Basavaraj S/O Channabasappa ... vs Smt.Sushilamma W/O Kalleshappa ...
2023 Latest Caselaw 708 Kant

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                                   CRL.A.No. 100296 of 2015


            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. 100296 OF 2015

BETWEEN:

BASAVARAJ
S/O CHANNABASAPPA DIDDAGI
AGE: 48 YEARS, OCC: CONTRACTOR
R/O: BASAVESHWARNAGAR, KARATAGI
TQ: GANGAVATHI, DIST:KOPPAL.

                                               ...APPELLANT.
(BY SRI VIJAY S. CHINIWAR, ADVOCATE.)

AND:

SMT.SUSHILAMMA
W/O KALLESHAPPA ONTIGUNDI
AGE: 45 YEARS, OCC: HOUSEHOLD
R/O: KADALABALU
TQ: HAGARIBOMMANAHALLI
DIST: BALLARI.

                                              ...RESPONDENT
(BY SRI SOUBAGYA VAKKUND, ADVOCATE, FOR
SRI Y.LAXMIKANT REDDY, ADVOCATE.)


     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(2) OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO SET ASIDE
THE JUDGMENT DATED 04.07.2015, PASSED BY THE ADDL. CIVIL
JUDGE & JMFC, AT GANGAVTHI, IN C.C.NO.1156/2012, ACQUITTING
THE ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138
OF NEGOTIABLE INSTRUMENTS ACT, 1881, BY ALLOWING THIS
APPEAL   AND   FURTHER   BE   PLEASED    TO   CONVICT   THE
RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 138 OF NEGOTIABLE INSTRUMENT ACT, ETC.,.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 06.01.2023, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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                                   CRL.A.No. 100296 of 2015




                          JUDGMENT

This appeal is filed under section 378(4) of the Code

of Criminal Procedure, 1973, by the appellant-

complainant, challenging the judgment of acquittal dated

04.07.2015, passed by the Addl. Civil Judge and JMFC,

Gangavathi, in C.C.No.1156/2012, whereby the learned

Magistrate has acquitted the accused-respondent herein

for the offence punishable under section 138 of the

Negotiable Instruments Act, 1881.

2. For the sake of convenience the parties herein

are referred with the original rankings occupied by them

before the Trial Court.

3. The brief factual matrix leading to the case are

as under:

a) That the complainant and husband of accused

are friends. That the accused and her husband requested

for a hand loan of Rs.3,00,000/- from complainant on

02.06.2011 for the purpose of marriage of their daughter

CRL.A.No. 100296 of 2015

and as per their request the complainant has paid the said

amount to the accused in the presence of witnesses. It is

the further case of complainant that accused has assured

repayment of the amount within six months and issued a

cheque dated 16.12.2011 for a sum of Rs.3,00,000/- after

lapse of six months period by putting the date well in

advance. It is also alleged that as per the request, the

complainant has presented the said cheque but it bounced

for insufficient funds. It is further alleged that the

complainant has issued a legal notice to the accused and

there was no response and hence the complainant claimed

that he was compelled to file a complaint under section

200 of Cr.P.C. before the learned Magistrate.

b) After lodging the complaint under section 200 of

Cr.P.C., the learned Magistrate after recording the sworn

statement of complainant and after perusing the records

has taken cognizance and issued process against the

accused. The accused appeared and was enlarged on bail.

She was also provided with the prosecution papers. The

accusation under section 138 of the Negotiable

CRL.A.No. 100296 of 2015

Instruments Act, 1881, was read over and explained to

the accused and she pleaded not guilty.

4. Then the complainant got examined himself as

PW.1 and one witness was examined as PW.2. The

complainant has also placed reliance on eight documents,

which are marked as Exs.P.1 to P.8.

5. Thereafter statement of accused under section

313 of Cr.P.C. was recorded to enable the accused to

explain the incriminating evidence appearing against her in

the case of prosecution. The case of accused is of total

denial and she denied the entire prosecution case including

her signature on the cheque. She was also examined

herself as DW.1 and her husband as DW.2 and one

witness was examined as DW.3. She has also placed

reliance on ten documents, which are marked at Exs.D.1

to D.10 and two documents were marked as C.1 and C.2.

6. Having heard the arguments and after

appreciating the oral and documentary evidence, the

learned Magistrate found that the complainant has failed

to bring home the guilt of the accused for the offence

CRL.A.No. 100296 of 2015

punishable under section 138 of the Negotiable

Instruments Act, 1881 and as such by exercising the

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

accused.

7. Being aggrieved by this judgment of acquittal,

this appeal came to be filed by the complainant-appellant.

8. Heard the arguments advanced by the learned

counsel appearing for appellant and the learned counsel

appearing for respondent. Perused the records.

9. The learned counsel for appellant would

contend that the signature on the cheque is not seriously

disputed and there is a presumption in favour of the

complainant. He would also contend that the evidence of

PW.1 and PW.2 clearly establish that the complainant has

paid the hand loan amount and the cheque was issued

towards legally dischargeable debt. The Trial Court has

failed to appreciate the oral and documentary evidence

and failed to consider the fact that the complaint regarding

loss of cheque was lodged after six months, which would

create doubt in the mind of the Court. He would contend

CRL.A.No. 100296 of 2015

that without appreciating the same, the Court has

accepted the defence of the accused which has resulted in

miscarriage of justice. Hence, the learned counsel for

accused would seek for intervention of this Court by

setting aside the impugned judgment of acquittal and

sought for convicting the accused-respondent herein.

10. Per contra, the learned counsel for respondent-

accused would contend that the accused and complainant

are no way concerned and they were not known to each

other. It is also contended that her husband is also not a

contractor as alleged and further it is asserted that cheque

was lost by accused on 20.04.2011 and subsequently

when a legal notice was issued by some other person

regarding dishonour of a cheque in same series, it is

revealed to her that there is misuse of the lost cheques

and thereafter she lodged a complaint and issued

intimation to the bank and paper publication was also

given. It is contended that cheque itself is subsequently

dated and prior to that only the intimation and paper

publication was given. In such circumstances the

CRL.A.No. 100296 of 2015

presumption is rebutted and the complainant has failed to

prove his financial capacity to advance such a huge loan to

an unknown person. Hence it is contended that the Trial

Court has appreciated this part of oral and documentary

evidence in a proper manner and it does not call for any

interference. Hence she would seek for dismissal of the

appeal.

11. Having heard the arguments and perusing the

oral and documentary evidence, now the following point

would arise for my consideration.

"Whether the judgment of acquittal

passed by the learned Magistrate is erroneous,

arbitrary and illegal, so as to call for any

interference by this Court?"

12. It is the specific contention of the complainant

that the husband of the accused was doing contract work

and as such he has come in contact with the accused and

her husband. It is further asserted that for the marriage

the accused and her husband demanded Rs.3,00,000/-

and the same was paid on 02.06.2011 in Karatagi village.

CRL.A.No. 100296 of 2015

It is the further contention of the complainant that there

was a promise to repay the amount within six months and

after lapse of six months when the same was demanded, a

post dated cheque was issued dated 16.12.2011 as per

Ex.P.1.

13. At the outset the accused has initially disputed

her signature on the cheque itself. However on perusal of

her admitted signatures, it is evident that the cheque does

bear her signature. Hence admittedly the complainant is

the holder of the cheque in due course and the

presumption under section 139 of the Negotiable

Instruments Act, 1881 is initially available to the

complainant in respect of issuance of cheque in favour of

complainant towards legally dischargeable debt. However

this presumption is a rebuttable presumption. Apart from

that the accused is not required to prove his case beyond

all reasonable doubt, but he can rebut the presumption on

the basis of preponderance of probabilities by creating a

dent in the case of the complainant.

CRL.A.No. 100296 of 2015

14. It is the specific defence of the accused that

cheque was lost. The cheque book containing the disputed

cheque along with other cheques was lost on 20.04.2011

itself and the account was closed on 11.01.2012 itself. She

has lodged a complaint with concerned police of

Hagaribommanahalli on 23.11.2011 and intimation was

issued to the bank on 23.11.2011. It is also evident from

the records that she has also given a paper publication on

01.12.2011. All these aspects are evident from Exs.D.1 to

D.4, which clearly establish that prior to issuance of

cheque the accused has lodged a complaint regarding

missing of cheque. Though it is argued by the complainant

that these documents are manipulated, no material

evidence is forthcoming and the cheque itself is dated

16.12.2011. It is alleged that a post dated cheque is

issued after lapse of six months i.e., after 02.12.2011, but

prior to the issuance of cheque the complaint was lodged

in respect of missing of cheque.

15. It is contended that these complaints were

lodged only in order to avoid the prosecution. But the said

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CRL.A.No. 100296 of 2015

contention cannot be accepted as admittedly the accused

has received a legal notice as per Ex.D.7 from one

Ravikumar regarding cheque bounce for Rs.4,70,000/- and

the said cheque was alleged to be out of the same series

of the present cheque, which is already reported to be

missing. The said notice was duly replied by the accused.

Hence it is the specific assertion that only after getting the

said notice, the accused got information that the cheques

have been misused. Hence, though initially no steps were

taken, subsequently, after receipt of the legal notice from

other person, immediately they have taken steps.

16. The complainant in his complaint all along

asserted that the disputed cheque was issued in Karatagi

but in the cross-examination he claims that the disputed

cheque under Ex.P.1 was issued in Hagaribommanahalli.

These two stands taken by the complainant are

inconsistent and contrary. Further, PW.2 claims that

cheque was issued in Karatagi, but the complainant

himself in his cross-examination gives a different story.

Further, in the complaint it is specifically alleged that the

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CRL.A.No. 100296 of 2015

cheque was issued in the first week of December, but

PW.2 has given a different version that cheque was issued

two months earlier. Hence, it is evident that PW.2 is only a

chance witness and there is no consistency regarding

issuance of cheque.

17. Further, the contention of the complainant is

that husband of accused and he were doing contract work.

If at all the husband of accused and he were doing

contract work, he would have given the hand loan to

husband of accused, but why the cheque was issued by

accused who was not doing business is not at all

forthcoming. Hence the entire story narrated by the

complainant creates serious doubt regarding genuineness

of the case of the complainant. Exs.D.1 to D.4 falsifies the

defence set up by the complainant and though the initial

presumption is in favour of the complainant, in view of

Exs.D.1 to D.4 and inconsistent evidence led by PW.1 and

PW.2, the presumption stands rebutted. Hence the burden

is on the accused to establish that he paid the amount

either in Karatagi or Hagaribommanahalli and he was

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CRL.A.No. 100296 of 2015

possessing hard cash of Rs.3,00,000/- as on that day, but

no such evidence is forthcoming.

18. The learned Magistrate has appreciated all

these aspects in detail by analyzing the oral and

documentary evidence. The judgment of the learned

Magistrate does not suffer from any illegality, arbitrariness

or otherwise it is illegal, so as to call fro any interference

by this Court.

19. Apart from that, the accused is already

acquitted by the Magistrate and the First Appellate Court

should be very slow in reversing the judgment of acquittal,

unless it is based on erroneous finding. But no such

evidence is forthcoming in the instant case. Looking to

these facts and circumstances, question of interference

with the judgment of acquittal passed by the Trial Court

does not arise at all. Considering these facts and

circumstances, the point for consideration is answered in

the negative and as such the appeal fails.

Accordingly, I proceed to pass the following:

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CRL.A.No. 100296 of 2015

ORDER

The appeal is dismissed, confirming the judgment of

acquittal dated 04.07.2015, passed by the Addl. Civil

Judge and JMFC, Gangavathi, in C.C.No.1156/2012.

Sd/-

JUDGE

MRK