rs.1,50,000/- or Rs.2,25,000/-, but it is only for Rs.50,000/-
as accused has paid lot of amount in installment. He would also
contend that there was no agreement for interest and
admission given by the complainant disclose that he himself
has written the amount and hence, he would contend that the
cheque amount to the tune of Rs.2,25,0000/- is not a legally
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enforceable debt. As such, he would seek for dismissal of the
appeal as the presumption stands rebutted in view of the
admissions given by the complainant himself.
10. 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 trial court is perverse,
arbitrary and erroneous so as to call
for any interference by this court?
11. It is the contention of the complainant that he has
advanced a sum of Rs.1 Lakh to the accused on 18.10.2012
and Rs.50,000/- on 30.10.2012 and in discharge of this debt,
the cheque under Ex.P1 came to be issued. The disputed
cheque is produced at Ex.P1 and it is drawn for a sum of
Rs.2,25,000/-. In the complaint, the complainant no where
asserted as to how he made payment of Rs.1,50,000/-. A
simple assertion made in the complaint is that he paid the
amount in two installment of Rs.1,00,000/- and Rs.50,000/- on
18.10.2012 and 30.10.2012 respectively. Absolutely, neither in
the complaint nor in his examination-in-chief, there is no
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assertion that the amount was paid through the banker or post
office. However, the complainant has placed reliance on Ex.P5
to show that the amount was paid to the accused by way of
cheque on 18.10.2012 and 30.10.2012. This document is not a
computer generated document, but it is a certificate given and
there is no certification on this that it is as per the records.
Even it does not disclose as to who has issued this certificate
and whether it is a postal account or a bank account. No
pleadings are forthcoming in this regard.
12. For the first time in the cross-examination, the
complainant has asserted that the amount was paid by
cheques. He claims that he has produced the document
pertaining to IDBI Bank, but Ex.P5 is not an account statement
and only an extract. There is no certification as observed
above and in the examination-in-chief, this document was got
marked asserting that it is a internet copy taken from the post
office, but Ex.P5 is not an internet copy downloaded and
complainant could have produced the account statement of
IDBI Bank or else he would have examined the author of Ex.P5.
Even he has not pleaded regarding payment by way of cheque.
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13. Quite contrary to this assertion, in subsequent
cross-examination, PW1 states that he paid Rs.1 Lakh in Udupi
service bus stand and he never asserts that he paid it by
cheque. He further asserts that the balance of Rs.50,000/- was
paid in bus stand, but he never claimed that it is again by way
of a cheque.
14. All along, it is asserted that the accused voluntarily
endorsed the figure of Rs.2,25,000/- including Rs.75,000/-
towards interest portion. Admittedly, no document is produced
to show that there is any contract regarding payment of
interest. In the absence of any contract, on what basis
complainant is claiming interest at the rate of 18% per annum
is not at all forthcoming. He further admits in his further cross-
examination that he has endorsed Rs.75,000/- excess amount
pertaining to interest. When all along it is asserted that the
contents of the cheque were written by the accused, but the
complainant himself in his cross-examination admits that he
written excess amount of Rs.75,000/- towards interest. This
admission of complainant completely falsifies the claim of the
complainant.
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15. In the cross-examination, accused has not disputed
the transaction and further the complainant specifically asserts
that he has not paid the amount on interest. Further, the
cross-examination discloses that the accused has not disputed
his liability to the extent of Rs.50,000/-. PW1 admits that he
visited the house of the accused twice for demanding the
amount and when he visited the house for the second time, the
accused has lodged a complaint against him. When a
suggestion was made to him that before police he has given an
undertaking that he was due to the extent of Rs.50,000/-, he
denied this aspect and asserts that at the instance of police, he
has given such statement. He denied that he received
Rs.5,000/- to Rs.10,000/- on many occasions from accused and
accused is only due to the extent of Rs.50,000/-.
16. All along, the complainant has asserted that he is
required to receive Rs.2,25,000/- from complainant, which is
the cheque amount and notice was issued demanding
Rs.2,25,000/- i.e., the cheque amount only. But the assertions
made in the complaint itself discloses that he has advanced
actually Rs.1,50,000/-. Admittedly, there is no contract for
interest between the parties and under such circumstances,
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question of complainant seeking interest to the extent of
Rs.75,000/- does not arise at all. When the cheque amount is
more than the liability as asserted by the complainant to the
tune of Rs.1,50,000/-, the offence under Section 138 of N.I.Act
is not attracted. The cross-examination of the complainant
and the pleadings in the complaint itself rebut the presumption
available in favour of the complainant under Section 139 of
N.I.Act. Had the complainant initiated the prosecution only for
Rs.1,50,000/- though the cheque was issued for Rs.2,25,000/-
things would have been different. Admittedly, Rs.2,25,000/- is
not a legally enforceable liability. Under such circumstances,
question of convicting the accused for the offences punishable
under Section 138 of N.I.Act does not arise at all.
17. The learned Magistrate has considered all these
aspects in its proper perspective and in detail he has analyzed
the oral and documentary evidence. He has also considered the
number of citations relied by either of the parties and has
rightly acquitted the accused. No perversity or illegality is
found in the judgment of acquittal so as to call for any
interference by this court. Hence, the appeal is liable to be
dismissed. As such, the point under consideration is answered
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in the negative and accordingly, I proceed to pass the
following:
ORDER
(i) The appeal stands dismissed.
Sd/-
JUDGE
SS
