Karnataka High Court
M/S Suvarna Jyoti Finance Corporation ... vs Mukesh on 24 January, 2025
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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CRL.A No. 200016 of 2024
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
CRIMINAL APPEAL NO.200016 OF 2024
(378(Cr.PC)/419(BNSS))
BETWEEN:
M/S SUVARNA JYOTI FINANCE CORPORATION (R)
THROUGH ITS PARTNER
SRI SHARNABASAPPA S/O REVAPPA CHALKE,
AGE: 54 YEARS,
OCC: BUSINESS AND MANAGING PARTNER,
IN THE ABOVE FINANCE,
R/O. SUVARNA TOWER,
IIIRD FLOOR, 7-1214/B/1,
MAHALAXMI LAYOUT,
HUMNABAD ROAD, KALABURAGI-585101.
...APPELLANT
Digitally signed by
SHILPA R (BY SRI SHARANABASAPPA K. BABSHETTY, ADVOCATE)
TENIHALLI
Location: HIGH
COURT OF AND:
KARNATAKA
SRI MUKESH S/O VIJAYKUMAR,
AGE: 40 YEARS,
R/O. H.NO. 6-676/A,
NEAR GULZAR SCHOOL,
PUTANI GALLI,
RANGEEN MASJID,
KALABURAGI-585101.
...RESPONDENT
(BY SRI SYED FAYAZUDDIN, ADVOCATE)
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CRL.A No. 200016 of 2024
THIS CRL.A. IS FILED U/S. 378 (4) OF CR.P.C PRAYING
TO SET ASIDE THE JUDGEMENT AND ORDER DATED
06.12.2023 PASSED BY THE I ADDL. CIVIL JUDGE AND JMFC
AT KALABURAGI IN C C NO.4826/2018 AND CONVICT THE
RESPONDENT/ACCUSED FOR THE OFFENCE U/SEC 138 OF N.I
ACT.
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)
This appeal under Section 378(4) of Cr.P.C., is filed
by the appellant/complainant assailing the Judgment and
order of acquittal dated 06.12.2023 passed by the I
Additional Civil Judge and JMFC Court, at Kalaburagi, in
C.C.No.4826/2018.
2. Heard the learned counsel for the appellant.
The respondent who is served in the matter, has remained
un-represented before this Court.
3. The complainant had initiated proceedings
against the respondent for the offence punishable under
Section 138 of Negotiable Instructions Act, 1881, (for
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short 'N.I.Act') before the trial Court in C.C.No.4826/2018.
It is the specific case of the complainant that the
respondent had borrowed a sum of Rs.5,00,000/- from the
complainant finance company during the year 2017 and
towards repayment of the borrowed amount, he had
issued a cheque bearing No.045536, dated 24.04.2018 for
a sum of Rs.5,00,000/- drawn on Axis Bank, Super Market
Branch, Kalaburagi. The said cheque on presentation to
the Bank, was dishonoured with an endorsement as
'signature differs'. Thereafter, the complainant had got
issued legal notice to the respondent and since in spite of
service of legal notice, the respondent had failed to pay
the amount covered under the cheque in question, the
complainant had initiated proceedings against the
respondent for the offence punishable under Section 138
of N.I.Act.
4. During the course of trial, in support of its case,
the complainant had examined its partner as P.W.1 and
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Manager of the Bank as P.W.2 and 12 documents were got
marked as Ex.P.1 to Ex.P.12.
5. In support of his defence, neither any evidence
was led nor any documents were marked by the
respondent. The trial Court by the impugned Judgment
and order, acquitted the respondent for the offence
punishable under Section 138 of N.I.Act, and aggrieved by
the same, the complainant is before this Court.
6. Learned counsel for the complainant submits
that, the transaction between the parties has been proved
by producing necessary documentary evidence before the
trial Court. The issuance of cheque in question is not in
dispute. The presumption that arose against the
respondent has not been properly rebutted, therefore, the
trial Court ought to have convicted him for the alleged
offence. He submits that, deliberately the respondent has
affixed a wrong signature on the cheque in question with
an intention to cheat the complainant finance company.
Accordingly, he prays to allow the appeal.
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7. Before the trial Court, the partner of the
complainant-finance company is examined as P.W.1 and
Manager of the Bank who has issued the cheque return
memo at Ex.P.4 is examined as P.W.2. Ex.P.1 is the
cheque in question. Ex.P.2 and Ex.P.3 are the loan
application and receipt of the loan sanctioned. Ex.P.4 is
the cheque return memo. Ex.P.5 is the legal notice issued
on behalf of the complainant and Ex.P.6 is the postal
receipt and Ex.P.7 is the professional courier's receipt and
Ex.P.8 is the postal acknowledgement. Ex.P.9 is the
transaction inquiry and Ex.P.10 is the authorization letter
of P.W.1. Ex.P.11 is the CD Loan Ledger and Ex.P.12 is the
reply notice.
8. The cheque in question has been returned with
a banker's endorsement 'signature differs'. It is the
specific defence of the respondent that, he had issued a
cheque at the time of borrowing the loan as security and
the said cheque has been misused by the complainant and
the proceedings were initiated against him for the offence
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punishable under Section 138 of N.I.Act. During the course
of cross-examination of P.W.1, it is specifically suggested
that, at the time of sanctioning the loan, two blank
cheques were received by the finance company as security
for the loan sanctioned and the said cheques were
misused by the finance company. The cheque in question
has now been returned by the Bank with an endorsement
'signature differs'. Therefore, the defence put forwarded
by the respondent gets probabilized and eventually the
presumption that arose against him under Section 139 of
N.I.Act gets rebutted.
9. Ex.P.4 is the cheque return memo and
undisputedly, the said cheque does not bear the signature
and seal of the Bank. There is a specific suggestion to
PW.2 by the defence that as per the circular issued by the
Reserve Bank of India, the Bank cannot issue cheque
return memo without seal and signature. PW.2 has stated
that he is not aware of any such circular, but said circular
was produced before the Trial Court by the defence and
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the Trial Court has extracted the contents of the circular in
paragraph No. 11 of its judgment. A reading of the
circular, which is issued on 25.07.2011 would go to show
that the Banks were specifically advised to sign/initial the
cheque return memos and issuing cheque return memos
without seal and signature is said to be in violation of
instructions contained in Uniform Regulations and Rules
for Bankers' Clearing Houses, which is issued under
payment and settlement Act, 2007 read with Payment and
Settlement Systems Regulations, 2008. It is in this
background, the Trial Court has acquitted the respondent
for the offence punishable under Section 138 of the N.I.Act
and therefore, it cannot be said that the judgment and
order of acquittal passed by the Trial Court is prima facie
illegal or perverse in nature.
10. Under the circumstances, I am of the opinion
that the impugned judgment and order of acquittal cannot
be interfered with. Accordingly, the following order is
passed:
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ORDER
The criminal appeal is dismissed.
Sd/-
(S.VISHWAJITH SHETTY)
JUDGE
SVH/SRT
CT:PK
