Karnataka High Court
Sri Vajre Gowdaa M D vs Sri R Puttarangachar on 28 January, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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NC: 2025:KHC:3721
CRL.A No. 1075 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 1075 OF 2015
BETWEEN:
SRI VAJRE GOWDAA M D
S/O LATE DASEGOWDA
AGED ABOUT 61 YEARS
RESIDING AT No.1
12TH 'A' MAIN
BRINDAVAN NAGAR
MATHIKERE
BANGALORE - 560 054.
...APPELLANT
(BY SRI F S DABALI, ADVOCATE)
AND:
Digitally signed by
LAKSHMINARAYANA
MURTHY RAJASHRI SRI R PUTTARANGACHAR
Location: HIGH
COURT OF S/O RANGACHAR
KARNATAKA AGED ABOUT 47 YEARS
RESIDING AT No.18,
"MATHRUSHREE" NILAYA
14TH MAIN, MUTHYALAMMA NAGAR
MATHIKERE POST
BANGALORE - 560 054.
...RESPONDENT
(BY SRI. K S RAMESH, ADVOCATE - ABSENT)
THIS CRL.A.IS FILED UNDER SECTION 378(4) Cr.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
ACQUITTAL DATED 03.08.2015 PASSED BY THE COURT OF
XVIII ACMM, BANGALORE IN C.C.No.6979/2013 - ACQUITTING
THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 138 OF N.I. ACT AND ETC.,
-2-
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CRL.A No. 1075 of 2015
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 appellant - complainant
challenging the judgment of acquittal dated 03.08.2015
passed in C.C.No.6979/2013 by the XVIII Additional Chief
Metropolitan Magistrate, Bengaluru, whereunder, the
respondent - accused has been acquitted of the offence
punishable under Section 138 of the Negotiable
Instruments Act, 1881 (for short hereinafter referred to as
'N.I.Act').
2. Case of the appellant - complainant in brief is as
under;
The respondent - accused is the friend of
the appellant - complainant and in the second week of
August, 2012, the respondent - accused sought for
financial assistance from the appellant - complainant to an
extent of Rs.3,00,000/- for his personal commitments.
During the last week of September, 2012, the appellant -
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complainant had advanced Rs.3,00,000/- as hand loan to
the respondent - accused. The respondent - accused had
promised to repay the said amount within one month. As
the respondent - accused did not repay the amount
borrowed within one month, the appellant - complainant
insisted him to repay the amount borrowed. In the first
week of November, 2012, the respondent - accused had
issued the post dated cheque in favour of the appellant -
complainant for Rs.3,00,000/- dated 29.11.2012 draw on
Axis Bank Limited, Jayanagara Branch, Bengaluru. The
appellant - complainant presented the said cheque for
encashment and it came to be returned with an
endorsement 'funds insufficient'. The appellant -
complainant got issued the legal notice and the same has
been served on the respondent - accused. The respondent
- accused did not pay the cheque amount and therefore,
the appellant - complainant had filed a private complaint
against him for the offence under Section 138 of the
N.I.Act. The learned Magistrate took cognizance and
registered C.C.No.6979/2013 against the respondent -
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accused for the offence under section 138 of the N.I.Act.
The plea of the respondent - accused had been recorded.
The complainant, in order to prove his case, has examined
himself as PW1 and got marked Exs.P1 to P5. Ex.D1 has
been marked in the cross examination of PW1. The
statement of the respondent - accused came to be
recorded under Section 313 of Cr.P.C. The respondent -
accused examined himself as DW1 and got marked Exs.D2
and D3 in his evidence. The learned Magistrate after
hearing the arguments on both sides, had formulated the
points for consideration and thereafter, passed the
impugned judgment of acquittal. The said judgment of
acquittal has been challenged by the appellant -
complainant in the present appeal.
3. Heard learned counsel for the appellant -
complainant. Learned counsel for the respondent -
accused is not present.
4. Learned counsel for the appellant - complainant
would contend that the respondent - accused had
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admitted his signature on Ex.P1 - cheque and therefore, a
presumption arises that the cheque had been issued for
making payment of the legally enforceable debt. The said
presumption is not rebutted by the respondent - accused.
The respondent - accused has not sent any reply to the
legal notice got issued by the appellant - complainant as
per Ex.P3. The appellant - complainant has not
established his defence that the cheque has been issued
as a security to the chit transaction lent by the appellant -
complainant and his wife. Without considering all these
aspects, the learned Magistrate has erred in passing the
impugned judgment of acquittal. With this, he prayed for
allowing the appeal and convicting the respondent -
accused for the offence under Section 138 of the N.I.Act.
5. Having heard learned counsel for the appellant -
complainant, this Court has perused the impugned
judgment and the Trial Court records. Considering the
grounds urged, the following point arises for
consideration;
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"Whether the learned Magistrate has erred in
acquitting the respondent - accused of the
offence punishable under Section 138 of the
N.I.Act?"
6. My answer to the above point is in the nagative, for
the following reasons;
The respondent - accused had admitted his signature
on the cheque - Ex.P1. As the respondent - accused had
admitted his signature on the cheque - Ex.P1, the
presumption has to be drawn that the cheque had been
issued for making payment of the legally enforceable debt.
The said presumption is a rebuttable presumption.
7. It is the defence of the respondent - accused that
the appellant - complainant and his wife were running the
chit transaction and he was one of the member in the said
chit and he had taken the chit amount and at that time, he
had issued a signed cheque as a security. The said
defence has been put to PW1 in his cross examination and
he had denied the same. The respondent - accused who
has been examined as DW1, in his evidence has
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specifically stated that he is neighbour of the appellant -
complainant and he is one of the member of the chit
transaction run by the appellant - complainant and his
wife and he used to pay Rs.2,500/- + Rs.2,500/- in
respect of two chits every month. He has further stated
that during October, 2010, he had bid the chit and took
the amount and at that time, he had issued two blank
signed cheques as a security. Ex.D3 - pocket diary has
been produced to establish the contention of the
respondent - accused that the appellant - complainant
and his wife used to affix their signatures whenever they
receive the chit amount. The appellant - complainant has
denied that he has affixed the signature in Ex.D3 - pocket
diary. In Ex.D3 - pocket diary, there are several entries
on different dates mentioning Rs.5,000/- and there are
signatures against each entry.
8. On perusal of the signatures against the entries in
the said Ex.P3 - pocket diary and comparing them with
the signature of the appellant - complainant on the
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complaint, his signature appears to be similar. In the said
Ex.D3 - pocket diary, there is also mention that the
cheque No.260266 has been given as a security. The said
cheque is the cheque which is at Ex.P1. PW1 has admitted
that the contents of the said cheque ie., name of the
payee, amount in figures and words and the date are
different than the signature of the drawer. Above said
aspects clearly probabalize the defence of the respondent
- accused. By the said evidence, the respondent -
accused has rebutted the presumption raised under
section 139 of the N.I.Act. As the presumption has been
rebutted, the onus shifts on the appellant - complainant to
establish the alleged lending of Rs.3,00,000/- and
issuance of the cheque - Ex.P1 for making payment of the
debt or liability. The alleged amount lent by the appellant
- complainant is Rs.3,00,000/- during September, 2012.
PW1, in his cross examination had admitted that he was
not doing any avocation during the year 2012 and he had
left the business of doing school students identity card
four years prior to that. He has also admitted that he had
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no income during the year 2012. The said aspect would
itself indicate that he had no source of income or money
available with him for lending the amount to the
respondent - accused. Considering all these aspects, the
learned Magistrate has rightly held that the appellant -
complainant had failed to prove the alleged lending of
Rs.3,00,000/- and issuance of cheque - Ex.P1 for making
the payment of the said legally enforceable debt. The
learned Magistrate considering the said aspects, has
passed the reasoned judgment acquitting the respondent -
accused for the offence under Section 138 of the N.I.Act.
There are no grounds made out for setting aside the well
reasoned judgment of acquittal. In the result, the
following;
ORDER
The appeal is dismissed.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
GH
