Karnataka High Court
T. K. Nanjundappa vs A. D. Thimmarayappa on 17 February, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.A No. 2052 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO. 2052 OF 2023
BETWEEN:
T.K. NANJUNDAPPA
S/O LATE T.N. KEMPAHONNAIAH
AGED ABOUT 82 YEARS
R/AT J. C. ROAD
NEAR AKKAMAHADEVI SAMAJ
TUMAKURU-572 102
...APPELLANT
(BY SMT. POONAM S. PATIL, ADVOCATE)
AND:
A. D. THIMMARAYAPPA
S/O. LATE DODDEGOWDA
AGED ABOUT 73 YEARS
Digitally signed by PROP. RANGANATHA SERVICE STATION
HEMAVATHY
GANGABYRAPPA R/AT BRAHMANA BEEDHI
Location: HIGH
COURT OF
KORATAGERE TOWN
KARNATAKA TUMAKURU-572 102
...RESPONDENT
(BY SRI. NABEEL, ADVOCATE)
THIS CRL.A IS FILED U/S 378(4) CR.PC PRAYING TO SET
ASIDE THE ORDER PASSED BY III ADDITIONAL CIVIL JUDGE
AND JMFC IV COURT, AT TUMKUR IN C.C.NO.8371 OF 2022
ACQUITTING THE RESPONDENT BY ITS ORDER DATED
04.09.2023 AND CONVICT THE RESPONDENT FOR THE
OFFENCE P/U/S 138 OF N.I. ACT IN C.C.NO.8371/2022.
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CRL.A No. 2052 of 2023
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL JUDGMENT
This appeal is filed by the complainant challenging
the judgment of acquittal dated 04.09.2023 passed in
C.C.No.8371/2022 by the III Additional Civil Judge and
JMFC IV Court, Tumkuru, 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 known person to the
appellant -complainant from past several years and he is
doing business of vending of petroleum products at
Koratagere Town having huge reputation. Based on such
acquaintance, the accused has approached the appellant -
complainant on 09.06.2015 stating that, he has purchased
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lands at koratagere Town abutting to his petrol bunk
during the year 2013 and he is in financial crises due to
said business and accordingly has requested the appellant
-complainant to lend a sum of Rs.10,00,000/- (Rupees
Ten Lakhs only) agreeing to repay the same within two
years with interest. On the same day, the complainant
has issued a cheque bearing No.000777 for
Rs.10,00,000/- (Rupees Ten Lakhs only) drawn on
Veerashaiva Co-Operative Bank. J.C. Road, Tumakuru
infavour of the respondent -accused and the respondent -
accused got encashed the said amount of Rs.10,00,000/-
(Rupees Ten Lakhs only). The respondent -accused has
agreed to repay the said amount along with interest within
two years and endorsed the same on a paper by affixing
his signature. Further at the time of obtaining loan, the
respondent accused had given the original sale deed dated
11.02.2013 pertaining to his land bearing Sy.No.125/2B
measuring 01 acre 06 guntas situated at Mudalapanne
village, Kasaba Hobli, Koratagere Taluk to the appellant -
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complainant as security. On 13.12.2017 the respondent -
accused has approached the appellant -complainant and
expresses his difficulty to repay the said amount of
Rs.10,00,000/-(Rupees Ten Lakhs only) with interest and
has sought for some time and endorsed the same on a
paper by affixing his signature. Further once again on
18.12.2019 the respondent -accused had approached the
appellant -complainant and expresses his difficulty to
repay the said amount and requested to grant some more
time and endorsed the same on a paper by affixing his
signature. Finally, on 06.11.2021 the respondent -
accused has approached the appellant -complainant and
issued a cheque bearing No.684765 for Rs.10,00,000/-
(Rupees Ten Lakhs only) drawn on Karnataka Koratagere
Branch in favour of the appellant -complainant towards
repayment of outstanding loan. The appellant -
complainant presented the said cheque for encashment
and it was returned unpaid on 04.12.2021 with an
endorsement "account closed". Thereafter, the appellant -
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complainant got issued legal notice on 24.12.2021
demanding the respondent -accused to repay the cheque
amount within statutory period. The said notice has been
served on the respondent -accused. The respondent -
accused neither paid the cheque amount nor issued any
reply to the notice. 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.8371/2022 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.1 and got marked
documents as Ex.C1 to C10. The statement of respondent
-accused came to be recorded under Section 313 of
Cr.P.C. The respondent -accused inspite of granting
sufficient opportunity has not lead defence evidence.
Learned Magistrate after hearing arguments on both sides
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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 complaint has been filed on 18.01.2022
in the office as it was Covid-19 lockdown period and the
office has received the complaint filed by the appellant -
complainant and put it's seal dated 18.01.2022 and
thereafter, it was put up before the learned Magistrate on
21.02.2022. Learned Magistrate erred in taking note of
filing of the complaint on 18.01.2022 and considered date
of filing as 21.02.2022 and acquitted the respondent -
accused on the ground that the complaint has not been
filed in time. Learned counsel for the appellant has further
contended that at the time of taking cognizance no such
aspect has not been observed by learned Magistrate. She
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further submits that if there was any delay, the appellant
-complainant ought to have filed an application seeking
condonation of delay in filing the complaint. The complaint
filed on 18.01.2022 is within statutory period as the last
date of filing of the complaint is on 13.02.2022. Learned
Magistrate has not gone into merits of the case and has
acquitted the respondent -accused only on the ground
that the complaint is not filed within statutory period. On
these grounds she prayed to set aside the judgment of
acquittal and remand the matter to trial Court for hearing
arguments on merits of the case and dispose the case in
accordance with law.
6. Learned counsel for the respondent has
supported the reasons assigned by the trial Court and
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
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"Whether learned Magistrate has erred in
taking note of filing of the complaint and
passing the judgment of acquittal of
respondent -accused for offence punishable
under Section 138 of N.I. Act."?
My answer to the above point is in the in the
affirmative for the following reasons.
Cheque -Ex.C1 has been dishonoured on 04.12.2021
for a reason "Account closed". The appellant -complainant
has got issued notice by registered post dated 24.12.2021
a copy of which is at Ex.C2. Postal receipt is at Ex.C3.
The said notice has been served on the respondent -
accused on 29.12.2021 and postal acknowledgement is at
Ex.C4. The complaint has been filed on 18.01.2022 and
same can be observed on perusal of the seal of the Court
on index page of the complaint which is at page No.47 of
the trial Court records. Even though the complaint has
been filed on 18.01.2022, it was put up before the learned
Magistrate on 21.02.2022. At the time of taking
cognizance, the learned Magistrate has not observed any
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delay in filing the complaint. Considering the date of filing
i.e. 18.01.2022 the complaint filed by the appellant -
complainant is within one month from the date of cause of
action as notice on the respondent -accused has been
served on 29.12.2021. Without considering all these
aspects, learned Magistrate has erred in holding that the
complaint filed by the appellant -complaint is beyond the
statutory period.
8. The complainant has been examined as P.W.1
and he has been partly cross examined by learned counsel
for the respondent -accused. Even thereafter, inspite of
keeping P.W.1 -complainant present, learned counsel for
the respondent -accused has not cross examined and
further cross examination has been taken as nil by order
dated 13.06.2023. Thereafter, the statement of the
accused has been recorded under Section 313 of Cr.P.C.
Thereafter, the respondent -accused has been given
opportunity to lead his defence evidence on 06.07.2023,
20.07.2023 and 04.08.2023. The respondent -accused
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inspite of giving opportunity has not lead his defence
evidence and therefore, the case came to be posted to
arguments. Considering the said aspect, the respondent -
accused has been given opportunity for cross examination
of P.W.1 and to lead his defence evidence. As the learned
Magistrate has acquitted the respondent -accused only on
the ground that the complaint is not filed within statutory
period without going into merits of the case of
complainant, the matter requires to be remanded to the
trial Court to proceed with the matter from the stage of
arguments.
9. In the result, the following
ORDER
i) The appeal is allowed.
ii) The judgment of acquittal dated 04.09.2023 passed
in C.C.No.8371/2022 by the III Additional Civil Judge
and JMFC IV Court, Tumkuru is set aside.
iii) The matter is remanded to the trial Court to proceed
with the matter from the stage of arguments.
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iv) Learned Magistrate is directed to dispose the said
case on merits at earliest as parties are senior
citizens.
v) Registry is directed to send back trial Court records
with copy of this Order to the concerned trial Court
forthwith.
vi) The parties are directed to appear before the trial
Court on 05.03.2025.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
DSP
