Karnataka High Court
Mohammad Tajuddin @ Tajuddinsab vs K.S. Srinivas S/O Sathyanesan on 10 July, 2025
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CRL.A No.100348 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 10TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO.100348 OF 2017
BETWEEN:
MOHAMMED TAJUDDIN @ TAJUDDINSAB
S/O. IBRAHIMSAB HUMNABAD,
AGE: 59 YEARS, OCC. BUSINESS,
R/O. ILKAL, TQ. HUNAGUND, DIST. BAGALKOTE.
...APPELLANT
(BY SRI. R.H. ANGADI, ADVOCATE)
AND:
K.S. SRINIVAS S/O. SATHYANESAN,
AGE: 49 YEARS, OCC. BUSINESS,
R/O. KALAVAMPURA HOUSE,
KOTTUVALLIKAD, PO. MOOTHUKUNNAM-683516,
DIST. ERNAKULAM, STATE: KERALA.
...RESPONDENT
(BY KUM. SONU SUHEL, ADVOCATE FOR
SRI. SHARAD V. MAGADUM, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(IV)
Digitally
YASHAVANT
signed by
YASHAVANT
NARAYANKAR
NARAYANKAR Date:
OF CR.P.C., PRAYING TO ALLOW THE APPEAL AND TO SET ASIDE
2025.07.11
10:23:52
+0530
THE JUDGMENT DATED 20.07.2017, PASSED BY THE PRL.
DISTRICT AND SESSIONS JUDGE, BAGALKOTE, IN
CRL.APL.NO.112/2013 REVERSING THE JUDGMENT AND ORDER
OF CONVICTION IN 138 OF N.I.ACT PASSED IN C.C.NO.216/2011
DATED 21.09.2013, PASSED BY THE ADDITIONAL CIVIL JUDGE &
JMFC, HUNAGUND AND CONFIRM THE JUDGMENT AND ORDER OF
CONVICTION IN 138 OF N.I. ACT PASSED BY THE JMFC IN
C.C.NO.216/2011 BY ALLOWING THIS CRIMINAL APPEAL AND
CALL FOR RECORDS.
THIS CRIMINAL PETITION, HAVING BEEN HEARD AND
RESERVED ON 03.07.2025, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE RAJESH RAI K
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CRL.A No.100348 of 2017
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE RAJESH RAI K)
In this appeal, the appellant/complainant has assailed the
judgment of acquittal dated 20.07.2017 in Crl.A.No.112/2013
passed by the Principal District and Sessions Judge, Bagalkot
(hereinafter referred to as the 'First Appellate Court'), whereby
the learned First Appellate Court allowed the appeal filed by the
accused and acquitted him for the offence punishable under
Section 138 of the Negotiable Instruments Act, 1881 (for short
'N.I. Act') by setting aside the judgment of conviction and
sentence dated 21.09.2013 in C.C.No.216/2011 passed by the
Additional Civil Judge and JMFC, Hungund (hereinafter referred
to as the 'trial Court').
2. For the sake of convenience, the parties are
referred to as per their rankings before the trial Court.
3. The abridged facts of the case are as under:
The complainant is the proprietor of Taj Stones Industries
situated at Hanamsagar Road, Ilkal city. The accused is a
proprietor of Chetak Enterprises situated at Madalthuruth,
Moothukunnam, Ernakulam district, Kerala. They both were
well acquainted. In the month of April, 2010 the accused
approached the complainant for financial assistance of
₹6,00,000/-. Based on the request, the complainant advanced
an amount of ₹6,00,000/- to the accused by way of cash. After
two months, the complainant demanded to repay the said
amount. However, the accused failed to repay the loan amount
and finally he issued a cheque dated 14.10.2010, bearing
No.927999 drawn on UCO Bank, Ernakulam, Cochin for a sum
of ₹6,00,000/-. The said cheque was presented by the
complainant through his banker i.e., State Bank of Mysore, Ilkal
Branch for encashment, the same was returned with an
endorsement 'exceeds arrangements'. The said aspect was
intimated by the complainant to the accused through legal
notice dated 10.11.2010, though the notice sent to the resident
of accused served, however the notice sent to the office of the
accused returned with an endorsement 'door locked'.
Thereafter, left with no other option, the complainant filed a
private complaint under Section 200 of Cr.P.C., before the
learned Magistrate against the accused for the offence
punishable under Section 138 of the N.I. Act.
4. To prove the case before the trial Court, the
complainant himself examined as PW.1 and examined one more
witness on his behalf as PW.2 and marked 8 documents as
Exs.P1 to P8.
5. On assessment of oral and documentary evidence,
the learned Magistrate convicted the accused for the offence
punishable under Section 138 of N.I Act and ordered as follows:
"ORDER
Acting U/s. 255(2) of Cr.P.C. the accused
is convicted for the offence punishable under
section 138 of N.I. Act.
The accused is sentenced to pay fine of
Rs.6,10,000/- in default the accused shall
undergo simple imprisonment for a period of 6
months.
Acting under section 357 of Cr.P.C. out of
the fine amount that being deposited by the
accused an amount of Rs.6,00,000/- shall be
paid to the complainant as compensation and
remaining amount shall be appropriated to the
state."
6. Aggrieved by the same, the accused preferred an
appeal before the First Appellate Court in Crl.A.No.112/2013.
7. On reassessment of the evidence on record, the
First Appellate Court allowed the appeal and set aside the
judgment of conviction and sentence passed by the trial Court
and acquitted the accused for the offence punishable under
Section 138 of the N.I. Act. The said judgment of the First
Appellate Court is under challenge in this appeal.
8. Heard the learned counsel Sri R.H. Angadi for the
appellant-complainant and the learned counsel Smt. Sonu
Suhel for the respondent-accused.
9. The primary contention of the learned counsel for
the appellant-complainant is that the First Appellate Court
grossly erred in allowing the appeal by setting aside the
judgment of conviction and sentence passed by the trial Court.
He contended that the First Appellate Court has not considered
the primary aspect that the accused has not replied the legal
notice issued by the complainant, despite service of the same.
Further, he has not disputed his signature on Ex.P1-cheque.
The complainant has complied the mandatory requirements
under the N.I. Act before filing the complaint. As such, the
presumption lies against the accused under Sections 118 and
139 of the N.I. Act. He further contended that the First
Appellate Court has acquitted the accused for the reason that
the complainant has failed to establish the legally recoverable
debt and the accused has rebutted the initial presumption. As a
matter of fact, no contrary evidence has been led on behalf of
the accused to disprove the legally recoverable debt. The
evidence of PWs.1 and 2 is corroborative to each other and
both the witnesses have categorically deposed that the
complainant had advanced the loan amount to the accused by
obtaining hand loan of Rs.2,00,000/- each from his friends one
Abdulgani Bepari and Mundasjanab. Initially, the accused
issued two cheques for repayment of the said loan, however on
his request the complainant returned those 2 cheques and
finally the accused issued the cheque in question. The accused
failed to disprove this aspect and the accused has taken
multiple defence in his evidence, at one breath he states that
the cheque in question was stolen and on the other breath he
states that the cheque in question was pertaining to the granite
business between accused and complainant and the
complainant misused the same for unlawful gain. However, at
no point of time, the accused has denied the legally enforceable
debt owing by the accused to the complainant. As such, the
judgment passed by the First Appellate Court is erroneous and
against the settled principle of law. Accordingly, he prays to set
aside the judgment of acquittal and to uphold the judgment of
conviction passed by the trial Court.
10. Per contra, learned counsel appearing for the
respondent-accused contended that the judgment challenged in
this appeal does not suffer from any perversity or illegality. She
further contended that the First Appellate Court after
meticulously examining the entire evidence and documents on
record, passed a well reasoned judgment by setting aside the
judgment of conviction and sentence passed by the trial Court.
She further contended that the complainant has failed to state
the date of advancing the loan amount of Rs.6,00,000/- to the
accused. Further, according to him, at the time of advancing
the loan amount he has not executed any document or received
the cheque in question. The complainant admitted in cross-
examination that there was a granite business between him
and accused. Admittedly, the notice sent by the complainant
was not served to the accused. In such circumstance, the
accused was unable to reply the legal notice issued by the
complainant. He further contended that complainant failed to
examine the persons from whom he borrowed a hand loan of
Rs.2,00,000/- each to pay the loan to the accused. The
accused also failed to state, when he borrowed the said hand
loan from them. PW.2 deposed contrary to the evidence of
PW.1 and stated that at the time of advancing the loan amount
the accused had issued 2 cheques and those cheques were
dishonored and subsequently, the cheque in question was
issued. Further, the complainant has not disclosed the
transaction in the ITR(Income Tax Return). In such
circumstance, the complainant miserably failed to prove the
lending of loan amount of Rs.6,00,000/- to the accused and as
such, the First Appellate Court has rightly set aside the
judgment of conviction and sentence passed by the trial Court
and acquitted the accused for the offence under Section 138 of
the N.I. Act. Accordingly he prays to dismiss the appeal.
11. Having heard the learned counsel for the parties
and on perusal of the entire material available on record, the
only point that would surface for my consideration is:
"Whether the First Appellate Court is
justified in acquitting the accused for the
offence punishable under section 138 of the
N.I. Act by setting aside the judgment of
conviction and sentence passed by the trial
court in C.C.No.216/2011?
12. I have given my anxious consideration to the
arguments advanced by both the learned counsel and perused
the materials on record.
13. On careful scrutiny of the evidence available on
record, it could be gathered that the cheque in question and
the signature of the accused on it is not seriously disputed by
the accused. It is the specific defence of the accused that,
himself and complainant were into granite business and at that
time the signed cheques of the accused left with the
complainant and later, he misused the same for unlawful gain.
Be that as it may, coming to the complaint and the evidence of
complainant, in the complaint he has not stated the date of
advancing the loan to the accused and the purpose for
obtaining the said amount by the accused. According to the
complainant, he paid the huge sum of Rs.6,00,000/- by
obtaining hand loan from two of his friends namely Abdulgani
Bepari and Mundas Janab to the tune of Rs.4,00,000/-.
However, both these witnesses have not examined before the
Court to substantiate the said aspect. The complainant also
failed to state the source of the balance sum of Rs.2,00,000/-
which he had paid to the accused. He admitted in his cross
examination that he was an income tax assessee, however did
not disclosed this loan transaction in the ITR. He also admitted
in his evidence that he has not executed any documents while
advancing the loan amount to the accused and the cheque in
question was received later. PW.2 deposed contrary to this
evidence and stated that at the time of payment of loan
amount, the complainant received a cheque and presented the
same and the same was dishonored, further the accused had
given one more cheque, the same was also dishonored and
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finally, the cheque in question was issued and presented. On a
careful perusal of the Ex.P1-cheque in question, the same is a
self cheque signed by the accused on both sides. Further, the
complainant also failed to produce any such ledger extract for
having paid the loan amount. In such circumstance, the
complainant has failed to prove advancing of a huge sum of
Rs.6,00,000/- to the accused.
14. No doubt, initial presumption under Sections 118
and 139 of the N.I. Act favours the complainant, however the
complainant is duty bound to prove his financial capacity to
lend the huge amount as a hand loan to the accused. In the
instant case, the complainant himself admitted that he obtained
hand loan from two others and paid the same to the accused.
In such circumstance, he is duty bound to examine those two
persons to prove the same. One of the defence put forth by the
accused that himself and complainant were in granite business
and at that time, the cheque in question was misused by the
complainant is quite probable one. Further, this appeal is
against the judgment of acquittal and it is settled position of
law that the Appellate Court shall not interfere with the
acquittal judgment unless the trial Court had not taken a
plausible view. In the instant case, the First Appellate Court has
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taken a plausible view. In such circumstance, I find no good
grounds to interfere in the acquittal judgment passed by the
First Appellate Court. In that view of the matter, I answer point
raised above in the affirmative and proceed to pass the
following:
ORDER
The Criminal Appeal No.100348/2017 is dismissed.
SD/-
(RAJESH RAI K)
JUDGE
HKV
CT:PA
