Karnataka High Court
Sri T Manjunath vs Sri C Siddappa on 5 February, 2025
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NC: 2025:KHC:5144
CRL.A No. 1119 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 1119 OF 2014 (A)
BETWEEN:
SRI. T. MANJUNATH
S/O V. THIMMAIAH,
AGED ABOUT 45 YEARS,
R/AT NO.15,
SRI LAKSHMI VENKATESHWARA NILAYA,
3RD CROSS, SRIRAMAPPA LAYOUT,
TAVAREKERE, DRC POST,
BANGALORE-560 029.
...APPELLANT
(BY SRI. K.B CHANDRASHEKAR SWAMY, ADVOCATE)
AND:
SRI. C. SIDDAPPA
(I.T.I DRIVER)
Digitally signed by
S/O CHINNAPPA
MAYAGAIAH VINUTHA AGED ABOUT 50 YEARS,
Location: HIGH COURT R/AT NO.29, CHIKKASWAMY LAYOUT,
OF KARNATAKA
5TH CROSS, J.P NAGAR,
6TH STAGE, JARAGANAHALLI,
BANGALORE
ALSO AT:
SRI. C. SIDDAPPA,
(I.T.I DRIVER)
R/AT DORVANINAGAR,
OLD MADRAS ROAD,
K.R. PURAM, BANGALORE-560 016.
...RESPONDENT
(BY SRI. PRAVEEN HEGDE, ADVOCATE)
THIS CRL.A. IS FILED U/S.378(4) OF CR.P.C PRAYING TO
SET ASIDE THE ORDER DATED:03.11.2014 PASSED BY THE
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CRL.A No. 1119 of 2014
XX-ACMM, BANGALORE IN C.C.NO.25287/2010 - ACQUITING
THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF
N.I. ACT.,
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE RAJESH RAI K
ORAL JUDGMENT
This appeal is preferred against the acquittal order passed
in C.C.No.25287/2010 dated 03.11.2014 by the XX Additional
Chief Metropolitan Magistrate, Bengaluru, whereby the learned
Magistrate acquitted the accused/respondent for the offence
punishable under Section 138 of Negotiable Instruments Act,
1881 (hereinafter referred to as 'NI Act').
2. For the sake of convenience, the parties are
referred to as they were referred to before the Court below.
3. The brief facts of the case are as under:
On 08.10.2009, the appellant/complainant lent a hand
loan of Rs.10 lakh to the accused/respondent subject to
re-payment of the same within three months. Subsequently,
the accused failed to repay the said amount. As such, the
complainant demanded for re-payment and finally, on
03.02.2010, the accused issued a cheque bearing No.125647
dated 04.02.2010 for a sum of Rs.10 lakh in favour of the
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complainant drawn on State Bank of India, Doravaninagar
Branch, Bengaluru as per Ex.P1. When the complainant
presented the said cheque for realization through his bank i.e.,
Karnataka Bank Limited, BTM Layout Branch, the said cheque
was dishonored stating 'Funds Insufficient' and the same was
returned with bank memo dated 05.02.2010. The said fact was
informed by the complainant to the accused. Thereafter, on
18.03.2010 the complainant issued a legal notice to the
accused through RPAD and UCP, the said legal notice sent
through UCP was served on the accused. Despite the legal
notice being issued on the accused, he had failed to pay the
cheque amount. Since the accused failed to make payment, the
complainant filed a private complaint against the accused
before the learned Magistrate under Section 200 of Cr.P.C. for
the offence punishable under Section 138 of NI Act.
4. Following the service of notice, the
accused/respondent appeared before the learned Magistrate
and thereby, the learned Magistrate tried the case.
5. In order to prove the case of the complainant, he
examined himself as PW.1 and marked 12 documents as Exs.P1
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to P12. The accused was examined as DW.1 and examined two
other witnesses as DW.2 and DW.3.
6. On assessment of the oral and documentary
evidence, learned Magistrate acquitted the accused for the
offence punishable under Section 138 of NI Act. The said
judgment is challenged under this appeal by the complainant.
7. I have heard the learned counsel Sri.
K.B.Chandrashekar Swamy for the appellant and the learned
counsel Sri. Praveen Hegde for the respondent/accused.
8. The primary contention of the learned counsel for
the appellant is that the Trial Court has collectively failed to
appreciate the evidence available on record in right perspective
and passed the impugned judgment which is liable to be set
aside. By enunciating his arguments, he contended that PW.1-
complianant has categorically deposed in respect of lending of
hand loan of Rs.10 lakh to the accused on 08.10.2009 and
since the accused failed to repay the same, on demand, the
accused had issued Ex.P1 i.e., cheque dated 04.02.2010 for a
sum of Rs. 10 lakh on 03.02.2010. Thereafter, the said cheque
was presented and the same was returned stating 'funds
insufficient'. Though the legal notice as per Ex.P4 issued by the
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complainant was served to the accused, he failed to reply to
the said legal notice. Hence, the issuance of cheque by the
accused and the signature affixed on the cheque is not in
dispute in this case. As such, the complainant has successfully
proved the initial presumption under Section 139 of NI Act.
Nevertheless, the accused failed to rebut such presumption
with probable defense or by documents. He also contended that
though the complainant was cross-examined by the accused at
length, nothing worthwhile was elicited from him to disbelieve
his evidence. On the other hand, in the cross-examination, the
accused suggested that the cheque in question was issued by
the accused himself on a lapse of three months from the date
of lending the money. Further, the evidence of DW.1 to DW.3
clearly contradicts each other. As such, the same cannot be
relied to disbelieve the evidence of PW.1-complianant. Hence,
the learned Magistrate has erred while appreciating the
evidence and in acquitting the accused for the charges under
Section 138 of NI Act. Accordingly, he prays to allow the appeal
by setting-aside the impugned judgment.
9. In order to buttress his arguments, he relied on the
following judgments:
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(i) Rajesh Jain v. Ajay Singh [(2023) 10 SCC
148]
(ii) Sri Yogesh Poojary v. Sri K.Shankara Bhat
[ILR 2019 KAR 493]
(iii) T.P.Murugan (Dead) Through Legal
Representatives v. Bojan [(2018) 8 SCC 469]
(iv) Sri S.M.Nataraja v. Sri B.M.Prakash [ILR
2018 KAR 5431]
10. Per contra, the learned counsel for the
respondent/accused submitted that the judgment challenged
under this appeal does not suffer from perversity or illegality
since the learned Magistrate has rightly appreciated the
evidence available on record that the complainant failed to
prove his lending capacity of a sum of Rs.10 lakh and
subsequent issuance of cheque by the accused for Rs.10 lakh to
him. According to the learned counsel, at no point of time, the
accused had availed hand loan from the complainant, per
contra, he had obtained a hand loan of Rs.20,000/- from DW.3
and to repay the said amount, the accused had issued Ex.P1
i.e., the cheque in question to DW.3 and subsequently, DW.3 in
turn handed over Ex.P1 to PW.1-complainant. The said aspect
was admitted by DW.3 in his evidence and to that effect, a
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Panchayath was held in the Mutt of DW.2, who also admitted
the said Panchayath in his evidence. Further, the complainant
also failed to place any credible evidence to establish that he
had the lending capacity to lend a sum of Rs.10 lakh to the
accused. In such circumstances, the learned Magistrate has
rightly dismissed the complaint. Hence, the impugned
judgment does not call for any interference by this Court.
Accordingly, the learned counsel for the respondent prays to
dismiss the appeal.
11. Having heard the learned counsel for the respective
parties, the sole point that arise for my consideration is:
"Whether the learned Magistrate is justified in
acquitting the accused for the offence punishable
under Section 138 of NI Act and whether any
interference is required in the impugned judgment?
12. On careful perusal of the entire evidence and
documents made available before me, it could be gathered that
according to PW.1, he lent a hand loan of Rs.10 lakh to the
accused on 08.10.2009 and the accused issued cheque for
repayment of the said hand loan on 03.02.2010. Subsequently,
the said cheque was presented by the complainant and the
same was dishonored stating 'funds insufficient'. Accordingly,
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he issued legal notice and lodged a private complaint. In such
circumstances, the cheque in question i.e., Ex.P1 and also all
the statutory requirement is fulfilled by the complainant. It is a
settled position of law that once the cheque has been issued
and the signature of the accused on the cheque is admitted,
the initial presumption under Sections 118 and 138 of NI Act
favours the complainant. Nevertheless, the said presumption
can be rebutted by the accused with probable defence i.e.,
preponderance and probability.
13. In the instant case, the accused at no point of time,
received a hand loan of Rs.10 lakh from the complainant and
Ex.P1 i.e., cheque in question was not issued for repayment of
the said hand loan. According to him, he received a hand loan
of Rs.20,000/- from DW.3 and subsequently, he failed to repay
the same. As such, he had issued a blank cheque to DW.3 and
later DW.3 in turn handed over the said cheque to PW.1 i.e.,
the complainant and the complainant presented the same for
Rs.10 lakh. To substantiate the said defence, the accused
examined himself as DW.1 along with other two witnesses i.e.,
DW.2 and DW.3.
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14. On careful perusal of the evidence of DW.3 one
Thippare Gowda, has categorically deposed in his evidence that
the accused has availed a hand loan of Rs.20,000/- from him
on 02.01.2010 and the accused failed to repay the same. While
receiving the said amount for security purpose, he issued a
blank cheque-Ex.P1. Subsequently, he handed over the said
cheque to PW.1-Manjunath and Manjunath in turn presented
the said cheque for Rs.10 lakh and the same was dishonored.
Further, DW.3 also admitted that after filing the case, a
compromise was sought in the Mutt of DW.2, wherein the
accused admitted to pay a sum of Rs.50,000/- to DW.3 and
DW.2 requested DW.3 to persuade PW.1 to withdraw the
compliant. However, the said panchayath did not materialise.
As such, the complainant initiated the case. Further to
substantiate the said evidence of DW.3, DW.2-Swamiji of
Jangama Mutt deposed in the evidence that in the year 2012,
DW.3 approached him seeking to amicably compromise the
case pertaining to the cheque issued by the accused in favour
of DW.3. In the said compromise, DW.1 was present and he
agreed to pay a sum of Rs.50,000/- to DW.3 and requested
DW.3 to withdraw the cheque case filed by the complainant
against DW.1. Hence, on careful examination of the evidence of
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DW.1 to DW.3, there is a clear corroboration with issuance of
Ex.P1-Cheque by the accused to DW.3 and DW.3 in turn
handed over the said cheque to the complainant.
15. Regarding the lending capacity of the complainant i.e.,
a sum of Rs.10 lakh to the accused is concerned, albeit PW.1
has stated in his evidence that he was active in construction
business and thereby he became acquainted with the accused
and lent him a hand loan of Rs.10 lakh. According to the
complainant, he paid the said amount by way of cash to the
accused on 08.10.2009. However, at the time of payment of
the said amount, he admitted that he has not received any
document including cheque in question. According to him, the
cheque-Ex.P1 was issued after lapse a of three months from
the date of lending the money. Hence, on perusal of this aspect
of the matter, doubt arises in the mind of this Court that
whether the complainant has paid the huge amount of Rs.10
lakh to the accused without executing the document including
the cheque in question for a period of three months.
Admittedly, the complainant was not well acquainted with the
accused. In such circumstances, it is hard to believe that he
had lent Rs.10 lakh to the accused. Further, in the cross-
examination of PW.1, he has categorically admitted that the
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cheque in question was not issued by accused to him. This
admission of the complainant goes to the root of the case. In
such circumstances, the complainant has failed to establish that
he had lent a sum of Rs.10 lakh to the accused and for
repayment of the said hand loan, the accused has issued
cheque in question and subsequently, the said cheque was
dishonored.
16. On careful examination of the entire evidence on
record, I am of the considered view that the learned Magistrate
has duly perused the evidence on record. Accordingly, the
impugned judgment does not call for interference by this Court.
Against this backdrop, I answer point raised above in the
negative and proceed to pass the following:
ORDER
i) The appeal, being devoid of merits, is hereby
dismissed.
SD/-
(RAJESH RAI K)
JUDGE
VM
