Karnataka High Court
H Shivappa vs A Honnurappa on 25 January, 2025
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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NC: 2025:KHC-K:516
CRL.A No. 200179 of 2024
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
CRIMINAL APPEAL NO.200179 OF 2024
(378(Cr.PC)/419(BNSS))
BETWEEN:
H. SHIVAPPA S/O ERANNA,
AGED ABOUT 76 YEARS,
OCC: AGRICULTURE AND RETD
BDCC BANK EMPLOYEE,
R/O. VENKATESHWAR NAGAR SINDHANUR,
TQ. SINDHANUR, DIST. RAICHUR-584128.
...APPELLANT
(BY SRI ARUNKUMAR AMARGUNDAPPA, ADVOCATE)
AND:
Digitally signed
by SHILPA R A. HONNURAPPA S/O LATE A. THIMMAPPA,
TENIHALLI AGED ABOUT 63 YEARS,
Location: HIGH OCC: BDCC BANK INTERNAL AUDIT OFFICER,
COURT OF SIRUGUPPA CIRCLE, BDCC BANK
KARNATAKA BRANCH SIRUGUPPA,
TQ. SIRUGUPPA, DIST. BALLARI-583121.
...RESPONDENT
(BY SRI VEERSHETTY B. KONDAMAPALLI, ADVOCATE)
THIS CRL.A.IS FILED U/S. 378(4) OF THE CR.P.C
PRAYING TO, A) CALL FOR THE RECORDS IN CC NO.
1242/2019, ON THE FILE OF THE ADDITIONAL CIVIL JUDGE
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CRL.A No. 200179 of 2024
AND JMFC, SINDHANUR. B) ALLOW THIS APPEAL AND SET
ASIDE THE ORDER OF ACQUITTAL OF ACCUSED/RESPONDENT
DATED 03-04-2024, PASSED IN CC NO.1242/2019, ON THE
FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC,
SINDHANUR, FOR THE OFFENCE PUNISHABLE UNDER SECTION
138 OF N.I ACT AND PUNISH THE ACCUSED AS PER
PROVISIONS OF SECTION 138 OF N.I ACT, CONSEQUENTLY
AWARD THE COMPENSATION TO THE COMPLAINT. C) TO PASS
SUCH ORDER OR ORDERS THAT, THIS HON'BLE COURT
THINKS FIT TO PASS.
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 de-facto complainant assailing the judgment and order
of acquittal dated 03.04.2024 passed by the Court of
Additional Civil Judge and JMFC, Sindhanur (for short 'Trial
Court')in C.C.No.1242/2019.
2. Heard learned counsel for the parties.
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3. The appellant herein had initiated proceedings
against the respondent for the offence punishable under
Section 138 of the Negotiable Instruments Act, 1881 (for
short 'N.I.Act') before the Trial Court in C.C.No.1242/2019.
It is the specific case of the appellant/complainant that he
and the respondent were working in Bellary District
Cooperative Central Bank Limited (for short 'BDCC Bank')
at Sindhanur and on 06.12.2016, respondent had
borrowed a sum of Rs.2,00,000/- from him and towards
repayment of the said amount, he had issued a cheque
bearing No.029915 drawn on BDCC Bank Siruguppa
Branch for a sum of Rs.2,00,000/- in favor of the
appellant. The said cheque on presentation for realization
was dishonored with a shara 'funds insufficient' and
therefore, after complying the statutory requirements, the
appellant had filed a private complaint against the
respondent. Since the respondent had failed to pay the
amount covered under the cheque in question in spite of
service of statutory notice. The respondent after
appearing before the Trial Court in the aforesaid
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proceedings had claimed to be tried. Therefore, during the
course of trial, the appellant had examined himself as
PW.1 and got marked 19 documents as Exs.C1 to C19. In
support of his defence, the respondent examined himself
as DW.1 and got marked 7 documents as Exs.D1 to D7.
The Trial Court vide the impugned judgment and order had
acquitted the respondent of the alleged offence and being
aggrieved by the same, the appellant/complainant is
before this Court.
4. Learned Counsel for the appellant having
reiterated the grounds urged in the memorandum of
appeal submits that, the Trial Court was not justified in
acquitting the respondent for the alleged offence. The
transaction in Civil Suit O.S.No.417/2017 was totally
different and the same had nothing to do with the cheque
in question. The respondent has not disputed issuance of
the cheque or the signature found in the cheque.
Therefore, there was presumption against the respondent,
which was not rebutted in accordance with law and the
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Trial Court therefore ought to have convicted him.
Accordingly, he prays to allow the appeal.
5. Per contra, learned counsel for the respondent
submits that the defence raised by the respondent before
the Trial Court was probabilized by him by producing
necessary documents in support of his defence. In
addition to the same, the legal notice issued to the
respondent was not served on the respondent. The Trial
Court having appreciated these aspects of the matter has
rightly acquitted the respondent. Accordingly, he prays to
dismiss the appeal.
6. It is the case of the appellant that the
respondent who had borrowed a sum of Rs.2,00,000/-
from him in the month of December, 2016, towards
repayment of the borrowed amount, had issued the
Cheque in question dated 10.01.2017 and the said cheque
when presented for realization was dishonored. The
private complaint in the present case has been filed by the
appellant before the Trial Court on 11.04.2017.
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Undisputedly, he has also filed O.S.No.417/2017 before
the jurisdictional Sessions Court against the respondent
herein for recovery of a sum of Rs.2,42,000/- with future
interest at 2%. The alleged transaction in the suit is also
of the year 2016 and the suit in O.S.No.417/2017 was
filed before the jurisdictional Civil Court on 26.08.2017. In
the said suit, the appellant has not mentioned about filing
of a private complaint against the respondent for offence
punishable under Section 138 of N.I.Act. Whereas, it is
the specific defence of the respondent that after borrowing
a sum of Rs.2,00,000/- from the appellant in year 2016,
he had repaid the said amount on different dates and all
together he had paid a sum of Rs.2,72,000/- to the
appellant. It is his case that the pronote and cheque,
which was received by the appellant at the time of lending
the money, were not returned in spite of repayment of the
loan. The Civil Court having appreciated the defence of
the respondent, has partly decreed the suit and has held
that the appellant, who is the plaintiff in O.S.No.417/2017
is entitled to recover a sum of Rs.82,407/- with interest at
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6% per annum. It is not in dispute that the decreed
amount in O.S.No.417/2017 has been subsequently paid
by the respondent. The Trial Court having appreciated this
aspect of the matter has held that, the defence raised by
the respondent has been probabilized and therefore, the
presumption that arose against him stood rebutted.
Except the cheque in question, no other document was
produced before the Trial Court by the appellant to prove
that the transaction in the present case and the
transaction in O.S.No.417/2017 were different.
7. The Trial Court has also recorded a finding that
the statutory notice issued to the respondent was not
properly served and correct address of the respondent was
not mentioned on the cover of the legal notice sent on
behalf of the appellant. It is trite that in normal
circumstances, judgment and order of acquittal shall not
be interfered unless the Appellate Court finds that the
judgment and order of acquittal is prima facie perverse or
illegal. The Trial Court has passed a well reasoned
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judgment and therefore, I do not find any good ground to
interfere with the same. Accordingly, the following:
ORDER
The criminal appeal is dismissed.
Sd/-
(S.VISHWAJITH SHETTY)
JUDGE
SRT,DHA
CT:PK
