Karnataka High Court
Sri.Ramdas Kelu Naik vs Sri.Ashok Ganapati Shetty on 3 January, 2023
Bench: Rajendra Badamikar
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CRL.A No. 100222 of 2016
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 03RD DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO. 100222 OF 2016
BETWEEN:
SRI RAMDAS KELU NAIK,
AGE: 75 YEARS, OCC: BUSINESS,
R/O: NANDANGADDA,
TQ: KARWAR.
...APPELLANT.
(BY SRI V. M. SHEELVANT, ADVOCATE.)
AND:
SRI ASHOK GANAPATI SHETTY,
AGE: 51 YEARS, OCC: BUSINESS,
R/O: RAMASHRAMA ROAD,
KARWAR.
...RESPONDENT
(BY SRI HAREESH S. NAYAK, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF
Digitally signed by
SUJATA SUBHASH
PAMMAR
CR.P.C., PRAYING TO SET ASIDE THE JUDGEMENT AND ORDER OF
Location: HIGH
COURT OF
KARNATAKA,
ACQUITTAL DATED 31.03.2016, PASSED BY THE JUDICIAL
DHARWAD BENCH,
DHARWAD. MAGISTRATE FIRST CLASS, II COURT, AT KARWAR, IN CRIMINAL
CASE NO.419 OF 2010, ETC.,.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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CRL.A No. 100222 of 2016
JUDGMENT
This appeal is filed by the appellant-complainant
under Section 378(4) of the Code of Criminal Procedure,
challenging the judgment of acquittal dated 31.03.2016,
passed by the JMFC, 2nd Court, Karwar, in
C.C.No.419/2010 by acquitting the accused-respondent
herein for the offence under Section 138 of Negotiable
Instruments Act, 1881.
2. The brief factual matrix leading to the case are
that, the complainant is the permanent resident of Karwar
and he is doing real estate business. The respondent-
accused is also a businessman doing share marketing of
commodity and equity share business.
3. It is further asserted that both the accused and
the complainant came in contact in respect of their
business and the accused asked the complainant to join
his business with an assurance to give Rs.15,000/- per
month, in case he invests Rs.1,50,000/- in the business.
Accordingly, the complainant invested Rs.1,50,000/- by
CRL.A No. 100222 of 2016
paying the amount to accused through cheque. But as per
the agreement, the accused did not pay the monthly profit
of Rs.15,000/- as well as the investment amount. The
complainant demanded for repayment of his amount. It is
alleged that on 14.12.2019 the complainant has issued a
cheque bearing No.94137 for Rs.1,50,000/- drawn on Axis
Bank Ltd., Branch Shan Complex, Green Street, Karwar,
towards discharge of legally enforceable debt in respect of
the investment made by the complainant. The complainant
is said to have presented the said cheque and it was
bounced for insufficient funds and subsequently, in spite of
issuance of legal notice, the amount was not repaid. Hence
he submitted a complaint under section 200 of Cr.P.C.
4. The learned Magistrate after recording sworn
statement of the complainant, taken cognizance and
issued process against the accused. The accused has
appeared and he was provided with all the copies of
prosecution papers. He denied the accusation.
CRL.A No. 100222 of 2016
5. Then the complainant was examined as PW.1
and Branch Manager of the bank was examined as PW.2.
The complainant has got marked Exs.P.1 to P.5. After
completion of the evidence of the complainant, the
statement of accused under section 313 of Cr.P.C. was
recorded and the case of the accused is of total denial. The
accused also got examined himself as DW.1 and got
marked Ex.D.1 in the cross-examination of PW.2 and also
placed reliance on Ex.D.2.
6. After hearing the arguments advanced by both
the parties, the learned Magistrate has found that the
complainant has failed to establish that the cheque was
issued towards legally enforceable debt and hence
acquitted the accused for the offence punishable under
section 138 of the Negotiable Instruments Act, 1881.
Being aggrieved, this appeal came to be filed by the
appellant-complainant.
7. Heard the arguments and perused the records.
CRL.A No. 100222 of 2016
8. Having heard the arguments and perusing the
records, it is evident that the complainant is asserting that
he has invested Rs.1,20,000/- in the business run by the
accused and accused has promised to pay Rs.15,000/- per
month, but he did not pay the amount and when
demanded repayment of the invested amount, the
disputed cheque as per Ex.P.1 came to be issued. There is
no dispute of the fact that Ex.P.1 cheque belongs to
accused and it is signed by the accused. Hence, there is
initial presumption in favour of the complainant under
section 139 of the Negotiable Instruments Act, 1881,
regarding issuance of cheque towards discharge of legally
enforceable debt. However the accused has set up a
specific defence that the complainant has only invested
Rs.1,20,000/-, and he has issued a cheque for
Rs.1,50,000/- on 14.12.2009. However the complainant
has received another cheque bearing No.94139 dated
21.12.2009 asserting that the cheque under Ex.P.1 was
lost by him. He would also contend that the second cheque
CRL.A No. 100222 of 2016
issued bearing No.94139 was honoured and Rs.1,20,000/-
was credited to the account of the complainant.
9. However, during the course of cross-
examination, PW.1 complainant has denied this aspect for
having received Rs.1,20,000/-. But during the course of
cross-examination of PW.2 who is the Bank Manager,
Ex.D.1 was confronted to him and PW.2 has specifically
admitted that Rs.1,20,000/- cheque was encashed and
amount was credited to the account of the complainant on
22.12.2009. This is again evident by Ex.D.1 which is the
bank statement which disclose that Rs.1,20,000/- was
credited to the account of the complainant by deducting
from the account of the accused on 22.12.2009. It is not
the case of the complainant that he had two different
transactions with accused.
10. The specific contention of the complainant is
that he had invested Rs.1,50,000/- and towards
repayment of that amount, the disputed cheque came to
be issued. But it is the specific contention of the accused
CRL.A No. 100222 of 2016
that the complainant has only invested Rs.1,20,000/- and
that amount has been repaid by cheque bearing No.94319
dated 21.12.2009, which was issued subsequently. The
records disclose that Rs.1,20,000/- which is claimed to
have been invested by the complainant was already
received by him on 22.12.2009. But the complainant went
on disputing this aspect during his evidence and this
aspect is again proved by the accused through Ex.D.1 and
by cross-examining the witness of the complainant PW.2.
Hence it is evident that the complainant has not
approached the Court with clean hands and he tried to
mislead the Court.
11. No doubt the presumption is in favour of the
complainant in respect of the cheque amount of
Rs.1,50,000/-. However the complainant has also
admitted that the signature on Ex.P.1 is that of accused
but the cheque is in the handwriting of complainant. That
means it is evident that he himself has filled the contents
of the cheque. No doubt there is no bar under section 118
of the Negotiable Instruments Act, 1881, but the
CRL.A No. 100222 of 2016
subsequent events disclose that he received another
cheque for a sum of Rs.1,20,000/- and got it encashed in
respect of the same transaction.
12. It is not the case of the complainant that he has
invested different amounts and the second cheque is
issued for Rs.1,20,000/- pertaining to a different
transaction. The accused is required to rebut the
presumption available in favour of the complainant on the
basis of preponderance of probabilities but not as the
burden casted on the complainant regarding proof beyond
all reasonable doubt.
13. In the instant case the admission given by PW.2
as well as Ex.D.1 clearly establish that the complainant
has received the transaction amount from the accused and
subsequently he presented the cheque in issue under
Ex.P.1. Since there are no two transactions between the
parties, question of issuing two cheques in favour of the
complainant does not arise at all. The defence of accused
is more probable.
CRL.A No. 100222 of 2016
14. The learned Magistrate has appreciated all
these aspects in detail and analyzed the oral and
documentary evidence in detail. Even in the cross-
examination of DW.1 a fatal suggestion has been made on
behalf of the complainant in the last paragraph suggesting
that the second cheque for Rs.1,20,000/- was issued as
the earlier cheque was not available with the complainant.
The suggestion reads as under:
"£Á£ÀÄ ZÉPÀÌ£ÀÄß ¥Éæ¸ÉAl ªÀiÁqÀĪÀAvÉ ºÉýzÁUÀ D ZÉPÀÄÌ
E®è ¨ÉÃgÉ ZÉPÀÄÌ PÉÆqÀĪÀAvÉ ºÉýzÀÝjAzÀ £Á£ÀÄ ¨ÉÃgÉ ZÉPÀÌ£ÀÄß
¤ÃrzÉ. D ZÉPÀÄÌ ¥Á¸À DVzÉ CAzÀgÉ ¸Àj."
15. This suggestion itself clearly establishes that
there was only one transaction and the second cheque was
issued in respect of the transaction covering the first
cheque itself. The learned Magistrate considered all these
aspects in detail and appreciated the oral and
documentary evidence in detail and arrived at a just
decision. The judgment of acquittal passed by the learned
Magistrate cannot be said to be erroneous or illegal so as
to call for any interference by this Court.
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CRL.A No. 100222 of 2016
16. Under such circumstances, the appeal being
devoid of merits, does not survive for consideration.
Accordingly I pass the following:
ORDER
i) The appeal is dismissed by confirming the
judgment of acquittal dated 31.03.2016,
passed by the JMFC, 2nd Court, Karwar, in
C.C.No.419/2010.
ii) Send back the records to the Trial Court
along with copy of this judgment.
Sd/-
JUDGE
SSP,MRK
