Karnataka High Court
Sri.Maheshwara B.G vs Sri.Ningappa on 5 August, 2024
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NC: 2024:KHC:30856
CRL.A No. 391 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL APPEAL NO. 391 OF 2023 (A)
BETWEEN:
SRI.MAHESHWARA B.G.
S/O BASAVARAJAPPA GOWDA
AGED ABOUT 48 YEARS,
PROPRIETOR,
GAJANANA ENTERPRISES,
RAGAVENDRA EXTENSION,
K.H.B. COLONY,
SORABA TOWN - 577 429,
SHIVAMOGGA DISTRICT.
...APPELLANT
(BY SRI. VASANTHAKUMAR K M.,ADVOCATE)
AND:
SRI.NINGAPPA,
S/O SHESHAPPA,
AGED ABOUT 53 YEARS,
R/O GENDLA VILLAGE,
KUPPAGUDDE HOBLI,
Digitally signed SORABA TALUK - 577 429,
by SHARADA SHIMOGGA DISTRICT.
VANI B ...RESPONDENT
Location: HIGH (BY SRI. PARAMESWARAIAH D. C..,ADVOCATE)
COURT OF
KARNATAKA
THIS CRL.A. FILED U/S.378(4) CR.P.C PRAYING TO MAY BE
PLEASED TO A. SET ASIDE THE JUDGMENT/ORDER OF ACQUITTAL
DATED 12.12.2022 MADE IN C.C.NO.362/2019 PASSED BY THE
ADDITIONAL CIVIL JUDGE AND JMFC SORABA AND ETC.,
THIS CRL.A COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE M G UMA
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NC: 2024:KHC:30856
CRL.A No. 391 of 2023
ORAL JUDGMENT
The appellant being the complainant in
C.C.No.362/2019 on the file of the learned Addl. Civil
Judge and JMFC, Soraba, is impugning the judgment dated
12.12.2022 acquitting the respondent/accused for the
offence punishable under Section 138 of the Negotiable
Instruments Act, 1881 [for short, 'the N.I. Act'].
2. For the sake of convenience, the parties shall
be referred to as per their rank and status before the Trial
Court.
3. Heard Sri. Vasanthakumar.K.M. learned counsel
for the appellant and Sri. Parameswariah.D.C. learned
counsel for the respondent. Perused the materials
including the Trial Court Records.
4. Learned counsel for the appellant contended
that the appellant being the complainant is the proprietor
of a shop dealing with electrical goods, equipments, pipes,
etc. The accused had purchased submersible pump, pipes
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& other accessories for the borewell worth amounting to
Rs.4,72,000/- on 05.06.2017. He had not repaid the said
amount, but on the other hand, issued the cheque as per
Ex.P-1 on 12.03.2018. When the cheque was presented
for encashment, the same was dishonoured as "drawer
signature differs". But, in fact the signature found on
Ex.P-1 is that of the accused and hence the bank could not
have dishonoured the cheque.
5. Learned counsel further submits that the
complainant himself was examined as PW-1 and got
marked documents as per Ex.P-1 to P-8 in support of her
contention. The accused had gone to the extent of
denying the existence of proprietary concern referred to
by the complainant produced at Ex.P-6 i.e., the Trade
licence in the name of complainant and Ex.P-7 the bank
pass book. The said exhibits are produced by the
complainant to prove the existence of the proprietory
concern. When admittedly the cheque issued by accused
was dishonoured, the presumption under Section 139 of
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the N.I. Act will arise. The accused has not rebutted the
said presumption and therefore, he is liable for conviction.
Learned counsel submitted that the trial court proceeded
to acquit the accused holding that the cheque was not
dishonoured due to insufficient funds and moreover the
complainant has not proved the existence of legally
recoverable debt. The reason assigned by the trial court
are not justifiable and hence prays for allowing the appeal
in the interest of justice.
6. Per contra, learned counsel for the respondent
opposing the appeal, submitted that the cheque was not
dishonoured for the reason that there was insufficient
funds in the account of the accused and therefore Sec.138
of N.I. Act is not applicable. He also submitted that the
accused had taken a specific defence and replied to the
notice. The accused has stepped into the witness box and
deposed as DW.1, but nothing has been elicited during the
cross examination. Under such circumstances, the trial
Court was right in acquitting the accused. There are no
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reasons to interfere with the same and accordingly, prays
for dismissal of the appeal.
7. In view of the rival contentions urged by
learned counsel for the parties, the point that would arise
for my consideration is:
"Whether the impugned judgment of
acquittal suffers from perversity or illegality,
which calls for interference by this court?"
8. My answer to the above point is in the 'negative'
for the following:
REASONS
9. It is the specific contention of the complainant
as per the complaint that he is the proprietor of
M/s.Gajanana Enterprises and he had supplied
submersible pump, pipes, etc. to the accused worth
Rs.4,72,000/-. Even though the complainant has
produced licence and bank pass book standing in the name
of complainant, he has not produced even a scrap of paper
to substantiate his contention that he has supplied the
material on credit basis. Admittedly, the accused has
issued reply as per Ex.P-5 denying the contention of the
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complainant. During cross-examination of PW-1, he was
cross examined regarding the documents to prove the
existence of legally recoverable debt, but inspite of that
the complainant did not thought it fit to produce any of the
documents to prove the existence of legally enforceable
debt.
10. On the other hand, it is the defence taken by
the accused that he was in need of Rs.50,000/- and he
had approached Anandappa, DW-2. The said Anandappa
took him to the complainant. Thus he availed loan of
Rs.50,000/- from the complainant. As a security, the
cheque was issued and the same was misused by the
complainant. Apart from taking this specific defence, the
accused has stepped into the witness box and deposed as
DW-1 and also examined Anandappa as DW-2. Even
though these witnesses were cross examined at length,
nothing is placed on record to disbelieve their version.
Under such circumstances, the accused is successful in
rebutting the presumption under Sections 118 and 139 of
NI Act. The reverse burden lies on the complainant to
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prove his contention. No material is placed to substantiate
his contention and when the cheque in question was
dishonoured as the signature differs, it cannot be said that
the accused has committed the offence punishable u/s.138
of N.I. Act.
11. I have gone through the impugned judgment
passed by the Trial Court. It has taken into consideration
all the oral and documentary evidence placed before it and
has arrived at a right conclusion. I do not find any
perversity or illegality in the judgment passed by the Trial
Court. There are no reasons to interfere with the order
passed by the Trial Court. Hence, I answer the above
point in the Negative and proceed to pass the following:
ORDER
The Criminal Appeal is dismissed.
Sd/-
(M G UMA)
JUDGE
Snb/
