Karnataka High Court
Sri K Venkatachalappa vs Sri Chandrashekar on 28 November, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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NC: 2023:KHC:43126
CRL.A No. 95 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. 95 OF 2018
BETWEEN:
SRI K. VENKATACHALAPPA,
S/O. LATE KRISHNAPPA,
AGED ABOUT 61 YEARS,
R/A NO.7, 2ND FLOOR,
RAMAKRISHNA APARTMENTS,
VIDYARANYAPURA POST,
BANGALORE-560097.
...APPELLANT
(BY SRI. V F KUMBAR, ADVOCATE)
AND:
SRI CHANDRASHEKAR,
Digitally
(BABU T.T),
signed by
SOWMYA D C/O. JAYA RAMAN,
Location: 2ND MAIN ROAD,
High Court OPP:EASWAR TEMPLE,
of Karnataka MATHIKERE,
BANGALORE-560054.
...RESPONDENT
(BY SRI. SHEKHARAPPA H C., ADVOCATE)
THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT OF ACQUITTAL DATED 04.11.2017
PASSED BY THE XVIII ADDL. C.M.M., BENGALURU IN
C.C.NO.8627/2015 - ACQUITTING THE RESPONDENT/ACCUSED
FOR THE OFFENCE P/U/S 138 OF N.I. ACT.
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NC: 2023:KHC:43126
CRL.A No. 95 of 2018
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant-complainant,
under Section 378(4) of Cr.P.C. challenging the judgment
of acquittal passed by the XVIII Additional Chief
Metropolitan Magistrate, Bangalore in C.C. No. 8627/2015
dated 04.11.2017.
2. For the sake of convenience, the parties herein
are referred with the original ranks occupied by them
before the Trial Court.
3. The brief case of the complainant is that, the
complainant was well acquainted with the accused and
accused requested for hand loan of Rs.2,00,000/- to meet
his family and financial necessities. As such, the
complainant paid a sum of Rs.2,00,000/- on 14.08.2014
by way of cash. The accused agreed to repay the same
within five months, but did not repay the same on
repeated requests. He has issued a cheque dated
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04.02.2015 on State Bank of Mysore, Mathikere Branch,
Bengalore for Rs.2,00,000/- towards the discharge of the
loan. When the said cheque came to be presented, it was
dishonoured for insufficient of funds. The legal notice
came to be issued, but however, as no payment was
made, the complainant has filed a complaint under Section
200 of Cr.P.C. before the learned Magistrate alleging that
accused has committed an offence under Section 138 of
N.I Act.
4. The learned Magistrate after considering the
documents and sworn statement, has taken cognizance
and issued process against the accused. Accused has
appeared through his counsel and was enlarged on bail.
The plea under Section 138 of N.I Act was framed and
accused denied the same.
5. To prove the guilt of the accused, the
complainant got examined himself as PW1 and got marked
7 documents as Exs.P1 to P7. After conclusion of the
evidence of the complainant, the statement of accused
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under Section 313 of Cr.P.C was recorded to enable the
accused to explain the incriminating evidence appearing
against him in the case of prosecution. His case is of total
denial. Accused got examined himself as DW1 and placed
reliance on Exs.D1 to D5.
6. The learned Magistrate after hearing the
arguments and appreciating the oral and documentary
evidence, acquitted the accused for the offence under
Section 138 of N.I Act., by exercising his powers under
Section 255(1) of Cr.P.C.
7. Being aggrieved by this judgment of the
acquittal, the complainant is before this Court by way of
this appeal.
8. Heard the arguments advanced by the learned
counsel for the appellant. The learned counsel for
respondent is absent. Perused the records.
9. Learned counsel for the appellant would
contend that the cheque belongs to the accused and it
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bears his signature, are undisputed and therefore, the
presumption under Section 139 of N.I Act is in favour of
the complainant. He would also contend that to
substantiate his financial status, Ex.P7 is produced. Hence,
the financial capacity of the complainant is also
established. He would also assert that though there is
service of legal notice, there is no reply and hence, the
presumption is not rebuted and as such, he would contend
that the learned Magistrate has committed an error in
acquitting the accused by giving preference to Ex.D1.
10. Having heard the arguments and after
appreciating the oral and documentary evidence, the
following point would arise for my consideration.
"Whether the judgment of acquittal passed
by the learned Magistrate is arbitrary or
erroneous, so as to call for any interference
by this Court.?"
11. It is the case of the complainant that, the
accused has demanded hand loan of Rs.2,00,000/- from
him in July, 2014 and he arranged the amount and paid it
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in cash on 14.08.2014. It is asserted that the accused
assured of repayment of the said amount within five
months, but he failed to repay the same and
subsequently, issued the cheque under Ex.P1. The
complainant was examined as PW1 and he has reiterated
the complaint allegations. However, he has admitted that
while advancing the loan, there are other witnesses and
they were not examined. Apart from that, it is the specific
defence of the accused that he has availed only loan of
Rs.20,000/- and the said amount is repaid in instalments,
which is acknowledged by the appellant/complainant by
endorsing on Ex.D1.
12. Ex.D1 was confronted to the complainant in his
cross-examination and he admitted his signature on
Ex.D1. On perusal of Ex.D1, it is evident that number of
payments have been made in 2013. The assertion of the
complainant is that loan was advanced in 2015, but Ex.D1
is pertinent to transaction of 2013. The complainant has
not produced any material document to show that on
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14.08.2014, he has advanced the loan. It is not the case
of complainant that he had other transactions with the
accused. Ex.D1 disclose that he received Rs.20,000/- on
different dates mentioned thereunder along with interest
thereon. Ex.D1, itself discloses that the complainant is
doing money lending business illegally. Though, it is
asserted by PW1 i.e., complainant that Ex.D1 is pertaining
to some other person and on his behalf, he received the
said amount, but he has not examined the said person to
show that the transaction under Ex.D1 is not pertaining to
complainant. Ex.D1 probabalise the defence raised by the
accused that he has availed only Rs.20,000/- and repaid
the same. By raising a probable defence, accused has
rebuted the presumption available in favour of the
complainant, but the complainant thereafter has failed to
substantiate his contention that he has advanced the loan
of Rs.2,00,000/- and in the discharge of the said loan of
Rs.2,00,000/-, the cheque under Ex.D1 came to be issued.
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13. The learned Magistrate has appreciated the oral
and documentary evidence in proper prospective. He has
analysed the evidence in detail and considering the Ex.D1,
the conclusion given by the learned Magistrate is more
probable. Hence, question of interfering with the
judgment of acquittal passed by the learned Magistrate
does not arise. As such, the point under consideration is
answered in a 'Negative'. As such appeal fails and
accordingly, I proceed to pass the following.
ORDER
The appeal is dismissed.
Sd/-
JUDGE
RAK
