Karnataka High Court
Sri. B.C. Vinayaka vs Sri. S. Prakash on 5 June, 2024
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.A No. 603 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 603 OF 2014
BETWEEN:
SRI. B.C. VINAYAKA
PROPRIETOR OF
P V B MINES AND MINERALS
NO.203, ASHRAYA MARVEL APARTMENTS
6TH CROSS, 2ND MAIN
SARVABHOUMANAGAR
BILEKAHALLI, BANNERGHATTA ROAD
Digitally signed by
LAKSHMINARAYANA BANGALORE - 560 076.
MURTHY RAJASHRI ...APPELLANT
Location: HIGH
COURT OF
KARNATAKA
(BY SRI A N RADHA KRISHNA, ADVOCATE)
AND:
SRI. S. PRAKASH
PROPRIETOR OF VARUN TRADERS
PETROL BUNK CIRCLE
HULIYUR, CHIKKANAYAKANAHALLI TALUK
TUMKUR DISTRICT - 576 123.
...RESPONDENT
(BY SRI. H A RAMALINGE GOWDA, ADVOCATE)
THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO
SET ASIDE THE ORDER DATED:8.5.2014 PASSED BY THE XX
ADDL.CMM, BANGALORE, IN C.C.NO.50501/2010 -
ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
P/U/S 138 OF N.I. ACT.
THIS APPEAL COMING ON FOR DICTATING JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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CRL.A No. 603 of 2014
JUDGMENT
1. This appeal is filed praying to set aside the
judgment of acquittal passed in C.C. No. 50501/2010
dated 08.05.2014 by the XX Additional Chief Metropolitan
Magistrate, Bengaluru. The respondent - accused has been
acquitted by the said judgment for offence under Section
138 of the Negotiable Instruments Act, (hereinafter for the
sake of brevity referred to as the `N.I. Act').
2. Facts in brief of complainant's case are that the
appellant - complainant is the proprietor of PVB Mines and
Minerals and respondent - accused is a close friend of the
complainant. On 08.02.2009 respondent - accused had
approached the appellant - complainant and borrowed a
loan of Rs.8,00,000/-. He further borrowed Rs.8,00,000/-
on 17.12.2009 from the complainant and assured to repay
the said amount within 3 months. In order to repay the
said amount the respondent - accused had issued 2
cheques; one dated 10.03.2010 for Rs.5,89,000/- drawn
on State Bank of India, Huliyur Branch and another
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cheque for Rs.4,20,000/- drawn on ING Vysya Bank
Limited, Tumakuru. On presentation both the cheques
were dishonoured for the reason `A/c level restriction
exists and funds insufficient'. Thereafter, inspite of issuing
legal notice, respondent - accused neither replied to the
notice nor repaid the cheque amount. Therefore, the
appellant - complainant had initiated proceedings against
the respondent - accused for offence under Section 138 of
the N.I. Act.
3. The appellant - complainant has examined
himself as P.W.1 and got marked Ex.P.1 to Ex.P.10. The
respondent - accused has been examined as D.W.1 and
also got examined two witnesses as D.W.2 and D.W.3 and
got marked Ex.D.1 to Ex.D.67. The trial Court, after
hearing both sides and appreciating the evidence on
record, acquitted the respondent - accused for offence
under Section 138 of the N.I. Act by the impugned
judgment which has been challenged in this appeal.
4. Learned counsel for appellant - complainant
would contend that the appellant - complainant has
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transferred the said amount of Rs.8,00,000/- +
Rs.8,00,000/- to the respondent - accused by RTGS and
the same is indicated in the statement of account of the
appellant - complainant which is at Ex.P.10. Even the
receipt of the said amount has been admitted by D.W.1 in
his evidence. The documents Ex.D.1 to Ex.D.67 are
produced only at the time of defence evidence and they
have not been confronted to P.W.1. D.W.1 has admitted in
his evidence that those documents are not relating to the
transactions between the appellant - complainant and
respondent - accused. Defence of the respondent -
accused that he had supplied materials to appellant -
complainant cannot be accepted for the reason that if
materials are supplied, the question of the respondent -
accused issuing cheques does not arise. The respondent -
accused, inspite of service of demand notice, has not sent
any reply which itself indicates that the defence set up by
him is false. The cheques have been issued for making
payment of legally enforceable debt, issuance of cheques
has been admitted by D.W.1 and therefore, a presumption
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has to be drawn under Section 139 of the N.I. Act. The
documents Ex.D.1 to Ex.D.67 are not relating to the
transaction between the appellant - complainant and
respondent - accused, the learned Magistrate erred in
taking into consideration those documents for rebuttal of
presumption. With this he prayed to allow the appeal and
convict the respondent - accused for offence under Section
138 of the N.I. Act.
5. Learned counsel for respondent - accused
would contend that the amount of Rs.8,00,000/- +
Rs.8,00,000/-, in total Rs.16,00,000/-, which has been
transferred by the appellant - complainant to the
respondent - accused is not in his personal capacity and it
is transferred from the funds of the firm of appellant -
complainant to the firm of respondent - accused. Said
transfer of amount is with regard to business transaction
between the appellant - complainant and respondent -
accused. The said transfer of amount is not personal
amount of appellant - complainant to lend a debt/hand
loan to the respondent - accused. As the respondent -
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accused is also a firm there is no question of taking any
hand loan from the appellant - complainant. The appellant
- complainant has not placed any documents, i.e., books
of account of his firm for having lent hand loan to
respondent - accused. The cheques issued by the
respondent - accused to the appellant - complainant are
pertaining to the business transactions and not with regard
to repayment of any hand loan. The amount in the
cheques issued by the respondent - accused to the
appellant - complainant do not tally with the alleged loan
borrowed. The appellant - complainant had supplied iron
ore to the extent of 70% as agreed to the appellant -
complainant and for the remaining 30% he had issued the
cheques. The very fact that the appellant - complainant is
a business man and he had lent money without any
interest itself creates a doubt about the case of the
appellant - complainant. There are no loan documents i.e.,
pronote, consideration receipt etc. The respondent -
accused by producing Ex.D.1 to Ex.D.67 has established
that there were business transactions between the
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appellant - complainant and respondent - accused with
regard to supply of iron ore and cheques are not issued for
repayment of any debt as alleged. The cheques might
have been issued for payment of any business transaction.
The learned Magistrate considering all these aspects has
rightly held that the cheques are not issued for payment of
any debt or money lent and has rightly acquitted the
respondent - accused for offence under Section 138 of the
N.I. Act.
6. Having heard the learned counsel for the
parties this Court has perused the impugned judgment
and records of the case.
7. It is the case of the appellant - complainant
that he had lent Rs.8,00,000/- + Rs.8,00,000/- to the
respondent - accused as hand loan for his business
purpose. Ex.P.10 is the statement of account of the
appellant - complainant and it contains entries of transfer
of Rs.8,00,000/- on 08.12.2009 and Rs.8,00,000/- on
17.12.2009 by RTGS to Varun Traders. The respondent -
accused is the proprietor of said Varun Traders. The
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respondent - accused has admitted the transfer of total
amount of Rs.16,00,000/-. The appellant - complainant
has denied that the said transfer of amount is for business
transaction, i.e., supply of iron ore. It is the defence of the
respondent - accused that 70% of the iron ore has been
supplied as agreed and Ex.P.1 and Ex.P.2 cheques have
been issued as security for supply of 30% of the remaining
iron ore. Said cheques are not issued for repayment of any
hand loan as the said cheques are issued in favour of the
firm, PVB Mines and Minerals. The appellant - complainant
is the proprietor of PVB Mines and Minerals and Ex.P.10 -
statement of account also pertains to the firm, i.e, PVB
Mines and Minerals. Transfer of money is from the account
of PVB Mines and Minerals to the firm Varun Traders. The
appellant - complainant has not produced any books of
accounts of PVB Mines and Minerals to indicate that the
said transfer of Rs.8,00,000/- + Rs.8,00,000/- is towards
hand loan given to Varun Traders.
8. The respondent - accused has admitted the
issuance of cheques Ex.P.1 and Ex.P.2 and therefore a
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presumption has to be drawn under Section 139 of the
N.I. Act. As the presumption is drawn the respondent -
accused has to rebut the said presumption. Ex.D.5 to
Ex.D.67 are receipts containing the rubber stamp of PVB
Mines and Minerals for having received the supply of iron
ore. Even though the said documents are produced by the
respondent - accused to show supply of iron ore, they are
not direct supply but supply through other agencies as the
respondent - accused is a middleman/agent for supply of
iron ore to the appellant - complainant. D.W.2 and D.W.3
have deposed regarding the said documents, namely,
Ex.D.5 to Ex.D.67 with regard to supply of iron ore by the
respondent - accused to the appellant - complainant. The
evidence of D.W.1 to D.W.3 probabalises the defence of
respondent - accused with regard to supply of iron ore by
the respondent - accused to the appellant - complainant.
In the absence of any documents produced by the
appellant - complainant to show that the transfer of
money through the Bank account is a hand loan, it has to
be understood that the said transfer is a business
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transaction in view of the documents Ex.D.1 to Ex.D.67
and the evidence of D.W.1 and D.W.3. Merely because the
said documents are not confronted to P.W.1 they cannot
be discarded as they are produced to rebut the
presumption. Considering all these aspects the learned
Magistrate has rightly held that the respondent - accused
has rebutted the presumption raised for an offence under
Section 139 of the N.I. Act and has rightly acquitted the
respondent - accused for offence under Section 138 of the
N.I. Act. There are no grounds to interfere with the well
reasoned judgment of acquittal. In the result, the appeal is
dismissed.
Sd/-
JUDGE
LRS
