Babusab S/O Mahaboobsab ... vs Udaykumar S/O Bhimasen Rao Mutagi
2023 Latest Caselaw 522 Kant

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

        DATED THIS THE 9TH DAY OF JANUARY, 2023

                          BEFORE
      THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
             CRIMINAL APPEAL NO.2777/2012
BETWEEN:

BABUSAB S/O MEHABOOBSAB
BISARALLI, AGE: 50 YEARS,
R/O: KOPPAL, TQ AND DIST: KOPPAL.

                                                ...APPELLANT
(BY SRI R. M. JAVED, ADVOCATES)

AND:

UDAYKUMAR S/O BHIMASEN RAO MUTAGI
AGE 41 YEARS, R/O: WARKAR STREET, KOPPAL
AND AT H.NO.8-11-181/5,
PANCHAMUKI COLONY, VASANI NAGAR,
RAICHUR, DIST: RAICHUR.


                                              ...RESPONDENT

(BY SMT. DEEPA P., ADVOCATE FOR
SRI MRUTHYUNJAY TATA BANGI, ADVOCATE)

       THIS CRIMINAL APPEAL IS FILED U/S 378(1) OF CR.P.C.,
SEEKING TO SET ASIDE THE ORDER PASSED BY THE CIVIL
JUDGE AND JMFC., COURT, KOPPAL, IN C.C.NO.573/2007
DATED 04.03.2011 AND THE RESPONDENT BE CONVICTED FOR
THE    OFFENCES   PUNISHABLE       UNDER   SECTION   138   OF
NEGOTIABLE INSTRUMENTS ACT, 1881.


       THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
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                           ORDER

This appeal is filed by the appellant-complainant

under Section 378(1) of the Criminal Procedure Code,

1973 (for short, hereinafter referred to as 'Cr.P.C.')

challenging the judgment of acquittal passed by the Civil

Judge and JMFC., at Koppal in C.C. No.573/2007 dated

04.03.2011 whereby the learned Magistrate has acquitted

the accused for the offence punishable under Section 138

of Negotiable Instruments Act, 1881.

2. For the sake of convenience, the 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

that, the complainant and accused are the resident of

Koppal and they are friends. It is further alleged that in

furtherance of the friendship, the accused has sought

financial assistance from the complainant for expansion of

his flour mill business to the tune of Rs.3,50,000/- and

accordingly, in February, 2007 the complainant has

advanced a hand loan of Rs.3,50,000/-. When the

complainant has demanded repayment of the hand loan

after one month, the accused has issued a cheque dated

16.03.2007 as per Ex.P.1 towards discharge of legally

enforceable debt. The complainant has presented the said

cheque and the said cheque came to be dishonored for

insufficient of funds. Thereafter, the complainant has got

issued a legal notice by registered post as well as under

certificate of posting and the notice issued under the

registered post returned as refused. It is further asserted

by the complainant that the accused having knowledge

that he has insufficient funds has issued cheque in favour

of complainant towards legally enforceable debt and

thereby committed an offence punishable under Section

138 of Negotiable Instruments Act, 1881.

4. The complainant lodged a private complaint

under Section 200 of Cr.P.C. and the learned Magistrate

after recording the sworn statement, had taken cognizance

and issued process against the accused. The accused has

appeared and was enlarged on bail. The prosecution

papers were also furnished to him. The accusation was

read over and explained to him and he pleaded not guilty

and claimed to be tried.

5. The complainant was examined as PW1 and one

witness was examined as PW2 on behalf of the

complainant. The complaint has also placed reliance on 8

documents marked as Ex.P.1 to Ex.P.8. After conclusion

of the evidence of the prosecution, the statement of

accused under Section 313 Cr.P.C. is recorded to enable

him to explain the incriminating evidence appearing

against him in the case of the prosecution. The case of

the accused is of total denial and got examined himself as

DW1 and placed reliance on Ex.D1 during the cross

examination of DW1 and Ex.D2 is also got marked.

6. After hearing the arguments, the learned

Magistrate has found that the complainant has failed to

prove the guilt of the accused beyond all reasonable

doubts for the offence punishable under Section 138 of the

Negotiable Instruments Act, 1881 and by exercising the

powers under Section 255(1) of Cr.P.C acquitted the

accused. Hence, this appeal.

7. Heard the arguments advanced by the learned

counsel for the appellant and the learned counsel for the

respondent-accused. Perused the records.

8. The learned counsel for the appellant would

contend that, the accused has issued a cheque and his

signature on the cheque is undisputed and as such there is

a presumption under Section 139 of the Negotiable

Instruments Act, 1881. He would also submit that the

accused in spite of issuance of notice refused the notice

issued under registered post and the notice issued under

certified posting was served and he failed to reply to

substantiate his contention and as such he would contend

that the Trial Court ought to have drawn presumption in

favour of complainant and ought to have convicted the

accused. Hence, he would seek for allowing the appeal by

convicting the accused-respondent herein.

9. Per contra, the learned counsel for the

respondent would oppose the appeal contending that the

accused has issued intimation to the bank for stop

payment but the bank has issued endorsement regarding

insufficient of funds erroneously. She would also contend

that the cheques were lost by the complainant by the end

of 2006 itself, which has compelled accused to issue the

intimation to the concerned bank. She would also contend

that the complainant has also failed to establish his

financial status to advance such a huge amount of

Rs.3,50,000/- as a hand loan and as such the presumption

under Section 139 of Negotiable Instruments Act, 1881

cannot be drawn, unless the complainant establishes his

financial status. As such she would contend that the

learned Magistrate has considered all these aspects in

proper prospective and analyzed these aspects and arrived

at a just decision which does not call for any interference.

Hence, she would seek for rejection of the appeal.

10. Having heard the arguments and perusing the

records, now the following point would arise for my

consideration:

a) Whether the judgment of acquittal passed by the learned Magistrate is erroneous, arbitrary and capricious so as to call for any interference by this Court?

11. It is the specific case for the complainant that in

February, 2007 he has advanced the hand loan of

Rs.3,50,000/- to the accused for expansion of his flour mill

business. At the outset, the complainant has nowhere

specifically asserted the specific date of advancement of

the loan. Admittedly, the complainant is a pigmy agent

and he claimed to have advanced huge loan of

Rs.3,50,000/- in February, 2007 and he is unable to

disclose the date of advancement of loan. This creates

the doubt regarding very the transactions.

12. The accused has disputed the financial status of

complainant to advance huge loan of Rs.3,50,000/-. In

the cross examination, the complainant has admitted that

he is working as a pigmy agent at Syndicate Bank. He

also admitted that, he used to deposit his income in his SB

account with Syndicate Bank, Koppal Branch. In the

further cross examination in para No.3 dated 03.07.2007,

the complainant claimed that the amount of Rs.3,50,000/-

was lying in his house and he has withdrawn it three

months earlier from his SB account from Syndicate Bank,

Koppal and he had a passbook in his possession where in

there is an entry regarding withdrawal of Rs.3,50,000/-

from the account of the complainant. If that is the case,

nothing has prevented the complainant from producing the

passbook or statement of bank account pertaining to him

to show that three months earlier, he withdrew

Rs.3,50,000/- from Syndicate Bank, Koppal. But no such

document is forthcoming and subsequently, he has

contradicted his own cross examination. However, he has

not produced any documents to show that he was

possessing Rs.3,50,000/- in his house so as to advance

the same to the accused. Even if he has advanced, it is

hard to accept that he does not know the date of

advancement of the loan, since he is working as a pigmy

agent in Syndicate Bank, Koppal. He also admits that he

knew that if he keeps the amount in the bank he is going

to get interest. Hence, keeping such huge amount in the

house on the part of the complainant is an unnatural

human conduct and that too from a banker.

13. No doubt there is an admission of the signature

of the accused on the cheque, which is marked as Ex.P.1.

In normal course, the presumption under Section 139 of

Negotiable Instruments Act, 1881 is available in favour of

the complainant. But since, the accused has disputed the

financial status of accused, the burden shifts on the

complainant to substantiate his financial status. But no

material evidence is produced to prove that the

complainant was capable of arranging Rs.3,50,000/- in

February, 2007. Rs.3,50,000/- is a huge amount in 2007

and when the complainant has failed to prove his financial

status, the question of drawing presumption in favour of

the complainant under Section 139 of the Negotiable

Instruments Act, 1881 does not arise at all. Further, the

accused has also produced Ex.D1 to show that the

intimation regarding stop payment was issued. However,

he has not produced any document as to reasons given for

stop payment. However, the initial burden is on the

complainant to establish his financial status, which he has

failed to prove. The Magistrate has appreciated all these

aspects in proper prospects by analyzing the evidence and

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arrived at a just decision. No illegality has been found

with the judgment of acquittal passed by the Trial Court.

The judgment does not suffer from any illegality, infirmity

or capriciousness so as to call for any interference by this

Court. Looking to these facts and circumstance, the point

under consideration is answered in the negative and as

such the appeal being devoid of any merits does not

survive for consideration. Accordingly, I proceed to pass

the following:

ORDER

The appeal stands dismissed by confirming

the judgment of acquittal passed by the Civil

Judge and JMFC., at Koppal in C.C. No.573/2007

dated 04.03.2011.

Sd/-

JUDGE

SSP