Karnataka High Court
Somanath S/O Irappa Biradar vs Ashok S/O Shrimant Harijan on 2 February, 2024
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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CRL.A No. 200150 of 2022
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 2 ND DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO.200150 OF 2022 (378)
BETWEEN:
SHRI. SOMANATH S/O IRAPPA BIRADAR
AGE: 29 YEARS, OCC: AGRICULTURE,
R/O INDI, TALUKA INDI,
DISTRICT VIJAYAPUR-586209.
...APPELLANT
(BY SRI SANTOSH KUMAR B. BIRADAR, ADVOCATE)
AND:
SHRI. ASHOK S/O SHRIMANT HARIJAN
AGE: MAJOR, OCC: MAKADAMA,
Digitally signed
by SHILPA R R/O LINGADALLI VILLAGE, TALUKA INDI,
TENIHALLI DISTRICT VIJAYAPUR-586209
Location: HIGH
COURT OF
KARNATAKA ...RESPONDENT
(BY SRI GANESH S. KALBURGI, ADVOCATE)
THIS CRL.A. IS FILED U/S. 378 (4) OF CR.P.C PRAYING
TO CALL FOR THE RECORDS IN C.C. NO.2344/2019 ON THE
FILE OF THE CIVIL JUDGE AND JMFC AT INDI, SET-ASIDE THE
JUDGMENT AND ACQUITTAL ORDER PASSED ON 16-06-2022
IN C.C.NO.2344/2019 ON THE FILE OF THE CIVIL JUDGE AND
JMFC AT INDI AND CONVICT THE RESPONDENT FOR THE
OFFENCE PUNISHABLE UNDER SECTION 138 OF THE
NEGOTIABLE INSTRUMENTS ACT.
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CRL.A No. 200150 of 2022
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 learned Civil Judge and JMFC,
Indi in C.C.No.2344/2019 vide judgment dated
16.06.2022, whereby, he has acquitted the
accused/respondent herein for the offence punishable
under Section 138 of the Negotiable Instruments Act,
1988 (for short 'N. I. Act').
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 factual matrix leading to the case are
as under:
That the accused used to take a contract of supplying
the labours for cutting the sugarcane in the field and in the
month of May, 2018, the accused was in need of money
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for payment to labours and also for his family necessity.
Hence, the accused approached the complainant and
requested him to advance loan of Rs.7,00,000/- and
promised to repay the same on demand. Considering the
same, the complainant advanced loan of Rs.7,00,000/-.
Subsequently, the complainant approached the accused in
the last week of May, 2019 for repayment and the accused
has issued cheque dated 04.06.2019 under Ex.P1. When
the complainant presented the said cheque for
encashment, it was dishonoured on the ground of 'funds
insufficient'. Then the complainant approached the
accused, but the accused did not show any response.
Then the complainant got issued a legal notice and in spite
of service of legal notice, the accused did not repay the
loan amount and he has not replied to the legal notice
also. As such, the complainant has filed a complaint under
Section 138 of the N. I. Act.
4. The learned Magistrate after recording the
sworn statement, taken cognizance of the offences and
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issued process against the accused. The accused has
appeared through his counsel and was enlarged on bail.
The plea under Section 138 of the N. I. Act was recorded
and accused denied the same.
5. The complainant was got examined as PW.1
and he placed reliance on five documents marked as
Exs.P1 to P5. After conclusion of the evidence of the
complainant, the statement of the accused under Section
313 of Cr.P.C. was recorded and the case of accused was
of total denial.
6. The learned Magistrate after hearing the
arguments and after appreciating the oral and
documentary evidence, acquitted the accused by the
impugned judgment on the ground that the complainant
has not proved his financial status and the contents of the
cheque were written by him. Being aggrieved by this
judgment of acquittal, the complainant is before this Court
by way of this appeal.
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7. Heard the arguments advanced by the learned
counsel for the appellant/complainant and the learned
counsel for the respondent/accused. Perused the records.
8. The learned counsel for the
appellant/complainant would contend that the learned
Magistrate has acquitted the accused only on the ground
that the complainant has not proved his financial capacity,
but the financial capacity of the complainant was never
challenged by the accused in the entire evidence. He
would further contend that other ground for acquittal was
regarding contents of the cheque were written by the
complainant, but, he ignored the presumption available in
favour of complainant under section 118 of the N. I. Act
and also he failed to consider the provisions of Section 20
of the N. I. Act, wherein, it is asserted that when a signed
blank cheque is issued, it is deemed that the authorization
was given to the holder of the cheque to fill up the
contents. But, the learned Magistrate assuming certain
aspects on his own acquitted the accused without there
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being any defence in this regard, which has resulted in
miscarriage of justice. Hence, he would seek for allowing
the appeal by convicting the accused/respondent herein.
9. Per contra, the learned counsel for the
respondent would contend that there are lots of
contradictions in the evidence and the date of
advancement of the loan was also not specified by the
complainant. Hence, he would contend that the judgment
of acquittal does not call for any interference.
10. Having heard the arguments and perusing the
records, now the following point would arise for
consideration:
Whether the judgment of acquittal passed
by the Trial Court is perverse, arbitrary and
illegal so as to call for any interference by this
Court?
11. It is the specific assertion of the complainant
that the accused has availed hand loan of Rs.7,00,000/-
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from him by demanding the same in the month of May,
2018 and when the repayment was sought, he has issued
a cheque dated 04.06.2019 as per Ex.P1 in the last week
of May, 2019. It is evident from the records that the
cheque belongs to the account of the accused and it bears
his signature. When the accused admits that the cheque
belongs to him and it bears his signature, the initial
presumption under Section 139 of the N. I. Act is
mandatory and it is a statutory presumption. Further, the
said presumption is rebuttable presumption and the
accused is required to prove his defence that the cheque
was not issued towards legal liability by leading the
evidence on the basis of the preponderance of probability.
12. The complainant was examined as PW.1 and in
his evidence, he has reiterated the complaint allegations.
In the entire cross examination, the accused has nowhere
disputed the cheque as well his signature on the cheque.
However, he has cross examined the PW.1 regarding he
getting the amount from the factory etc. The complainant
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has specifically asserted that he had a contract with the
factory and received the amount of Rs.6,00,000/- from the
factory and by putting his Rs.1,00,000/-, he advanced
loan of Rs.7,00,000/-. Interestingly, in the entire cross
examination, this statement of the complainant was
nowhere denied. Even the financial capacity of the
complainant was not at all challenged by the accused.
When the financial capacity of the complainant was not
challenged, it was improper on the part of the learned
Magistrate to suo moto go into this aspect and dispute the
financial status of the complainant. On the contrary, the
accused has set up a defence that his brother has availed
some loan from the complainant and as a security this
cheque came to be issued. By making this suggestion,
virtually the accused has admitted the financial status of
the complainant. Even if the cheque was issued towards
security, it attracts the offence as defined under Section
138 of the N. I. Act.
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13. Further, the accused did not explain as to how
much amount was paid by the complainant to his brother
and when it was paid. A vague suggestion was made and
even in his statement under Section 313 of Cr.P.C., is
completely silent, without setting up any specific defence.
Hence, the observation of the learned Magistrate regarding
the complainant has no financial capacity is erroneous.
14. The other ground urged is regarding contents of
the cheque were written by the complainant himself. But,
the signature on the cheque has been admitted and hence,
there is a presumption in favour of the complainant under
Sections 20 as well as 118 of the N. I. Act. Again this is
reiterated by the Apex Court in the case of Bir Singh vs.
Mukesh Kumar reported in (2019) AIR SC 2446.
Especially in paragraph Nos.37 and 38 of the said
judgment, the Hon'ble Apex Court has discussed this
aspect and it was held that if a signed blank cheque is
voluntarily presented to a payee towards some payment,
the payee my fill up the amount and other particulars and
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this would not invalidate the cheque and onus would be
still on the accused to prove that the cheque was not in
discharge of debt or liability by adducing evidence. In the
instant case, the accused has not produced any document
except making formal suggestion and also he has not
made any attempt to rebut the presumption. Since the
cheque and signature of the accused have been admitted,
the presumption in favour of the complainant that the
cheque was issued towards legally enforceable liability
under Section 139 of the N. I. Act is mandatory. The
accused has not placed any evidence to rebut the said
presumption and hence, the learned Magistrate has
erroneously acquitted the accused/respondent herein for
the offence under Section 138 of the N. I. Act. Hence, the
judgment of acquittal passed by the learned Magistrate is
perverse, erroneous, arbitrary, illegal and calls for
interference.
15. Under Section 138 of the N. I. Act, the Court is
empowered to punish the accused with imprisonment
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which may extend to two years or with fine which may
extend twice the amount of the cheque or both. In the
instant case, the cheque is for Rs.7,00,000/-. The
transaction is of the year 2018. Considering these facts
and circumstances, I am of the considered opinion that it
is just and proper to impose fine of Rs.11,25,000/- to the
accused, which would serve the purpose.
16. Considering the nature of the transaction, the
sentence of imprisonment is not warranted. Hence, I
answer the point under consideration in the affirmative
and accordingly the appeal needs to be allowed. Hence, I
proceed to pass the following:
ORDER
a) The appeal is allowed.
b) The impugned judgment of acquittal passed by
the learned Civil Judge and JMFC, Indi in
C.C.No.2344/2019 dated 16.06.2022 for the
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offence under Section 138 of the N. I. Act is set
aside.
c) The accused/respondent herein is convicted for
the offence under Section 138 of the N. I. Act
and he is sentenced to pay fine of
Rs.11,25,000/- (Rupees Eleven Lakhs Twenty
Five Thousand only). In default, he is required
to undergo simple imprisonment for a period of
one year.
d) Out of the fine amount, Rs.11,00,000/- shall be
paid to the complainant as compensation under
Section 357 of Cr.P.C. and the balance amount
of Rs.25,000/- shall be credited to the State
treasury towards expenses of this litigation
incurred by it.
e) The accused is granted eight weeks time to pay
the entire fine amount.
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f) Registry is directed to send a copy of this
judgment along with the Trial Court records
with a direction to the Trial Court to secure the
presence of the accused for collection of fine
amount as per the above directions.
Sd/-
JUDGE
SRT
