Karnataka High Court
Sri M Bhanuprakash vs Sri N Venkatakrishna on 13 February, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.A No. 203 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO. 203 OF 2015
BETWEEN:
SRI M BHANUPRAKASH
S/O LATE N.R. MAHALINGAPPA,
AGED ABOUT 35 YEARS,
R/AT: 916, III MAIN, VIJAYANAGAR,
BANGALORE 560 040
...APPELLANT
(BY SRI. R.A. DEVANANDA, ADVOCATE)
AND:
SRI N VENKATAKRISHNA
S/O LATE V. NARAYANSWAMY,
AGED ABOUT 53 YEARS,
R/AT NO.19,N.P. LANE COTTONPET CROSS,
BANGALORE 560 053
...RESPONDENT
Digitally signed by (BY SRI. B KESHAVAMURTHY .,ADVOCATE -VC)
HEMAVATHY
GANGABYRAPPA
Location: HIGH THIS CRL.A. IS FILED U/S.378(4) PRAYING TO SET
COURT OF ASIDE THE ORDER DATED:1.1.15, PASSED BY THE 22ND
KARNATAKA
ADDL.CMM, BANGALORE, IN C.C.NO.4793/2012 - ACQUITTING
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 SHIVASHANKAR AMARANNAVAR
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CRL.A No. 203 of 2015
ORAL JUDGMENT
This appeal is filed by the complainant challenging
the judgment of acquittal dated 01.01.2015 passed in
C.C.No.4793/2012 by the XXII Additional Chief
Metropoliton Magistrate, Bengaluru, whereunder the
respondent - accused has been acquitted for offence
punishable under Section 138 of the Negotiable
Instruments Act, 1881 (hereinafter referred to as 'N.I. Act'
for brevity).
2. The case of the appellant - complainant in brief,
is as under:
The respondent -accused is civil contractor and he is
acquainted with the appellant -complainant since 3-4
years. The respondent -accused borrowed Rs.1,25,000/-
from the appellant -complainant during March -2011. In
order to repay the amount borrowed he has issued two
cheques baring No,760887 dated 11.07.2011 drawn on
Karnataka Bank Limited, K.G Road Branch for Rs.25,000/-
and another cheque nearing No.597789 drawn on State
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Bank Of Mysuru, Bengaluru Branch dated 10.08.2011 for a
sum of Rs.1,00,000/-. The appellant -complainant
presented the said cheques for encashment and the said
cheques came to be dishonoured for want of funds in the
account of the respondent -accused. The appellant -
complainant got issued legal notice on 23.08.2011. The
said notice served on the respondent -accused. The
respondent -accused has sent reply to the said legal
notice but did not pay the amount of two cheques.
Therefore, the complainant has filed a private complaint
against the respondent - accused for offence punishable
under Section 138 of the NI Act.
3. Learned Magistrate has taken cognizance
against the respondent -accused and registered case in
C.C.No.4793/2012 for offence punishable under Section
138 of the N.I Act. The plea of respondent - accused has
been recorded. The complainant in order to prove his case
has examined himself as P.W.2 and got marked
documents as Ex.P1 to P11. The statement of respondent -
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accused came to be recorded under Section 313 of Cr.P.C.
The respondent -accused has examined himself as D.W.1
and got marked documents as Ex.D1 to D4. Learned
Magistrate after hearing arguments on both sides has
formulated points for consideration and passed impugned
judgment of acquittal. The said judgment of acquittal has
been challenged by the complainant in this appeal.
4. Heard learned counsel for the appellant and
learned counsel for the respondent.
5. Learned counsel for the appellant would
contend that the respondent -accused has admitted his
signature on cheques -Ex.P2 and P3 and therefore, the
presumption under Section 139 of the N.I Act requires to
be drawn. The respondent -accused has taken up his
defence that he had borrowed money from the father of
the appellant -complainant and has issued cheque as
security and they were misused by the appellant -
complainant. The respondent -accused has not
established the said defence. Therefore, the presumption
drawn under Section 139 of N.I Act is not rebutted.
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Learned Magistrate harped upon different ink used in
writing cheque and even though writing contents of the
cheque has been admitted by the respondent -accused in
his evidence. The respondent -accused has taken up
contrary defences in his reply -Ex.P9 and in his evidence.
Without considering all these aspects, learned Magistrate
erred in acquitting the respondent -accused for offence
punishable under Section 138 of the N.I Act. With these,
he prays to allow the appeal 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 it is specific defence of the respondent
-accused that he has borrowed amount of Rs.20,000/-
from the father of the appellant -complainant and he has
repaid the same by sending Demand Draft(hereinafter
referred to as "DD" for brevity) a copy of which is at Ex.D3
and same has been sent with a letter -Ex.D1 dated
10.12.2010 under certificate of posting -Ex.D2. The DD
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referred in Ex.D1 has been encashed by the father of the
appellant -complainant and same is established by letter
of Karnataka Bank Limited dated 15.10.2014 which is at
Ex.D4. The respondent -accused has established his
defence that the cheques have been given as security to
the father of the appellant -complainant have been
misused by the appellant -complainant. Considering the
same, learned Magistrate has rightly acquitted the
respondent -accused for offence punishable under Section
138 of the N.I Act. With these, he prays for dismissal of
the appeal.
7. Having heard learned counsels, the Court has
perused the impugned judgment and trial Court records.
Considering the grounds urged, the point arises for my
consideration is
"Whether learned Magistrate has erred in
passing the judgment of acquittal of
respondent -accused for offence punishable
under Section 138 of N.I. Act."?
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My answer to the above point is in the partly in the
affirmative for the following reasons.
There are two cheques involved in the present case
and they are as under:
1) Cheque bearing No.760887 -Ex.P2 dated 11.07.2011
for Rs.25,000/- drawn on Karnataka Bank Limited.
2) Cheque bearing No.597789 -Ex.P3 dated 10.08.2011
for Rs.1,00,000/- drawn on State Bank of Mysuru,
Bengaluru Branch.
The respondent -accused has not disputed his
signature on cheques -Ex.P2 and P3. The respondent -
accused on receipt of legal notice sent by the appellant -
complainant as per Ex.P6 has got issued reply dated
08.09.2011 which is at Ex.P9. In reply -Ex.P9, the
respondent -accused has put forth his defence and it is at
para No.6 which reads as under
"6. Our client inform us that in fact your
client father N.R.Mahalingam and himself are
the good friends and earlier they had got
certain transactions and our client had
borrowed certain amount during 2008 from
him and as security tendered the cheque
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bearing No.597789 to him. Our client further
states that under various dates and finally on
10.12.2010 he has discharged his liability and
your clients father also assured that he will
return the cheque after some time as he was
suffering from ill health. There afterwards your
clients father since demised our client
requested your client to return the cheque but
your client assured that he will return the
instrument as the same was not traceable. Our
client further informs us that since your client
has spent huge amount for medical treatment
towards his father he has requested for
financial assistance and by considering long
time association with your clients father he has
obliged to issue the cheque bearing No.760887
to him and later our client has paid the
amount by way of cash and requested to
return the instruments. But your client has by
advancing one or the other pretext has
delayed the things and later resorted to take
the assistance of goonda elements and also
threatened our client. By receiving the present
notice our client has been shocked and
astonished."
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8. As per the said defence, cheque -Ex.P3 has
been issued as security to the father of the appellant -
complainant when the respondent -accused has availed
loan from the father of the appellant -complainant.
Cheque -Ex.P2 has been issued by the respondent -
accused to the complainant to lend money to him as he
was need of money for treatment of his father.
Considering the said defence put forth in reply notice, the
respondent -accused has taken different defences for
cheques which are at EX.P2 and P3.
9. The respondent -accused who has been
examined as D.W.1 has stated in his chief examination
that he had given cheques as security to the amount
borrowed in sum of Rs.20,000/- from the father of the
appellant -complainant. The said defence by D.W.1 in his
evidence is partly contrary to the defence taken in para
No.6 of his reply notice. Ex.D1 is letter dated 10.12.2010
stated to have been sent by the respondent -accused to
the father of the appellant -complainant along with DD for
Rs.20,000/- dated 10.12.2010 a copy is at Ex.D3. The
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said letter and DD have been sent to the father of the
appellant -complainant under certificate of positing and
certificate of posting is at Ex.D2. On perusal of posting
seal the said cover addressed to the father of the appellant
-complainant has been posted on 13.12.2010. Ex.D4 is
letter of the Karnataka Bank wherein it is stated that DD
No.559453 dated 10.12.2010 for Rs.20,000/- favouring
Mr. N.R Mahalingam was paid on 14.12.2010. The said
DD has been referred in Ex.D1. When these documents
Ex.D1 to 4 are put to P.W.1 in his cross examination, he
has shown his ignorance stating that he do not know
regarding them. In Ex.D1 there is specific mention
regarding cheque bearing No.597789 of State Bank of
Mysuru, Bengaluru Branch seeking its return from the
father of the appellant -complainant. The said cheque is
at Ex.P3. Considering Ex.D1 to 4 and evidence on record,
the respondent -accused has established his defence that
the cheque -Ex.P3 has been given as security to the father
of the appellant -complainant when he borrowed money
from him. Considering the said aspect the respondent -
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accused has rebutted the presumption drawn under
Section 139 of the N.I Act with regard to cheque -Ex.P3.
The appellant -complainant has not established his case
with regard to cheque -Ex.P3.
10. The defence of the respondent -accused with
regard to cheque Ex.P2 is that he has issued it to the
appellant -complainant to lend Rs.25,000/- to the
appellant -complainant in order to meet medical expenses
of his father. It is his case that subsequently he paid the
said amount of Rs.25,000/- in cash and complainant has
not returned the said cheque. The said defence has been
put forth by the respondent -accused in para No.6 of reply
notice -Ex.P9. The said defence has not been stated by
the respondent -accused in his evidence. In evidence
D.W.1 -accused has stated that that he has given signed
cheques as security to the father of the appellant -
complainant. The respondent -accused has taken
contrary defence with regard to cheque -Ex.P2. The
defence taken up by the respondent -accused with regard
to Ex.P2 has not been established. Therefore, the
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presumption drawn under Section 139 of the N.I. Act with
regard to cheque -Ex.P2 that it has been issued for
discharge of debt remained unrebutted. As the
respondent -accused has failed to rebut the presumption
drawn under Section 139 of the N.I Act with regard to
cheque -Ex.P2 has to be convicted for offence punishable
under Section 138 of the N.I Act if ingredients of that
offence are satisfied. Cheque -Ex.P2 has been
dishonoured for want of funds in the account of the
respondent -accused. The bank memo is at Ex.P4 and it
is dated 13.08.2011. The appellant -complainant has got
issued notice -Ex.P6 dated 24.08.2011 demanding
payment of amount of cheques. The said notice is within
statutory period. The notice has been served on the
respondent -accused and he has issued reply notice as per
Ex.P9. The cheque amount has not been paid by the
respondent -accused within 15 days from the date of
receipt of demand notice. The appellant -complainant
presented the complaint within statutory period from the
date of cause of action. Therefore, the respondent -
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accused requires to be convicted for offence punishable
under Section 138 of the N.I Act with respect to Ex.P2 -
cheque. The respondent -accused requires to be acquitted
for offence punishable under Section 138 of the N.I Act
with respect to Ex.P3 -cheque.
11. For the aforesaid reasons, the following
ORDER
i) The appeal is allowed in part.
ii) The acquittal of the respondent -accused
for offence punishable under Section 138 of
the N.I Act in respect of Ex.P3 -cheque is
affirmed.
iii) The acquittal of the respondent -accused
for offence punishable under Section 138 of
the N.I Act in respect of Ex.P2 -cheque is
set aside and he is convicted for offence
punishable under Section 138 of the N.I Act
and is sentenced to pay fine of Rs.50,000/-
(Rupees Fifty Thousand only) and in default
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of payment of said fine amount he shall
undergo simple imprisonment for a period
of three months.
iv) Out of the fine amount Rs.45,000/-(Rupees
Forty Five Thousand Only) is ordered to be
paid as compensation to the appellant -
complainant.
v) The respondent -accused shall deposit the
said fine amount within two months from
this day.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
DSP
