Karnataka High Court
Mr Podamada N Appaiah vs Mr T A Balakrishna on 3 March, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2025:KHC:8964
CRL.A No. 2062 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL APPEAL NO. 2062 OF 2018
BETWEEN:
1. MR. PODAMADA N. APPAIAH
AGED ABOUT 66 YEARS,
SON OF LATE NANJAPPA,
DEVANOOR VILLAGE,
BALELE HOBLI,
VIRAJPET TALUK,
KODAGU DISTRICT-571218.
...APPELLANT
(BY SRI. S.R.SREEPRASAD, ADVOCATE)
AND:
1. MR. T.A. BALAKRISHNA
Digitally signed AGED ABOUT 65 YEARS,
by DEVIKA M SON OF LATE ACHUTHA,
Location: HIGH NEAR KODAVA SAMAJA,
COURT OF BALELE POST,
KARNATAKA
VIRAJPET TALUK,
KODAGU DISTRICT-571218.
...RESPONDENT
(RESPONDENT SERVED)
THIS CRL.A IS FILED U/S.378(4) OF CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT ORDER DATED 28.07.2018 PASSED
BY THE CIVIL JUDGE AND J.M.F.C., PONNAMPET IN
C.C.NO.1048/2018 - ACQUITTING THE RESPONDENT/ACCUSED
FOR THE OFFENCE P/U/S 138 OF N.I. ACT.
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CRL.A No. 2062 of 2018
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
1. Heard the learned counsel for the appellant and
respondent though served, unrepresented.
2. This appeal is filed by the complainant against
the dismissal of C.C.No.1048/2015 acquitting the accused.
The case of the complainant before the Trial Court is that
the accused is known to the complainant for many years,
in the month of June 2009, the accused approached and
asked the complainant to purchase his property for total
consideration of Rs.15,00,000/-. Accordingly the accused
executed a sale agreement in favour of the complainant
and received Rs.15,00,000/- cash from the complainant.
The accused promised the complainant that he would get
ready the documents for registration in the month of
November 2015. In the meantime, the accused tried to
alienate the property, hence the complainant published a
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public notice in newspaper on 24.11.2015 stating his
objection for the sale of property. That on 26.11.2015 the
accused approached the complainant, requested him to
cancel the sale agreement and issued a Cheque for
Rs.15,00,000/-. Accordingly the complainant agreed to
cancel the said agreement subject to encashment of the
Cheque. When the said Cheque was presented for
collection, the same was dishonored with an endorsement
'Funds Insufficient'. The complainant caused a legal notice
calling upon the accused to pay the amount covered under
the Cheque. The notice was served to the accused, he
gave untenable reply and the accused has not repaid the
amount covered under the Cheque. Hence, the complaint
was filed. The Trial Court taken cognizance and the
accused was secured and he did not plead guilty and
hence faced the trial. In order to prove the case of the
complainant, he has been examined as PW1 and got
marked Ex.P1 to Ex.P12 and accused was subjected to 313
statement and thereafter accused lead his evidence and he
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has been examined as DW1 and got marked Ex.D1 to
Ex.D6.
3. The Trial Court having considered both oral and
documentary evidence placed on record particularly the
admission given by PW1 in cross-examination which is
extracted in paragraph Nos.8 to 14 the admission of PW1
and comes to the conclusion that the very transaction of
sale agreement itself is doubtful and also comes to the
conclusion to pay the amount of Rs.15,00,000/- he was
not having the amount since he had admitted in the year
2008 itself and he had borrowed the loan from the bank
and hence it is clear that he was not having any sufficient
money to purchase the property and also according to
him, the agreement was entered between the parties in
terms of Ex.P6 but on demand only Cheque was issued in
the year 2015 which is subject matter of the case. The
very transaction itself is doubtful and also payment of
Rs.15,00,000/- and hence, not accepted the case of the
complainant and hence dismissed the complaint filed by
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the complainant. Being aggrieved by the said order, the
present appeal is filed before this Court.
4. The main contention of the
appellant/complainant before this Court that the very
finding of the Trial Court is erroneous and the Trial Court
has not appreciated the material on record in a proper
perspective. The Trial Court erred in coming to the
conclusion that the appellant failed to discharge the
burden of proof and respondent is liable for acquittal which
is contrary to the judgment of the case of the Apex Court
in a Rangappa's case.
5. The counsel also would vehemently contend
that though he contend that reply was given, but not
produced any document for having given the reply before
the Trial Court. The counsel would vehemently contend
that during the course of cross-examination, even
suggestion was made with regard to the cancellation of
agreement and if no such agreement, question of
cancellation of agreement does not arise. The complainant
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has given clear answer that when the request was given to
cancel the agreement, the same was refused and hence,
failed to take note of the material available on record,
particularly suggestion made to the PW1 by the counsel
appearing for the accused himself in page No.10. The
reason assigned by the Trial Court is erroneous. The
counsel also would vehemently contend that the defense
taken by the respondent that he had borrowed an amount
of Rs.50,000/- and he had deducted the interest of
Rs.5,000/- and he has given only Rs.45,000/- and at that
time, he has collected the Cheque as well as the signature
on the stamp paper and same is made use of it. The said
defense is also not proved by the defense though
examined himself as DW1 and hence, the very approach of
the Trial Court is erroneous and it requires interference.
6. Having heard the appellant's counsel and also
on perusal of material available on record, the point that
would arise for consideration of this Court are:
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1) Whether the Trial Court committed an
error in dismissing the complaint filed by
the complainant in coming to the
conclusion that there was no such
transaction and payment of
Rs.15,00,000/- was made by the
complainant as against the accused and
whether it requires interference of this
Court?
2) What Order?
7. Having considering the material on record, the
very nutshell of the complainant is that the accused
himself had approached him for sale of his property for
sale consideration of Rs.15,00,000/- and he made the
payment of Rs.15,00,000/- and he entered into agreement
in terms of Ex.P6 and when he did not come forward to
execute the sale deed, on demand he had issued the
Cheque in issue that is Ex.P1 and when the same was
presented, returned with an endorsement 'Funds
Insufficient' and notice was given and no reply was given.
No doubt there is no any need for the accused to enter
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into the witness box and rebut the case of the complainant
and if complainant also relied upon the document of
Ex.P1-Cheque which bears the signature of the accused.
The accused also not disputes the Cheque and signature
and also the document of Ex.P6-agreement and only his
contention is that he had borrowed an amount of
Rs.50,000/- for construction of his house and he repaid
the said amount, but the complainant did not return the
Cheque as well as the stamp paper and when he came to
know about the creation of document in terms of Ex.P6, he
went and demanded to return the same and he did not
return the same. No doubt there is a presumption under
Section 139 of N.I Act that if Cheque is admitted and
signature is admitted, Court has to draw the presumption
and also Court has to see whether there is any plausible
evidence led by the accused. The DW1 also examined
before the Court and he set out his defense that he had
borrowed an amount of Rs.50,000/- and also it is his case
that he had constructed a house in the year 2009 by
availing the benefit of 'Ashraya Scheme' and taken the
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money of Rs.50,000/-, but he paid an amount of
Rs.45,000/- after deducting Rs.5,000/- towards interest
and paid an amount of Rs.45,000/- and also took the
signature on the stamp paper which is Rs.100/- and the
same is made use of filing of this complaint. In support of
his contention also, he contend that he gave the reply
through his advocate, but the same is not produced, but
he instructed the advocate to produce the same. In the
cross-examination of DW1 regarding payment of
Rs.15,00,000/- nothing is elicited from him. The accused
also relied upon the document of paper publication given
by him which is marked as Ex.D1(a) and also produced the
document of Ex.D2 for giving an application seeking the
benefit of scheme under the 'Rural Rozgar Scheme' as per
Ex.D2 and also produced the list of persons who are
entitled for the scheme in the year 2006, 2007 and the
same is marked as Ex.D3 to Ex.D5 as against the evidence
of complainant. Hence, it is clear that he had availed the
benefit of scheme under rural roster. Apart from that in
the cross-examination of PW1, it is elicited from the mouth
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of PW1 that in the year 2008 he had availed the loan from
the bank for an amount of Rs.1,75,000/- and again for an
amount of Rs.1,25,000/- and in all totally an amount of
Rs.3,00,000/- was borrowed as loan from the bank. The
document Ex.P6 is agreement dated 10.06.2009 within a
span of one year, the document came into existence
wherein also, the document discloses that on the date of
agreement itself, an amount of Rs.15,00,000/- was paid
and also sale consideration is for an amount of
Rs.15,00,000/- and demand was made in the year 2015
and refunded the amount with Cheque which is subject
matter Ex.P1 that is dated 26.11.2015 and hence, the Trial
Court rightly given the reason that when the agreement
was entered in the year 2009 and having paid the amount
of Rs.15,00,000/- in the year 2009 what made him to
collect the Cheque for an amount of Rs.15,00,000/- after
lapse of almost 6 years. Apart from that one year prior to
the alleged agreement of Ex.P6, according to him, he
made the payment of Rs.15,00,000/- but he had availed
the loan from the bank to the tune of Rs.3,00,000/- from
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the bank and no explanation on the part of the
complainant about how he got an amount of
Rs.15,00,000/-. Apart from that what made him to make
the payment of Rs.15,00,000/- on the date of agreement
itself, entire sale consideration and also the registration of
the document, no time limit is mentioned and also in the
document of Ex.P6, it is mentioned that he is going to
execute the sale deed in the year 2015 and in case if he
does not come forward to execute the sale deed,
undertaken to repay the amount through Cheque and also
given liberty to file a case against him. Having considered
the very averments of Ex.P6, it creates doubt in the mind
of the Court. Hence, the Trial Court passed the reasoning
order in coming to the conclusion that the very execution
of the document of Ex.P6 is doubtful and also having made
the payment of Rs.15,00,000/- as sale consideration that
too a full sale consideration. In the year 2009 and agreed
to refund the very same amount in the year 2015 and also
given liberty to file a case if amount is not paid and the
same is also taken note of by the Trial Court and also
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comes to the conclusion that the very contention of the
complainant cannot be accepted and also detailed
discussion is made in paragraph Nos.11 and 15, for having
availed the loan of Rs.3,00,000/- in the year 2008 and
contention that he made the payment of Rs.15,00,000/- in
the year 2009 as well as the admission extracted in
paragraph Nos.13 and 14 and in one breath he says that
in the year 2009 property was in the name of
B.K.Seetharam and not in the name of the accused and
also taken note of the very admission on the part of PW1
that Cheque was given on 10.06.2009, but Cheque dated
26.11.2015 and the same is considered in paragraph
No.26. Having re-assessed the material available on
record including the cross-examination of PW1 and also
the evidence of the accused when he availed the benefit of
'Rural Rozgar scheme' for construction of the house and
availing loan of Rs.15,00,000/- as against the execution of
the document Ex.P6 is doubtful and hence, I do not find
any perversity in finding of the Trial Court while
considering the case of the complainant, more than the
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case of the complainant, case of the accused is more
probable since he had constructed the house availing the
benefit of scheme under Rozgar and contend that he had
availed the loan of Rs.50,000/- and out of that he has
received Rs.45,000/- only and repaid the same and
Cheque and stamp paper was not returned when the
payment was made and documentary evidence of accused
probablize the case of the accused and no material and
preponderance of probability is in favour of the accused
and not in favour of the complainant. Hence, I do not find
any merit in the appeal to comes to a other conclusion and
reverse the judgment of acquittal by the Trial Court.
Hence, I answer the point as 'Negative'.
8. In view of the discussions made above, I pass
the following:
ORDER
The Criminal Appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
RHS
