Karnataka High Court
Sri M Chandru vs Sri Anjana Murthy on 23 January, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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NC: 2025:KHC:2817
CRL.A No. 1103 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 1103 OF 2013
BETWEEN:
SRI M CHANDRU
AGED ABOUT 51 YEARS
S/O K MADEGOWDA
RESIDING AT ARKESWARA NAGAR
GUTHUL, MANDYA - 571 401.
...APPELLANT
(BY SRI APPAIAH P B, ADVOCATE - V.C)
AND:
Digitally signed
by HEMAVATHY SRI ANJANA MURTHY
GANGABYRAPPA AGED ABOUT 37 YEARS
Location: HIGH SON OF LATE KEMPAIAH
COURT OF
KARNATAKA OCC:CIVIL POLICE CONSTABLE
HAVING HIS ADDRESS AT
FINGERPRINT BUREAU
DISTRICT POLICE UNIT, OFFICE OF
THE SUPERINTENDENT OF POLICE
MANDYA - 571 401.
...RESPONDENT
(BY SRI R PRAMOD, ADVOCATE)
THIS CRL.A. IS FILED UNDER SECTION 378(4) Cr.P.C
PRAYING TO SET ASIDE THE ORDER DATED 21.10.2013
PASSED BY THE PRL. C.J. AND J.M.F.C., MANDYA IN
C.C.No.423/2009 - ACQUITTING THE RESPONDENT/ACCUSED
FOR THE OFFENCE PUNISHABLE 138 OF N.I.ACT AND ETC.,
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CRL.A No. 1103 of 2013
THIS APPEAL COMING ON FOR HEARING, 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 dated 21.10.2013
passed in C.C. No. 423/2009 by the Principal Civil Judge
and JMFC, Mandya whereunder the respondent - accused
has been acquitted for offence under Section 138 of the
Negotiable Instruments Act (hereinafter for the sake of
brevity referred to as the `N.I. Act').
2. Brief facts of the complainant's case is, that the
respondent - accused for his necessity had borrowed loan of
Rs.1,20,000/- on 12.02.2008 and agreed to repay the same
within 2 months. The respondent - accused had issued
cheque bearing No. 608153 dated 23.04.2008 drawn on
Punjab National Bank, Mandya, for Rs.1,20,000/-. The
complainant presented the said cheque for encashment and
it came to be dishonoured for want of funds. The
complainant got issued legal notice dated 03.05.2008
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demanding payment of cheuqe amount. Said notice has
been served on the respondent - accused. The respondent -
accused did not pay the cheque amount. Therefore, the
complainant presented private complaint against the
respondent - accused for offence under Section 138 of N.I.
Act. Learned Magistrate has taken cognizance and
registered C.C. No. 423/2009 against the respondent -
accused for offence under Section 138 of N.I. Act. The plea
of the respondent - accused has been recorded. The
complainant in order to prove his case has examined
himself as P.W.1 and got marked Ex.P.1 to Ex.P.5.
Statement of the accused has been recorded under Section
313 of Cr.P.C. The respondent - accused examined himself
as D.W.1 and got marked one document as Ex.D.1. Learned
Magistrate 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.
3. Heard learned counsel for appellant -
complainant and learned counsel for respondent - accused.
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4. Learned counsel for appellant would contend
that the respondent - accused has admitted his signature on
the cheque - Ex.P.1 and therefore, a presumption under
Section 139 of the N.I. Act requires to be raised. He further
submits that the contradictions in the notice produced by
the complainant at Ex.P.3 and notice received by the
respondent - accused and produced by him at Ex.D.1 are
not material contradictions. With this he prayed to allow the
appeal and convict the respondent - accused for offence
under Section 138 of the N.I. Act.
5. Learned counsel for respondent - accused would
contend that in the notice received by the respondent -
accused there is a mention that the respondent - accused
had borrowed a sum of Rs.1,25,000/- and to make payment
of this amount borrowed he had issued cheque for
Rs.1,25,000/-. He further submits that as per the
averments of the complaint the amount borrowed is
Rs.1,20,000/- and the cheuqe is issued for Rs.1,20,000/-.
In the notice Ex.P.3 there is an alteration in the amount of
borrowing and amount of the cheque. He submits that
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considering the said aspect there is no notice of demand of
actual amount of the cheque and actual amount due.
Therefore, there is no compliance of proviso (b) of Section
138 of the N.I. Act. Considering the said aspect learned
Magistrate has rightly acquitted the respondent - accused.
With this he prayed for dismissal of the appeal.
6. Having heard the learned counsel for the parties
and on perusal of the impugned judgment of acquittal and
trial Court records the following point arises for
consideration in this appeal.
"Whether the learned Magistrate has erred
in acquitting the respondent - accused for
offence under Section 138 of the N.I. Act?"
7. My answer to the above question is in the
negative for the following reasons:
It is the case of the complainant that he has lent
Rs.1,20,000/- to the respondent - accused and respondent
- accused in order to repay the said loan amount has
issued cheque - Ex.P.1 for Rs.1,20,000/- and it came to
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be dishonoured for want of funds. The complainant has
issued notice as per Ex.P.3 to the respondent - accused.
The respondent - accused has produced notice received by
him at Ex.D.1. On comparison of both Ex.P.3 and Ex.D.1
the amount of borrowing and the cheque amount are
different and there is overwriting in the amount borrowed
and cheque amount in Ex.P.3 - notice. In Ex.P.3 - notice,
amount borrowed and cheque amount is Rs.1,20,000/-
and in Ex.D.1 notice the amount borrowed is
Rs.1,25,000/- and cheque amount is Rs.1,25,000/-. In the
notice Ex.D.1 the complainant has demanded excess
amount than the amount due and cheque amount. In
Ex.D.1 there is no mention that excess demand is towards
interest and cost. Considering the said aspect it is clear
that what is demanded under notice Ex.D.1 is not amount
borrowed and not amount of the cheque. As per Ex.P.1 -
cheque the amount of cheque is Rs.1,20,000/-.
Considering the said aspect it is clear that the amount
demanded in Ex.D.1 - notice and cheque amount are
different. Considering the said aspect learned Magistrate
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has rightly held that the appellant - complainant has failed
to prove that the respondent - accused has committed
offence under Section 138 of the N.I. Act. There are no
grounds made out for allowing the appeal and setting
aside the impugned judgment of acquittal.
8. In the result, the appeal is dismissed.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
LRS
