Karnataka High Court
Sri. Sampangi Reddy vs Sri.Nagaraju Hanumantharao Nittur on 4 September, 2024
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NC: 2024:KHC:36301
CRL.A No. 1141 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL APPEAL NO. 1141 OF 2015 (A)
BETWEEN:
SRI. SAMPANGI REDDY
S/O. LATE C. RAMAIAH
AGED ABOUT 56 YEARS
NO.153, 3RD 'B' MAIN
13TH 'B' CROSS, B SECTOR
YELHANKA NEW TOWN
BANGALORE - 56.
...APPELLANT
(BY SRI. MANJUNATH H.N., ADVOCATE (ABSENT))
Digitally signed
by NANDINI B G AND:
Location: high
court of SRI. NAGARAJU HANUMANTHARAO NITTUR
karnataka
S/O. HANUMANTHRAYA
ANUTHANU PARADISE, NO.55
1ST FLOOR, 1ST MAIN, 4TH CROSS
AMCO LAYOUT, KODIGENAHALLI
BANGALORE - 92.
...RESPONDENT
(BY SRI. B.R. SRINIVASA GOWDA, ADVOCATE (ABSENT))
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 05.07.2014
PASSED BY THE XVIII A.C.M.M., BANGALORE IN C.C.NO.32361/2011
- ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 138 OF N.I. ACT.
THIS CRIMINAL APPEAL, COMING ON FOR FINAL HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE M G UMA
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NC: 2024:KHC:36301
CRL.A No. 1141 of 2015
ORAL JUDGMENT
The appellant being the complainant in CC No.32361 of
2011 on the file of the learned XVIII Additional Chief
Metropolitan Magistrate, Bengaluru, is impugning the judgment
dated 05.07.2014 acquitting the respondent - accused for the
offence punishable under Section 138 of Negotiable
Instruments Act (for short 'the NI Act').
2. For the sake of convenience, the parties shall be
referred to as per their rank and status before the Trial Court.
3. Brief facts of the case are that, the complainant
filed the private complaint in PCR No.18034 of 2011 against the
accused alleging commission of offence punishable under
Section 138 of NI Act. It is contended by the complainant that
he has taken voluntary retirement from NGEF, Bengaluru.
Accused was known to him since about 3 years. He borrowed
an amount of Rs.8,40,000/- from the complainant on
15.03.2010 towards education expenses of his children. He
issued post dated cheque bearing No.101433 dated 23.06.2011
for Rs.8,40,000/- and promised to arrange for honoring the
same. When the cheque was presented for encashment, the
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same was dishonored as payment stopped by the drawee.
Legal notice was issued informing the accused regarding
dishonor of cheque and calling upon him to repay the cheque
amount. In spite of service of notice, accused has neither
repaid the cheque amount nor replied. Thereby, he has
committed the offence punishable under Section 138 of NI Act.
Accordingly, he prayed the Trial Court to take cognizance of the
offence and to initiate legal action against the accused.
4. The Trial Court took cognizance of the offence and
summoned the accused. The accused appeared before the Trial
Court and pleaded not guilty. The complainant examined
himself as PW1 and got marked Exs.P1 to P7 in support of his
contention. The accused denied all the incriminating materials
available on record in his statement recorded under Section
313 of Cr.P.C. and examined himself as DW1 and got marked
Exs.D1 and D2 in support of his defence. The Trial Court after
taking into consideration all these materials on record, came to
the conclusion that the complainant is not successful in proving
the guilt of the accused beyond reasonable doubt. Accordingly,
passed the impugned judgment of acquittal. Being aggrieved
by the same, the complainant is before this Court.
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5. Learned counsel for the appellant is absent. No
representation. There was no representation even on the last
date of hearing. The order sheet dated 13.08.2024 reads as
under:
"Learned counsel for the appellant is absent.
No representation.
The appeal is of the year 2015. The order
sheets dated 21.12.2023, 05.02.2024 and
25.07.2024 discloses that learned counsel for the
appellant was absent and there was no
representation.
The appellant is challenging the judgment of
acquittal of the respondent for the offences
punishable under Section 138 of NI Act. It appears
that the appellant is not interested in prosecuting
the appeal. However, to afford final opportunity, list
this matter on 04.09.2024."
In view of the above, his arguments is taken as NIL.
Perused the materials on record.
6. On going through the materials on record, the point
that would arise for my consideration is:
"Whether the appellant has made out any
grounds to allow the appeal and to convict the
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respondent - accused for the offence punishable
under Section 138 of NI Act?"
My answer to the above point is in the 'Negative' for the
following:
REASONS
7. On perusal of the materials on record, it is found
that the accused has taken a defence of total denial. It is
contended that the blank signed cheque - Ex.P1 had lost and in
that regard, he had filed a complaint before the police as per
Ex.D1. It is his defence that the complainant must have came
in possession of the blank signed cheque and had misused the
same. Ex.D1 is dated 15.11.2010 and that is why endorsement
from the bank Ex.P2 discloses that the cheque was dishonored
as stop payment instruction was received by the payee bank.
8. Even though DW1 was subjected to cross
examination, nothing has been elicited from him to disbelieve
his version. When the accused admits his signature found on
Ex.P1, by contending that the blank cheque with signature was
lost, the presumption under Section 139 of NI Act would arise
and the burden shifts on the accused to probabalise the
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defence. For the purpose of rebutting the presumption, the
accused cross examined PW1 and also stepped into the witness
box as DW1. He has also examined DW2 and thereby
probablised his defence. It is therefore, the reverse burden
shifts on the complainant to prove the guilt of the accused
beyond reasonable doubt without the support of legal
presumption.
9. It is the specific contention of the complainant that
the accused had borrowed huge sum of Rs.8,40,000/- in cash
on 15.03.2010. Even according to the complainant, he is the
retired employee of NGEF, Bengaluru. No scrap of paper is
produced to show his financial capacity to lend such huge
amount during 2010. Under such circumstances, it is to be
concluded that the complainant is not successful in proving the
existence of legally recoverable debt. Therefore, the accused is
entitled for acquittal.
10. I have gone through the impugned judgment of
acquittal passed by the Trial Court. It has taken into
consideration the oral and documentary evidence in the light of
the averments made in the complaint and arrived at a right
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conclusion. I do not find any reason to interfere with the same.
Accordingly, I answer the above point in the negative and
proceed to pass the following:
ORDER
The appeal is dismissed.
Sd/-
(M G UMA)
JUDGE
*bgn/-
CT:VS
