Karnataka High Court
Sri P N Range Gowda vs Sri Rizwan on 8 August, 2024
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NC: 2024:KHC:31804
CRL.A No. 206 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL APPEAL NO. 206 OF 2012 (A)
BETWEEN:
SRI. P.N. RANGE GOWDA
S/O NANJE GOWDA
AGED ABOUT 40 YEARS
R/AT KALKERE GATE
KASABA HOBLI
TURUVEKERE TALUK
TUMKUR DISTRICT.
...APPELLANT
(BY SRI. M.N. MADHUSUDHAN, ADVOCATE)
Digitally
signed by
SWAPNA V AND:
Location: high
court of SRI RIZWAN
karnataka PROPRIETOR OF SONU ENGG WORKS
AGED ABOUT 43 YEARS
SHED NO.SM43
KSSIDC INDUSTRIAL AREA
ARASIKERE ROAD
HASSAN - 573 201
...RESPONDENT
(BY SRI. MANOHAR .V., ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF
CR.P.C PRAYING TO SET ASIDE THE ORDER PASSED IN C.C.
NO.346/2008 DATED 19/1/2012 BY THE CIVIL JUDGE & JMFC.,
TURUVEKERE - ACQUITTING THE RESPONDENT / ACCUSED OF THE
OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT.
THIS CRIMINAL APPEAL, COMING ON FOR FINAL HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE M G UMA
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NC: 2024:KHC:31804
CRL.A No. 206 of 2012
ORAL JUDGMENT
The appellant being the complainant in CC No.346 of
2008 on the file of the learned Civil Judge and JMFC,
Turuvekere, is impugning the judgment dated 19.01.2012
acquitting the accused for the offence punishable under Section
138 of Negotiable Instruments Act (for short 'the NI Act').
2. For the sake of convenience, the parties shall be
referred to as per their rank and status before the Trial Court.
3. Brief facts of the case are that, the complainant has
filed the private complaint before the Trial Court against the
accused contending that he is running a rice mill and accused
used to attend the repair work and was also supplying spare
parts. Thus, he was having acquaintance with the accused.
Accused had requested for financial help and during 2007, he
had lent an amount of Rs.2,50,000/-. Towards repayment of
the same, the accused has issued the cheque Ex.P4 dated
31.03.2008. When the cheque was presented for encashment,
the same was dishonored with an endorsement - referred to
drawer. Legal notice was issued on 15.04.2008 and the same
was served on the accused, but he has not repaid the cheque
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amount. Thereby, he has committed the offence as stated
above.
4. The private complaint came to be filed. Since the
accused has denied the charges, complainant examined PWs.1
to 4 and got marked Exs.P1 to P10. The accused examined
himself as DW1. The Trial Court after considering all these
materials on record opined that the complainant is not
successful in proving the guilt of the accused. Hence, the Trial
Court passed the impugned judgment acquitting the accused.
Being aggrieved by the same, the complainant is before this
Court.
5. Heard Sri M N Madhusudhan, learned counsel for
the appellant and Sri V Manohar, learned counsel for the
respondent. Perused the materials including the Trial Court
records.
6. Learned counsel for the appellant contended that,
the complainant examined himself as PW1, got examined
PWs.2 to 4 and got marked Exs.P1 to P10. The accused has
examined himself as DW1 after denying all the averments in his
statement recorded under Section 313 of Cr.P.C. Except bald
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denial by the accused, he has not taken any specific defence.
When cheque - Ex.P4 was proved to have been issued by the
accused on the basis of evidence of PWs.1 to 4, presumption
under Section 139 of NI Act would arise and the same is not
rebutted by the accused. In spite of that, the Trial Court
proceeded to acquit the accused without any valid reasons.
Hence, he prays for allowing the appeal, in the interest of
justice.
6. Per contra, learned counsel for the respondent
opposing the appeal submitted that the accused has taken the
defence of total denial. The complainant has not proved
lending of the amount, issuance of cheque, signature of the
accused on the cheque- Ex.P4. Under such circumstances, the
Trial Court is not right in acquitting the accused. Accordingly,
he prays for dismissal of the appeal.
7. In view of the rival contentions urged by learned
counsel for both the parties, the point that would arise for my
consideration is:
"Whether the impugned judgment of
acquittal passed by the Trial Court suffers from
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perversity or illegality and calls for interference by
this Court?"
My answer to the above point is in the 'Negative' and
proceed to pass the following:
REASONS
8. It is the specific contention of the complainant that
he was running rice mill and he had acquaintance with the
accused who was repairing the machinery and supplying spare
parts to the complainant. It is the contention of the
complainant that during 2007, he had lent an amount of
Rs.2,50,000/- and towards repayment of the same, the
accused has issued the cheque - Ex.P4. It was dishonored as
referred to drawer. In spite of issuance of notice, the accused
has not repaid the cheque amount and thereby he has
committed the offence.
9. To prove his contention, the complainant examined
himself as PW1 and re-iterated his contention as taken in the
complaint. Ex.P4 is the cheque dated 31.03.2008 for
Rs.2,50,000/- drawn in favour of the complainant said to be
signed by the accused. But the accused has denied issuance of
cheque and also his signature found therein. The signature
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found at Ex.P4 and that the signature of the accused found in
the statement recorded by the Trial Court and also his
deposition when he was examined as DW1 are not similar.
10. Even though the complainant summoned PW2 - the
Bank Manager who was working at the time of giving evidence,
the specimen signature of the accused was never summoned
and no document was summoned from the Bank to show that
the accused was having account in the bank. During cross
examination, this witness categorically stated that he is not
having personal knowledge about the accused opening of the
account in his bank. Under such circumstances, the evidence
of PW2 is of no help to the complainant in any manner.
11. The complainant got examined PW4 as the eye
witness for lending of the amount. But it is pertinent to note
that there is no reference to PW4 either in the legal notice -
Ex.P7 or in the complaint lodged by the complainant. Even in
the evidence of PW1 he does not refer to the name of PW4 as
he was present when he lent the amount to the accused. Under
such circumstances, even the evidence of PW4 is of no help to
the complainant.
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12. Even though it is contended by the complainant
that the legal notice issued as per Ex.P7 was served on the
accused, Ex.P9 is the postal envelope, addressed to the
accused returned with postal shara as addressee left, returned
to the sender. Therefore, even according to the complainant,
legal notice is not served on the accused. Under such
circumstances, it cannot be said that the offence under Section
138 of NI Act is made out against the accused.
13. The accused examined himself as DW1 and has
taken a defence of total denial. During cross examination,
except suggesting the plea of the complainant and getting
denial, nothing has been elicited to disbelieve his version.
Under such circumstances, it cannot be said that the
complainant is successful in discharging his initial burden of
proving existence of legally recoverable debt, issuance of
cheque by the accused with his signature, dishonor of the same
and service of notice on the accused. When such basic
requirements of Section 138 of NI Act are not proved by the
complainant, it cannot be said that he has proved the
commission of offence by the accused. When the complainant
has failed to discharge his initial burden, it cannot be said that
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presumption under Section 139 of NI Act would arise in his
favour. Under such circumstances, the accused is entitled for
acquittal.
13. 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
*bgn/-
CT:VS
