Karnataka High Court
Sri Rudresh T C vs T C Nagaraju on 29 July, 2024
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NC: 2024:KHC:29787
CRL.A No. 1826 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL APPEAL NO. 1826 OF 2021
BETWEEN:
SRI. RUDRESH T.C.
S/O CHANDRASHEKAR K.S
AGED ABOUT 42 YEARS
R/AT. P.R. NAGARA
SRI VEERABHADRESHWARASWAMYNILAYA
CHIKKAPETTE
TUMKUR 572 102.
...APPELLANT
(BY SRI. VIKYATH B., ADVOCATE)
AND:
T.C. NAGARAJU
S/O CHANNAVEERAIAH
AGED ABOUT 65 YEARS
R/AT. 2ND CROSS
OPP. AJITH BUILDING
GOKUL EXTENTION
Digitally signed KYATHASANDRA POST
by SWAPNA V TUMKUR 572 102.
Location: high
court of ...RESPONDENT
karnataka (BY SRI. SHEKARAPPA., ADVOCATE)
THIS CRL.A. FILED U/S.378(4) CR.P.C PRAYING TO SET ASIDE
THE JUDGMENT OF ACQUITTAL IN C.C.NO.112/2018 DATED
16.10.2021 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC
II AT TUMAKURU, AND THE RESPONDENT MAY BE
CONVICTED.I.A.NO.1/2021 FOR SPECIAL LEAVE.I.A.NO.1/2021
FILED BY THE ADVOCATE FOR THE APPELLANT PRAYING TO GRANT
SPL.LEAVE FOR THE APPELLANT TO PREFER THE ABOVE APPEAL
AGAINST THE ORDER OF ACQUITTAL PASSED IN C.C.NO.112/2018
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CRL.A No. 1826 of 2021
DATED 16.10.2021 PASSED BY THE PRL.CIVIL JUDGE AND J.M.F.C II
TUMKUR, FOR THE REASONS STATED THEREIN.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE M G UMA
ORAL JUDGMENT
The complainant in C.C.No.112/2018 on the file of
learned Principal Civil Judge And JMFC II, Tumakuru is impugning
the judgment of acquittal dated 16.10.2021, acquitting the
accused for the offences punishable under Sections 138 and
142 of Negotiable Instruments Act.
2. Heard Sri. Vikyath B, learned counsel for the
appellant and Sri. Shekarappa, learned counsel for the
respondent. Perused the Trial Court records.
3. Learned counsel for the appellant-complainant
submitted that it is the specific contention of the complainant
that during second week of November 2015, the respondent-
accused had sought for financial help and accordingly, the
complainant had lent an amount of Rs.5,20,000/- (Rupees Five
Lakhs Twenty Thousand Only). Towards repayment of the
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same, the respondent had issued the cheque marked as Ex-P1.
on 14.08.2017. On presentation of the cheque the same was
dishonored as there was insufficient funds in the account of the
accused. Legal notice as per Ex-P3 was issued and the same
was served on the accused as per postal acknowledgement -
Ex-P5. In spite of that, there was no reply nor repayment of the
cheque amount. Thereby, the accused has committed the
offence.
4. Learned counsel submitted that the complainant
has examined himself as PW-1 and deposed regarding the facts
of the case. During cross-examination nothing has been elicited
from him. In spite of that, the Trial Court proceeded to acquit
the accused. The reasons assigned by the Trial Court are not
just and proper. Hence, he prays for allowing the appeal and
convict the respondent in the interest of justice.
5. Per contra, learned counsel for the respondent
opposing the appeal submitted that no materials are placed
before the Court to probabilize lending of the huge amount of
Rs.5,20,000/- (Rupees Five Lakhs Twenty Thousand Only) by
the complainant during November 2015. The complainant is not
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having any avocation to probabilize lending of the amount.
More over, the accused has stepped into the witness box and
deposed as DW-1. He was not subjected to cross-examination.
Under such circumstances, the Trial Court was right in
acquitting the accused. There are no reasons to entertain the
appeal and accordingly, he prays for dismissal of the appeal.
6. In view of the rival contentions urged by the
learned counsel for both the parties, the point that would arise
for my consideration is:
"Whether the appellant has made
out any grounds to allow the appeal?"
My answer to the above point is in 'Negative' for the
following:
REASONS
7. It is the contention of the complainant that the
accused had borrowed an amount of Rs.5,20,000/- (Rupees
Five Lakhs Twenty Thousand Only) during November 2015. The
complainant examined himself as PW-1 and states that he is a
business man. During cross- examination, he states that he has
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studied only up to SSLC and he is working as a cook in a hotel.
He also stated that he is having the bank account in Oriental
Bank and the amount of Rs.5,20,000/- (Rupees Five Lakhs
Twenty Thousand Only) was withdrawn from his bank account.
But no materials are placed before the Court to substantiate his
contention. The complainant could have produced his passbook
pertaining to the bank to probabalize withdrawal of the amount
and payment of the amount to the accused.
8. It is also pertinent to note that the accused has
stepped into the witness box and deposed as DW-1. He stated
that the complainant is working as a supplier in a hotel and the
cheque in question was taken over by the complainant. It is
pertinent to note that the accused was never subjected to the
cross-examination by the complainant. Under such
circumstances, the legal presumption under Section 139 of the
NI Act cannot be invoked. The reverse burden lies on the
complainant to establish his contention regarding lending of the
amount and issuance of the cheque towards repayment of the
amount which was due. When the complainant has not
discharged his burden, the accused is not liable for conviction.
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9. I have gone through the impugned judgment of the
acquittal passed by the Trial Court. The Trial Court has taken
into consideration all these facts and circumstances and also
the position of law and rightly acquitted the accused. I do not
find any irregularity or perversity in the impugned judgment of
acquittal.
10. Accordingly, I answer the above point in the
negative and proceed to pass the following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
SPV
