Karnataka High Court
Mr V Sudesh Pawar vs Mr M Nagesh on 4 July, 2024
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
-1-
NC: 2024:KHC:25299
CRL.A No. 199 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO. 199 OF 2013
BETWEEN:
MR V SUDESH PAWAR
S/O LATE V R PAWAR
AGED ABOUT 48 YEARS
R/O # 10-1A, NANDINI TEMPLE ROAD,
5TH BLOCK, JAYALAKSHMIPURAM
MYSORE-570012
...APPELLANT
(BY SMT. MOHANA KUMARI B.V. ADVOCATE FOR
SRI. ABUBACKER SHAFI, ADVOCATE)
AND:
MR M NAGESH
AGED ABOUT YEARS
R/O # 3569, BEHIND NES COLONY
BYPASS B M ROAD, HUNSUR-571105
Digitally signed by AND ALSO AT: C/O BASAVALINGAPPA
LAKSHMINARAYANA
MURTHY RAJASHRI RETIRED HEAD MASTER
Location: HIGH MIG 1ST KALKUNKE, D. NO.4
COURT OF
KARNATAKA 1ST FLOOR, KHB COLONY
HUNSUR-571105
MYSORE DISTRICT
...RESPONDENT
(BY SRI. K N SANATH KUMARA, ADVOCATE)
THIS CRL.A. IS FILED U/S 378(4) CR.P.C PRAYING TO
SET ASIDE THE ORDER DATED:03.09.12 PASSED BY THE I
ADDL. I CIVIL JUDGE AND JMFC, MYSORE IN
-2-
NC: 2024:KHC:25299
CRL.A No. 199 of 2013
C.C.NO.3249/2008 - ACQUITTING THE RESPONDENT/ACCUSED
FOR THE OFFENCE P/U/S 138 OF N.I. ACT.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant -complainant
praying to set aside the judgment of acquittal dated
03.09.2012 passed in C.C.No.3249/2008 by the
I Additional First Civil Judge and JMFC, Mysore, wherein
the respondent-accused has been acquitted for the offence
punishable under Section 138 of the Negotiable
Instruments Act (herein after referred to as "N.I. Act" for
brevity).
2. The factual matrix of the complainant's case
was that the respondent -accused on 09.03.2008
barrowed amount of Rs.1,00,000/- for his immediate
business purpose assuring to repay the same within one
month. In order to repay the said amount the respondent
-accused has issued the cheque -Ex.P1 for sum of
Rs.1,00,000/- dated 09.04.2008 infavour of the appellant
-complainant. The appellant -complainant presented the
NC: 2024:KHC:25299
said cheque for encashment, the said cheque came to be
dishonoured with an endorsement "Insufficient Funds".
The appellant -accused has issued legal notice to the
respondent -accused. Inspite of service of notice the
respondent -accused did not pay the cheque amount.
Therefore, the appellant -complainant initiated the
proceedings against the respondent -accused for offence
punishable under Section 138 of N.I. Act.
3. In order to prove the case, the appellant -
complainant has examined himself as P.W.1 and got
marked documents as Ex.P1 to Ex.P7. The statement of
the respondent -accused has been recorded under Section
313 of Cr.P.C. The respondent has been examined as
D.W.1 and no documents were marked on his side. The
trial Court after hearing the arguments on both sides
formulated points for consideration and appreciating the
evidence on record passed the impugned judgment
acquitting the respondent -accused for offence punishable
NC: 2024:KHC:25299
under Section 138 of N.I. Act by the impugned judgment,
which is challenged in this appeal.
4. Heard learned counsel for the appellant -
complainant and learned counsel for the respondent -
accused.
5. Learned counsel for the appellant -complainant
would contend that the respondent -accused who has
borrowed amount of Rs.1,00,000/-, for repayment of the
said amount has issued the cheque -Ex.P1. As period of
the borrowing is one month hence, the same was not
shown in the income tax returns. She contends that
issuance of the cheque is admitted. Therefore,
presumption has to be drawn under Section 139 of the
N.I. Act. The respondent -accused has not rebutted the
said presumption. The trial Court has considering
admissions given by the P.W.1 in his cross examination
has erroneously acquitted the respondent -accused for
offence punishable under Section 139 of the N.I Act. She
further contends that cheque is issued for repayment of
loan or as security makes little difference under Section
NC: 2024:KHC:25299
138 of N.I Act and on that point she relied on judgment of
the Co-Ordinate Bench of this Court in the case of Dr.
Sampathkumar B.V. Vs Ms. Dr. K.G.V. Lakshmi,
GCIM, Lakshmi Helath Centre1. She further contends
that the cheque has been issued by the respondent -
accused as security and therefore, the said decision
applies to the facts of the present case. With this, she
prayed to allow the appeal and convict the respondent -
accused for offence punishable under Section 138 of N.I.
Act.
6. Learned counsel for the respondent -accused
would contend that the appellant -complainant was
running a dealership of Yamaha Motor Cycles and this
respondent -accused is sub-dealer and he used to take
motor cycles for display at that time cheque has been
issued as security. He contends that the said business of
dealership of motor cycles has been closed by the
appellant -complainant and inspite of that he did not
(2006) ILR (Karnataka) 1730
NC: 2024:KHC:25299
return the cheque given as security and it has been
misused. P.W.1 in his cross examination admitted that he
has taken cheque as security as respondent -accused was
working as sub -dealer. The respondent -accused has
rebutted the said presumption and considering the said
aspects, the trial Court has rightly acquitted the
respondent -accused by impugned judgment for offence
punishable under Section 138 of N.I. Act. With this, he
prayed for dismissal of the appeal.
7. Having heard learned counsels for the parties
and on perusal of the records and impugned judgment the
following point that arises for my consideration is:
"Whether the trial Court erred in
acquitting the respondent -accused for
offence punishable under Section 138 of
the N.I. Act?"
My answer to the above point is in negative for the
following reasons:
It is specific contention of the appellant -complainant
that cheque -Ex.P1 has been issued by the respondent -
NC: 2024:KHC:25299
accused for repayment of amount barrowed. The
respondent -accused has not disputed the signature on
the cheque -Ex.P1 and it is given to the appellant -
complainant. It is contention of the respondent -accused
that he was working as sub-dealer under dealership of the
appellant -complainant in respect of Yamaha Motor Cycles
and he used to take motor cycles for display at that time
he has given the cheque -Ex.P1 as security and it has
been misused by the appellant -complainant.
8. The appellant -complainant who has been
examined as P.W.1 in his cross examination has admitted
that he was doing dealership and the respondent -accused
was appointed as sub-dealer to display the motor cycles to
customers. P.W.1 has also admitted that he used to take
cheque when he used give vehicles. The appellant -P.W.1
has not stated that he has returned the said cheque taken
as security to the respondent -accused after closure of the
motor cycles dealership and has also admitted that motor
cycles dealership has been closed. Therefore, the
admission of the P.W.1 in his cross examination clearly
NC: 2024:KHC:25299
establishes that the respondent -accused has rebutted the
presumption under Section 139 of the N.I Act. The
appellant -complainant has failed to establish legally
enforceable debt /liability.
9. The judgment relied by learned counsel for the
appellant -complainant in the case of Dr. Sampathkumar
B.V. Vs Ms. Dr. K.G.V. Lakshmi, GCIM, Lakshmi
Helath Centre(supra) is not applicable as the point
involved in the said judgment is issuance of the cheque as
security for repayment of the loan. In the case on hand
the cheque was not issued as security for repayment of
the loan but for business transaction.
10. Considering all these aspects, learned
Magistrate has rightly acquitted the respondent -accused
for the offence punishable under Section 138 of the N.I Act
by the impugned judgment. There are no grounds for
setting aside the judgment of acquittal and convict the
respondent -accused for offence punishable under Section
138 of N.I Act.
NC: 2024:KHC:25299
12. In the result, the appeal is dismissed.
Sd/-
JUDGE
DSP
