Karnataka High Court
Sri Venkat Reddy vs Sri Ramesh Sultanpur on 7 February, 2024
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
-1-
NC: 2024:KHC-K:1357
CRL.A No. 200134 of 2020
C/W CRL.A No. 200130 of 2017
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO. 200134 OF 2020
C/W
CRIMINAL APPEAL NO. 200130 OF 2017
IN CRL.A.NO.200134 OF 2020
BETWEEN:
SRI VENKAT REDDY S/O GIREPPA
AGE: 45 YEARS, OCC: PRIVATE SERVICE,
R/O BOVIWADA, CHAKKARKATTA
YADGIRI CITY-585201
TQ. AND DIST. YADGIRI
Digitally signed
by SHILPA R ...APPELLANT
TENIHALLI (BY SRI RAVI B. PATIL, ADVOCATE)
Location: HIGH
COURT OF AND:
KARNATAKA
SRI. RAMESH SULTANPUR S/O NAGRAJ
AGE: 46 YEARS, OCC: S.D.A OFFICE OF THE R.T.O.,
YADGIRI, POST: YADGIRI-585202.
...RESPONDENT
(BY SRI B.C. JAKA, ADVOCATE)
THIS CRL.A. IS FILED U/S.372 OF CR.P.C PRAYING TO
SET ASIDE THE ORDER OF ACQUITTAL PASSED BY THE
-2-
NC: 2024:KHC-K:1357
CRL.A No. 200134 of 2020
C/W CRL.A No. 200130 of 2017
LEARNED MAGISTRATE OF HON'BLE JMFC COURT AT YADGIRI
IN C.C.NO.153/2010 ON 04.10.2012. CONVICT THE
RESPONDENT OF THE OFFENCE UNDER SECTION 138 OF N.I.
ACT AND SENTENCE HIM ADEQUATELY AND DIRECT HIM TO
PAY COMPENSATION TO THE APPELLANT.
IN CRL.A. NO.200130 OF 2017
BETWEEN:
SRI VENKAT REDDY S/O GIREPPA,
AGE: 37 YEARS, OCC: PRIVATE SERVICE,
R/O BOVIWADA,
CHAKKARKATTA YADGIRI CITY - 585201,
TQ. & DIST. YADGIRI.
...APPELLANT
(BY SRI RAVI B. PATIL, ADVOCATE)
AND:
SRI RAMESH SULTANPUR S/O NAGRAJ,
AGE: 38 YEARS, OCC: S.D.A.OFFICE OF THE R.T.O.,
YADGIRI, POST: YADGIRI - 585202.
...RESPONDENT
(BY SRI B. C. JAKA , ADVOCATE)
THIS CRL.A. IS FILED U/S. 378 (4) OF CR.P.C PRAYING
TO SET ASIDE THE ORDER OF ACQUITTAL PASSED BY THE
LEARNED MAGISTRATE IN C.C.NO.152/2010 ON 04.10.2012.
CONVICT THE RESPONDENT OF THE OFFENCE UNDER SECTION
138 OF N.I. ACT AND SENTENCE HIM ADEQUATELY AND
DIRECT HIM TO PAY COMPENSATION TO THE APPELLANT.
-3-
NC: 2024:KHC-K:1357
CRL.A No. 200134 of 2020
C/W CRL.A No. 200130 of 2017
THESE APPEALS COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals are filed by the
appellant/complainant challenging the judgment of
acquittal passed by the learned Civil Judge and JMFC,
Yadgiri in C.C.Nos.152/2010 and 153/2010 dated
04.10.2012, whereby, the learned Magistrate has
acquitted the accused for the offence punishable under
Section 138 of the Negotiable Instruments Act, 1881 (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. Though these two cases are different and the
complaints are filed differently, however, the pleadings are
replica of each other between the same parties and further
except the cheques number, the entire pleadings as well
NC: 2024:KHC-K:1357
as evidence is same in both the cases though it was
recorded independently.
4. The brief factual matrix leading to the cases are
as under:
The complainant is working as a private servant in
Yadgiri and accused was working as Second Division
Assistant in RTO Office, Yadgiri. They are friends and
belong to the same community. As per the request of the
accused, the complainant has advanced hand loan of
Rs.1,50,000/- for the family necessity and accused
assured to repay the same within a period of one year.
Thereafter, on demand, the accused issued cheques dated
05.03.2010 bearing Nos.041955 and 041960 for
Rs.1,50,000/-, each towards discharge of the said debt.
Thereafter, the complainant has represented the said
cheqaues for encashment and were returned for
'insufficient funds'. A legal notice came to be issued and
in spite of service legal notices, the amount was not paid
to the complainant and hence, these complaints were filed.
NC: 2024:KHC-K:1357
5. The learned Magistrate after recording the
sworn statement has taken cognizance of the offence and
issued process against the accused. The accused has
appeared through his counsel in both the cases and was
enlarged on bail. The prosecution papers were also
furnished to the accused. The plea under Section 138 of
the N. I. Act was recorded and the accused pleaded not
guilty.
6. To prove the guilt of the accused, the
complainant was got examined himself as PW.1 and placed
reliance on seven documents marked as Exs.P1 to P7.
After conclusion of the evidence of the complainant, the
statement of the accused under Section 313 of Cr.P.C. was
recorded to enable the accused to explain the
incriminating evidence appearing against him in the case
of the complainant. The case of the accused was of total
denial
7. The learned Magistrate after hearing the
arguments and after appreciating the oral and
NC: 2024:KHC-K:1357
documentary evidence acquitted the accused in both the
cases by exercising his powers under Section 255(1) of
Cr.P.C.
8. Being aggrieved by these judgments of
acquittal, the complainant has filed these appeals.
9. Heard the arguments advanced by the learned
counsel for the appellant/complainant and the learned
counsel for the respondent/accused. Perused the records.
10. The learned counsel for the
appellant/complainant would contend that the cheques
and signature on the cheques have been admitted and
there is a statutory presumption under Section 139 of the
N. I. Act in favour of the complainant and the accused has
failed to rebut the said presumption. Hence, he would
contend that the learned Magistrate has failed to
appreciate any of these aspects and mechanically
acquitted the accused, which has resulted in miscarriage
of justice. Hence, he would seek for allowing the appeals
by convicting the accused.
NC: 2024:KHC-K:1357
11. Per contra, the learned counsel for the
respondent/accused would contend that though these
appeals are arising out of two different criminal cases
under Section 138 of the N. I. Act between the same
parties, on perusal of the complaint allegations, they are
replica of each other except the cheques number. He
would also contend that the evidence is also identical and
in the evidence, the complainant has gone to the extent of
asserting that the amount belongs to his mother and there
is no reference about the date of advancement of loan, but
in the evidence, he tried to give different explanation. He
would contend that the complainant alleges availment of
loan of Rs.1,50,000/- and the same was asserted in the
notice also, but two different complaints pertaining to two
cheques both in respect of loan of Rs.1,50,000/- were
filed, which discloses that it is not a legally enforceable
debt. Hence, he would contend that the learned
Magistrate has appreciated all these facts in a proper
perspective and has rightly acquitted the accused and as
such, the judgments of acquittal do not call for any
NC: 2024:KHC-K:1357
interference. Hence, he would seek for dismissal of the
appeals.
12. Having heard the arguments and perusing the
records, now the following point would arise for
consideration:
Whether the judgments of acquittal passed
by the Trial Court are perverse, arbitrary and
illegal so as to call for any interference by this
Court?
13. It is the specific contention of the complainant
that the accused has availed loan of Rs.1,50,000/- and
towards discharge of the said loan, cheque was issued
under Ex.P.1 in both the cases. However, in the entire
complaint, the complainant has nowhere asserted as to
date of advancement of the loan. However, in the cross-
examination for the first time he has asserted that loan
was advanced on 16.01.2007, but he claims that there
was demand for Rs.2,00,000/- and since he had no
amount, he paid Rs.1,50,000/-. However, his further
NC: 2024:KHC-K:1357
cross-examination reveals that he had filed two cases for
recovery of Rs.3,00,000/-.
14. In the further cross-examination, he asserted
that loan in both the cases was advanced on different
dates. However, in both the cases, his assertion is that
loan was advanced on 16.01.2007 itself. When he has
advanced loan on different dates, at least in the second
notice pertaining to the other criminal case, he should
have mentioned both the matters. Interestingly, the
cheque in Ex.P.1 in both the cases belong to the same
date and the allegation is that on the same day, the
cheques were issued. In that event, what was the need
for the complainant to secure two cheques is not explained
and he could have taken a single cheque of Rs.3,00,000/-,
but that was not forthcoming.
15. In the further cross-examination, he claimed
that the amount was in fact belonging to his mother and
he paid it. But this is a new assertion made in the
- 10 -
NC: 2024:KHC-K:1357
evidence for the first time. Even his mother is not
examined to substantiate this aspect.
16. The complainant in his further cross-
examination admitted that he is running a finance
institution. He further admitted that the accused has
availed loan from his finance institution and the cheques
were given at the time of availment of the loan. It is the
specific assertion of the accused that these cheques were
given as a security for transaction pertaining to finance
company and the complainant has mis-utilized by filing
these false cases. Considering the conduct of the
complainant, the defence of the accused is more probable.
As observed above, the date of advancement of loan was
not pleaded and the transaction is not in between the
finance company and the accused, but the alleged
transaction is in personnel capacity. Hence, it is evident
that the complainant has mis-utilized the cheques given to
the finance company and filed these false complaints. The
accused by cross-examining P.W.1 and in view of common
- 11 -
NC: 2024:KHC-K:1357
pleadings in both the cases, which are replica of each
other, was able to establish that the presumption available
in favour of the complainant is rebutted. The complainant
has not lead any further evidence to show that he
advanced loan of Rs.3,00,000/- , but two cheques were
secured and he did not explain all these aspects.
17. Looking to these facts and circumstances, it is
evident that the complainant has failed to prove the guilt
of the accused beyond all reasonable doubt for the offence
punishable under Section 138 of the NI Act. The
judgments of acquittal do not suffer from any perversity or
illegality so as to call for any interference. The learned
Magistrate has appreciated all these aspects in proper
perspective and has rightly acquitted the accused in both
the matters. Hence, I am constrained to answer the point
for consideration in the Negative and accordingly, I
proceed to pass the following:
- 12 -
NC: 2024:KHC-K:1357
ORDER
Both the appeals stand dismissed.
Sd/-
JUDGE
SRT/RSP
