K. Siddappa vs V. Venkateshalu
2023 Latest Caselaw 792 Kant

          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

      DATED THIS THE 12TH DAY OF JANUARY, 2023

                        BEFORE

 THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

        CRIMINAL APPEAL NO.100213 OF 2016

BETWEEN

K. SIDDAPPA S/O K.MALLAPPA
AGE:51 YEARS
R/O C/O BAGODIA BASAWESHWARA,
TRADING COMPANY, IIND CROSS,
APMC MARKET YARD,
BALLARI.
                                           .....APPELLANT
(BY SRI B S SANGATI, ADV.)

AND

V. VENKATESHALU
S/O V CHINARAMUDU
AGE:57 YEARS,
R/O NAYAKANAHATTI VILLAGE,
TQ. CHELLIKERI,
DIST. CHITRADURGA.
                                         .....RESPONDENT
(BY SRI RAKESH M. BILKI, ADV. FOR
SRI SHIVARAJ C BELLAKKI, ADV.)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF CR.P.C., PRAYING TO CALL FOR RECORDS OF THE COURT
BELOW AND SET-ASIDE THE JUDGMENT AND ORDER DATED
06/06/2016 IN CRIMINAL CASE NO.627 OF 2010 PASSED BY
THE I ADDL. CIVIL JUDGE AND JMFC AT BALLARI AND CONVICT
THE RESPONDENT HEREIN FOR AN OFFENCE PUNISHABLE
UNDER SECTION 138 OF NEGOTIABLE INSTRUMENT ACT, 1881.
                               2




     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:

                       JUDGMENT

This appeal is filed by the appellant/complainant

challenging the judgment of acquittal passed in

C.C.No.627/2010 on the file of I Addl. Civil Judge and

J.M.F.C., Ballari dated 06.06.2006 whereby the

learned Magistrate has acquitted the accused for the

offence punishable under Section 138 of Negotiable

Instrument 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 complainant and accused are well

conversant with each other and on said acquaintance,

as per the request of the accused, complainant lent a

sum of Rs.1,50,000/- to the accused for his business

improvement on 15.05.2009. It is further alleged that

it was agreed that the accused should repay the same

within one month and as such in discharge of the said

debt, the accused issued a cheque dated 15.06.2009

drawn on Canara Bank for Rs.1,50,000/-. When the

said cheque was presented for encashment, it was

dishonoured for funds insufficient. It is further alleged

that when the complainant brought it to the notice of

the accused, accused requested to grant some more

time and sent a telegram in this regard with a request

to represent the said cheque on 20.11.2009. When

the said cheque was again represented on

20.11.2009, again it was dishonoured for funds

insufficient. Then a notice came to be issued and

when the cheque amount is not paid, a complaint

under Section 200 of Code of Criminal Procedure,

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

came to be lodged. On the basis of the complaint, the

learned Magistrate recorded the sworn statement of

the complainant and as there were sufficient grounds

to proceed against the accused, took cognizance of

the offence. The summons were issued against the

accused. The accused appeared before the learned

Magistrate and was enlarged on bail. He has also

denied the accusation under Section 138 of N.I. Act.

4. Then the complainant was examined himself

as PW-1 and placed reliance on 5 documents marked at

Exs.P-1 to P-5. 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. The case of the accused is of

total denial. However, the accused got himself

examined as DW-1 and examined two witnesses on his

behalf as DW-2 and DW-3 and placed reliance on

Exs.D-1 to D-4.

5. After hearing the arguments and after

appreciating the oral and documentary evidence on

record, learned Magistrate found that the complainant

has failed to bring home the guilt of the accused for

the offence punishable under Section 138 of N.I. Act

and thereby acquitted him. Being aggrieved by this

judgment, the appellant/complainant is before this

Court.

6. Heard the arguments advanced by the

learned counsel for appellant/complainant and learned

counsel for respondent/accused. Perused the records.

7. Learned counsel for appellant/complainant

would submit that the learned Magistrate has failed to

draw the statutory presumption in favour of the

complainant under Section 139 of N.I. Act and failed

to note that the accused himself has issued a telegram

as per Ex.P-2 to represent the cheque. He would also

submit that the cheuqe was presented twice and the

legal notice came to be issued subsequent to second

presentation of the cheque. The legal notice was

returned as not residing in the given address though

the accused has admitted that he was running a

theatre in the given address. Further he would also

contend that in the cross-examination, the accused

has admitted the receipt of notice under Ex.P-4 and

the presumption under Section 139 of N.I. Act is in

favour of the complainant and when the accused has

failed to rebut the presumption, the Court below has

erred in acquitting the accused. Hence, he would

contend that the judgment of acquittal calls for

interference by this Court and sought for setting aside

the impugned judgment of acquittal and sought for

convicting the accused/respondent herein.

8. Per contra, learned counsel for

respondent/accused would contend that in fact, the

complainant himself has executed a demand

promissory note in favour of the accused and the

accused had intimated the bank regarding missing of

the cheque long back itself and hence, there cannot

be any presumption in favour of the complainant

under Section 139 of N.I. Act. He would also contend

that there were certain transactions regarding touring

theatre between the accused and complainant and in

this context, the cheque lost by the accused was

misused by the complainant and the intimation was

issued to the concerned bank well in advance by the

accused. Hence, the complainant cannot take

advantage under Section 139 of N.I. Act. He would

contend that the complainant is required to prove the

payment of Rs.1,50,000/- as asserted by him

including his financial status but the same has not

been established. Hence, he would contend that the

learned Magistrate has appreciated this aspect in

proper way and has rightly acquitted the accused.

Hence, he would seek for rejection of the appeal.

9. Having heard the arguments and on

perusing the records, the following point would arise

for my consideration:

"Whether the judgment of acquittal passed by the learned Magistrate suffers from any infirmity, arbitrariness or capriciousness so as to call for any interference by this Court?"

10. It is the specific contention of the

complainant that due to acquaintance with the

accused, he has paid Rs.1,50,000/- as hand loan for

business improvements of accused on 15.05.2009.

He would also contend that towards discharge of the

said debt, the accused has issued a cheque dated

15.06.2009 for Rs.1,50,000/- and the said cheque

was presented on 06.07.2009 and on 20.11.2009 but

it was dishonoured. It is also contended that accused

by issuing a telegram as per Ex.P-2 requested the

complainant for representation of the cheque on

20.11.2009 and this will establish that the accused

himself has issued the cheque. The case of the

accused is of total denial. However, it is evident that

the acquaintance between the parties and the

signatures on cheque at Ex.P-1 are undisputed.

Hence, prima facie there is presumption in favour of

the complainant under Section 139 of N.I. Act and it is

for the accused to rebut the said presumption. For

rebutting the presumption, the accused need not

establish his case beyond all reasonable doubt but he

can prove his defence on the basis of preponderance

of probabilities.

11. Accused has disputed the liability to the

tune of Rs.1,50,000/- as claimed by the complainant.

He has also disputed the availment of loan as asserted

by the complainant. The accused himself has got

examined as DW-1 and placed reliance on Exs.D-2 to

D-4. Ex.D-2 is the stop payment intimation issued to

Cananra Bank, Nayakanatti and Ex.D-3 is the

statement pertaining to bank account for the period

from 01.06.2003 to 29.07.2006. Ex.D-4 is the bank

pass book of the accused. Ex.D-2 clearly discloses

that on 13.01.2005 itself, the accused had specifically

intimated the bank that the cheque in question has

lost in Bengaluru and further Ex.D-3 discloses that

there is an entry dated 13.01.2006 to stop payment

marked at Ex.D-3(a). These documents are of the

said point of time during which there was no dispute

between the accused and complainant.

12. Admittedly, the cheque under Ex.P-1 is of

the year 2009 but Ex.D-2 discloses that intimation

was issued to the bank in the year 2005 itself

regarding cheque being lost. Further in Ex.D-2,

specific cheque number is quoted which is under Ex.P-

1 asserting that it was lost. From the seal of the

bank, it is evident that the said endorsement was

issued by the bank. Further, from Ex.D-3 it is evident

that stop payment intimation was issued and a

deduction of Rs.22/- was made in the account of

accused and DW-3 has given an explanation in this

regard. Hence, it is evident that these documents are

of such a point of time, during which there was no

dispute between the accused and complainant and as

such during the said period, the accused could not

have foresee that in the future dispute that would

likely arise between the parties so as to manipulate

the documents. When the cheque was lost as per the

intimation Ex.D-2, it is hard to accept that the said

cheque came to be delivered by the accused in the

year 2009 as asserted by the complainant.

13. The other contentions raised by the learned

counsel for appellant/complainant is regarding the

telegram sent in the name of accused for

representation of the cheque as per Ex.P-2. But there

is no evidence to show that it was sent by the accused

alone and material documents in this regard which

were submitted to the post office by the complainant

were not summoned. Section 88 of the Indian

Evidence Act deals with these aspects and it is

observed that there cannot be any presumption

regarding message being forwarded from the telegram

office by a particular person. Hence, only on the basis

of Ex.P-2 it cannot be presumed that the telegram

was issued by the accused and in turn, it cannot be

presumed that the presumption is required to be

drawn in favour of the complainant under Section 139

of N.I. Act regarding issuance of cheque towards

legally enforceable debt. Apart from that, in the

cross-examination, the complainant has admitted that

the amount was paid in Ballari and he asserts that he

is possessing only 3½ acres of land. He asserts that

he was not doing any business. He further admits that

he did not have any documents that he was

possessing such a huge amount of Rs.1,50,000/- in

the year 2009. Looking to these aspects and

considering Ex.D-2, the presumption in favour of the

complainant under Section 139 of N.I. Act stands

rebutted. On the contrary, Ex.D-1 is produced by the

accused and when it is confronted to the complainant

during cross-examination, he admitted that it bears

his signature and the signature is marked at Ex.D-1(a)

which is in respect of the transaction dated

05.04.2004 where the complainant has issued this

promissory note in favour of the accused. Hence, the

contention of the complainant that he has advanced a

hand loan of Rs.1,50,000/- to the accused holds no

water. Learned Magistrate has appreciated all these

aspects in proper perspective and analysed the oral

and documentary evidence in detail. The judgment of

acquittal is based on sound reasonings and does not

suffer from any infirmity or arbitrariness so as to call

for any interference. As such, I answer the point

under consideration in the negative and the appeal

fails. Accordingly, I proceed to pass the following:

ORDER

The appeal stands dismissed confirming the

judgment of acquittal passed in C.C.No.627/2010 on

the file of I Addl. Civil Judge and J.M.F.C., Ballari

dated 06.06.2006.

Sd/-

JUDGE

Naa