Karnataka High Court
Sri. Maruti Rao Pawar vs Smt. Parwin on 28 November, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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NC: 2023:KHC:43127
CRL.A No. 93 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO. 93 OF 2018
BETWEEN:
SRI. MARUTI RAO PAWAR,
S/O M. NAGOJIRAO,
AGED: 46 YEARS,
R/O D.NO.1126/2,
KUMBARAPETE,
DAVANAGERE-577001.
...APPELLANT
(BY SRI. YADUNANDAN N., ADVOCATE FOR
SRI. SANTOSH R NELKUDURI, ADVOCATE)
AND:
SMT. PARWIN,
Digitally
signed by W/O JABIULLA,
SOWMYA D AGED: 36 YEARS,
Location: R/O KUNCHUR CAMP,
High Court DODDABATI POST,
of Karnataka DAVANAGERE TALUK AND DISTRICT-577101.
...RESPONDENT
(VIDE ORDER DATED 11.09.2019, SERVICE OF
NOTICE IS HELD SUFFICIENT)
THIS CRL.A. IS FILED U/S 378(4) CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT DATED 04.12.2017 PASSED BY THE
III J.M.F.C., DAVANAGERE IN C.C.NO.974/2016 -ACQUITTING
THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 ON
N.I ACT.
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NC: 2023:KHC:43127
CRL.A No. 93 of 2018
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the complainant under Section
378(4) of Cr.P.C challenging the judgment of acquittal
passed by the Judicial Magistrate First Class, III Court,
Davanagere in C.C. No.974/2016, dated 04.12.2017.
2. For the sake of convenience, the parties herein
are referred with the original ranks occupied by them,
before the Trial Court.
3. The case of the complainant is that, the
complainant was well acquainted with the accused and
accused had approached him for hand loan of
Rs.2,00,000/- during second week of January 2016 for the
purpose of running two-in-one toys exhibition, agreeing
to repay the same within six months. The accused has
failed to repay the said amount and when complainant
insisted for repayment, he has issued 2 cheques for
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Rs.1,00,000/- each towards repayment of the loan amount
availed in second week of January 2016. When the said
cheques were presented for encashment, they were
returned with an endorsement as 'funds insufficient'. A
legal notice came to be issued, but accused did not
respond to the said legal notice and hence, a complaint
was lodged under Section 200 of Cr.P.C alleging that the
accused has committed an offence punishable under
Section 138 of N.I act.
4. The learned Magistrate after considering the
sworn statement and materials on record, has taken
cognizance and issued process against the accused. The
accused has appeared through his counsel and he was
enlarged on bail. The plea under Section 138 of N.I Act
was recorded and accused denied the same.
5. The complainant got examined himself as PW1
and got marked 7 documents as Exs.P1 to P7. Then the
statement of accused under Section 313 of Cr.P.C was
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recorded and the case of accused is of total denial.
Accused got examined himself as DW1 and got marked
document Ex.D1.
6. After hearing the arguments and appreciating
the oral and documentary evidence on record, the learned
Magistrate, by exercising his powers under Section 255(1)
of Cr.P.C, acquitted the accused for the offence punishable
under Section 138 of N.I. Act.
7. Being aggrieved by the judgment of acquittal,
the complainant is before this Court by way of this appeal.
8. Heard the arguments advanced by the learned
counsel for appellant. The respondent though served is
unrepresented.
9. Learned counsel for the appellant would
contend that the accused has availed loan of
Rs.2,00,000/- in the second week of January 2016 and in
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discharge of the said amount, the cheque under Ex.P1
came to be issued. He would contend that the cheque and
signature on the cheque are admitted and hence, the
initial presumption under Section 139 of N.I Act is in
favour of the complainant and accused has failed to rebut
the same. Hence, he would contend that the learned
Magistrate has erroneously acquitted the accused and
sought for conviction by allowing the appeal.
10. Having heard the arguments and perusal of the
records, now the following point would arise for my
consideration:
"Whether the judgment of acquittal
passed by the learned Magistrate is
perverse, arbitrary or erroneous, so as to
call for any interference by this Court"?
11. It is the specific assertion of the complainant
that he has advanced the loan of Rs.2,00,000/- to the
accused in the second week of January 2016, by way of
cash. The specific assertion is found in the complaint as
well as legal notice and the examination-in-chief.
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However, in the cross-examination, he admits that he has
advanced the loan to the accused on 22 or 23 of February
2016. All along, it is the specific contention of the
complainant that the loan was advanced by way of cash in
the second week of January 2016, but the complainant
nowhere specified the specific date of advancement of the
loan. It is hard to accept his contention that he is not in a
position to remember the date of advancement of the
loan, though he has advanced huge loan of Rs.2,00,000/-
but quite contrarily, he claimed in his cross-examination
that the loan was advanced on 22 or 23 of February 2016.
The said assertion is completely contrary to the pleadings
made in the complaint legal notice and evidence given in
examination-in-chief.
12. It is further all along asserted by the
complainant that the loan amount was advanced by way of
cash, but in the cross-examination dated 23.10.2017, the
complainant claims that he has advanced the loan amount
by way of cheque. If this version of the complainant is
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accepted then, he should have material documents to
show that he has advanced the loan by way of cheque.
The complainant is not certain whether he has advanced
the loan by way of cheque or by way of cash. Even he
does not know on which date he advanced the loan.
13. Further, admittedly, Exs.P1 and P2, which are
the disputed cheques are of the same date. There is no
explanation on the part of the complainant as to why two
cheques were issued and he could have obtained a single
cheque for Rs.2,00,000/- instead of obtaining two cheques
for Rs.1,00,000/- each. Further he asserts that he is an
income tax assessee and all the transactions are shown in
his income tax returns, but he has not produced any
documents to substantiate his contention and he further
admits that he has not shown this transaction in his
income tax return.
14. The argument advanced by the learned counsel
for the appellant/complainant is regarding non-reply. The
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complainant has nowhere produced any documents to
show that the accused is residing in the address shown in
the legal notice. Ex.D1 is confronted and the address given
in Ex.D1 is completely different from the legal notice.
Hence, non-reply to the legal notice does not have any
relevancy. Further, the accused has also disputed the
financial capacity of the complainant and in view of that,
the burden is on the complainant to prove his financial
status, but though he claims that he is an income tax
assessee, he has not produced any documents to show
that he was financially sound to advance the amount of
Rs.2,00,000/- by way of cash.
15. The learned Magistrate considered all these
aspects and has rightly acquitted the accused. The view
taken by the learned Magistrate is a possible view and in
view of the dispute regarding financial status of the
complainant, non disclosure of the date of advancement of
loan and inconsistent evidence regarding payment by way
of cash or by way of cheque, the presumption under
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Section 139 available to the complainant stands rebutted.
When the view taken by the learned Magistrate is also a
possible view, the said view cannot be disturbed by the
Appellate Court.
16. Hence, the conclusion arrived by the learned
Magistrate being a possible conclusion, cannot be
interfered with. Hence, there is no perversity or illegality
found in the judgment of acquittal passed by the learned
Magistrate. In view of these facts and circumstances, the
appeal being devoid of merits, does not survive for
consideration. Accordingly, the point under consideration
is answered in the 'Negative'. As such, I proceed to pass
the following.
ORDER
Appeal stands dismissed.
Sd/-
JUDGE
RAK,List No.:1 Sl No.:17
