Karnataka High Court
Sangrams/O Madappa Sundale vs Rajendra And Anr on 11 February, 2025
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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CRL.A No. 200079 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
CRIMINAL APPEAL NO.200079 OF 2023
(378(Cr.PC)/419(BNSS))
BETWEEN:
SANGRAM S/O MADAPPA SUNDALE
AGED ABOUT 53 YEARS,
OCC. BUSINESS,
R/O AURAD (B), DIST: BIDAR-585326
...APPELLANT
(BY SRI KADLOOR SATYANARAYANACHARYA, ADVOCATE)
AND:
1. RAJENDRA S/O SAMBHAJI GAYAKWAD,
UDAGIR ROAD, NEAR HARIJAN WADA,
Digitally signed
by SHIVAKUMAR TQ: AURAD (B), DIST: BIDAR-585326
HIREMATH
Location: HIGH 2. ANITA W/O RAJENDRA GAYAKWAD
COURT OF UDAGIR ROAD, NEAR HARIJAN WADA,
KARNATAKA TQ: AURAD (B), DIST: BIDAR-585326
...RESPONDENTS
(BY SRI JAIRAJ K. BUKKA, ADVOCATE FOR R1;
NOTICE TO R2 IS HELD SUFFICIENT)
THIS CRL.A. IS FILED U/S. 378 (4) OF CR.P.C PRAYING
TO ALLOW THE APPEAL AND SET ASIDE THE JUDGMENT OF
ACQUITTAL DATED 07.01.2023 PASSED BY THE CIVIL JUDGE
AND JMFC, AURAD, IN C.C.NO.379/2019 AND CONVICT
ACCUSED PERSONS FOR THE OFFENCE PUNISHABLE U/SEC.
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CRL.A No. 200079 of 2023
138 OF N.I. ACT AND TO AWARD COMPENSATION TO THE
APPELLANT TO DOUBLE THE CHEQUE AMOUNT, IN THE
INTEREST OF JUSTICE.
THIS APPEAL COMING ON FOR FURTHER HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY)
This appeal under Section 378(4) of Cr.P.C. is filed
by the de-facto complainant assailing the judgment and
order of acquittal dated 07.01.2023, passed by the Civil
Judge and JMFC, Aurad (for short 'Trial Court') in
C.C.No.379/2019.
2. Heard learned counsel for the parties.
3. The appellant herein had filed a private
complaint against the respondents for the offence
punishable under Section 138 of the Negotiable
Instruments Act, 1881 (for short 'N.I.Act'). It is the case
of the appellant that the respondents had borrowed hand-
loan of Rs.9,50,000/- from him for the purpose of
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construction of a new house near Santosh theater and
towards repayment of the said amount borrowed by them,
they had issued cheque bearing No.599247 dated
11.11.2019 drawn on State of Bank of India, Aurad branch
for a sum of Rs.9,50,000/- in favour of the appellant. The
said cheque on presentation for realization was
dishonoured by the drawee Bank and thereafter, the
appellant had got issued legal notice to the respondents,
which was duly served. In spite of service of legal notice,
no reply was issued on behalf of the respondents nor was
the amount covered under the cheque in question repaid
to the appellant. It is under these circumstances, the
appellant had filed a private complaint against the
respondents/accused for the offence punishable under
Section 138 of the N.I.Act. The respondents, who had
appeared before the Trial Court in response to the
summons issued to them had claimed to be tried.
Therefore, the appellant to substantiate his case had
examined himself as PW.1 before the Trial Court and got
marked six documents as Exs.P1 to P6. On behalf of the
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respondents/accused, no defence evidence was led nor
was any document got marked. The Trial Court after
hearing the arguments addressed on both sides, vide
impugned judgment and order, acquitted the respondents
for the offence punishable under Section 138 of the
N.I.Act. Being aggrieved by the same, the appellant/de-
facto complainant is before this Court.
4. Learned counsel for the appellant/de-facto
complainant submits that he has produced additional
documents before this Court along with an application filed
under Section 391 of Cr.P.C. and the said documents
establish the financial capacity of the appellant. He
submits that the appellant during the course of his
deposition has stated that he owns 15 to 16 acres of land
and he has now produced material before this Court to
show that he had sold two plots under a registered sale
deed in the year 2018 for valid sale consideration of
Rs.3,60,000/-. In addition to the income from the
agricultural property, appellant had also income from his
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tailoring avocation. He submits that if an opportunity is
not granted to the appellant to place relevant material
before the Trial Court to establish his financial capacity, he
will be put to untold hardship, more so, since the
respondents had failed to probablise their defence put
forward by them before the Trial Court. Accordingly, he
prays to allow the appeal.
5. Per contra, learned counsel for the respondent
has opposed the prayer made in the appeal. He submits
that since the appellant had not produced necessary
material to show the alleged transaction with the
respondents, wherein, he had paid a huge amount of
Rs.9,50,000/- to them, the Trial Court has rightly
dismissed the complaint and has acquitted the
respondents of the alleged offence. No interference is
called for as against the well reasoned judgment and order
of acquittal passed by the Trial Court. Accordingly, he
prays to dismiss the appeal.
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6. It is the case of the appellant that the
respondents/accused, who are acquainted to him had
borrowed a sum of Rs.9,50,000/- from him and towards
repayment of the same, they had issued the cheque in
question. It is not in dispute that the cheque is drawn on
the joint account of the respondents maintained by them
in State of Bank of India, Aurad branch and it is also not
in dispute that the signatures found on the cheque in
question belong to respondents/accused. Therefore, a
presumption under Section 139 of N.I.Act arises against
the respondents and unless they rebut the said
presumption by putting up probable defence, they are
liable to be punished for the alleged offence.
7. The respondents undisputedly had not issued
any reply to the legal notice issued on behalf of the
appellant, which was duly served on them. The
respondents/accused have raised a defence before the
Trial Court that the cheque in question was collected by
the appellant during the course of an earlier transaction,
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wherein, they had borrowed a sum of Rs.1,00,000/- from
him and though they had repaid the said amount, the
cheque in question was not returned to them and the
same was subsequently misused by the appellant. It is
relevant to note here that even though such a defence was
raised on behalf of the respondents, they have failed to
probablise the said defence by placing necessary material
before the Trial Court. The respondents have not stepped
into the witness box nor have examined any witness in
support of their defence and no documents were also got
marked in support of their defence. However, the Trial
Court without appreciating all these aspects of the matter
has acquitted the respondents/accused of the alleged
offence solely on the ground that the appellant had failed
to prove his financial capacity to lend a sum of
Rs.9,50,000/- to the respondents/accused. The appellant
during the course of his deposition as PW.1 before the
Trial Court has stated that he is a tailor by profession and
he owns 15 to 16 acres of land. However, no material was
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produced by him before the Trial Court to show that he
owns the aforesaid extent of land.
8. The appellant has filed an application before
this Court under Section 391 of Cr.P.C. with a prayer to
permit him to produce additional evidence and along with
said application, he has produced the copy of the sale
deed dated 31.07.2018 executed by him in favour of one
Chandrakant. Perusal of the said document would go to
show that the appellant had sold two plots bearing Nos.41
and 42 situated at Santosh Colony, Aurad in favour of one
Chandrakant for a total sale consideration of Rs.3,60,000/-
under the aforesaid sale deed. This document would
prima facie show that the appellant is a person of means
and he also has additional income from his tailoring
avocation. Since the Trial Court has acquitted the
respondents/accused only on the ground that the
appellant had failed to prove his financial capacity to lend
a sum of Rs.9,50,000/- to the respondents, in spite of the
fact that the presumption that arose against the
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respondents stood un-rebutted, I am of the opinion that
an opportunity has to be given to the appellant to place
necessary material before the Trial Court to prove his
financial capacity to lend money to the
respondents/accused and if such an opportunity is given,
no hardship would be caused to the respondents.
The Trial Court while considering the aspect of
financial capacity of the appellant has observed that
though he has deposed that he had sold two plots for valid
consideration, he has failed to produce any document
before the Trial Court regarding the sale transaction.
However such a document is now produced by the
appellant before this Court. It is also necessary to take
note of the fact that the respondents/accused had not
questioned the financial capacity of the appellant during
the course of cross-examination, but for the first time such
a contention was urged at the stage of arguments. Under
the circumstances, I am of the opinion that the impugned
judgment and order needs to be set aside and the matter
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has to be remitted to the Trial Court for the purpose of
providing an opportunity to the parties to lead additional
evidence. Accordingly, following order is passed:
ORDER
i) The criminal appeal is allowed.
ii) The judgment and order of acquittal dated
07.01.2023 passed by the Court of Civil Judge
and JMFC, Aurad in C.C.No.379/2019 is set aside
and the matter is remitted to the Trial Court with
a direction to the Trial Court to dispose off the
case afresh after affording an opportunity to the
parties to lead additional evidence.
iii)Since the case is of the year 2019, the Trial
Court shall make endeavors to dispose off the
case within six months from the date of receipt
of certified copy of this judgment.
Sd/-
(S.VISHWAJITH SHETTY)
JUDGE
SRT
CT-PK
