Karnataka High Court
Housing Development Finance vs Mr Swamy Madangopal on 5 February, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
-1-
NC: 2025:KHC:5256
CRL.A No. 824 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 824 OF 2015
BETWEEN:
HOUSING DEVELOPEMNT FINANCE
CORPORATION LIMITED
REPRESENTED BY ITS MANAGER
RECOVERIES AND GPA HOLDER
SRI. MANOJ J. SHAH
AGED ABOUT 50 YEARS
HDFC HOUSE, No.51
KASTURBA ROAD
BANGALORE - 560 001.
...APPELLANT
(BY SRI H VINAY JADAV, ADVOCATE FOR
SRI B S MAHENDRA, ADVOCATE)
AND:
Digitally signed by
LAKSHMINARAYANA
MURTHY RAJASHRI
Location: HIGH MR. SWAMY MADANGOPAL
COURT OF
KARNATAKA AGED ABOUT 52 YEARS
No.24, 2ND BLOCK
BEML. QUARTERS, BEML TOWNSHIP
NEW THIPPASANDRA POST
BANGALORE - 560 075.
AND ALSO AT:
SENIOR MECHANIC
EMPLOYEE No.17834 & 717
BEML LIMITED,
BANGALORE COMPLEX P.B.No.7501
-2-
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CRL.A No. 824 of 2015
NEW THIPPASANDRA POST
BANGALORE - 560 075.
...RESPONDENT
(BY SRI S SURESH KUMR, ADVOCATE)
THIS CRL.A. IS FILED UNDER SECTION 378(4) Cr.P.C
PRAYING TO SET ASIDE THE JUDGMENT DATED 10.04.2015
PASSED BY THE XV A.C.M.M., BANGALORE IN C.C.No.35282/2011
- ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 138 OF N.I. ACT AND ETC.,
THIS APPEAL COMING ON FOR HEARING THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL JUDGMENT
1. This appeal is filed by the appellant - complainant
challenging the judgment of acquittal dated 10.04.2015
passed in C.C.No.35282/2011 by the XXV Additional Chief
Metropolitan Magistrate, Bengaluru, whereunder, the
respondent - accused has been acquitted of the offence
under Section 138 of the N.I.Act.
2. Case of the appellant - complainant in brief is as under;
The respondent - accused had availed loan facility of
Rs.2,80,000/- under the loan account No.361169829 from
the appellant - complainant and agreed to repay the same as
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per the terms and conditions of the loan agreement dated
15.12.2003. The respondent - accused, in order to repay the
said loan amount had issued the cheque bearing No.024751
dated 20.08.2010 for a sum of Rs.2,80,000/- drawn on
Canara Bank, H.A.L-III Stage, Bengaluru in favour of the
appellant - complainant. The appellant - complainant had
presented the said cheque for encashment. The said cheque
has been returned dishonoured with an endorsement
"Dormant". The appellant - complainant got issued the
demand notice dated 01.09.2010 by R.P.A.D. Inspite of
service of the said notice, the respondent - accused had not
paid the cheque amount. Therefore, the appellant -
complainant had filed a private complaint against the
respondent - accused for the offence under Section 138 of
the N.I.Act. Learned Magistrate took cognizance and
registered C.C.No.35282/2011 against the respondent -
accused for the offence under Section 138 of the N.I.Act.
The plea of the respondent - accused had been recorded.
The appellant - complainant in order to establish its case has
examined the General Power of Attorney holder as PW1 and
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got marked Exs.P1 to P9. The statement of the appellant -
accused had been recorded under Section 313 of Cr.P.C. The
appellant - accused has not led any defence evidence. The
learned Magistrate after hearing the arguments on both sides
has formulated the points for consideration and passed the
judgment of acquittal. The said judgment of acquittal has
been challenged by the appellant - complainant in this
appeal.
3. Heard learned counsel for the appellant - complainant
and learned counsel for the respondent - accused.
4. Learned counsel for the appellant - complainant would
contend that the respondent - accused had admitted his
signature on Ex.P3 - cheque. As the signature on the
cheque has been admitted, a presumption has to be drawn
under Section 139 of the N.I.Act, that it had been issued for
discharging the debt. The said presumption is not rebutted.
Ex.P9 - Promissory Note itself would show that the
respondent - accused had availed the loan from the appellant
- complainant. Without considering all these aspects, the
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learned Magistrate has erred in acquitting the respondent -
accused of the offence under Section 138 of the N.I.Act.
5. Learned counsel for the respondent - accused would
contend that availing of loan by the respondent - accused
from the appellant - complainant is not admitted. There is a
material alteration in the cheque - Ex.P3 and it has been
admitted by PW1 in his cross examination. As per Ex.P9 - an
on demand Promissory Note, the loan was availed on
15.12.2003 and the cheque - Ex.P3 issued towards making
payment of the debt is dated 20.08.2010. The said alleged
debt is time barred. The appellant - complainant has not
produced any statement of the loan account to show what
was the balance amount. PW1, in his cross examination has
admitted that the respondent - accused had not executed
any acknowledgement of debt. He further submits that the
signed cheque issued by the respondent - accused towards
the processing charge of Rs.3,361/- at the time of applying
loan has been misused by materially altering the figures of
the amount. Considering all these aspects, the learned
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Magistrate has rightly acquitted the respondent - accused.
With this, he prayed for dismissal of the appeal.
6. Having heard the learned counsels, this Court has
perused the impugned judgment and the Trial Court records.
Considering the grounds urged, the following point arises for
consideration;
"Whether the learned Magistrate has erred in
acquitting the respondent - accused of the offence
punishable under Section 138 of the N.I.Act?"
7. My answer to the above point is in the negative, for
the following reasons;
It is the specific case of the appellant - complainant
that the respondent - accused had availed loan of
Rs.2,80,000/- under the loan account No.361169829, and
executed the loan agreement dated 15.12.2003. The
appellant - complainant has not produced any loan
agreement dated 15.12.2003. Ex.P9 is the on demand
Promissory Note said to have been executed for
Rs.2,80,000/-. It is stated that Ex.P3 - cheque has been
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issued for making payment of the said loan borrowed by the
respondent - accused. The respondent - accused has
disputed borrowing any loan from the appellant -
complainant. As the said on demand Promissory Note is
dated 15.12.2003, the said debt as on the date of cheque ie.,
20.08.2010 becomes barred by limitation. PW1 in his cross
examination has admitted that they have not obtained any
acknowledgement of debt from the respondent - accused.
8. The respondent - accused contended that the cheque -
Ex.P1 has been issued for Rs.3,361/- towards processing
charge when he applied for loan with the appellant -
accused. The said loan has not been sanctioned and the said
cheque for Rs.3,361/- has been misused by materially
altering the figures of the amount. The appellant -
complainant has not produced any statement of loan account
to show what was the balance amount. Even the appellant -
complainant has not produced the consideration receipt for
having disbursed the said loan amount to the respondent -
accused. Considering all these aspects, the respondent -
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accused has rebutted the presumption under Section 139 of
the N.I.Act. In order to establish the alleged borrowing, the
appellant - complainant has not placed loan application,
statement of loan account, consideration receipt etc.,
Considering all these aspects, the learned Magistrate has
rightly acquitted the respondent - accused of the offence
under Section 138 of the N.I.Act. In the result, the
following;
ORDER
The appeal is dismissed.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
GH
