Karnataka High Court

Sri S N Santhosh Kumar vs Sri R Anthony Prakash on 29 November, 2023

Author: Rajendra Badamikar

Bench: Rajendra Badamikar

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                                                       NC: 2023:KHC:43254
                                                      CRL.A No. 48 of 2018




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 29TH DAY OF NOVEMBER, 2023

                                       BEFORE
                  THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
                          CRIMINAL APPEAL NO. 48 OF 2018
               BETWEEN:
               SRI. S.N. SANTHOSH KUMAR
               S/O SRI. S.A. NARAHARI SETTY,
               AGED ABOUT 48 YEARS,
               RESIDING AT NO 99,
               1ST FLOOR, 3RD CROSS,
               3RD MAIN, SILVER OAK STREET,
               7TH PHASE, J.P. NAGAR,
               BANGALORE - 78
                                                              ...APPELLANT
               (BY SRI. B.J. MAHESH, ADVOCATE)
               AND:

               SRI. R. ANTHONY PRAKASH,
               S/O T. ROBERT,
               AGED ABOUT 54 YEARS,
               REISIDNG AT DOOR NO. 209,
Digitally      'C' LAYOUT, HANUMANTHANAGARA
signed by      BANNIMANTAPPA LAYOUT,
SOWMYA D       MYSORE -570 015.
Location:      ALSO AT:
High Court
of Karnataka   SRI. R. ANTHONY PRAKASH,
               S/O T. ROBERT,
               AGED ABOUT 54 YEARS,
               COMMERCIAL OFFICER,
               HINDUSTAN UNILEVER LIMITED,
               NO 424, HEBBAL INDUSTRIAL AREA,
               MYSORE - 570 016.
                                                            ...RESPONDENT
               (BY SRI. B.N. SURESH BABU, ADVOCATE)
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                                            NC: 2023:KHC:43254
                                          CRL.A No. 48 of 2018




     THIS CRL.A. IS FILED ISU/S.378(4) CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT DATED 06.10.2017 PASSED BY THE
XXIII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,
BANGALORE IN C.C.NO.19601/2013- ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I.
ACT.

    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 Code of Criminal Procedure (hereinafter referred

to as 'Cr.P.C' for short) challenging the judgment of

acquittal passed by XXIII Additional Chief Metropolitan

Magistrate, Bangalore in C.C.No.19601/2013 dated

06.10.2017.

2. For the sake of convenience, the parties herein

are referred with original ranks occupied by them before

the trial Court.

3. The brief factual matrix leading to the case are

that the complainant and accused were friends since many

years and accused is working at M/s Hindustan Unilever

Limited as Commercial Officer. It is contended that during

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April, 2011 he approached the complainant and requested

for financial assistance of Rs.2 Lakhs to meet his financial

needs. The complainant has paid the said amount and

accused promised to repay the said amount within three

months. He did not repay the said amount and later on, he

issued a cheque dated 27.05.2013 for a sum of Rs.2

Lakhs, which when presented, returned for 'insufficient of

funds'. Hence, the complainant has filed a complaint.

4. The learned Magistrate has taken cognizance

and issued process against the accused. The accused has

appeared through his counsel and was enlarged on bail.

The plea was recorded and accused denied the same.

5. The complainant got examined himself as PW1

and he placed reliance on 9 documents marked at Ex.P1 to

Ex.P9. Then the statement of accused under Section 313

of Cr.P.C. is recorded to enable the accused to explain the

incriminating evidence appearing against him. The case of

the accused is of total denial. Thereafter, accused was

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also got examined himself as DW1 and he placed reliance

on Ex.D1 to Ex.D7.

6. After hearing the arguments and after

appreciating the oral and documentary evidence the

learned Magistrate by exercising the powers under Section

255(1) of Cr.P.C acquitted the accused for the offence

punishable under Section 138 of Negotiable Instruments

Act, 1881 (hereinafter referred to as 'the N.I.Act' for

short). Being aggrieved by this judgment of acquittal, the

complainant is before this court by way of this appeal.

7. Heard the arguments advanced by the learned

counsel for the appellant / complainant and learned

counsel for the respondent / accused. Perused the records.

8. Learned counsel for the appellant would

contend that the accused has availed loan of Rs.2 Lakhs in

April 2011 and a vague defence was set up in reply

wherein, it is asserted that the cheque was issued as a

security without signature, which cannot be accepted. He

would also contend that on 01.02.2011, a sum of Rs.1

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Lakh was paid and on 02.04.2011, a sum of Rs.2 Lakhs

was paid by way of cheque and subsequently, Rs.31,250/-

cash was also paid and total due is Rs.3,31,250/-, out of

which Rs.75,000/- was paid subsequent to the complaint.

Hence, he would contend that as on the date of

presentation of the complaint, a sum of Rs.2 Lakhs was

due and the learned Magistrate has failed to appreciate

this aspect in its proper perspective. Hence, he would

contend that the judgment of acquittal calls for

interference and sought for interference by this court.

9. Per contra, the learned counsel for the

respondent would contend that the earlier transaction was

admitted, but not the present transaction. He would

contend that regarding earlier transaction no specific

pleadings have been made in the complaint that the due

amount is paid pertaining to the present transaction,

which the complainant is required to substantiate. He

would contend that he has paid certain amounts and

Ex.D1 to Ex.D7 establish the payments made by the

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accused to the account of the complainant and those

payments were not denied and hence, as on the date of

the lodging of the complaint, the amount of Rs.2 Lakhs is

not at all due and hence, there is no legally enforceable

debt. In this context he placed reliance on a decision of

the Hon'ble Apex Court in 'DASHRATHBHAI

TRIKAMBHAI PATEL VS. HITESH MAHENDRABHAI

PATEL', (2023) 1 SCC 578. Hence, he seeks for

dismissal of the appeal.

10. Having heard the arguments and perusing the

records, now the following point would arise for my

consideration:

(i) Whether the judgment of acquittal passed by the learned Magistrate is perverse, arbitrary and erroneous so as to call for any interference by this court?

11. It is the contention of the complainant that he

knew the accused for past several years and out of this

friendship, in April 2011, he advanced a loan of Rs.2

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Lakhs. The complainant, at the first instance, nowhere

pleaded as to on which date exactly he advanced the loan.

This material evidence is completely silent, but in the cross

examination, the complainant claims that on 01.02.2011,

he paid Rs.1 Lakh, on 02.04.2011, he paid Rs.2 Lakhs and

on 23.04.2011, he paid Rs.31,250/- by way of cash and

total payment to the accused is Rs.3,31,250/-, but in the

complaint nowhere there is an assertion regarding these

transactions. Even the complainant nowhere asserted that

the amount of Rs.2 Lakhs was paid in April 2011 by way of

cheque. However, complainant has placed reliance on

Ex.P8 & Ex.P9, which are the account statement of the

bank account pertaining to the complainant, wherein it

discloses that Rs.1 Lakh was paid on 01.02.2011 and Rs.2

Lakh was paid on 02.04.2011. At the same time, Ex.D6

discloses that on 11.01.2011 a sum of Rs.47,500/- was

credited to the account of the complainant. Further,

Ex.D7 discloses that on 10.11.2011, again a sum of

Rs.7,500/- was credited to his account. Further, Ex.D1

discloses that on 13.12.2011 another sum of Rs.7,500/-

NC: 2023:KHC:43254

was credited to the account of the complainant. These

payments were not disputed by the complainant. Ex.D2 is

corresponding to Ex.D6 and Ex.D1 and Ex.D7 also disclose

payments. Though the complainant in his cross-

examination tried to make out a case of balance of

Rs.3,31,250/-, the assertions of the complaint itself

discloses that the due was Rs.2 Lakhs as on April 2011

and hence, the contention of the complainant regarding

earlier payment was also due cannot be accepted at this

juncture. If Ex.D1, D2, D6 and D7 are taken into

consideration then, it is evident that the complainant has

paid more than Rs.55,000/- prior to lodging of the

complaint and issuance of legal notice. The legal notice

came to be issued on 14.06.2013 wherein, there is

reference of only Rs.2 Lakhs loan and non payment, but

the payment under Ex.D1, Ex.D2 and Ex.D6 establish that

there is material payments made to the tune of more

than Rs.60,000/-. These are not explained by the

complainant and when partial payment has been made

prior to presentation of the cheque, legal notice ought to

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have been issued towards partial due, but it was issued

towards claim in respect of Rs.2 Lakhs i.e., the cheque

amount.

12. As observed above, there is no pleading

regarding specific date of advancement of loan and vague

assertions have been made and in the cross-examination,

complainant tried to make out a new case of payment due

being Rs.3,31,250/- which is never pleaded. If due is

taken to be Rs.2 Lakhs before lodging the complaint and

before issuance of legal notice itself, the major amount

was paid and that was not deducted and there is no

reference in the legal notice or complaint regarding part

payment. In this context, the learned counsel for the

appellant has placed reliance on a decision referred in

'DASHRATHBHAI TRIKAMBHAI PATEL VS. HITESH

MAHENDRABHAI PATEL', (2023) 1 SCC 578 wherein

the Hon'ble Apex Court has dealt with this issue and in

para 30 conclusions have been drawn, which reads as

under:

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NC: 2023:KHC:43254

"30. In the view of the discussion above, we summarise our findings below:

1) For the commission of an offence under section 138, the cheque that is dishonoured must represent legally enforceable debt on the date of maturity or presentation;

2) If the drawer of the cheque pays a part or whole of the sum between the period when the cheque is drawn and when it is encashed upon maturity, then the legally enforceable debt on the date of maturity would not be the sum represented on the cheque;

3) When a part or whole of the sum represented on the cheque is paid by the drawer of the cheque, it must be endorsed on the cheque as prescribed in Section 56 of the Act. The cheque endorsed with the payment made may be used to negotiate the balance, if any. If the cheque that is endorsed is dishonoured when it is sought to be encashed upon maturity, then the offence under Section 138 will stand attracted;

4) The first respondent has made part-payments after the debt was incurred and before the cheque was encashed upon maturity. The sum of rupees twenty lakhs represented on the cheque was not the 'legally enforceable debt' on the date of maturity. Thus, the first respondent cannot be deemed to have committed an offence under Section 138 of the Act when the cheque was dishonoured for insufficient funds; and"

13. Hence, in view of the principles enunciated in

the above cited decision, it is evident that the complainant

was required to get an endorsement of the accused on the

part payment on the cheque, but he has not done so and

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NC: 2023:KHC:43254

he never disputed that payment made under Ex.D1, Ex.D2

and Ex.D6. It is also evident that the accused even has

made subsequent payments subsequent to lording of the

complaint and that has also been admitted. Hence, the

major portion is paid by the accused towards the due

amount. Even prior to the presentation of the complaint,