Karnataka High Court
Shri.Shivanagouda vs Shri.Mahantesh on 11 January, 2023
Bench: Rajendra Badamikar
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 11TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO.100191/ 2016
BETWEEN
SHRI.SHIVANAGOUDA S/O KALLAPPA PATIL,
AGE: 54 YEARS, OCC: ADVOCATE,
R/O: 407, AUTO NAGAR,
BELAGAVI-590016.
.....APPELLANT
(BY SRI SANJAY S KATAGERI, ADV.)
AND
SHRI.MAHANTESH NAGAPPA GAJAPATI,
AGE: 44 YEARS, OCC: CONTRACTOR,
R/O: GURUWAR PETH, VIDYAGIRI, KITTUR,
TAL: BAILHONGAL, DIST: BELAGAVI.
.....RESPONDENT
(BY SRI. L.K. GURAV, ADV.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)
OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER OF ACQUITTAL DATED 16-09-2014 PASSED BY THE
LEARNED JUDICIAL MAGISTRATE FIRST CLASS II COURT,
BELAGAVI, IN CRIMINAL CASE NO.1569 OF 2009, BY
ALLLOWING THIS APPEAL AND GRANTING THE RELIEF AS
PRAYED IN THE COMPLAINT AND THEREBY CONVICTING THE
RESPONDENT HEREIN UNDER SECTION 138 OF N.I. ACT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 03.01.2023, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
2
JUDGMENT
This appeal is filed by the appellant/complainant
challenging the judgment of acquittal passed by the
J.M.F.C.-II Court, Belagavi in C.C. No.1569/2009
dated 16.09.2014 whereby the learned Magistrate has
acquitted the accused-respondent herein for the
offence punishable under Section 138 of Negotiable
Instruments Act, 1881 (hereinafter referred to as 'N.I.
Act', for short)
2. For the sake of convenience, the parties
are referred to with the original rankings occupied by
them before the Trial Court.
3. The brief factual matrix leading to the case
are that the accused is a contractor by profession and
he is brother-in-law of the complainant. It is further
asserted that accused used to avail hand loan from
the complainant and as on 24.02.2007, the total
amount received by the accused was Rs.3,50,000/-.
Hence, it is asserted that in this regard on 24.02.2007
itself the accused has executed a demand promissory
note in his favour and after his persistent requests,
the accused issued a cheque bearing No.696322 dated
29.09.2009 for a sum of Rs.3,50,000/- drawn on
Vijaya Bank, Ramdev Galli Branch, Belagavi. When
the complainant presented the said cheque, it was
dishonoured for insufficient funds. Thereafter the
complainant issued a legal notice and the same was
served on the accused but accused gave an untenable
reply. Hence, the complainant filed a complaint under
Section 200 of Code of Criminal Procedure, 1973
(hereinafter referred to as 'Cr.P.C.', for short) against
the accused for the offence punishable under Section
138 of N.I. Act.
4. Learned Magistrate after recording the
sworn statement of the complainant, found that there
are sufficient materials to proceed against the accused
and hence, issued process against the accused. The
accused/respondent herein appeared before the
learned Magistrate and was enlarged on bail. He was
also provided with all relevant prosecution papers.
The accusation was also read over and explained to
him and he denied the same.
5. Then the complainant was examined himself
as PW-1 and placed reliance on Exs.P-1 to P-8. 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
prosecution. His case is of total denial and he got
examined himself as DW-1 and placed reliance on
Exs.D-1 to D-16. The accused denied the entire case of
the complainant including his signature on the cheque.
6. After hearing the arguments and after
appreciating the oral and documentary evidence on
record, learned Magistrate found that the complainant
has failed to prove the guilt of the accused beyond all
reasonable doubt and thereby acquitted him of the
offence punishable under Section 138 of N.I. Act.
Being aggrieved by this judgment, the
appellant/complainant is before this Court.
7. Heard the arguments advanced by the
learned counsel for appellant/complainant and learned
counsel for respondent/accused. Perused the records.
8. Learned counsel for appellant/complainant
would submit that the complainant is the brother-in-
law of the accused and he is a Diploma Engineer and
contractor. He would also contend that the
complainant is a retired Air Force Officer and is a
practicing Advocate now. He would further contend
that in respect of Rs.3,50,000/-, a pro-note was also
executed which clearly discloses that the cheque was
issued towards legally enforceable debt. He would
contend that by inadvertence, the signature of
accused on the cheque was not marked but the Court
is empowered to compare the signature of the
accused on Ex.P-1 with admitted signature available in
the records. He would also contend that till 2009, the
relationship between the complainant and accused
was cordial and subsequently, relationship was
strained between the parties and the defence set up
by the accused regarding dowry amount is not
substantiated. He would further contend that there
was presumption under Section 139 of N.I. Act
regarding legally enforceable debt and hence, he
would contend that the learned Magistrate has failed
to appreciate the oral and documentary evidence in
proper perspective and has erroneously acquitted the
accused. Hence, he would seek for indulgence by this
Court and sought for allowing the appeal by convicting
the respondent/accused.
9. Per contra, learned counsel for respondent/
accused would support the judgment of acquittal
passed by the Trial Court. He would contend that
there are inconsistencies in the date of cheque as
29.09.2009 and 27.09.2009. He would contend that
the accused himself has lodged the complaint against
the complainant and he has given evidence and
prosecuted the complainant in 2007 itself. Hence, he
would contend when there is strained relationship,
question of issuing cheque and executing a promissory
note in favour of the complainant by the accused does
not arise at all. He would also contend that as per
Ex.D-1 and D-16, it is evident that complainant has
lodged a complaint in the year 2007 itself regarding
loss of cheque book and hence, question of he issuing
cheque in the year 2009 does not arise at all. He
would also submit that no details of payment were
pleaded in the complaint but in his evidence, there is
an attempt to improvise the case and hence, he would
contend that the evidence is not acceptable. As such,
he would seek for dismissal of the appeal by
confirming the judgment of acquittal passed by the
Trial Court.
10. Having heard the arguments and on
perusing the records, there is no serious dispute of
the fact that the complainant is the brother-in-law of
the accused. However, the records further disclose
that the relationship between the complainant and
accused were strained since 2007 itself. In this
context, the accused has placed reliance on Ex.D-4. It
is evident that in respect of offence under Section 325
and 504 as well as 506 of IPC, Bailhongal Police have
prosecuted the present complainant on the basis of
complaint lodged by the accused herein and charge
sheet was also submitted and case was registered in
C.C.No.808/2007. It is also evident that by the
judgment dated 18.06.2009, the present complainant
was acquitted in the said case. However, it is also
important to note here that the accused herein was
examined as PW-1 in the said case which is evident
from Ex.D-3 and he has supported the case of the
prosecution and deposed against the present
complainant. This evidence was recorded on
19.02.2009. When the accused was prosecuting the
complainant since July 2007 to 2009, question of he
issuing a cheque out of the earlier transaction dated
24.02.2009 does not arise at all. No doubt, there is a
promissory note executed in favour of the complainant
as per Ex.P-7. The said promissory note is dated
24.02.2007 and it is pertaining to Rs.3,50,000/- but in
this document there is no reference of details of
payment.
11. No doubt, the complainant inadvertently
did not get mark the signature of the accused on the
cheque marked at Ex.P-1. No doubt, the signatures
appear to be one and the same but the accused
disputes his signature at Ex.P-1. The complainant
even during the cross-examination of DW-1 did not
confront the signature. Even otherwise, the
presumption available in favour of the complainant
under Section 139 of N.I. Act, is a rebuttal
presumption.
12. The complainant in the complaint nowhere
pleaded as to how the payment of Rs.3,50,000/- is
made and whether it was a lump sum payment or by
way of installments. What is pleaded is that as on
24.02.2007, the accused owe a sum of Rs.3,50,000/-
to the complainant. The details in this regard were
not pleaded. However, this aspect has been elicited in
the cross-examination wherein in the cross-
examination, the complainant has given explanation
that in the year 2003 he has paid excess amount of
Rs.2,50,000/- to the accused in respect of
construction of his house and from 2005 to 2007 the
accused has taken some amount on different
occasions and on 24.02.2007, he received further
amount of Rs.10,000/- and as on that day, he was
totally liable to pay Rs.3,50,000/-. This part of the
cross-examination of PW-1 dated 17.05.2014 reads as
under:
"2003 £Éà ¸Á°£À°è DgÉÆæAiÀÄ §½ £À£ßÀ ªÀÄ£ÉAiÀÄ
PÁAmÁæöåPÀÖ PÉ®¸À ¸À®ÄªÁV ¤ÃrzÀÝ gÀÆ.250000-00
gÀÆ¥Á¬Ä ºÁUÉà G½¢zÀÄÝ ªÀÄvÀÄÛ 2005 jAzÀ 2007
¸Á°£À°è DgÉÆæAiÀÄÄ ¨ÉÃgÉ ¨ÉÃgÉ ¸ÀªÄÀ AiÀÄzÀ°è £À¤ßAzÀ ºÀt
¥ÀqÉ¢zÀÄÝ PÉÆ£ÉAiÀÄAiÀÄ ¨ÁjUÉ ¢:24-2-2007 gÀAzÀÄ
gÀÆ.10000-00 ºÀtªÀ£ÀÄß ¥ÀqÉ¢zÀÄÝ ¸ÀzÀj ¢£ÀzÀAzÀÄ
DgÉÆæAiÀÄÄ £À£ÀUÉ MlÄÖ 350000-00 ºÀt ¤ÃqÀ®Ä ¨ÁQ
EvÀÄÛ. DgÉÆæAiÀÄÄ ªÀÄ£ÉAiÀÄ PÁAmÁæöåPÖÀ PÉ®¸ÀzÀ ¨Á¥ÀÆÛ ¸Àé®à
ºÀtªÀ£ÀÄß £ÀUÀzÁV ªÀÄvÀÄ ¸Àé®à ºÀtªÀ£ÄÀ ß ZÉQÌ£À ªÀÄÄSÁAvÀgÀ
¤ÃrgÀÄvÁÛ£É. ZÉQÌ£À ªÀÄÄSÁAvÀgÀ ¸ÀĪÀiÁgÀÄ gÀÆ.70000-00
ºÀt ¤ÃrzÀÄÝ F §UÉÎ ¤RgÀªÁV £É£À¦®è. ªÉÄÃ¯É ºÉýzÀAvÉ
ªÀÄ£ÉAiÀÄ PÁAmÁæöåPÖÀ PÉ®¸ÀzÀ°è ¤ÃrzÀ ºÀtzÀ°è gÀÆ 250000-
00 ºÀt DgÉÆæAiÀÄ §½ G½¢zÀÄÝ JA§ §UÉÎ £À£Àß
¦ügÁå¢AiÀÄ°è £ÀªÀÄÆ¢¹®è JAzÀgÉ ¸Àj."
13. If this version is taken into consideration,
then it is evident that as per the case of the
complainant, out of Rs.3,50,000/-, only a sum of
Rs.1,00,000/- was paid in cash in different
installments and Rs.2,50,000/- was excess amount
paid in the year 2003 pertaining to construction of the
house. If this version is accepted, then the amount of
Rs.2,50,000/- pertaining to alleged transaction of the
year 2003 is barred by law of limitation. Even Ex.P-7
promissory note is taken into consideration which is
dated 24.02.2007 and if the transaction of the year
2003 is taken into consideration, then it is also barred
by law of limitation. In that view of the matter, a time
barred debt even after executing acknowledgment
does not amount to a legally enforceable debt. This
cross-examination of PW1 itself completely falsify the
claim of complainant. The assertion as on the part of
the complainant and presumption available in favour
of the complainant stands rebutted. For rebutting the
presumption, the accused need not to prove it by
leading his own evidence and even he can prove it by
cross-examining the complainant. In the instant case,
the cross-examination of PW-1 exposes that out of
Rs.3,50,000/-, a sum of Rs.2,50,000/- was pertaining
to the transaction of the year 2003 which is barred by
law of limitation. Under such circumstances, Ex.P-1
which was said to have been issued in support of
entire transaction cannot be said to be in respect of
legally enforceable debt. As observed above, the
relationship between the complainant and accused
were strained from 2007 onwards and as such,
question of issuing cheque in this regard does not
arise at all.
14. Apart from that, it is also evident from
Ex.D-1 that the accused has lodged a complaint on
07.02.2007 itself in respect of missing of his cheque
book consisting 50 leaves. This Ex.D-1 again
supported by Ex.D-16 which is marked by consent.
When Ex.D-1 was lodged well prior to issuance of
cheque, question of manipulation of Ex.D-1 complaint
and Ex.D-16 does not arise at all as this complaint
was lodged 2 years prior to issuance of the chque. No
doubt, in the cross-examination, DW-1 i.e., accused is
unable to say which of the cheques were signed and
which were not signed, which were lost under Ex.D-1
but that itself does not give the clean chit to the
complainant as prima facie it proves that Ex.P-1 is the
part of the cheques referred in Ex.D-1. Hence, burden
shifts on the complainant to prove his case beyond all
reasonable doubt as the accused has rebutted the
presumption by leading cogent evidence on the basis
of preponderance of probabilities. Even the
complainant nowhere specifically pleaded as to how
the amount was paid and what was the date on which
the payment was made and only vague statement is
that as on 24.02.2009, there was a balance of
Rs.3,50,000/- without specifically asserting the
transactions.
15. Learned counsel for appellant/complaint
has placed reliance on the decision of the Hon'ble
Apex Court in the case of Bir Singh Vs. Mukesh
Kumar reported in (2019) 4 SCC 197 and
contended that raising presumption under Section 139
of N.I. Act is mandatory. There is no dispute about
the principles enunciated in the above cited decision.
But in the said decision, it is held that the
presumption is a rebuttable presumption and it is
further observed that this presumption is not conflict
with human right of presumption of innocence of
accused which presumption is required to dislodge by
proving its case against accused beyond all reasonable
doubt. However, in the instant case, the evidence on
record clearly discloses that the accused has rebutted
the said presumption by leading cogent evidence.
Hence, principles enunciated in the above said
decision will not come to the aid of the complainant in
any way.
16. Learned counsel for appellant has further
placed reliance on a decisions in the case of S.R.
Muralidar Vs. Ashok G.Y. reported in ILR 2001
KAR 4127, in the case of Vijay Vs. Laxman and
another reported in (2013) 3 SCC 86 and in the
case of K.N. Beena Vs. Muniyappan and another
reported in (2001) 8 SCC 458. But all these
decisions are pertaining to drawing the presumption
and the facts and circumstances of the said cases are
entirely different. In the instant case, even in spite of
drawing presumption, the evidence on record
discloses that presumption was rebutted by the
accused. Hence, the principles enunciated in the
above cited decisions will not assist the complainant in
any way.
17. Learned counsel for appellant/complainant
has further placed reliance on the decision of a Full
Bench of the Hon'ble Apex Court in the case of
Kalamani Tex and another Vs. P.
Balasubramanian reported in (2021) 5 SCC 283. It
is also pertinent to note that drawing the presumption
under Sections 139 and 118 of N.I. Act in respect of
signing a blank cheque is mandatory. There is
absolutely no dispute regarding principles enunciated
in the above cited decision and if the signature on the
cheque is admitted then presumption would fall in
favour of the complainant. But again the said
presumption is rebuttable presumption and that
presumption can be drawn in case of the admission of
the signature. However, in the instant case, the
signature was not admitted by the accused. Even
otherwise by leading cogent evidence and by cross-
examining PW-1, accused has rebutted the said
presumption. Hence, the said principles do not assist
the complainant in any way. On the contrary, in Head
Note 'F' of the judgment, the Hon'ble Apex Court has
held regarding the right of the Appellate Court in
reversing the acquittal judgment which reads as
under:
F. Criminal Procedure Code, 1973 --
S.378 -- Reversal of acquittal -- When
permissible -- Held, High Court ought to
have compelling reasons to tinker with an
order of acquittal and no such interference
would be warranted when there were to be
two possible conclusions -- Reversal of
acquittal may be warranted only when trial
court inter alia committed a patent error of
law or grave miscarriage of justice or it
arrived at a perverse finding of fact.
18. Hence, it is evident that unless there are
compelling reasons for reversing an acquittal
judgment and if there is patent error of law or grave
miscarriage of justice or it arrived at a perverse
finding of fact, the Appellate Court cannot interfere
with the acquittal judgment. But in the instant case,
no such evidence is forthcoming and learned
Magistrate has properly appreciated the oral and
documentary evidence on record and there is no
perverse finding of fact or miscarriage of justice. On
the contrary, this observation in the above citation is
against the complainant. Considering these facts and
circumstances, the citations relied on by the learned
counsel for appellant/complainant will not come to the
aid of the appellant/complainant in any way.
19. Learned Magistrate has appreciated the
oral as well as documentary evidence in detail and
analysed them in accordance with law. The judgment
of acquittal neither suffers from any perversity nor
illegality so as to call any interference by this Court.
In such circumstances, question of interference with
the judgment of acquittal passed by the Trial Court
does not arise at all. 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 confirming the
judgment of acquittal passed by the J.M.F.C.-II Court,
Belagavi in C.C.No.1569/2009 dated 16.09.2014.
Sd/-
JUDGE
Naa
