Karnataka High Court
Shri.Gangappa S/O Bhimappa Girennavar vs Shri.Arajun (Arjun) S/O Bhimrav ... on 14 February, 2024
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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NC: 2024:KHC-D:3488
CRL.A No. 100242 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 14TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY
CRIMINAL APPEAL NO. 100242 OF 2019 (A-)
BETWEEN:
SHRI.GANGAPPA S/O BHIMAPPA GIRENNAVAR,
AGE: 51 YEARS, OCC: PRIVATE SERVICE,
R/O: BOMBARGE VILLAGE,
TALUKA AND DISTRICT: BELAGAVI,
PIN CODE: 591143.
...APPELLANT
(BY SRI. PRANAV S. KATAGERI, ADVOCATE FOR
SRI. S S KATAGERI, ADVOCATE)
ANNAPURNA
CHINNAPPA
DANDAGAL
Digitally signed by
AND:
ANNAPURNA
CHINNAPPA DANDAGAL
Date: 2024.02.20
10:48:33 +0530 SHRI. ARAJUN (ARJUN) S/O BHIMRAV JARKOLI,
AGE: 48 YEARS, OCC: BUSINESS,
R/O: KUMBAR GALLI, HALAKERI,
TQ: GADHINGLAJ, DIST: KOLHAPUR,
PIN CODE: 416502.
...RESPONDENT
(RESPONDENT SERVED BUT NOT REPRESENTED)
THIS CRIMINAL APPEAL IS FILED U/S 378 (1) OF CR.P.C.,
SEEKING TO SET ASIDE THE JUDGEMENT AND ORDER OF
ACQUITTAL DATED 30/04/2019 PASSED IN CRIMINAL CASE
NO.257/2017 BY THE VII-JMFC COURT, BELAGAVI, BY ALLOWING
THIS APPEAL AND THEREBY CONVICTING THE RESPONDENT HEREIN
UNDER SECTION 138 OF N.I.ACT AND CONSEQUENTLY ALLOWING
THE SAID COMPLAINT IN CRIMINAL CASE NO.257/2017.
THIS APPEAL, COMING ON FOR FURTHER ORDERS, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:3488
CRL.A No. 100242 of 2019
JUDGMENT
This appeal under Section 378 (1) of the Criminal
Procedure Code (for short, 'the Cr.P.C.') is filed by the
complainant with a prayer to set aside the judgment and
order of acquittal passed by the Court of VII JMFC,
Belagavi, in C.C.No.257/2017 dated 30.04.2019, wherein
the respondent was acquitted for the offence punishable
under Section 138 of the Negotiable Instruments Act,
1881 (for short, 'the NI Act').
2. Heard the learned counsel for the parties.
3. Respondent who is served in the matter has
remained unrepresented before this Court.
4. It is the case of the complainant that the
respondent had borrowed a sum of Rs.2,50,000/- to meet
his financial needs, in the month of August 2015 and
towards repayment of the said amount two cheques
bearing Nos.036126 and 036127 both dated 11.03.2016
for Rs.1,25,000/- each, were issued in favour of the
complainant drawn on IDBI Bank, Gadhinglaj Branch,
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Kolhapur. The said cheques on presentation for realization
were dishonoured and the appellant/complainant after
complying the statutory requirements as provided under
Negotiable Instrument Act had initiated proceedings
against the respondent before the trial Court for the
offence punishable under Section 138 of the N.I.Act. In
the said proceedings, the respondent had entered
appearance and claimed to be tried. The
appellant/complainant in order to prove his case had
examined himself as P.W1 and got marked 06 documents
as Exs.P.1 to P.6. In support of the defence, the
respondent/accused had examined himself as D.W.1 and
another witness was examined as DW.2. He also got
marked 01 document as Ex.D1. The trial Court after
hearing the arguments addressed on both sides vide the
impugned judgment and order had acquitted the
respondent for the offence punishable under Section 138
of N.I.Act. Being aggrieved by the same, the
appellant/complainant is before this Court.
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5. Learned counsel for the appellant submits that
the trial Court was not justified in acquitting the
respondent. He submits that the respondent has not
probabalised his defence and therefore, the trial Court
ought to have convicted him for the offence punishable
under Section 138 of the N.I.Act.
6. According to the complainant, respondent had
borrowed a sum of Rs.2,50,000/- from him in cash and
had issued the cheques in question for sum of
Rs.1,25,000/- each towards repayment of the amount
borrowed by him. It is the specific defence of the
respondent that he had borrowed a sum of Rs.50,000 from
the complainant and had repaid the said amount to him
and cheques in question were issued by him as security for
the loan of Rs.50,000/- borrowed by him. To prove his
defence, he has produced Ex.D.1 which is an agreement
executed between the appellant and respondent. In
Ex.D.1, it has been specifically mentioned that the
complainant had advanced the loan of Rs.50,000/- to the
respondent by charging interest at the rate of 10% per
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month and out of the loan amount of Rs.50,000/- he had
only paid sum of Rs.45,000/- to the respondent after
deducting Rs.5,000/- towards interest. In Ex.D.1, it is also
mentioned that on 16.04.2016, the respondent has repaid
sum of Rs.1,05,000/- to the appellant toward discharge of
the amount borrowed by him. Ex.D.1 also bears the recital
that the cheques in question bearing Nos.036126 and
036127 which were given by the respondent to the
appellant/complainant were in the custody of the
appellant. The appellant who has admitted his signature
on the first page of the Ex.D.1 has disputed his signature
in the 2nd page of the said document. The trial Court in
exercise of its powers under Section 73 of the Indian
Evidence Act, has compared the admitted signature of the
appellant with the disputed signature and recorded a
finding that both the signatures are one and same and
they belong to the appellant.
7. Under these circumstance, I am of the view
that the respondent/accused has successfully
demonstrated before the trial Court that he had availed
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loan from the complainant only to the tune of Rs.50,000/-
and the same was repaid by him. He also had
demonstrated that cheques in questions were issued as
security to the said loan transactions. Therefore, the
presumption if any, that arose against the respondent
stood successfully rebutted. Under these circumstances,
the trial Court has rightly acquitted the respondent for the
offence punishable under Section 138 of the N.I.Act. The
impugned judgment and order of acquittal passed by the
trial Court is well reasoned and sound.
8. Under these circumstances, I do not find any
good reasons to interfere with the judgment and order of
acquittal which is impugned in this appeal. Accordingly,
the appeal stands dismissed.
Sd/-
JUDGE
AC
CT:GSM
