Karnataka High Court
Shri Shanmukh S/O Basavaneppa ... vs Shri Bhimsen S/O Krishnaji Saraf on 29 November, 2023
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.A No. 100243 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 29TH DAY OF NOVEMBER 2023
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO. 100243 OF 2023
BETWEEN:
SHRI. SHANMUKH S/O BASAVANEPPA BENAKANNAVAR,
AGED ABOUT 57 YEARS, OCC. BUSINESS,
R/O. SHEELVANTAR ONI,
K.M. RESIDENCY, HUBBALLI-580020,
R/BY HIS POWER OF ATTORNEY,
HOLDER SHRI. VINAY S/O MALLIKARJUN
BENAKANNAVAR.
... APPELLANT
(BY SRI. KARTHIK GANACHARI, ADVOCATE FOR
SRI. SURESH S. GUNDI, ADVOCATE)
AND:
SHRI. BHIMSEN S/O KRISHNAJI SARAF,
AGED ABOUT 59 YEARS,
OCC. PRIVATE SERVICE,
R/O. NO.22, SANMARG NAGAR,
VIJAYALAKSHMI
GOKUL ROAD, HUBBALLI-580030.
M KANKUPPI
... RESPONDENT
Digitally signed by
VIJAYALAKSHMI M
KANKUPPI
(BY Smt. NOHA S. EDWARD AND
Date: 2023.12.06
13:23:43 +0530 SRI. U.G. KATTIMANI, ADVOCATES)
THIS CRIMINAL APPEAL IS FILED U/SEC.378(4) OF CR.P.C.
SEEKING TO CALL FOR THE RECORDS IN C.C.NO.256/2016 IN THE
COURT OF THE I ADDL. CIVIL JUDGE AND JMFC AT HUBBALLI, AND
SET ASIDE THE JUDGMENT DATED 20.04.2023 PASSED BY I ADDL.
CIVIL JUDGE AND JMFC AT HUBBALLI, IN CRIMINAL CASE
NO.256/2016 AND CONVICT THE ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 138 OF NI ACT BY ALLOWING THE
ABOVE CRIMINAL APPEAL IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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CRL.A No. 100243 of 2023
JUDGMENT
This appeal is directed against the judgment of
acquittal dated 20.04.2023 passed in CC No.256/2016 by the
learned I Additional Civil Judge and JMFC, Hubballi,
whereunder the respondent/accused has been acquitted of
an offence under Section 138 of the Negotiable Instruments
Act.
2. Heard the learned counsel appearing for the
appellant/complainant and the learned counsel appearing
for the respondent/accused.
3. The case of the complainant before the trial Court
was that the respondent/accused entered into an agreement
with Sri. Ishwar s/o Bavanappa Benakannavar in respect of
a house property and received Rs.15,00,000/- towards
advance sale consideration. The said sale transaction was
incomplete. The respondent/accused persuaded the
complainant to purchase his property. The complainant,
being own brother of Ishwar, agreed to purchase the
property and entered into sale agreement with the
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respondent/accused to purchase his house property and
gave him Rs.15,00,000/- as advance amount. The accused
again did not execute the sale deed as per the agreement
and in order to refund the entire amount of Rs.30,00,000/-
taken by him, he has issued Ex.P-1-cheque for a sum of
Rs.30,00,000/-. Upon presentation of the said cheque, it
came to be dishonoured. The complainant presented the
cheque again at the request of the respondent/accused and
it was again dishonoured for want of funds. The
complainant got issued notice and even after service of
notice, the accused did not send any reply and did not make
any payment of the cheque amount within 15 days from the
date of receipt of notice. Therefore, the
appellant/complainant initiated proceedings against the
respondent/accused for offence under Section 138 of NI Act.
The said complaint has been filed by the power of attorney
holder of the complainant who has been examined as PW-1
and got marked Exs.P-1 to P-9. The accused examined
himself as DW.1 and no documents were marked on his
behalf. The trial Court recorded the statement of the
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accused as required under Section 313 of Cr.P.C. and after
hearing both sides, acquitted the respondent/accused of
offences under Section 138 of NI Act by judgment dated
20.04.2023 in CC No.256/2016. The said judgment of
acquittal has been challenged in this appeal by the
complainant.
4. The learned counsel appearing for the
appellant/complainant would contend that the accused has
admitted his signature on the cheque and therefore
presumption has to be raised under Section 139 of NI Act.
The accused owed a sum of Rs.30,00,000/- to the
appellant/complainant under the sale agreement at Ex.P-8
and for making payment of the same, he has issued a
cheque-Ex.P-1. The accused has executed Ex.P.9-Memo of
Undertaking wherein he has admitted issue of Ex.P-1-
cheque for making payment of the amount due to the
complainant. The trial Court did not appreciate the evidence
on record property and erred in holding that the accused
rebutted the presumption and erroneously acquitted him.
With this he prayed to allow the appeal and convict the
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respondent/accused for the offence under Section 138 of NI
Act.
5. Per contra, the learned counsel for the
respondent would contend that the alleged sale agreements
Exs.P-7 and P-8 have not been cancelled and therefore,
there is no question of repayment of the advance amount
received under them. The complainant has not entered the
witness box and even he has not examined his brother-
Ishwar to prove the transactions of sale agreements-Exs.P-7
and P-8. Under the sale agreement Ex.P-8, the accused has
received Rs.30,00,000/- as advance amount but as per the
averments of the complainant, the complainant has paid
only Rs.15,00,000/- to the accused. The accused has
admitted only his signature on Ex.P-9 but the alleged memo
of undertaking and its contents are not proved. The said
alleged undertaking is dated subsequent to issue of legal
notice to the accused by the complainant. The said Ex.P-9
has not been produced along with the complaint and it has
been confronted in the cross-examination of DW-1. There
are material contradictions in the evidence of PW-1 and the
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averments of the complaint. He contended that there is
alleged loan transaction between the accused and Sri.Ishwar
and the accused has borrowed only Rs.3,00,000/- at 10%
interest and alleged sale agreements Ex.P-7 and P-8 are
created only to force the accused to repay the amount
borrowed. The cheque-Ex.P-1 has not been issued for
making payment of legally enforceable debt. The accused
has rebutted the presumption. The trial Court considering
the said aspect and also the contradictions in oral evidence
and the documentary evidence, has rightly acquitted the
accused of the offence under Section 138 of NI Act. With
this, he prayed to dismiss the appeal.
6. Having heard the learned counsel for the parties,
this Court has perused the impugned judgment of acquittal
and the trial court records.
7. The accused has admitted his signature on Ex.P-
1-cheque stating that the has issued the cheque for security
of the loan borrowed by him from one Sri. Ishwar. The
Handwriting Expert who examined Ex.P-1-cheque and
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admitted writings of accused, has opined that the contents
of writing in Ex.P-1-cheque are not in the handwriting of the
accused. The trial Court rightly placing reliance on the
decision of the Hon'ble Apex Court in the case of Rangappa
v. Mohan1 has raised an initial presumption contemplated
under Section 139 of NI Act, as the accused has admitted
his signature on the cheque. The said presumption under
Section 139 of NI Act is a rebuttable presumption. It is the
defence of the accused that he had borrowed Rs.3,00,000/-
from one Ishwar and he had issued Ex.P.1-cheque as a
security which has been misused by the
appellant/complainant who is the brother of the said Ishwar.
The said Ishwar alleged to have entered into an agreement
with this accused as per Ex.P-7 and paid Rs.15,00,000/- to
the accused under the said sale agreement as an advance.
Thereafter the complainant alleged to have entered into sale
agreement as per Ex.P-8 with the accused to purchase his
house property and alleged to have paid Rs.30,00,000/-.
The said sale agreement at Ex.P.8 has not been cancelled
and the same has been admitted by PW-1. Though under
AIR 2010 SC 1898
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Ex.P-8 advance amount paid is Rs.30,00,000/- but in the
complaint, it is stated that the complainant has paid
advance amount of Rs.15,00,000/- to the accused under
sale agreement Ex.P-8. There is contradiction with regard
to the advance amount paid by the complainant to the
accused person under sale agreement Ex.P.8. When
advance amount of Rs.15,00,000/- is paid by the
complainant to the accused, even if the sale agreement is
cancelled, he is only entitled to receive back the said
amount of Rs.15,00,000/-. Cheque Ex.P-1 has been issued
for Rs.30,00,000/-. On perusal of the averments of the
complaint, there is no reason stated that the complainant is
entitled to receive a sum of Rs.30,00,000/-, even though he
has given advance of Rs.15,00,000/- to the accused. As per
the averments of the complaint, only Rs.15,00,000/- is due
by the accused to the complainant but the cheque-Ex.P-1 is
issued for a sum of Rs.30,00,000/-. Therefore, Ex.P-1-
chqeue has not been issued to make payment of legally
enforceable debt or liability, since the alleged amount due to
the complainant under Ex.P-8 is a sum of Rs.15,00,000/-.
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8. Ex.P.9 memo of undertaking is dated 08.08.2015.
The accused has admitted his signature on Ex.P-9 but he
disputes its contents stating that his signature was taken
forceably. The said Ex.P-9 is subsequent to the legal notice
Ex.P-2 dated 23.06.2015. There is no mention of execution
of Ex.P9-memo of undertaking in the averments of the
complaint. The complainant has failed to prove the contents
of Ex.P-9 and under what circumstance it came to be
executed by the accused.
9. The complaint has been filed by the Power of
Attorney Holder of the complainant, who has been examined
as PW-1. The said Power of Attorney is dated 22.08.2015
and complaint has been filed on the very same day i.e.
22.08.2015. Though the Power of Attorney Holder is able to
file the complaint on behalf of the complainant but the said
Power of Attorney Holder should have witnessed the
transaction and should have the knowledge of the entire
transaction. The Power of Attorney Holder of the
complainant is not having knowledge of the transaction and
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not having witnessed the transaction between the
complainant and the accused and same could be gathered
on reading the evidence of PW.1.
10. The entire transaction between the complainant
and the accused is based on two sale agreements Exs.P-7
and P-8. The complainant has not chosen to take action
against the accused based on Ex.P-8 sale agreement to seek
specific performance or refund of advance amount. Even no
notice has been issued by the complainant to the accused
based on Ex.P-8 sale agreement.
11. Considering all these aspects, the trial Court has
rightly held that the complainant has failed to establish his
case beyond reasonable doubt and rightly acquitted the
respondent/accused noting that existence of legally
enforceable debt is not established and the accused has
rebutted the presumption and there are contradictions
between the oral and documentary evidence. Therefore,
there are no grounds to interfere with the reasoned
judgment passed by the trial court acquitting the
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respondent/accused for an offence under Section 138 of NI
Act.
12. In the result, the following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
kmv
CT:BCK
