Karnataka High Court
S C Mohan vs Hot Man Builders Private Ltd on 16 January, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
-1-
NC: 2025:KHC:1567
CRL.A No. 682 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 682 OF 2013
BETWEEN:
S C MOHAN
S/O LATE CHANNAPPA
AGED ABOUT 56 YEARS
COURT, R/O SOORANAHALLI VILLAGE
KASABA HOBLI
HOLENARASIPURA TOWN
DISTRICT HASSAN.
...APPELLANT
(BY SMT. BHAVANA PATIL, ADVOCATE FOR
SRI MALIPATIL P S, ADVOCATE)
AND:
HOT MAN BUILDERS PRIVATE LTD.,
No.315, 5TH MAIN ROAD
2ND BLOCK, R T NAGAR
BANGALORE - 560 032.
Digitally signed by
LAKSHMINARAYANA
MURTHY RAJASHRI
REPRESENTED BY ITS DIRECTORS.
Location: HIGH
COURT OF
KARNATAKA
1. S SRINIVASAMURTHY
S/O LATE VENKAESHAMAPPA
AGED ABOUT 57 YEARS
R/O No. N.A. 79, BELL COLONY
JALLAHALLI POST
BANGALORE - 560 013.
AND
-2-
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CRL.A No. 682 of 2013
S SRINIVASAMURTHY
S/O LATE VENKATESHAMAPPA
R/O No.14, CAR STREET
DODDABALLAPURA TOWN
BANGALORE RURAL.
2. B PRASHANTHA
S/O B MAHADEVA KUMAR
AGED ABOUT 34 YEARS
R/O No. 315, 5TH MAIN ROAD
2ND BLOCK, R T NAGAR
BANGALORE - 560 032.
...RESPONDENTS
(BY SRI T C SANTHOSH, ADVOCATE FOR
SRI M A RAJENDRA, ADVOCATE
V/O DTD. 12.06.24 - R1 IS DEAD)
THIS CRL.A. IS FILED UNDER SECTION 378(4) Cr.P.C
PRAYING TO SET ASIDE THE ORDER PASSED BY THE C.J. AND
J.M.F.C., HOLENARASIPURA IN C.C.No.493/2010 -
ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 138 OF N.I.ACT AND ETC.,
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL JUDGMENT
1. This appeal is filed by the complainant
challenging the judgment of acquittal of the respondents
dated 05.06.2013 passed in C.C. No. 493/2010 by Civil
Judge and JMFC, Holenarasipura whereunder the
respondents - accused have been acquitted for offence
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under Section 138 of the Negotiable Instruments Act (for
short hereinafter referred to as `N.I. Act').
2. It is the case of the appellant - complainant is
that the respondents - accused had borrowed a sum of
Rs.5.00 lakhs as loan from the complainant on
30.04.2009. Said amount was paid by the complainant to
the accused - Company through its Directors. The accused
- Company had issued a cheque of M/s. RVNS Exim Private
Limited bearing No. 564198 drawn on Indian Bank, M.G.
Road, Bangalore, dated 30.04.2010. Said cheque on
presentment came to dishonoured for reason `Account
Closed' on 07.05.2010. The complainant got issued legal
notice. Registered post sent to first accused was returned
with shara `left the place' and notice sent to the address
of Doddaballapura returned as the accused had died on
03.06.2010. As the cheuqe amount is not repaid, the
complainant filed a private complaint against the
respondents. The trial Court after recording the sworn
statement has taken cognizance and registered C.C. No.
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493/2010 against the accused persons for offence under
Section 138 of the N.I. Act.
3. The appellant - complainant in order to prove
his case examined himself as P.W.1 and got marked
Ex.P.1 to Ex.P.12. Statement of the accused persons came
to be recorded under Section 313 of Cr.P.C. The accused
did not lead any defence evidence. The trial Court after
hearing arguments on both sides formulated points for
consideration and passed the impugned judgment of
acquittal. Said judgment of acquittal has been challenged
by the complainant in this appeal.
4. Heard learned counsel for the appellant and
learned counsel for respondents on admission.
5. Learned counsel for appellant would contend
that S. Srinivasa Murthy and B. Prashanth, as Directors of
Hotman Builders Private Limited, borrowed Rs.5.00 lakhs
from the complainant and for making repayment of the
same, issued cheque - Ex.P.1 drawn on the account of
M/s. RVNS Exim Private Limited and the same came to be
dishonoured as `account closed'. Said two persons have
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issued the said cheque for repayment of the amount
borrowed and they are the Directors of both M/s. RVNS
Exim Private Limited and Hotman Builders Private Limited.
She contends that the accused persons have not denied
their signature on the cheque - Ex.P.1. As the signature
on the cheque is admitted, a presumption is to be drawn
under Section 139 of the N.I. Act that the cheque is issued
for making payment of legally enforceable debt/liability.
Without considering these aspects learned Magistrate has
erred in acquitting the respondents for offence under
Section 138 of the N.I. Act.
6. Learned counsel for respondent would contend
that drawer of Ex.P.1 - cheque is M/s. RVNS Exim Private
Limited and it is signed by two Directors of the said
Company. Said M/s. RVNS Exim Private Limited - drawer
of Ex.P.1 has not been arraigned as an accused. One
Hotman Builders Private Limited represented by its
Directors has been arraigned as accused. Said Hotman
Builders Private Limited is not the drawer of the cheque
and therefore, offence under Section 138 of the N.I. Act is
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not attracted against the Directors of Hotman Builders
Private Limited. Considering the said aspect the learned
Magistrate has rightly acquitted the respondents for
offence under Section 138 of the N.I. Act.
7. Having heard the learned counsel for the parties
this Court has perused the impugned judgment of acquittal
and the trial Court records.
8. Cheque - Ex.P.1 is drawn on the account of
M/s. RVNS Exim Private Limited. The drawer of the cheque
is M/s. RVNS Exim Private Limited. Cheque - Ex.P.1 is
signed by two Directors of M/s. RVNS Exim Private
Limited. Said M/s. RVNS Exim Private Limited has not
been arraigned as an accused, instead Hotman Builders
Private Limited has been arraigned as an accused. Said
Hotman Builders Private Limited is not the drawer of the
cheque - Ex.P.1. As Hotman Builders Private Limited is not
the drawer of the cheque - Ex.P.1 it cannot be prosecuted
for offence under Section 138 of the N.I. Act for dishonour
of the cheque of M/s. RVNS Exim Private Limited. Hotman
Builders Private Limited and M/s. RVNS Exim Private
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Limited are two different companies. Even though the
Directors of both the companies are same, cheque -
Ex.P.1 has been drawn on the account of M/s. RVNS Exim
Private Limited. Considering the said aspect, Hotman
Builders Private Limited has not committed any offence
punishable under Section 138 of N.I. Act. Considering the
said aspect the trial Court has rightly acquitted the
respondents. There are no grounds for admitting the
appeal. Hence, the appeal is dismissed.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
LRS
