Karnataka High Court
Ravuji vs Hanamant on 11 January, 2024
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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CRL.A.No.200272 of 2023
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO. 200272 OF 2023 (378)
BETWEEN:
SRI RAVUJI S/O SUBAL SAGAYI
AGED ABOUT 59 YEARS, OCC: AGRICULTURE,
R/O BALLOLLI VILLAGE,
TQ. INDI, DIST. VIJAYAPUR
...APPELLANT
(BY SRI S. S. MAMADAPUR, ADVOCATE)
AND:
HANAMANT S/O AVVANNA NAYIKODI
AGED ABOUT 48 YEARS, OCCUPATION COOLIE AND
AGRICULTURE R/O BALLOLLI VILLAGE
Digitally signed TALUK INDI, DISTRICT VIJAYAPUR
by SHILPA R
TENIHALLI
...RESPONDENT
Location: HIGH
COURT OF
KARNATAKA (RESPONDENT SERVED)
THIS CRL.A. IS FILED U/S. 378 (4) OF CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT DATED 30.06.2023 PASSED BY
THE CIVIL JUDGE AND JMFC, INDI IN CC NO.1472/2019 AND
CONSEQUENTLY CONVICT THE RESPONDENT FOR THE
OFFENCE PUNISHABLE UNDER SECTION 138 OF NI ACT.
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CRL.A.No.200272 of 2023
THIS APPEAL, COMING ON FOR ADMISSION, 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 Civil Judge and JMFC, Indi in
C.C.No.1472/2019 dated 30.06.2023 in respect of the
offence under Section 138 of the Negotiable Instruments
Act (for short, 'the Act').
2. The brief factual matrix leading to the case are
as under:
The complainant and the accused are permanent
residents of Bedoli village and were acquainted with each
other. That the accused used to provide contract labours
for cutting sugarcane crops every year and in the year
2015 before going to provide labours for sugarcane
harvesting, the accused approached the complainant and
demanded advance money of Rs.5,00,000/- and
considering the need of the accused, the complainant
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advanced Rs.5,00,000/- in the month of June, 2015. The
accused assured that after completion of sugarcane
harvesting, he will repay the same. However, the accused
did not repay the said amount and subsequently, on
demand, issued a cheque for Rs.5,00,000/- dated
29.06.2018. When the said cheque was presented, it was
dishonored for insufficient of funds.
3. The complainant issued a statutory notice and
same was refused by the accused and hence, lodged a
complaint against the accused. On the basis of the
complaint, the learned Magistrate has recorded sworn
statement of the complainant and as there are sufficient
materials to proceed against the accused, he has taken
cognizance of the offence. He has issued process against
the accused and the accused appeared through his counsel
and was enlarged on bail. The prosecution papers have
been furnished to the accused. The plea under Section 138
of the NI Act is framed and accused denied the same.
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4. The complainant was got examined himself as
P.W.1 and placed reliance on five documents marked at
Exs.P.1 to P.5. After conclusion of the evidence of the
complainant, statement of the accused under Section 313
of Cr.P.C. is recorded to enable the accused to explain
incriminating evidence appearing against him in the case
of the prosecution. The case of the accused is of total
denial and he simply asserted that he has received only
Rs.1,00,000/- and the cheque was taken by the
complainant towards security of payment of Rs.1,00,000/-
. However, the accused did not choose to lead any oral
and documentary evidence in support of his defence.
5. The learned Magistrate after appreciating the
oral and documentary evidence found that the
complainant has failed to prove the guilt of the accused
beyond all reasonable doubt and thereby acquitted him for
the charge under Section 138 of the NI Act.
6. 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. The respondent though served,
is unrepresented. Perused the records.
8. The learned counsel for the appellant would
contend that the Trial Court has failed to appreciate the
oral and documentary evidence in proper perspective and
the cheque as well as the signature on the cheque have
been admitted and the defence of the accused is availing
the loan of Rs.1,00,000/-, but the same was not
substantiated. He would also assert that there is no reply
and considering the conduct of the accused, it is evident
that he has failed to rebut the presumption available in
favour of the complainant and hence, he would assert that
the learned Magistrate has failed to appreciate these facts
in proper perspective. As such, he would seek for allowing
the appeal by setting aside the impugned judgment of
acquittal by convicting the accused/respondent.
9. The allegations of the complainant disclose that
he has advanced the loan of Rs.5,00,000/- to the accused.
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However, his assertion discloses that he has advanced the
loan in the Month of June, 2015 and he did not whisper
specific date of advancement of the loan. He asserts that
he advanced loan in the presence of elders of village by
names, Appanna S/o Beerappa Sagayi and Appasha
Beerappa Shirashyad, but the said witnesses were also not
examined in the instant case.
10. The complainant all along asserted that he
advanced the loan of Rs.5,00,000/- in the month of June,
2015, but as observed above, he has not disclosed specific
date. It is hard to accept the contention of the learned
counsel for the appellant that he could not re-collect the
date of advancement of huge amount of Rs.5,00,000/-. On
the contrary, the legal notice is issued to the accused as
per Ex.P.3 and in the legal notice, there is no reference of
advancement of loan of Rs.5,00,000/- in the month of
June, 2015, but this legal notice lacks details and it is not
in compliance with the mandatory provisions of Sections
138 and 142 of the NI Act.
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11. The complainant was got examined himself as
P.W.1 and in his cross-examination, he has reiterated the
complaint allegations. In the examination-in-chief also he
is unable to disclose the specific date of advancement of
loan. In the cross-examination, P.W.1 admits that he
cannot say the date and month of the advancement of the
loan, but he specifically asserts that after three years of
advancement of loan, cheque was issued. He further
asserts that he could not trace the accused for three years
after the advancement of loan and after three years, the
accused could be traced and then, he issued a cheque.
This assertion discloses that the cheque was issued after
three years of advancement of loan and if this version is
accepted, then it is evident that the transaction is barred
by law of limitation. The time-barred debt cannot be
claimed and an acknowledgement after lapse of the
limitation does not revive the limitation period.
12. Even otherwise, on perusal of Ex.P.1, the
disputed cheque, it is evident that there is a material
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correction regarding the year 2018. Hence, it is evident
that the cheque was materially altered and there is no
countersignature regarding the alteration. As such, under
Section 87 of the NI Act, any material alteration of a
negotiable instrument renders the same void as there is
no endorsement regarding alteration. Hence, on this
count also the claim of the complainant is bound to fail.
13. The evidence on record disclose that the cheque
was issued three years after availement of the loan. The
learned counsel for the appellant has placed reliance on a
decision of the Bombay High Court in Criminal
Application No.2933/2007 and connected matters
(Mr. Dinesh B. Chokshi vs. Rahul Vasudeo Bhatt and
another), but the facts and the circumstances are entirely
different and it is pertaining to presumption under
Sections 118 and 139 of the NI Act, which is mandatory,
but in the instant case, the evidence disclose that the
claim itself is barred by law of limitation and the issue has
not been considered in the said referred decision. Hence,
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the said decision does not come to the aid of the appellant
in any way on technical ground as well as on merits. The
appellant has not made out any ground for admitting the
appeal. Hence, the appeal being devoid of any merits,
does not survive for consideration. Accordingly, stands
dismissed.
Sd/-
JUDGE
RSP
