Karnataka High Court
Nagappa Pundalik Pai vs Panduranga Soma Laxmeshwar on 15 February, 2024
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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CRL.A No. 100091 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 15TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY
CRIMINAL APPEAL NO. 100091 OF 2016 (A)
BETWEEN:
NAGAPPA PUNDALIK PAI
S/O PUNDALIK PAI,
AGED ABOUT: 50 YEARS
OCC: BUSINESS,
R/O BALALE, TQ. ANKOLA,
DIST. UTTARA KANNADA
...APPELLANT
(BY SRI RAVI HEGDE, ADVOCATE)
AND:
PANDURANGA SOMA LAXMESHWAR
S/O SOMA
AGED ABOUT: 52 YEARS
WORKING AS ATTENDAR,
G.C. COLLEGE, R/O VANDIGE
ANNAPURNA TQ. ANKOLA
CHINNAPPA DIST. UTTARA KANNADA
DANDAGAL ...RESPONDENT
(BY SRI B.G.INDI, AMICUS CURIAE FOR RESPONDENT)
Digitally signed by
ANNAPURNA
CHINNAPPA THIS CRIMINAL APPEAL IS FILED U/S 378 (4) OF CR.P.C.
DANDAGAL
Date: 2024.02.19 SEEKING TO CALL FOR RECORDS AND AFTER EXAMINING THE SAME
14:59:34 +0530
SET ASIDE THE JUDGMENT PASSED IN C.C.NO. 341/09 DATED
19/08/2015 ON THE FILE OF JMFC ANKOLA FOR THE OFFENCES
PUNISHABLE UNDER NI ACT.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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CRL.A No. 100091 of 2016
JUDGMENT
1. This appeal is filed under Section 378(4) of Cr.P.C.
by the complainant challenging the judgment and order of
acquittal passed by the Court of JMFC, Ankola in
C.C.No.341/2009 dated 19.08.2015.
2. Heard the learned counsel appearing on behalf for
the appellant and the learned Amicus Curiae appearing on
behalf of the respondent.
3. Facts leading to filing of this appeal narrated briefly
are, the appellant herein had initiated proceedings before
the Trial Court against the respondent herein for the
offence punishable under Section 138 of the Negotiable
Instruments Act, 1881 (hereinafter referred to as 'the N.I.
Act' for short). It is the case of the appellant that he and
the respondent were friends and he had advanced a hand
loan of Rs.2,00,000/- to the respondent to meet his
financial problems. Towards repayment of the said
amount, respondent allegedly issued the cheque in
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question bearing No.353383 dated 04.11.2008 drawn on
State Bank of India in favour of the appellant for a sum of
Rs.2,00,000/-. When the said cheque was presented for
realization, the same was dishonoured by the drawee bank
with an endorsement 'insufficent funds'. It is under these
circumstances, after complying the statutory requirements
as provided under the provisions of the N. I. Act, the
appellant had filed a private complaint before the Trial
Court with a prayer to convict the respondent for the
offence punishable under Section 138 of the N. I. Act.
4. In the said proceedings, respondent had appeared
before the Trial Court and pleaded not guilty and claimed
to be tried. In order to substantiate his case, the appellant
examined himself before the Trial Court as PW1 and two
other witnesses were examined as PW2 and PW3 and four
documents were got marked by the appellant as Ex.P1 to
P4. In support of his defence, the respondent has
examined himself as DW1. However, no documents were
marked on his behalf.
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5. The Trial Court, after hearing the arguments
addressed on both sides, passed the impugned judgment
and order acquitting the respondent for the offence
punishable under Section 138 of the N. I. Act. Being
aggrieved by the same, the complainant is before this
Court.
6. Learned counsel for the appellant submits that the
respondent has not explained the custody of the cheque in
question with the appellant. He has not disputed the
signature found in the cheque nor has he disputed that the
cheque in question was drawn on the account maintained
by him with his banker. Therefore, the Trial Court was not
justified in acquitting the respondent for the offence
punishable under Section 138 of the N. I. Act.
7. Per contra, learned Amicus Curiae submits that
respondent has raised a probable defence before the Trial
Court. He submits that though the appellant had pleaded
that the transaction between the parties was supported by
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an agreement dated 31.07.2008, he has failed to produce
the same, inspite of there being a Court order directing
him to produce the said document. Therefore, an adverse
inference is required to be drawn against him. He submits
that since the respondent has rebutted the presumption
that was available against him under Section 139 of the N.
I. Act, the burden was on the appellant to prove his case.
He accordingly, prays to dismiss the appeal.
8. It is the case of the appellant that he had advanced a
hand loan of Rs.2,00,000/- to the respondent and towards
repayment of the said amount, the cheque in question was
issued by the respondent in his favour. In the complaint as
well as in the affidavit filed in lieu of chief examination, the
appellant has specifically contended that the aforesaid
transaction of his with the respondent on 31.07.2008 was
supported by an agreement. It is the specific defence of
the respondent that he had borrowed only Rs.1 lakh from
the appellant on 31.07.2008 and the entire amount was
repaid by him. It is also his case that the original of the
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agreement dated 31.07.2008 was in the custody of the
appellant and a photostat copy of the same was in his
custody.
9. After examination of the witnesses was completed
before the Trial Court, an application was filed under
Section 91 of Cr.P.C. by the respondent with a prayer to
direct the appellant to produce the original of the aforesaid
agreement dated 31.07.2008. The said application was
allowed by the Trial Court on 21.03.2014. However,
inspite of there being a direction by the Trial Court, the
appellant had not produced the original of the agreement
dated 31.07.2008 and in turn he had filed a memo stating
that he does not remember about the document relied
upon by the accused and after detailed search, no such
document was found and therefore, the complainant was
not in a position to produce any document. The appellant,
who had specifically pleaded in the complaint as well as in
the affidavit in lieu of examination in chief that the
transaction between himself and the respondent on
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31.07.2008 was supported by a document, had failed to
produce the said document before the Trial Court inspite of
a specific order passed to the said effect. Therefore,
necessarily an adverse inference is required to be drawn
against the appellant. The respondent, who has raised a
specific defence that he had only borrowed a sum of Rs.1
lakh from the appellant on 31.07.2008 and had stated that
original of the agreement executed on 31.07.2008 is in the
custody of the appellant and a Photostat copy of the said
document was in his custody, has produced the Photostat
copy of the said document before the Court. However, the
said document was not marked on the ground that the
same was a photostat copy.
10. During the course of the cross examination of PW1,
there is a specific suggestion made to him that the original
of the document dated 31.07.2008 was in his custody and
the photostat of the same is with the respondent. Though
the appellant has denied the suggestion, he has admitted
during the course of cross-examination that except the
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transaction that had taken place on 31.07.2008, there was
no other transaction between himself and the respondent.
The respondent has raised a defence that on 31.07.2008,
he had borrowed only a sum of Rs.1 lakh from the
appellant and the transaction was reduced to writing and
photostat copy of the same was with him, he has also
produced the said Photostat of the agreement dated
31.07.2008 before the Court, which is available on record,
though not marked. The defence raised by the respondent
therefore gets probabalised and consequently, the burden
shifts to the appellant to show that the cheque in question
was issued towards discharge of legally recoverable debt.
The said burden has not at all been discharged by the
appellant.
11. Though appellant had stated and pleaded before the
Trial Court that the transaction on 31.07.2008 had taken
place in the presence of Narayana, Jagadish Shirodkar and
Seetha Panduranga Lakshmeshwara, he had failed to
examine any one of them before the Trial Court. PW2 and
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PW3 are the officials of the Bank. Their evidence in no way
helps the appellant to discharge the burden that was
shifted on him. After respondent had raised a probable
defence, it was for the appellant to demonstrate before the
Trial Court that the cheque in question was issued towards
discharge of legally recoverable debt. Since he had failed
to do so, the Trial Court was fully justified in acquitting the
respondent for the offence punishable under Section 138
of the N. I. Act. I do not find any illegality, irregularity or
perversity in the impugned judgment and order of
acquittal, which calls for interference by this Court. Even
otherwise, it is trite that in an appeal filed against the
order of acquittal, if two views are possible, the view
favouring accused taken by trial court should not be
disturbed, unless the judgment and order of acquittal is
patently illegal and perverse. Under the circumstances, I
do not find any merit in this appeal. Accordingly, the same
is dismissed.
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The services of learned amicus curiae is placed on
record and his legal fees is fixed at Rs.7,500/-.
Sd/-
JUDGE
DN
CT:GSM
