Karnataka High Court
Sri.Manjunath vs Sri. Manjunath on 12 March, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
-1-
NC: 2025:KHC-D:4687
CRL.A No. 100279 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 12TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO.100279 OF 2016
BETWEEN:
SRI MANJUNATH
S/O. PANDURANG REVANKAR,
AGE: 26 YEARS,
OCC: GOLDSMITH,
R/O: HABBUWADA, KARWAR.
...APPELLANT
(BY SMT. PRIYANKA KADAMPUR, ADVOCATE APPEARED FOR
SRI B.C. JNANAYYA SWAMI AND
SRI B. ANWAR BASHA, ADVOCATES)
AND:
SRI MANJUNATH
S/O. VENKATRAMAN KURDEKAR,
AGE: 38 YEARS, OCC: GOLDSMITH,
R/O: H.NO.2274 ASHIRWAD,
NANDESHWAR ROAD MUNDGOD,
Digitally signed by TQ: KARWAR.
ASHPAK
KASHIMSA
MALAGALADINNI
...RESPONDENT
Location: High (BY SRI V. S. KALASURMATH, ADVOCATE)
Court of Karnataka,
Dharwad Bench,
Dharwad
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF
CR.P.C., PRAYING TO CALL FOR RECORDS IN CRIMINAL CASE
NO.331 OF 2006 ON THE FILE OF THE LEARNED J.M.F.C. 2ND COURT,
KARWAR, PERUSE THE SAME, ALLOW THIS APPEAL AND SET ASIDE
THE ORDER OF ACQUITTAL DATED 03.09.2016 AND HOLD THE
RESPONDENT/ACCUSED GUILTY OF THE OFFENCE PUNISHABLE
UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS CRIMINAL APPEAL, COMING ON FOR FINAL HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
-2-
NC: 2025:KHC-D:4687
CRL.A No. 100279 of 2016
CORAM: THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL JUDGMENT
This appeal is filed by the appellant/complainant
challenging the judgement of acquittal dated 03.09.2016
passed in C.C.No.331/2006 by J.M.F.C., 2nd Court, Karwar,
whereunder, respondent/accused has been acquitted for
offence under Section 138 of Negotiable Instruments Act,
1881 (hereinafter referred to as '138 of N.I.', for short).
2. The case of the appellant/complainant in brief is
as under:
The complainant and accused are Goldsmiths by
profession and the accused used to purchase gold and silver
ornaments from the complainant on cash and credit basis.
There was an outstanding balance of Rs.56,000/- from the
accused to the complainant. When the complainant has
demanded the said amount, the accused has issued a post
dated cheque bearing No.721481 of Syndicate Bank,
Mundgod for Rs.56,000/- dated 26.10.2005. The
respondent/accused requested to present the said cheque
NC: 2025:KHC-D:4687
after two months for encashment. As per the request of the
accused, the complainant presented the said cheque and it
came to be dishonoured with an endorsement "Funds
insufficient" by memo dated 16.02.2006. Thereafter,
complainant has issued legal notice dated 20.02.2006 to the
accused calling upon him to pay the cheque amount within
15 days. The accused has refused to receive the said notice
sent by registered post and postal authorities have given
return intimation on 03.03.2006. Inspite of that, the accused
did not pay the cheque amount. Therefore, the complainant
has filed private complaint against the respondent/accused
for offence under Section 138 of N.I. Act.
3. The learned Magistrate has taken cognizance and
registered case in C.C.331/2006 against the
respondent/accused for offence under Section 138 of N.I.
Act. The plea of the accused has been recorded. The
complainant in order to prove his case has examined himself
as PW-1 and got marked documents as Exs.P-1 to P-6. The
respondent-accused has examined himself as DW-1 and no
documents were marked on defence side. The statement of
NC: 2025:KHC-D:4687
the accused has been recorded under Section 313 Cr.P.C.
Learned Magistrate after hearing arguments on both sides,
has passed impugned judgement of acquittal. The said
judgement of acquittal has been challenged by the
complainant in this appeal.
4. Heard learned counsel for the appellant and
learned counsel for the respondent.
5. Learned counsel for the appellant would contend
that the respondent/accused has admitted his signature on
cheque-Ex.P-1 and therefore, presumption under Section
139 of N.I. Act has to be drawn that the cheque is issued for
discharge of debt/liability. The said presumption is not
rebutted. The complainant has not been given sufficient
opportunity to cross examine DW-1. The
appellant/complainant due to his ill-health, did not appear
when the case was posted for cross-examination of DW-1.
With this, she prayed to allow the appeal and convict the
respondent-accused for offence under Section 138 of N.I.
Act.
NC: 2025:KHC-D:4687
6. Learned counsel for respondent would contend
that the presumption drawn under Section 139 of N.I. Act
has been rebutted by leading a defence evidence. DW-1 has
not been cross examined by the complainant inspite of giving
sufficient opportunity. The evidence of PW-1 and cross-
examination of PW-1 establishes the defence of the
respondent/accused. The appellant/complainant has not
produced any document to show the liability of the
respondent/accused to pay the cheque amount. Considering
the same, the learned Magistrate has rightly acquitted the
respondent-accused for offence under Section 138 of N.I.
Act. With this, he prayed for dismissal of the appeal.
7. Having heard learned counsels, the Court has
perused the impugned judgement and trial Court records.
Considering the grounds urged, the following point arises for
consideration:
i. Whether the trial Court has erred in
acquitting the respondent/accused for
offence under Section 138 of N.I. Act?
NC: 2025:KHC-D:4687
8. My answer to the above point is in the 'negative'
for the following reasons:
9. It is the specific case of the
appellant/complainant that there was outstanding balance of
Rs.56,000/- which was to be paid by accused to the
complainant with regard to credit purchase of gold and silver
ornaments by the accused from the complainant. In order to
pay the said outstanding amount, the respondent/accused
has issued cheque-Ex.P-1 for Rs.56,000/-. The
respondent/accused has admitted his signature on cheque-
Ex.P-1. As respondent/accused has admitted the signature
on the cheque-Ex.P-1, the presumption has to be drawn that
the cheque is issued for discharge of liability. The said
presumption is a rebuttable presumption. The standard of
proof for rebutting the said presumption is preponderance of
probability.
10. It is the defence of the respondent/accused that
appellant is not a Goldsmith and his father is a Goldsmith
and there was a transaction between father of the appellant
and the respondent/accused and for that he had issued one
NC: 2025:KHC-D:4687
cheque for Rs.30,000/- and another blank cheque. The
father of the accused has filed a cheque bounce case against
the respondent for Rs.30,000/- and another signed cheque
has been misused by the appellant. PW-1 in his cross-
examination has denied the suggestions that there was no
transaction between the respondent and the complainant.
PW-1 has also denied that he has misused cheque given by
the accused to his father. In order to establish the defence,
the accused examined himself as DW-1. DW-1 in his
evidence has stated that there was no any transaction
between him and the complainant with regard to any gold.
11. He further stated that there was a transaction
between accused and the father of complainant with regard
to making of gold ornaments and he had issued two
cheques, one for Rs.30,000/- and another blank cheque. He
has further stated that by using one cheque, father has filed
complaint against respondent/accused for cheque for
Rs.30,000/- and he has paid the said cheque amount to the
father of the accused.
NC: 2025:KHC-D:4687
12. He has further stated that another cheque has
been misused by the complainant. DW-1 has not been cross
examined by the appellant/complainant. DW-1 has been
examined on 04.06.2016 and case has been posted for
cross-examination of DW-1 on 16.06.2016 and 23.06.2016.
On 23.06.2016, the cross examination of PW-1 has been
taken as nil. Inspite of granting opportunity on two dates,
the counsel for the complainant has not cross examined DW-
1. Thereafter, the case has been posted for arguments on
eight dates. In those eight dates, the
complainant/complainant's counsel have not made any
application seeking recall of DW-1 for cross-examination.
Therefore, the appellant cannot now contend that sufficient
opportunity is not given to the complainant for cross-
examination of DW-1.
13. The evidence of DW-1 itself establishes the
defence of the respondent/accused. The respondent/accused
has rebutted the presumption drawn under Section 139 of
the N.I. Act. In order to establish the transaction and the
liability, the appellant/complainant has not examined his
NC: 2025:KHC-D:4687
father who is stated to be present during the transaction
between complainant and the accused. No iota of evidence
has been placed on record in order to establish the liability of
the respondent/accused to pay the cheque amount.
Considering all these aspects, the learned Magistrate has
rightly acquitted respondent/accused for offence under
Section 138 of N.I. Act. There are no grounds made out for
setting aside well reasoned judgement of acquittal passed by
the trial Court.
14. In the result, the appeal is dismissed.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
RKM
CT-ASC
