Karnataka High Court
Y R Venugopal vs Manjunath Reddy P on 1 February, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.A No. 149 of 2015
C/W CRL.A No. 148 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 149 OF 2015
C/W
CRIMINAL APPEAL No. 148 OF 2015
IN CRL.A No. 149/2015
BETWEEN:
Y R VENUGOPAL
S/O Y V RAMASANJEEVAIAH
AEGD ABOUT 56 YEARS
No. 220, YADALAM NAGAR
SUBRAMANYAPURA MAIN ROAD
BANGALORE - 560 061.
DECEASED REPRESENTED BY HIS LR's.
1. SMT. KUSUMA W/O LATE Y R VENUGOPAL
AGED ABOUT 62 YEARS
Digitally signed by No.220, SUBRAMANYAPURA MAIN ROAD
LAKSHMINARAYANA
MURTHY RAJASHRI NEXT TO SAPTHAGIRI MEDICALS
Location: HIGH YADALAMNAGAR, BANGALORE SOUTH
COURT OF
KARNATAKA BANGALORE - 560 061.
2. BHARATH BABU V
S/O LATE Y R VENUGOPAL
AGED ABOUT 41 YEARS
No.220, SUBRAMANYAPURA MAIN ROAD
NEXT TO SAPTHAGIRI MEDICALS
YADALAMNAGAR, BANGALORE SOUTH
BANGALORE - 560 061.
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CRL.A No. 149 of 2015
C/W CRL.A No. 148 of 2015
3. SRI HEMANTH V
S/O LATE Y R VENUGOPAL
AGED ABOUT 39 YEARS
No.220, SUBRAMANYAPURA MAIN ROAD
NEXT TO SAPTHAGIRI MEDICALS
YADALAMNAGAR, BANGALORE SOUTH
BANGALORE - 560 061.
...APPELLANTS
(BY SRI B K NARENDRA BABU, ADVOCATE)
AND:
MANJUNATH REDDY P
AGED ABOUT 46 YEARS
PROPRIETOR OF
M/S VINTAGE SHELTERS
No. 25, SAMPOORNA SIRI
ITI LAYOUT, HSR
BANGALORE - 560 068.
...RESPONDENT
(BY SRI VISHWANATH M P, ADVOCATE)
THIS CRL.A. IS FILED UNDER SECTION 378(4) Cr.P.C
PRAYING TO SET ASIDE THE ORDER DATED:7.1.2015, PASSED
BY THE XXII ACMM, BANGALORE CITY, IN C.C.No.13139/12 -
ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 138 OF N.I. ACT AND ETC.,
IN CRL.A No. 148/2015
BETWEEN:
Y R VENUGOPAL
S/O Y V RAMASANJEEVAIAH
AEGD ABOUT 56 YEARS
No. 220, YADALAM NAGAR
SUBRAMANYAPURA MAIN ROAD
BANGALORE - 560 061.
DECEASED REPRESENTED BY HIS LR's.
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CRL.A No. 149 of 2015
C/W CRL.A No. 148 of 2015
1. SMT. KUSUMA W/O LATE Y R VENUGOPAL
AGED ABOUT 62 YEARS
No.220, SUBRAMANYAPURA MAIN ROAD
NEXT TO SAPTHAGIRI MEDICALS
YADALAMNAGAR, BANGALORE SOUTH
BANGALORE - 560 061.
2. BHARATH BABU V
S/O LATE Y R VENUGOPAL
AGED ABOUT 41 YEARS
No.220, SUBRAMANYAPURA MAIN ROAD
NEXT TO SAPTHAGIRI MEDICALS
YADALAMNAGAR, BANGALORE SOUTH
BANGALORE - 560 061.
3. SRI HEMANTH V
S/O LATE Y R VENUGOPAL
AGED ABOUT 39 YEARS
No.220, SUBRAMANYAPURA MAIN ROAD
NEXT TO SAPTHAGIRI MEDICALS
YADALAMNAGAR, BANGALORE SOUTH
BANGALORE - 560 061.
...APPELLANTS
(BY SRI B K NARENDRA BABU, ADVOCATE)
AND:
MANJUNATH REDDY P
AGED ABOUT 46 YEARS
PROPRIETOR OF
M/s. VINTAGE SHELTERS
No. 25, SAMPOORNA SIRI
ITI LAYOUT, HSR
BANGALORE -560 068.
...RESPONDENT
(BY SRI VISHWANATH M P, ADVOCATE)
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CRL.A No. 149 of 2015
C/W CRL.A No. 148 of 2015
THIS CRL.A. IS FILED UNDER SECTION 378(4) Cr.P.C
PRAYING TO SET ASIDE THE ORDER DATED:7.1.2015, PASSED
BY THE XXII ACMM, BANGALORE CITY, IN C.C.No.19531/13 -
ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 138 OF N.I. ACT AND ETC.,
THESE APPEALS COMING ON FOR HEARING THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL JUDGMENT
Both appeals are filed by the complainant challenging
the judgments of acquittals passed in C.C.No.13139/2012
and C.C.19531/2012 by the XXII Chief Metropolitan
Magistrate, Bengaluru, wherein the respondent -accused
has been acquitted for offence punishable under Section
138 of Negotiable Instruments Act, 1881 (hereinafter
referred to as "N.I. Act" for brevity).
2. The case of complainant's in both criminal cases
in brief is that
The respondent -accused is his friend and he is land
developer and use to form layout and sell the same to the
intending purchasers. For formation of the layout and
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development the respondent -accused was in need of
money and for that he requested the appellant -
complainant to invest money and for that he has get site
measuring 60 x40 ft in the layout to be formed by the
respondent -accused. Considering the same, the
appellant -complainant agreed and gave Rs.5,00,000/- on
31.10.2007 and the respondent -accused executed sale
agreement dated 31.10.2007. It is further case of the
complainant that thereafter, the complainant has pad
Rs.3,00,000/- on 15.01.2008, Rs.1,00,000/- on
24.04.2008, Rs.3,00,000/- on 18.07.2008, Rs.1,00,000/-
on 22.10.2008 and Rs.3,00,000/- on 25.01.2009 and
endorsement has been made on the back of the first page
of the sale agreement by the accused for having received
the said amount. It is further case of the complainant that
accused did not form the layout and therefore, he agreed
to return the amount given by the complainant in sum of
Rs.16,00,000/- along with compensation /interest of
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Rs.7,50,000/-. In that regard the respondent -accused
has issued seven cheques, details of which are as under:
Sl. Cheque Date Amount Bank Name
No Nos. in Rs.
1 534658 08.09.2011 5 lakhs Andra Bank, HSR
Layout Branch,
Bengaluru
2 153769 17.09.2011 3 lakhs -do-
3 151947 26.09.2011 1 lakhs -do-
4 530341 08.10.2011 3 lakhs -do-
5 530336 17.10.2011 1 lakhs -do-
6 533198 26.10.2011 3 lakhs -do-
7 170004 08.11.2011 7.5 lakhs -do-
The complainant presented all those seven cheques
for encashment and they came to be dishonoured for the
reason "insufficient funds". The complainant got issued
legal notice to the respondent -accused demanding to pay
cheques amount. Inspite of service of notice the
respondent -accused has neither paid cheques amount nor
issued any reply to the notice. Therefore, the appellant -
complainant has filed two complaints one in respect of six
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cheques total amount of Rs.16,00,000/- and another in
respect of one cheque for a sum of Rs.7,50,000/-.
3. Learned Magistrate took cognizance and
registered case in C.C. No.13139/2012 and C.C.
No.19531/2012 against the respondent -accused for
offence punishable under Section 138 of N.I. Act. The plea
of the respondent -accused has been recorded. The
complainant in order to prove his case has examined
himself as P.W.1 and got marked documents as Ex.P1 to
P8 in C.C.No.13139/2012 and Ex.P1 to P18 in
C.C.No.19531/2012. The statement of respondent -
accused came to be recorded under Section 313 of Cr.P.C.
The respondent -accused did not choose to lead defence
evidence. Learned Magistrate after hearing on both sides
has formulated points for consideration and passed
impugned judgments of acquittal. The said judgments of
acquittal passed in both cases have been challenged by
the complainant in these two appeals.
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4. Heard learned counsel for the appellant and
learned counsel for the respondent in both appeals.
5. Learned counsel for the appellant -complainant
would contend that the appellant -complainant has
invested Rs.16,00,000/- for allotment of a site in the
layout to be formed by the respondent -accused and in
that regard the respondent -accused has executed the
sale agreement dated 31.10.2007. The respondent -
accused did not form the layout and therefore, he agreed
to refund the amount invested by the appellant -
complainant in sum of Rs.16,00,000/- and Rs.7,50,000/-
as compensation /interest. He submits that in that regard
he issued seven cheques. The signature on the said
cheques have not been disputed by the respondent -
accused and therefore, the presumption has to be drawn
under Section 139 of the N.I Act that cheques have been
issued for making payment of legally enforceable liability.
The said presumption has not been rebutted by the
respondent -accused. The bare contention of the
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respondent -accused was that cheques have been taken
by the son of the complainant while he was working in the
office and they have been misused by the complainant as
there was threat on the son of the complainant of taking
action by the accused for misappropriation of huge
amount. The said defence has not been established. The
respondent -accused has not sent any reply to the legal
notice putting forth his defence at earliest. The
respondent -accused has not entered into witness box to
establish his contentions. Considering all these aspects,
the appellant -complainant has established that the
respondent -accused has committed offence punishable
under Section 138 of the N.I Act. Without considering all
these aspects, learned Magistrate has erred in acquitting
the respondent -accused. With these, he prays to allow
the appeals and convict the respondent -accused for
offence punishable under Section 138 of the N.I. Act.
6. Learned counsel for the respondent -accused
would contend that the respondent -accused has denied
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execution of sale agreement dated 31.10.2007 and he has
not issued cheques for making payment of legally
enforceable liability. The respondent -accused has taken
defence that the son of the complainant is working in the
firm of the accused and he has misused signed cheques of
the respondent -accused. P.W.1 in his cross examination
has admitted that the son of the complainant is working in
the firm of the respondent -accused that itself will
establish defence of the respondent -accused. He further
contended that the agreement is in the year of 2007 and
alleged cheques are issued in the year 2011 i.e. 04 years
of sale agreement. The sale consideration has not been
stated in sale agreement. Even though period prescribed
for execution of the sale deed is 180 days, no action has
taken by the appellant -complainant to get specific
performance of the said sale agreement. The total sale
consideration has not been stated in the sale agreement.
The witnesses of the sale agreement have not been
examined. The appellant -complainant has not
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established his capacity to invest Rs.16,00,000/-.
Considering all these aspects, the respondent -accused
has rebutted the presumption drawn under Section 139 of
the N.I Act. Considering these aspects, learned Magistrate
has rightly passed the impugned judgments of acquittal.
With these, he prays for dismissal of appeals.
8. Having heard learned counsels, the Court has
perused the impugned judgment and trial Court records.
Considering the grounds urged, the points arises for my
consideration is
1. "Whether learned Magistrate has erred in
passing the judgment of acquittal of
respondent -accused for offence
punishable under Section 138 of N.I. Act
in C.C.No.19531/2012."?
2. "Whether learned Magistrate has erred in
passing the judgment of acquittal of
respondent -accused for offence
punishable under Section 138 of N.I. Act
in C.C.No.13139/2012."?
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My answer to the point No.1 is in the affirmative
and Point No. 2 is in the Negative for the following
reasons.
It is specific case of the appellant -complainant that
there was sale agreement between the appellant -
complainant and respondent -accused on 31.10.2007 with
regard to a site in layout to be formed by the respondent
-accused. Under the said sale agreement the appellant -
complainant has paid Rs.5,00,000/- on the date of
agreement and subsequently paid Rs.3,00,000/- on
15.01.2008, Rs.1,00,000/- on 24.04.2008, Rs.3,00,000/-
on 18.07.2008, Rs.1,00,000/- on 22.10.2008 and
Rs.3,00,000/- on 25.01.2009. The original of the said sale
agreement is marked as Ex.P7 in C.C.No.13139/2012.
Photo copy of the said sale agreement is marked as
Ex.P17 in C.C.No.19531/2012. On perusal of the back of
first page of Ex.P7 there are 05 endorsements for having
paid the above stated amounts in cash by the appellant -
complainant. Below the said endorsement there is seal
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and signature of Vintage Shelters by it's Proprietor. The
respondent -accused has not denied that he is the
Proprietor of Vintage Shelters. The said stamp paper -
Ex.P7 has been purchased by Vintage Shelters and there is
seal of Vintage Shelters on the said stamp papers having
purchased by Vintage Shelters. Even there are signatures
and seal of Vintage Shelters's Proprietor on each page of
Ex.P7 -sale agreement. The respondent -accused has
disputed that he executing the said sale agreement. The
respondent -accused has not disputed his signature on the
said seven cheques.
9. It is specific contention of the respondent -
accused that son of the accused was working in his firm
and he has misappropriated a sum of Rs.1 crore 75 lakhs
and son of the accused has misused seven signed cheques
given by the respondent -accused to him. P.W.1 in his
cross examination has admitted that his son was working
in the firm of the respondent -accused but clarified that he
was working under a Auditor and for audit work he went to
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the firm of respondent -accused. P.W.1 has denied the
suggestion that son of the complainant has
misappropriated Rs.1 crore 75 lakhs and he has misused
signed cheques given by the respondent -accused. The
respondent -accused has not choosen to file any complaint
againt the son of the complainant for having
misappropriation of Rs.1 crore 75 lakhs and for misusing
his seven signed cheques. In order to establish the said
contention the respondent -accused has not lead any
defence evidence. The very fact of the not placing oral or
documentary evidence on record regarding
misappropriation by son of the appellant -complainant and
misusing of seven signed cheques of the accused, itself
indicate that the said defence said up by the respondent -
accused is not true and it is not established. More so the
respondent -accused even after service of legal notice in
both cases has not chosen to send reply containing his
contention at initial stage.
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10. Considering these aspects, the respondent -
accused has failed to rebut the presumption that six
cheques issued in C.C.No.19531/2012 for making payment
of legally enforceable liability. The total amount of the
said six cheques is Rs.16,00,000/- which are at EX.P1 to 6
in C.C.No.19531/2012. The said amount of Rs.16,00,000/-
is amount paid by the appellant -complainant to the
respondent -accused on different dates under sale
agreement dated 31.10.2007 which is at Ex.P7.
11. Cheque -Ex.P1 in C.C.No.13139/2012 is for
Rs.7,50,000/-. It is case of the appellant -complainant
that the said cheque is issued in order to making payment
of interest /compensation for having utilized money of the
appellant -complainant. In order to establish the said
aspect except oral evidence no materials are placed on
record by the appellant -complainant that the respondent
-accused has agreed to pay interest /compensation in sum
of Rs.7,50,000/-. The complainant has not produced any
documentary evidence with regard to the respondent -
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accused having agreed to pay Rs.7,50,000/- towards
interest /compensation to the appellant -complainant.
Therefore, the cheque -Ex.P1 for Rs.7,50,000/- in C.C.
No.13139/2012 is not issued for making payment of
legally enforceable liability. Considering the said aspect,
the appellant -complainant has failed to prove that the
respondent -accused in C.C.No.13139/2012 has
committed offence punishable under Section 138 of the
N.I Act as cheque issued is not for making payment of
legally enforceable liability.
12. In C.C.No.19531/2012, cheques at EX.P1 to 6
are issued for making payment of legally enforceable
liability. The said cheques are dishonoured for want of
funds in the account of the respondent -accused. The
statutory notice has been issued within the statutory
period and it has been served on the respondent -
accused. Inspite of service of notice, the respondent -
accused has not chosen to pay the amount of cheques to
the appellant - complainant. Therefore, the respondent -
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accused has committed the offence punishable under
Section 138 of the N.I. Act. Without considering these
aspects, the learned Magistrate has erred in passing the
judgment of acquittal in C.C.No.19531/2012. Even though
the reasons assigned by the learned Magistrate for
acquittal of the respondent - accused in
C.C.No.13139/2012 are not what discussed as noted
supra, but for the reasons stated supra, the complainant
has not established commission of the offence by the
respondent - accused for the offence under Section 138 of
the N.I. Act in C.C.No.13139/2012. Therefore, the
respondent - accused requires to be acquitted in
C.C.No.13139/2012. In the result, the following;
ORDER
i) Crl.A.No.149/2015 is dismissed.
ii) The judgment of acquittal dated 07.01.2015
passed in C.C.No.13139/2012 by the XXII
Additional Chief Metropolitan Magistrate,
Bengaluru is affirmed.
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iii) Crl.A.No.148/2015 is allowed.
iv) The judgment of acquittal dated 07.01.2015
passed in C.C.No.19531/2012 by the XXII
Additional Chief Metropolitan Magistrate,
Bengaluru is set-aside.
v) The respondent - accused is convicted for the
offence punishable under Section 138 of the
N.I. Act in C.C.No.19531/2012 and he is
sentenced to pay fine of Rs.16,50,000/- and in
default of payment of the said fine, to undergo
simple imprisonment for a period of six months.
vi) Out of the said fine amount Rs.16,00,000/- is
ordered to be paid as compensation to the
appellant - complainant.
vii) The respondent - accused has to deposit the
said amount within two months from this day.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
DSP, GH
