Karnataka High Court
Shri. Duradundeshwar Mallikarjun ... vs Mahantesh S/O Shivalingayya Hiremath on 27 June, 2025
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CRL.A No. 100353 of 2017
HC-KAR
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 27TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO.100353 OF 2017 (A)
BETWEEN:
SHRI DURADUNDESHWAR MALLIKARJUN BASARAKOD
AGE: 46 YEARS, OCC. TEACHER,
R/O. ULLAGADDI ONI,
BHUSAPPA CHOWK, DHARWAD.
...APPELLANT
(BY SRI. RAMESH B. CHIGARI, ADVOCATE)
AND:
MAHANTESH S/O. SHIVALINGAYYA HIREMATH,
AGE: 43 YEARS, OCC. BUSINESS,
R/O. 4TH CROSS,
KALYAN NAGAR, DHARWAD.
...RESPONDENT
Digitally
signed by
(BY SRI. N.D. GUNDE, ADVOCATE)
YASHAVANT
YASHAVANT NARAYANKAR
NARAYANKAR Date:
2025.07.02
10:29:15
+0530
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) OF CR.P.C., SEEKING TO SET ASIDE THE IMPUGNED
JUDGMENT AND ORDER OF ACQUITTAL PASSED BY THE
LEARNED PRL. CIVIL JUDGE AND PRL. CIVIL JUDGE AND PRL.
JMFC, DHARWAD, IN C.C.NO.650 OF 2016 BY ITS ORDER
DATED 27.09.2017 AND CONVICT THE ACCUSED FOR THE
OFFENCES PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE
INSTRUMENT ACT, BY ALLOWING THIS APPEAL.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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NC: 2025:KHC-D:8148
CRL.A No. 100353 of 2017
HC-KAR
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE RAJESH RAI K)
In this appeal, the appellant/complainant has assailed the
judgment dated 27.09.2017 in C.C.No.650/2016 passed by the
Principal Civil Judge and Principal JMFC, Dharwad (hereinafter
referred to as the 'trial Court'), whereby the trial Court
acquitted the accused for the offence punishable under Section
138 of the Negotiable Instruments Act, 1881 (for short 'N.I.
Act').
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 and the accused are friends. The accused
is the owner of Shivaganga Talkies situated at Kalaghtagi,
Dharwad and for repair work of the said talkies, he approached
the complainant for financial assistance of Rs. 5,00,000/-.
Based on his request, the complainant advanced an amount of
₹5,00,000/- to the accused by way of cash on 11.11.2008.
Subsequently, the accused once again received a sum of
Rs.70,000/- from the complainant on 02.05.2012 for the same
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purpose. Later, accused received amount from the complainant
on several times totaling to a sum of Rs.14,05,000/-. While
obtaining the said amount, the accused promised the
complainant to repay the said amount within a stipulated period
and he failed to repay the same, as such the complainant
insisted the accused to repay the hand loan. Finally, the
accused issued a cheque bearing No.084602 dated 27.04.2015,
drawn on Axis Bank, Dharwad Branch for a sum of
₹14,05,000/-. The said cheque was presented by the
complainant for encashment through his banker. However, the
said cheque was dishonored for the reason 'Insufficient funds'
vide memo dated 11.05.2015. The said aspect was intimated
by the complainant to the accused through legal notice dated
07.10.2015. The said legal notice was served on the accused
and he replied to it by denying the averments made in the legal
notice. 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 marked 31
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documents as Exs.P1 to P31. The accused also examined
himself as DW.1 and marked 11 documents as Ex.D1 to
Ex.D11.
5. On assessment of oral and documentary evidence,
the learned Magistrate acquitted the accused for the offence
punishable under Section 138 of N.I Act. The said judgment is
challenged in this appeal by the complainant.
6. Heard the learned counsel Sri. Ramesh B. Chigari
for the appellant-complainant and the learned counsel
Sri. N.D.Gunde for the respondent-accused.
7. The primary contention of the learned counsel for
the appellant-complainant is that the trial Court has grossly
erred in acquitting the accused for the offence punishable under
Section 138 of the N.I. Act despite the complainant placed
sufficient evidence to prove the legally recoverable debt by the
accused. He further contended that in the cross-examination of
DW.1 i.e., accused he has categorically admitted that
11.11.2008 he had obtained a hand loan of Rs.5,00,000/- from
the complainant and he executed a acknowledgment to that
effect. Later, he issued the cheques to the complainant. In such
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circumstance, the hand loan obtained by the accused and
issuance of cheque in question are proved. Hence, the
complainant discharged the initial presumption available under
Sections 118 and 139 of the N.I. Act and the same is not
rebutted by the accused. In such circumstance, the trial Court
erred in acquitting the accused. Accordingly, he prays to set
aside the judgment of acquittal by convicting the accused.
8. 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. He
further contended that the complainant has miserably failed to
prove his lending capacity of huge sum of Rs.14,05,000/-. He
being a teacher, he failed to explain as to how he paid the huge
sum by way of cash. Moreover, in his cross-examination he
stated that he had contested for the MLC election in the West
Teachers Constituency and he submitted the assets and liability
declaration as per Ex.D2 and D2(a) wherein he has not stated
about the hand loan given to the accused. Further, the cheque
in question was returned on 11.05.2015, the legal notice was
sent on 07.10.2015. As such, the complainant failed to comply
the mandatory provision under Section 138(b) of the NI Act.
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This aspect was well considered by the trial Court and rightly
acquitted the accused. Accordingly he prays to dismiss the
appeal.
9. Having heard the learned counsel for the parties
and on perusal of the entire materials available on record, the
sole point that would surface for my consideration is:
"Whether the trial Court is justified in
acquitting the accused for the offence
punishable under section 138 of the N.I. Act?
10. I have given my anxious consideration to the
arguments advanced by both the learned counsel and perused
the materials on record.
11. In the instant case, the cheque in question-Ex.P2
was returned on 11.05.2015 with an endorsement as
'Insufficient funds'. However, the complainant issued legal
notice on 07.10.2015 i.e., after lapse of 5 months. Section
138(b) inter alia provides that 'the payee has to make demand
for the payment of money by giving a notice to the drawer of
the cheque within 30 days of the receipt of information by him
from the Bank regarding the return of the cheque as unpaid'. In
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the instant case, the notice was issued after lapse of 5 months.
In such circumstance, the complainant failed to comply the
mandatory requirement under section 138(b) of the NI Act.
Further, as rightly contended by the learned counsel for the
accused, since the complainant failed to disclose the loan
transaction between himself and accused in the 'Asset and
Liability Form' submitted by him to the Election authority, his
claim of advancing loan amount to the accused cannot be
believed. In that view of the matter, the trial Court has rightly
acquitted the accused for the offence punishable under Section
138 of N.I. Act. Hence, interference in the impugned judgment
does not call for. Accordingly, I answer the point raised above
in the 'affirmative' and proceed to pass the following:
ORDER
The Criminal Appeal is dismissed being devoid of
merits.
SD/-
(RAJESH RAI K)
JUDGE
HKV/CT:PA
