Karnataka High Court
Md. Younus Khan vs Kailash on 15 January, 2025
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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CRL.A No. 200231 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 15TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
CRIMINAL APPEAL NO. 200231 OF 2023
(378(Cr.PC)/419(BNSS))
BETWEEN:
MD. YOUNUS KHAN S/O MD. ISMAIL KHAN,
AGE: 51 YEARS,
OCC: AGRICULTURE AND BUSINESS,
R/O. BHADRUDDIN COLONY,
CHIDRI ROAD, DIST. BIDAR-585401.
...APPELLANT
(BY SRI KADLOOR SATYANARAYANACHARYA, ADVOCATE)
AND:
KAILASH S/O RAJAPPA ALGODE,
Digitally signed AGE: MAJOR, OCC: PEON/ ATTENDER WORKING IN
by SHILPA R HEERALAL PANNALAL COLLEGE,
TENIHALLI
OPPOSITE PRYAVI HOSPITAL, BIDAR-585401.
Location: HIGH
COURT OF
KARNATAKA ...RESPONDENT
(BY SRI PREETAM DEVLGAONKAR, ADVOCATE)
THIS CRL.A. IS FILED U/S. 378 (4) OF CR.P.C PRAYING
TO ALLOW THE APPEAL AND CONVICT THE ACCUSED /
RESPONDENT FOR THE OFFENCE PUNISHABLE U/SEC. 138 OF
N.I. ACT BY SETTING ASIDE THE JUDGMENT OF ACQUITTAL
PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC-II BIDAR,
IN C.C.NO.2803/2017 DATED 28.02.2023, AND TO AWARD
COMPENSATION TO THE APPELLANT, DOUBLE THE CHEQUE
AMOUNT.
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CRL.A No. 200231 of 2023
THIS APPEAL, COMING ON FOR ADMISSION, 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)
1. This appeal under Section 378(4) of Cr.P.C., is
filed by the complainant assailing the Judgment and Order of
acquittal dated 28.02.2023 passed by the Court of Principal
Civil Judge and JMFC Court II, Bidar, in C.C.No.2803/2017.
2. Heard the learned counsel for the parties.
3. The appellant herein had filed a private complaint
against the respondent herein for the offence punishable
under Section 138 of Negotiable Instruments Act, 1881 (for
short 'N.I.Act'), alleging that the respondent who had
borrowed a sum of Rs.9,00,000/- as hand loan from the
appellant for the purpose of purchasing a plot, had
subsequently towards repayment had issued a cheque dated
07.07.2017 bearing No.223328, drawn on State Bank of
India, B.V.Bhoomreddy college Road Branch, Bidar, and the
said cheque on presentation for realization was dishonoured
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by the drawee Bank with the shara 'funds insufficient'. After
complying the statutory requirements as provided under the
provisions of N.I.Act, the appellant had filed a private
complaint before the Court of Jurisdictional Magistrate in
which after taking cognizance, the learned Magistrate had
issued summons to the accused who had entered
appearance and claimed to be tried.
4. During the course of trial, the complainant
examined himself as P.W.1 and got marked six documents as
Ex.P.1 to Ex.P.6. In support of his defence, respondent
examined himself as D.W.1 and his wife Vidyavati D/o.
Muktappa was examined as D.W.2 and he got marked one
document as Ex.D.1 in support of his defence. The trial Court
after hearing both sides vide impugned Judgment and order,
had acquitted the respondent for the offence punishable
under Section 138 of N.I.Act. Being aggrieved by the same,
the complainant is before this Court.
5. Learned counsel for the appellant reiterating the
grounds urged in the memorandum of appeal has submitted
that, the trial Court was not justified in acquitting the
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respondent, since he has failed to rebut the presumption in
accordance with law. He submits that, since the signature in
the cheque and issuance of the cheque is not in dispute,
there is a presumption under Section 139 of N.I.Act, against
the respondent which was not rebutted in accordance with
law. He also submits that, D.W.2 has admitted that, she had
received all the documents after she completed the course
and the transaction in question was totally independent and
had nothing to do with the complaint that was filed before
the consumer's Court.
6. Per contra, learned counsel for the respondent
has opposed the prayer made in the appeal and submits
that, the trial Court was fully justified in acquitting the
respondent.
7. It is the specific case of the appellant that
respondent had borrowed a sum of Rs.9,00,000/- as hand-
loan for the purpose of purchase of a plot with the promise
to repay the same within the end of June, 2017. Towards
repayment of the amount borrowed, the cheque in
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question dated 07.07.2017 was allegedly issued by the
respondent for a sum of Rs.9,00,000/-. The material on
record would go to show that wife of respondent was
admitted in the institution managed by the appellant for
pursuing her nursing course and it has come on record
that a sum of Rs.1,10,000/- was paid for pursuing the
nursing course during the academic year 2010-2011 by
the respondent and his wife. It is the specific defence of
the respondent that at the time of admission of his wife
(DW.2), the appellant had received a signed blank cheque
for security of balance fees, which was subsequently paid
by him, but the cheque, which was received by the
appellant was not returned.
8. Material on record would go to show that after
DW.2 had completed her nursing course, the appellant had
failed to return the original records and certificates to her
and therefore, she had initiated proceedings before the
District Consumer Forum, Bidar against the appellant in
C.C.No.85/2016. Ex.D1 is the copy of the judgment
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passed in C.C.No.85/2016, wherein, the appellant has
been directed to pay a sum Rs.14,42,000/- as
compensation to DW.2. According to the appellant, an
amount of Rs.9,00,000/- was borrowed by the respondent
in the year 2017 with an assurance of repaying the said
amount on or before the end of June, 2017. It becomes
highly doubtful that appellant would have given a hand-
loan of Rs.9,00,000/- to the respondent, when his wife
(DW.2) had already initiated proceedings before the
jurisdictional consumer forum in the year 2016, wherein, a
claim was made for payment of compensation since the
appellant had failed to return the original documents and
certificates to DW.2, in spite of she completing her nursing
course in the academic year 2010-2011 itself. Except
Ex.P1 - cheque, there is absolutely no material that was
placed by the appellant to prove the alleged transaction
between himself and the respondent. According to the
appellant, he has paid a huge sum of Rs.9,00,000/- to the
respondent, which is not at all proved by him by producing
necessary material before the Trial Court. The respondent
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has raised a probable defence before the Trial Court and
by leading oral evidence and producing documentary
evidence in support of his defence, he has probablised the
same and therefore, the presumption that arose against
him under Section 139 of the Negotiable Instruments Act
stood successfully rebutted.
9. Under the circumstances, I am of the view that
the Trial Court was fully justified in acquitting the
respondent for the offence punishable under Section 138
of the Negotiable Instruments Act and I do not find any
illegality or irregularity in the impugned judgment and
order of acquittal. Hence, I am not inclined to entertain
this appeal.
Accordingly, the appeal is dismissed.
Sd/-
(S.VISHWAJITH SHETTY)
JUDGE
SVH,SRT
CT:PK
