Karnataka High Court
B S Naveen Kumar vs Sri Suneal Purshotham on 3 November, 2023
Bench: G Basavaraja
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NC: 2023:KHC:39406
CRL.A No. 1034 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 1034 OF 2013
BETWEEN:
B.S. NAVEEN KUMAR,
S/O B.P. SUNDARA RAJU,
AGED ABOUT 34 YEARS,
RESIDING AT NO.8/71, II FLOOR,
4TH CROSS, I.T.C. COLONY,
COX TOWN, JEEVNAHALLI,
BANGLAORE - 560 055.
...APPELLANT
(BY SRI. SHARAN B. TADAHAL, ADVOCATE)
AND:
SRI. SUNEAL PURSHOTHAM,
AGED ABOUT 38 YEARS,
Digitally signed
by SANDHYA S RESIDING AT NO.2D,
Location: High
Court of 'LAKESHORE MANOR',
Karnataka GANGADHAR CHETTY ROAD,
ULSOOR, BANGALORE - 560 008.
ALSO AT:
EMERALD, NO.15/1,
DICKENSON ROAD,
BANGALORE - 560 042.
...RESPONDENT
(BY SRI. SIJI MALAYIL, ADVOCATE)
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CRL.A No. 1034 of 2013
THIS CRL.A. IS FILED U/S.378(4) OF CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT DATED 28.09.2013 PASSED BY THE
XVII ADDL. JUDGE AND XXV A.C.M.M. COURT OF SMALL
CAUSES, MAYO HALL UNIT, BANGALORE IN
C.C.NO.26629/2012-ACQUITTING THE RESPONDENT/ACCUSED
FOR THE OFFENCE P/U/S 138 OF N.I.ACT.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred against the judgment of
acquittal dated 28.09.2013 passed in C.C.No.26629/2012
by the Court of XVII Addl. Small Causes and XXV A.C.M.M.
Mayo Hall Unit, Bangalore (SCCH-21).
2. For the sake of convenience, the parties in this
appeal are referred to as per their status and rank before
the Trial Court.
3. The case of prosecution is that in the month of
July 2010 accused borrowed hand loan of Rs.3,50,000/-
from the complainant for business purpose. In the month
of September 2011 also, once again accused borrowed
another hand loan of Rs.2,50,000/- agreeing to pay the
same with interest, but subsequently he has not repaid the
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CRL.A No. 1034 of 2013
said loan as agreed. But when the complainant insisted
for repayment, accused agreed to pay Rs.6,00,000/-
towards principle and Rs.1,10,000/- for interest,
accordingly he executed a loan agreement to that effect.
As per the said agreement, accused issued two post dated
cheques bearing No.383887 and 383886 dt.05.02.2012 &
18.2.2012 for Rs.1,10,000/- & Rs.6,00,000/- respectively,
drawn on HDFC Bank, Bangalore, but when complainant
presented the said cheques to bank for encashment, same
are returned with endorsement 'Insufficient funds'.
On 05.04.2012, he got issued notice to accused, same is
duly served on the accused, but inspite of service of said
notice, accused has not repaid the cheque amount,
thereby, he has committed the offence U/sec 138 of
Negotiable Instruments Act, 1881 (hereinafter referred to
as 'N.I. Act' for short).
4. After issuance of summons, the accused has
appeared through his counsel and pleaded not guilty.
Hence, the trial has been conducted against him.
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CRL.A No. 1034 of 2013
5. To substantiate the case of complainant, the
complainant Naveen is examined as PW.1 and got marked
9 documents as Ex.P1 to Ex.P9. On closure of evidence of
prosecution, statement of the accused was recorded under
Section 313 of Cr.P.C. The accused has totally denied the
evidence of PW.1. He has categorically denied that he has
received the notice and he has already paid the amount
with interest borrowed by him. However, the accused did
not choose to defend his evidence. On hearing both sides,
the Trial Court has passed the impugned judgment by
acquitting the accused for the alleged commission of
offence. Being aggrieved by the impugned judgment, the
complainant/appellant has preferred this appeal.
6. Learned counsel for the appellant has submitted
that the Trial Court has erred in acquitting the
respondent/accused after concluding that the respondent
did not repay the amount borrowed from the appellant,
which is covered by the cheques issued by the respondent.
The liberty given by the trial court to the appellant to
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CRL.A No. 1034 of 2013
recover the balance of the principal amount and interest
as per law from the respondent by filing civil cases before
competent court of law, is not in accordance with the
provisions of the Negotiable Instruments Act. He further
submits that the respondent did not enter the witness box
and rebutted the statutory presumption of Section 138 of
N.I. Act. The Trial Court has not properly appreciated the
evidence on record. On all these grounds, he sought to
allow this appeal.
7. As against this, the learned counsel appearing
on behalf of appellant submitted that the Trial Court has
appreciated the evidence on record in accordance with law
and facts and that there is no ground for interference with
the judgment of acquittal passed by the Trial Court.
Ex.P9, the loan agreement which is entered into between
the accused and the complainant itself, is sufficient to
come to conclusion that alleged loan transaction is not
lawful under the provisions of Karnataka Prohibition of
Charging Exorbitant Interest Act,2004 and also contrary to
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CRL.A No. 1034 of 2013
Section 23 of Indian Contract Act, 1872. The Trial Court
has rightly appreciated the evidence on record and
acquitted the accused for the alleged offence. On all these
grounds, he sought to dismiss this appeal.
8. Having heard the arguments on both sides and
on perusal of the records, the following points would arise
for my consideration:
i. Whether the appellant has made out a
ground to interfere with the impugned
judgment of acquittal?
ii. What order?
9. My finding to the above points are as under:
i. In the negative
ii. as per final order
Regarding Point No.1:
10. I have carefully examined the impugned
judgment and other materials on record.
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CRL.A No. 1034 of 2013
11. It is the case of complainant that the accused
has issued cheques at Ex.P1 dated 05.02.2012 for
Rs.1,10,000/- and Ex.P2 dated 18.02.2012 for
Rs.6,00,000/- in favour of the complainant. The
complainant has presented the same to the bank for
encashment and the said cheques were returned with a
shara 'insufficient funds'. The complainant has issued a
legal notice to the accused to repay the cheque amount.
The same was duly served upon him. However, the
accused has not repaid the amount. Hence, the
complainant has lodged the complaint under Section 200
of Cr.P.C. for the commission of offence punishable under
Section 138 of N.I.Act.
12. On careful examination of the material on
record, it is crystal clear that the complainant has
complied the mandatory provisions of Section 138 of N.I.
Act except the explanation to the said provision regarding
legally recoverable debt. In this regard, the Trial Court in
para No.13 of its judgment has observed as under:
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"13. On perusal of the evidence and above
arguments of both the counsels, it appears that,
even if at the time of evidence accused has
denied receipt of the amount as per the
statement of the complainant, during arguments
counsel for the accused has concentrated more
on Ex.P9, which shows that accused has admitted
receipt of amount as per Ex.P9. However, as
rightly argued by counsel for accused as per
notification of Government of Karnataka dated
28-08-03,14% and 16% p.a. interest can be
charged for secured and unsecured loans
respectively. Under the provisions of Money
Lenders Act and Prohibition of Charging
Exorbitant Interest Act, 2004, charging interest
more than 16% p.a. is not lawful. As per Ex.P9
complainant stated that he lent Rs.9,00,000-00
to accused & already he recovered Rs.7,26,500-
00 which clearly goes to show that if interest at
6% p.a. is calculated, accused is not liable to pay
the amount mentioned in the cheque. Therefore,
when as per the document produced by the
complainant and as per existing law, accused is
not liable to pay the amount mentioned in the
cheque, accordingly that itself is sufficient to
show that the cheques in question are not issued
by the accused for payment of legally
dischargeable debt. Therefore, even if
complainant's counsel argued that since accused
has not entered into the witness box, he has not
rebutted the presumption, since from the
evidence produced by the complainant itself, it
appears that, accused was not legally liable to
pay the amount of cheque, that itself is sufficient
to rebut the presumption about the legally
dischargeable debt. Therefore, when there is
evidence to show that accused was not liable to
pay the amount mentioned in the cheques even if
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CRL.A No. 1034 of 2013
there is evidence to show that complainant
presented the cheques to bank within the time
fixed for the same, same was dishonored for want
of sufficient funds, complainant got issued notice
to accused, accused is not liable for conviction
U/sec 138 of N.I. Act."
13. The Trial Court has also relied on the
decisions of various High Courts.
14. On re-appreciation/ re-consideration/
re-examination of the entire evidence on record and also
keeping in mind the provisions of the Karnataka Prohibition
of Charging Exorbitant Interest Act, 2004 and Section 23 of
India Contract Act, 1872, I do not find illegalities/legal
infirmities in the impugned judgment of acquittal passed by
the Trial Court. Hence, I answer the point No.1 in negative.
Regarding Point No.2:
15. For the aforesaid reasons, I proceed to pass the
following:
ORDER
1. The appeal is dismissed.
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2. The order dated 28.09.2013 passed in
C.C.No.26629/2012 by the Court of XVII
Addl. Small Causes and XXV A.C.M.M. Mayo
Hall Unit, Bangalore (SCCH-21) is confirmed.
3. Registry is directed to send a copy of this
order along with the Trial Court records to
the Trial Court forthwith.
Sd/-
JUDGE
SSD
