Karnataka High Court
Yallappa S/O Gundu Patil vs Pramod D Chougule on 20 March, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.A No. 100389 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 20TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO. 100389 OF 2017
BETWEEN:
YALLAPPA S/O. GUNDU PATIL,
AGE: 48 YEARS, OCC: BUSINESS,
R/O: H.NO.580, PEERANWADI,
BELAGAVI, DIST: BELAGAVI - 590 001.
...APPELLANT
(BY SRI SHIVARAJ S. BALLOLI, ADVOCATE)
AND:
PRAMOD D. CHOUGULE,
AGE: 56 YEARS, OCC: BUSINESS,
R/O: MAHARAJA TEMPOS
BESIDE GOKUL PUROHIT SWEETS,
FORT ROAD, BELAGAVI,
DIST: BELAGAVI - 590 001.
...RESPONDENT
(BY SRI VITTHAL S. TELI, ADVOCATE)
Digitally signed by
MOHANKUMAR B
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF
SHELAR
Location: High
Court of Karnataka, CR.P.C., SEEKING TO SET ASIDE THE ORDER OF ACQUITTAL DATED
Dharwad Bench,
Dharwad
02.11.2017 PASSED IN C.C.974/2017 (OLD C.C.NO.1019/2011) ON
THE FILE OF V-JMFC, BELAGAVI AND ACCORDINGLY CONVICT THE
RESPONDENT FOR THE OFFENCE PUNISHABLE UNDER SECTION 138
OF NI ACT BY ALLOWING THE APPEAL TO MEET THE ENDS OF
JUSTICE.
THIS CRIMINAL APPEAL, COMING ON FOR FINAL HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
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CRL.A No. 100389 of 2017
ORAL JUDGMENT
This appeal is filed by the complainant praying to set
aside the judgement dated 02.11.2017 passed in CC
No.974/2017 by the V-JMFC, Belagavi, whereunder the
accused is acquitted for the offence punishable under
Section 138 of N.I. Act.
2. The case of the appellant-complainant in brief is
as under;
The appellant-complainant is a vegetable merchant
and a money lender and the accused is a businessman.
The accused has availed a hand loan of ₹75,000/- from
the complainant on 29.11.2006 and agreed to re-pay the
same within a period of three [3] years. The accused had
issued a cheque bearing No.511478, for ₹75,000/- dated
15.02.2011 in favour of the complainant for repayment of
the said amount borrowed. The said cheque came to be
presented by the complainant for encashment and the
cheque has been returned dishonoured with an
endorsement as "Funds Insufficient" under Bank memo
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dated 30.03.2011. The complainant got issued a legal
notice to the accused on 28.04.2011 and it has been
served on the respondent-accused. In spite of service of
notice, the respondent-accused has not paid the cheque
amount within 15 days. Thereafter, the complainant has
filed a private complaint against the respondent-accused
for the offence punishable under Section 138 of N.I Act.
3. The learned Magistrate has taken cognizance
and registered CC No.974/2017 against the accused for
offence punishable under Section 138 of N.I. Act. The plea
has been recorded. The complainant in order establish his
case, has examined himself as PW.1 and got marked four
[4] documents as Ex.P.1 to P.4. The statement of accused
has been recorded under Section 313 of Cr.P.C. The
accused did not lead any defence evidence. The learned
Magistrate after hearing the arguments on both sides
formulated points for consideration and passed the
impugned judgement of acquittal. The said judgement of
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acquittal has been challenged by the complainant in this
present appeal.
4. Heard the learned counsel for the appellant-
complainant and the learned counsel for the respondent-
accused.
5. The learned counsel for the appellant would
contend that cheque-Ex.P.1 has been issued for making
payment of amount borrowed and it has been dishonoured
for want of funds in the Account of the accused. Therefore,
a presumption arise under Section 139 of N.I. Act that
cheque-Ex.P.1 has been issued for payment of the debt.
The said presumption is not rebutted. The respondent-
accused has taken up the defence that he has issued three
[3] signed cheques to the brother of the accused and out
of them, one [1] cheque has been misused by the
complainant has not been established. The learned
Magistrate has swerved away by non-explanation of
another cheque mentioned in Bank memo-Ex.P.2. The
complainant is no way concerned with another cheque
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mentioned in the Bank memo-Ex.P.2 and therefore, he has
shown his ignorance when it is put to him, in the cross-
examination. As the presumption drawn under Section 139
of N.I. Act is not rebutted, the appellant need not to prove
his capacity to lend the amount. Without considering all
these aspects, the learned Magistrate has erred in passing
the judgement of acquittal. With this, he prayed for setting
aside the judgment of acquittal and convicting the
respondent-accused for the offence punishable under
Section 138 of N.I. Act.
6. Learned counsel for respondent-accused would
contend that the respondent-accused has taken up a
defence that he has given three [3] signed cheques to the
brother of the accused and he had availed a loan from his
brother and out of them, one [1] cheque has been
misused by the complainant. The said aspect which is put
to PW.1 in his cross-examination and PW.1 has stated that
he did not know about the same. He further submits that
the brother of the complainant had filed a case for
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dishonour of the cheque against the accused and in the
said case, there was a settlement between the
respondent-accused and brother of the complainant. He
further submits that in the sworn statement which is
considered as examination-in-chief, PW.1 has stated
regarding the cheque bearing No.511478 dated
15.02.2011 has issued for ₹1,50,000/- the said aspect is
contrary to the case of the complainant. He submits that
considering all these aspects, the learned Magistrate has
rightly acquitted the accused for offence punishable under
Section 138 of N.I. Act. The learned counsel for the
appellant in reply has stated that due to typographical
mistake, amount of ₹1,50,000/- has been mentioned in
para No.4 of the sworn statement [chief-examination] but
in other paragraphs i.e., para Nos.6 and 7 the amount is
correctly mentioned as ₹75,000/-.
7. Having heard the learned counsels, the Court
has perused the impugned judgement and the trial Court
records.
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8. Considering the grounds urged, the following
point arise for consideration;
"Whether the trial Court has erred
in acquitting the respondent-accused for
offence punishable under Section 138 of
N.I. Act?"
9. My answer to the above point is in the
affirmative for the following reasons;
It is the specific case of the appellant-complainant
that the respondent-accused has borrowed ₹75,000/- on
29.11.2006 to meet out his domestic needs and agreed to
repay the same within a period of three [3] years and in
order to repay the said amount, he has issued a cheque-
Ex.P.1 bearing No.511478 dated 15.02.2011 for ₹75,000/.
The said cheque-Ex.P.1 has been dishonoured for reasons
"Funds Insufficient" and Bank endorsement is at Ex.P.2. As
the said dishonour of cheque is for the reason of "Funds
Insufficient", it is clear that the cheque has been issued by
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respondent-accused on his Bank Account and there were
no sufficient funds for honouring the cheque. As the
cheque-Ex.P.1 bear the signature of respondent-accused,
a presumption has to be drawn under Section 139 of N.I.
Act that the cheque is issued for discharge of the debt.
The said presumption is rebuttable presumption. For
rebutting the said presumption the standard of proof is
preponderance of probability.
10. The respondent-accused has taken up the
defence that he has borrowed money from the brother of
the complainant i.e., Pundalik G. Patil and he has issued
three [3] signed cheques to him and out of those three [3]
cheques, one [1] cheque has been misused by the
complainant. In order to establish his defence, he has put
some suggestions in the cross-examination of PW.1
regarding the accused borrowing money from his brother
and issuing three [3] signed cheques for that PW.1 has
stated that he has not aware of the same. In order to
prove the said defence, the accused-respondent has not
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entered into witness box. The cross-examination of PW.1
itself will not establish the said defence. Therefore, the
presumption drawn under Section 139 of N.I. Act
remained unrebutted. As the presumption remained
unrebutted, the appellant-complainant need not to
establish the transaction of accused borrowing ₹75,000/-.
The learned Magistrate has not considered regarding PW.1
giving his answers in ignorance regarding another cheque
mentioned in Ex.P.2 i.e., cheque bearing No.511479 for
₹1,50,000/-. The complainant is no way concerned with
another cheque mentioned in Ex.P.2-Bank endorsement.
Therefore, he has rightly given his answers in his cross-
examination. The learned Magistrate ought not to have
placed much reliance on the aspect of another cheque
mentioned in Ex.P.2 and answer of ignorance given by the
complainant in his cross-examination. The cheque is
dishonoured for reason "Funds Insufficient" in the Bank
Account of respondent-accused. The notice is issued within
a statutory period and it has been served on the
respondent-accused. Inspite of service of notice,
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respondent-accused has not paid the cheque amount
within fifteen [15] days. Considering all these aspects, the
complainant has established all the ingredients of the
offence punishable under Section 138 of N.I. Act.
Therefore, respondent-accused is liable for conviction of
offence punishable under Section 138 of N.I. Act.
In the result the following;
ORDER
i) The appeal is allowed.
ii) The judgement of acquittal dated
02.11.2017 passed in CC
No.974/2017 by the V-JMFC,
Belagavi, is set aside.
iii) The respondent-accused is convicted
for offence punishable under Section
138 of N.I Act and he is sentenced to
pay a fine of ₹85,000/- and in
default of payment of fine, to
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undergo simple imprisonment for a
period of two [2] months. Out of the
fine amount, ₹75,000/- is ordered to
be paid to the appellant-complainant
as compensation.
iv) The respondent-accused shall deposit
the said fine amount within a period
of two [2] months from today.
SD/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
PJ/CT-ASC
