Karnataka High Court
Sharanappa vs Mohammad Ali on 2 July, 2024
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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NC: 2024:KHC-K:4518
CRL.A No. 200027 of 2018
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
CRIMINAL APPEAL NO. 200027 OF 2018 (378)
BETWEEN:
SHARANAPPA
S/O SHANKREPPA BELAVANTARAKANTHI,
AGE: 43 YEARS
OCC: SERVICE
R/O. NADAGOUDA STREET,
NALATWAD VILLAGE,
TQ: MUDDEBIHAL,
DIST: VIJAYAPURA-586 223.
...APPELLANT
(BY SRI R. S. LAGALI, ADVOCATE)
AND:
MOHAMMAD ALI
Digitally S/O DAWALSAB CHITTARAGI (PINJAR),
signed by AGE: 38 YEARS,
SHILPA R
TENIHALLI OCC: COMPUTER TEACHER,
Location:
HIGH R/O. DARBAR GALLI,
COURT OF
KARNATAKA
BEHIND DATRI MASJID,
LANGESHWALI DARGA,
VIJAYAPURA-586 104.
...RESPONDENT
(BY SRI PREETAM DEULGAONKAR, ADVOCATE AND
SRI SHIVAPUTRA S. UDBALKAR, ADVOCATE)
THIS CRL.A. IS FILED U/S. 378 (4) OF CR.P.C PRAYING
TO ALLOW THIS APPEAL AND THEREBY SET ASIDE THE
JUDGMENT AND ORDER OF ACQUITTAL DT. 27.12.2017
PASSED BY THE JUDICIAL MAGISTRATE FIRST CLASS,
MUDDEBIHAL IN CRIMINAL CASE NO.422/2013 AND CONVICT
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CRL.A No. 200027 of 2018
THE RESPONDENT/ACCUSED AND AWARD DOUBLE THE
CHEQUE AMOUNT TO APPELANT BY WAY OF COMPENSATION.
THIS APPEAL, COMING ON FOR 'FURTHER HEARING',
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal under Section 378(4) of 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 JMFC, Muddebihal,
at Muddebihal in CC No.422/2013 dated 27.12.2017.
2. Heard the learned counsel for the parties.
3. The appellant/complainant had initiated proceedings
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) before the
Trial Court in CC No.422/2013. It is the case of the appellant
that the respondent had borrowed a hand loan of Rs.8 lakhs
from him on 20.01.2013 and for the purpose of security of
the said loan, he had issued a post dated cheque bearing
No.094652 dated 21.03.2013 drawn on Canara Bank,
Vijayapura in favour of the appellant and the respondent also
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had executed a "Kaigada Patra" on 28.01.2013 in favour of
the appellant. Since the respondent had failed to repay the
amount borrowed within the period of two months as agreed,
the appellant had presented the cheque in question for
realization. The drawee bank had dishonoured the said
cheque with an endorsement "funds insufficient". Thereafter,
the appellant had got issued a legal notice to the respondent
and the respondent had refused to receive the said notice,
the same was returned to the appellant with postal shara
"refused". It is under these circumstances, the appellant had
filed a private complaint against the respondent for the
offence punishable under Section 138 of the N.I. Act.
Respondent after entering appearance before the Trial Court
had claimed to be tried. The appellant in order to
substantiate his case, had examined himself as PW1 and also
examined another witness as PW2. Six documents were got
marked on behalf of the appellant as Ex.P1 to P6.
Respondent examined himself as DW1 and one document
was marked on his behalf as Ex.D1. The Trial Court
thereafter heard the arguments addressed on both sides and
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vide the impugned judgment and order, acquitted the
respondent of the offence punishable under Section 138 of
the N.I. Act. Being aggrieved by the same, the
appellant/complainant is before this Court.
4. Learned Counsel for the appellant having reiterated the
grounds urged in the appeal memorandum submits that the
Trial Court has erred in acquitting the respondent. He
submits that it is not in dispute that the cheque in question
was drawn on the account of petitioner maintained in the
drawee bank and the signature found in the cheque in
question is also not in dispute and therefore, there is a
presumption under Section 139 of the N.I.Act which was not
rebutted by the respondent. Therefore, the Trial Court was
not justified in acquitting the respondent.
5. Per contra, learned counsel for the respondent has
argued in support of the impugned judgment and order of
acquittal and submits that the Trial Court was fully justified
in acquitting the respondent.
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6. The appellant had examined himself as PW1 and the
witness to the "Kaigada Pathra" - Ex.P1, which is a notarized
document was examined as PW2. Respondent had got
marked Ex.D1 which is a photostat copy of "Kaigada pathra"
- Ex.P1 and the same was confronted to DW1 and marked
before the Trial Court as Ex.D1.
7. From a perusal of Ex.D1, it is seen that though the said
document is a photostat copy of the Ex.P1, which is a
notorised document, the presence of witness is not
mentioned in Ex.D1. Further the cheque number and date of
the cheque is also not mentioned in Ex.D1. It is the specific
defence of the respondent that the cheque in question was
given as a security to the appellant, who had assured to get
a job to the respondent in BLDE Society and the said cheque
was misused by the appellant.
8. PW1 has admitted that Ex.D1 is a copy of "Kaigada
Pathra"/Ex.P1 after the same was notarized, but Ex.D1 does
not mention about the presence of any witnesses when the
kaigada pathra was executed nor there is a mention of the
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date and number of the cheque in question in the said
document. PW2 on other hand, during the course of his cross
examination has stated that Ex.P1 was signed by him in front
of the notary public and in the said document, there was a
mention of the cheque number and date when he signed the
same. This statement of PW2 is quite contrary to the
document at Ex.D1 which is a photostat copy of the
notarized document/Ex.P1. Therefore, evidence of PW2
becomes highly doubtful as he is not a trust worthy witness.
9. PW1 has made an averment in the complaint and also
has admitted in the course of his examination that the
cheque in question was given as a security. He has also
admitted that he was a holder of BPL Card. He has further
admitted that he has not produced any material before the
Court as to how he had paid huge amount of Rs.8 lakhs to
respondent in cash. According to PW1, he was earning a sum
of Rs.10,000/- per month and he was a holder of BPL card.
Respondent has taken a specific defence before the Trial
Court that he had not borrowed any amount from the
appellant and the cheque which was given as a security for
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the purpose of securing a job to him was misused by the
appellant. He also has contended that the appellant had no
source of income and he was not financially sound to pay a
sum of Rs.8 lakhs to him. Respondent by producing Ex.D1
which would prima facie go to show that the contents of
Kaigada pathra at Ex.P1 is not correct and certain insertions
were made in the said document subsequently, has raised a
serious doubt in the mind of the Court about the correctness
of the statement made by the appellant before the Court. He
has put up a probable defence and the evidence of PW2, who
was examined by the appellant to prove the transaction
between him and respondent is untrustworthy and therefore,
the presumption that arose as against respondent stood
successfully rebutted and the burden had shifted on the
appellant to prove his case.
10. The appellant has failed to establish before the Trial
Court about the alleged transaction and also his source of
income to pay a huge amount of Rs.8 lakhs to the
respondent in cash. Under the circumstances, the Trial Court
was fully justified in acquitting the respondent for the offence
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punishable under Section 138 of the N. I. Act. The scope for
interference against the judgment and order of acquittal is
very narrow and unless the Appellate Court finds that the
judgment and order of acquittal is highly illegal and perverse
in nature, the same cannot be interfered with. If two views
are plausible, the view in favour of the accused is required to
be confirmed. Under the circumstances, I am of the opinion
that the appeal is devoid of merits. Accordingly, the same is
dismissed.
Sd/-
JUDGE
DN
