Karnataka High Court

Ganga Honnaiah vs B M Shivrudraiah on 28 June, 2024

Author: Shivashankar Amarannavar

Bench: Shivashankar Amarannavar

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                                                            NC: 2024:KHC:24014
                                                         CRL.A No. 789 of 2015




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 28TH DAY OF JUNE, 2024

                                             BEFORE
                      THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
                                 CRIMINAL APPEAL No. 789 OF 2015
                      BETWEEN:

                         GANGA HONNAIAH
                         S/O LATE HONNAIAH
                         AGED ABOUT 66 YEARS
                         R/AT HONNADEVI NILAYA
                         OPP. MOHAN THEATER
                         1ST CROSS, LAKSHMAN NAGA
                         HEGGANAHALLI CROSS
                         VISWANEEDAM POST
                         BANGALORE - 560 091.
                                                                 ...APPELLANT
                      (BY SRI MAHESH S N, ADVOCATE)
                      AND:
                         B M SHIVRUDRAIAH
                         AGED ABOUT 58 YEARS
                         TEACHER
Digitally signed by      SRI JAGA JYOTHI BASAVESHWARA
LAKSHMINARAYANA
MURTHY RAJASHRI          HIGH SCHOOL FOR BOYS
Location: HIGH           2ND BLOCK, RAJAJI NAGAR
COURT OF
KARNATAKA                BANGALORE - 560 010.

                         AND ALSO AT No. 2680
                         11TH MAIN, MUNIYAPPANAPALYA
                         RAJAJINAGAR, 2ND STAGE
                         D BLOCK, GAYATHRINAGAR
                         BANGALORE - 560 010.
                                                               ...RESPONDENT
                      (BY SRI H C SHIVARAMU, ADVOCATE)
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                                          NC: 2024:KHC:24014
                                       CRL.A No. 789 of 2015




     THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT ORDER DATED 05.05.2015 PASSED
BY   THE   XXIII  ADDITIONAL    CMM,   BANGALORE,   IN
C.C.No.37755/2010        -       ACQUITTING        THE
RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I.
ACT AND ETC.,

     THIS APPEAL COMING ON FOR FURTHER 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

05.05.2015 passed in C.C.No.37755/2010 by the XXIII

Additional Chief Metropolitan Magistrate, Bengaluru,

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 brief facts of the complainant's case are

that the accused and complainant knew each other. The

accused has approached the complainant for hand loan of

Rs.65,000/- due to his financial problems during 2nd week

of August 2009 and agreed to return the same within four

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months failing to which interest to be paid at the rate of

20% per annum. Therefore, the complainant has paid the

cash of Rs.65,000/- on 20.08.2009 to the accused. The

accused has failed to repay the said amount borrowed as

agreed. The complainant repeatedly requested him and

therefore, the accused has issued the cheque -Ex.P1 for

amount of Rs.65,000/- dated 29.12.2009 drawn infavour

of the complainant. The complainant presented the cheque

for encashment, the said cheque came to be dishonoured

with an endorsement "Funds Insufficient" with memo

dated 19.01.2010. The complainant was issued legal

notice on 04.02.2010 to the accused by RPAD as well as

under Certificate of Posting for demand of payment of

cheque amount. The said notice issued by RPAD and also

under Certificate of Posting was served on the accused.

The accused neither replied the notice not paid the cheque

amount. Therefore, the appellant -complainant initiated

the proceedings against the respondent -accused for

offence punishable under Section 138 of N.I. Act.

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3. In order to prove the case, the appellant -

complainant has examined himself as P.W.1 and marked

documents as Ex.P1 to Ex.P11. The statement of the

respondent -accused has been recorded under Section

313 of Cr.P.C. The respondent -accused has been

examined as D.W.1 and got examined two witnesses

examined as D.W.2 and 3 and documents were marked as

Ex.D1 to D.5 on his side. The trial Court after hearing the

arguments on both sides has formulated the points for

consideration and appreciating the evidence on record,

acquitted the respondent -accused for offence punishable

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 cheque -Ex.P1 has been issued for

making payment of amount borrowed. The issuance of

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cherque is not disputed therefore, presumption under

Section 139 of the N.I Act has to be drawn. He submits

that the said presumption remained un-rebutted. He

further contends that the accused has got issued notice on

08.01.2010 (Ex.D1) wherein there is no mention of cheque

with complainant. Said notice has been replied by the

appellant -complainant on 04.02.2010. The defence of

the respondent -accused that for work of Narsimhamurthy

-D.W.3, respondent -accused has given cheque as

security has not been established. Even inspite of receipt

of legal notice as per Ex.P3 the accused did not gave reply

to it. Cheque is not dishonoured for signature does not

tally but it is for want of funds. With this, he 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 would

contend that the respondent -accused has not borrowed

any amount from the appellant -complainant. The cheque

-Ex.P1 has been given as security to Narsimhamurthy -

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D.W.3 as he has employed in Education Institution of the

appellant -complainant at the instance of the respondent -

accused as part payment has been made and cheque has

been given as security for remaining payment by the

D.W.3 to the appellant -complainant. He further submits

that the respondent -accused prior to the dishonour of the

cheque i.e. on 08.01.2010 has got issued legal notice to

the appellant -complainant stating that he is harassing

him as he did not do work assigned by the appellant -

complainant to him. Said notice has not been replied by

the appellant -complainant and reply as per Ex.D4 has

given on 04.02.2010 and on the same day the legal notice

with regard to dishonour of cheque -Ex.P1 has also got

issued by the appellant -complainant to the respondent -

accused. The evidence of D.W.3 will clearly establish the

defence of the respondent -accused that the cheque has

given as security and not for repayment of any debt. He

submits that considering all these aspects, the learned

Magistrate has rightly acquitted the respondent -accused

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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 perusing records and impugned judgment the point

that arises for my consideration is:

"Whether the trial Court erred in acquitting the respondent -accused for offence punishable under Section 139 of the N.I. Act?"

My answer to the above point is in negative for the

following reasons:

The cheque -Ex.P1 stated to have been issued by the

respondent -accused to the appellant -accused and the

issuance of the cheque is not disputed. Therefore,

presumption under Section 139 of the N.I has to be

drawn. The said presumption is rebuttal. It is the defence

of the respondent -accused that cheque -Ex.P1 has been

issued as security for payment of balance amount for

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appointment of D.W.3-Narasimhamurthy in the Education

Institution of the appellant -complainant. The appellant -

complainant who has been examined as P.W.1 in his cross

examination has admitted suggestions that

Narsimhamurthy-D.W.3 has been introduced by the

respondent -accused to the complainant and he has

been appointed at the instance of the respondent -

accused in the Education Institution i.e. 'Sri Magadi

Kempegowda Vidya Smasthe'. P.W.1 in his cross

examination has admitted that his wife is working as

'Secretary' in 'Sri Magadi Kempegowda Vidya Smasthe'

and he has stated that he is working as 'Margdarshak'

to the suggestion that he is the Director of 'Sri Magadi

Kempegowda Vidya Smasthe'. He has denied the

suggestions that the cheque has been issued as security

for payment of appointment of Narsimhamurthy but P.W.1

has admitted that at the instance of respondent -accused

the said Narsimhamurthy -D.W.3 has been appointed in

the Education Institution i.e. 'Sri Magadi Kempegowda

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Vidya Smasthe'. P.W.1 has admitted that he has received

notice dated 08.01.2010 got issued by the respondent -

accused. The said notice is at Ex.D1. In the said notice, it

is stated that the respondent -accused did work of the

complainant and he could not do the further work due to

unavoidable circumstances and the complainant -appellant

herein pressurizing and giving threat for the said aspect.

The appellant -complainant has given reply to said notice

on 04.02.2010, in that there is no mention of this

respondent -accused giving cheque for repayment of

borrowed amount even though it is stated that respondent

-accused has borrowed Rs.65,000/- from the complainant.

The said reply notice dated 04.02.2010 and legal notice -

Ex.P3 dated 04.02.2010 are issued on the same day.

There is no reference of presentation of the cheque and

dishonour in reply -Ex.D4 even though it is issued on the

same day by the same advocate.

8. The said Narsimhamurthy has been examined

as D.W.3 in his evidence has stated that he had made

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payment of Rs.1,50,000/- to the appellant -complainant

and for payment remaining amount of Rs.2,50,000/- he

has given cheque of the respondent -accused as security.

In the cross examination he has admitted that he has

given resignation to his teaching post. Ex.P11 is his

resignation letter. He has admitted that same when it was

confronted to him. P.W.1 in his cross examination was

also admitted that D.W.3 has made police complaint and