Karnataka High Court
K L Krishnegowda vs Balakrishna Raju C on 26 July, 2024
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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NC: 2024:KHC:29395
CRL.A No. 495 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 495 OF 2015
BETWEEN:
K L KRISHNEGOWDA
S/O LATE LINGEGOWDA
AGED ABOUT 52 YEARS
R/AT No. 69/1-2, 1ST CROSS
1ST MAIN ROAD, K B NAGAR
MYSORE ROAD,
BENGALURU - 560 026.
...APPELLANT
(BY SRI A N RADHA KRISHNA, ADVOCATE)
Digitally signed by
LAKSHMINARAYANA AND:
MURTHY RAJASHRI
Location: HIGH
COURT OF BALAKRISHNA RAJU C
KARNATAKA AGED ABOUT 50 YEARS
R/AT No. 1/1, 1ST FLOOR
1ST CROSS, KUMAR COT ROAD
MADHAVANAGAR, KUMARA PARK
BENGALURU - 560 001.
...RESPONDENT
(BY SMT. PAULINE PRIYANKA B, ADVOCATE)
THIS CRL.A. IS FILED U/S.378(4) Cr.P.C PRAYING TO
SET ASIDE THE ORDER DATED:5.3.2015, PASSED BY THE XXIII
ACMM, BANGALORE, IN C.C.No.1738/2013 - ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I.
ACT AND ETC.,
THIS APPEAL COMING ON FOR DICTATING JUDGMENT
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
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CRL.A No. 495 of 2015
ORAL JUDGMENT
1. This appeal is filed by the appellant -
complainant praying to set aside the judgment of
acquittal dated 05.03.2015 passed in C.C. No. 1738/2013
by the XXIII Additional Chief Metropolitan Magistrate,
Bengaluru, whereunder the respondent - accused has been
acquitted for offence under Section 138 of the Negotiable
Instruments Act (for the sake of brevity hereinafter
referred to as the N.I. Act).
2. Case of the appellant - complainant is that the
respondent - accused is a civil contractor and he placed
order for supply of sand to the appellant - complainant.
The appellant - complainant had supplied sand on various
dates to the respondent - accused. During July 2012 the
respondent - accused had issued 3 cheques;
a) 06.08.2012 - Rs.75,000/-
b) 24.09.2012 - Rs.83,000/-
c) 26.09.2012 - Rs.83,000/-
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towards cost of sand supplied by the appellant -
complainant to the respondent - accused. The appellant -
complainant presented the said 3 cheques and they were
returned dishonoured with endorsement `funds
insufficient'. The appellant - complainant got issued legal
notice calling upon the respondent - accused to pay the
amount of the said cheques. The respondent - accused,
inspite of service of notice, did not pay the amount
mentioned in the said cheques but, had issued reply. As
the respondent - accused did not pay the cheque amount,
the appellant - complainant had initiated proceedings
against him for offence under Section 138 of the N.I. Act.
3. The appellant - complainant, in order to prove
his case, has examined himself as P.W.1 and got marked
Ex.P.1 to Ex.P.15. Statement of respondent - accused has
been recorded under Section 313 of Cr.P.C. The
respondent - accused has examined himself as D.W.1 and
no documents were marked on his side. The trial Court,
after hearing arguments on both sides, formulated points
for consideration and after appreciating the evidence on
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record passed the impugned judgment of acquittal which
is challenged in this appeal.
4. Heard learned counsel for appellant -
complainant and learned counsel for respondent -
accused.
5. The respondent - accused had earlier engaged a
counsel, but, the said counsel did not turn up at the stage
of arguments. Therefore, this Court has appointed a
counsel who is on the panel of High Court Legal Services
Committee to represent the respondent - accused.
6. Learned counsel for appellant - complainant
would contend that the respondent - accused had issued 3
cheques for making payment of amount due in respect of
sand supplied by the appellant - complainant to the
respondent - accused. Supply of sand has been admitted
by respondent - accused in his reply - Ex.P.14 and he has
also admitted issuance of 3 cheques in the said reply. He
contends that the respondent - accused has mentioned in
the said reply that he had made payments but has not
produced any documents in that regard. The issuance of
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cheques is admitted by the respondent - accused. The
transaction is also admitted. Therefore, there is a
presumption under Section 139 of the N.I. Act that the
said cheques have been issued for making payment of
legally enforceable liability. Said presumption is not
rebutted by the respondent - accused. D.W.1 in his chief-
examination has stated that after issuance of reply -
Ex.P.14 he had paid cash, but, no documents are produced
in that regard. Without considering all these aspects
learned Magistrate has erred in acquitting the respondent -
accused for offence under Section 138 of the N.I. Act. With
this he prayed to allow the appeal and convict the
respondent - accused for offence under Section 138 of N.I.
Act.
7. Learned counsel for respondent - accused would
contend that the respondent - accused had admitted
supply of sand worth Rs.2,41,000/- and issuance of 3
cheques in his reply - Ex.P.14. In the same reply it is also
mentioned regarding payment of Rs.1,70,000/- on
different dates, one through cheque and 3 times by cash.
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P.W.1 in his cross-examination has admitted receipt of
Rs.70,000/- paid by respondent - accused through cheque.
Said presumption drawn under Section 139 of N.I. Act has
been rebutted by the respondent - accused. Considering
the said aspect learned Magistrate has rightly acquitted
the respondent - accused for offence under Section 138 of
N.I. Act. With this she prayed to dismiss the appeal.
8. Having heard learned counsel for the parties,
considering the grounds urged and on perusal of record,
the following point arises for my consideration.
Whether the trial Court erred in acquitting
the respondent - accused for offence under
Section 138 of the N.I. Act?
9. My answer to the above question is in the
affirmative for the following reasons:
It is the specific case of the appellant - complainant that
he had supplied sand worth Rs.2,41,000/- and for making
payment of the same, the respondent - accused had
issued 3 cheques which are at Ex.P.1 to Ex.P.3. Said 3
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cheques, on presentment, came to be dishonoured with
endorsement `funds insufficient' and the bank
endorsements are at Ex.P.7 to Ex.P.9. The appellant -
complainant had got issued legal notice dated 17.10.2012
- Ex.P.10 calling upon the respondent - accused to pay the
cheque amounts as the cheques issued by him have been
dishonoured. Said notice which is sent by registered post
has been served on the respondent - accused and the
postal acknowledgement is at Ex.P.13. The respondent -
accused himself has issued reply to the said legal notice
and reply is at Ex.P.14. In reply - Ex.P.14 the respondent
- accused has admitted that appellant - complainant had
supplied sand worth Rs.2,41,000/- and he had issued 3
cheuqes, the details of which are mentioned in the said
reply tally with the cheques which are at Ex.P.1 to Ex.P.3.
The contents of Ex.P.14 - reply to the notice itself admit
the supply sand worth Rs.2,41,000/- by the appellant -
complainant to the respondent - accused and issuance of
3 cheques by the respondent - accused to the appellant -
complainant which are at Ex.P.1 to Ex.P.3. In the said
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notice respondent - accused has stated that he has made
payment of Rs.1,70,000/- out of which he had paid
Rs.70,000/- by cheque dated 18.07.2012 and he had
made payment by way of cash of Rs.35,000/- on
18.08.2012, Rs.40,000/- on 29.09.2012 and Rs.25,000 /-
on 04.10.2012 under cash vouchers. The respondent -
accused has not produced the said cash vouchers to
establish that he had made those 3 payments by cash.
D.W.1 in his cross-examination has admitted that he is
having those cash vouchers which are mentioned in
Ex.P.14 but, he has not produced them to the Court.
10. P.W. 1 has admitted the receipt of Rs.70,000/-
from the respondent - accused through cheque. But the
said cheque is dated 18.07.2012 bearing No. 186537 and
it is prior to the cheuqes which are at Ex.P.1 to Ex.P.3.
Therefore, said payment of Rs.70,000/- cannot be said to
be towards supply of sand worth Rs.2,41,000/-. Without
considering the said aspect the trial Court has accepted
the said admission of P.W.1 regarding receipt of
Rs.70,000/-. D.W.1 in his chief examination has stated
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that after issue of reply notice - Ex.P.14 the appellant -
complainant came personally and collected the amount.
In that regard the respondent - accused has not produced
any documents for having made payments to the appellant
- complainant.
11. The transaction between the appellant -
complainant and respondent - accused is admitted.
Issuance of cheques - Ex.P.1 to Ex.P.3 towards making
payment of amount for sand supplied is also admitted. The
respondent - accused has failed to prove that he had made
payment of the amount due to appellant - complainant.
Without considering these aspects the learned Magistrate
erred in acquitting the respondent - accused for offence
under Section 138 of the N.I. Act. The material on record
will establish that cheques issued by the respondent -
accused for making payment of legally enforceable liability
came to be dishonoured for want of funds and inspite of
issuing notice, the amount in the cheques has not been
paid by the respondent - accused to the appellant -
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complainant. Therefore, the respondent - accused has
committed offence under Section 138 of the N.I. Act.
12. In view of the above, the judgment passed by
the learned Magistrate acquitting the respondent - accused
requires to be set aside and the respondent - accused is
required to be convicted for offence under Section 138 of
the N.I. Act. In the result, the following;
ORDER
i. The appeal is allowed.
ii. The judgment of acquittal dated 05.03.2015
passed in C.C. No. 1738/2013 by the XXIII
Additional Chief Metropolitan Magistrate,
Bangalore, is set aside.
iii. The respondent - accused is convicted for offence
under Section 138 of the N.I. Act and he is
sentenced to pay fine of Rs.2,75,000/- out of
which a sum of Rs.2,70,000/- is to be paid to the
appellant - complainant as compensation and
remaining Rs.5,000/- is to be appropriated as
fine to the State.
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iv. In default of payment of fine amount, the
respondent - accused to undergo simple
imprisonment for a period of 6 months.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
LRS
