Karnataka High Court
Varada Leasing Investment Pvt. Ltd., ... vs Subrahmanya Shivaram Bhat on 20 March, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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NC: 2025:KHC-D:5148
CRL.A No. 100021 of 2019
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.100021 OF 2019
BETWEEN:
VARADA LEASING INVESTMENT PVT. LTD., KUMTA,
REPRESENTED BY ITS MANAGER,
SUBHAS GANAPATI SHETTY,
AGE: 44 YEARS, R/O: KUMTA, TQ: KUMTA,
DIST: UTTARA KANNADA - 581 343.
...APPELLANT
(BY SRI CHETAN NAIK, ADVOCATE APPEARED FOR
M/S J. S. SHETTY ASSOCIATES, ADVOCATES)
AND:
SUBRAHMANYA SHIVARAM BHAT,
AGE: MAJOR, R/O: BARADAHITTAL ONI,
GUDEANGADI, POST: HOLANGADDE,
KUMTA TALUKA,
DIST: UTTARA KANNADA - 581 327.
...RESPONDENT
Digitally signed by (BY SRI M. M. HIREMATH, ADVOCATE)
MOHANKUMAR B
SHELAR
Location: High
Court of Karnataka,
Dharwad Bench,
THIS CRIMINAL APPEAL IS FILED U/S 378(4) OF CR.P.C.
Dharwad
SEEKING THAT THE ORDER OF ACQUITTAL DATED 18.12.2018
PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND PRINCIPAL
JMFC COURT, KUMTA IN C.C.NO.384/2018, MAY KINDLY BE SET
ASIDE AND THE RESPONDENT MAY KINDLY BE CONVICTED IN THE
OFFENCES PUNISHABLE UNDER SECTION 138 OF THE NEGOTIABLE
INSTRUMENT ACT, BY ALLOWING THIS APPEAL WITH THE COST
THROUGHOUT IN THE ENDS OF JUSTICE AND EQUITY.
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NC: 2025:KHC-D:5148
CRL.A No. 100021 of 2019
THIS CRIMINAL APPEAL, COMING ON FOR FINAL HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL JUDGMENT
This appeal is filed by appellant/complainant praying
to set-aside the judgement of acquittal dated 18.12.2018
passed in C.C.No.384/2018 by Senior Civil Judge and
Principal JMFC, Kumta, whereunder, respondent/accused
has been acquitted for offence punishable under Section
138 of the Negotiable Instruments Act, 1881 (hereinafter
referred to as '138 of N.I. Act', for short)
2. The case of appellant/complainant in brief is as
under:
The appellant/complainant is a financial institution
dealing with loans and advances. The respondent/accused
approached the complainant and sought for a loan of
Rs.30,000/- for the purpose of business on 31.07.2008.
He has executed Agreement, Promissory Note and Loan
papers and loan of Rs.30,000/- was granted to the
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accused. The accused became defaulter and did not repay
the loan, hence, when insisted for repayment, he issued a
cheque bearing No.667432 for Rs.36,558/- dated
13.05.2015 drawn on Karnataka Bank, Kumta Branch
towards repayment of loan amount. The said cheque was
presented for collection. It was returned dishonoured for
the reason 'Funds Sufficient'. The complainant got issued
legal notice on 29.05.2015 calling upon the
respondent/accused to repay the cheque amount within 15
days. The notice has been served to accused on
01.06.2015. The accused did not repay the cheque
amount and he has issued reply to the said notice.
Therefore, complainant filed private complaint against the
respondent/accused for offence under Section 138 of N.I.
Act.
3. Learned Magistrate has taken cognizance and
registered C.C.No.384/2018 against the
respondent/accused for offence under Section 138 of N.I.
Act. The plea of the accused has been recorded. The
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complainant in order to prove his case, has examined
three witnesses as PW-1 to PW-3 and got marked
documents as Exs.P-1 to P-7. Ex.D-1 to D-3 are marked in
the cross examination of PW-1. The statement of accused
has been recorded under Section 313 of Cr.P.C.
4. The learned Magistrate after hearing the
arguments on both sides, has formulated the points for
consideration and passed the impugned judgement for
acquittal. The said judgement of acquittal has been
challenged by the complainant in this appeal.
5. Heard learned counsel for appellant. Learned
counsel for respondent is absent.
6. Learned counsel for appellant would contend
that the respondent/accused has admitted his signature on
cheque-Ex.P-2 and therefore, presumption has to be
drawn under Section 139 of N.I. Act. The said presumption
has not been rebutted. Merely because, the earlier case
filed by the appellant for dishonour of cheque and
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settlement of the same will not come in the way of case of
the complainant. With this, he prayed to allow the appeal.
7. Having heard learned counsel, the Court has
perused the impugned judgement and trial Court records.
8. It is the specific case of the
appellant/complainant that it is a company, dealing with
loans and advances and it has advanced loan of
Rs.30,000/- to the respondent/accused on 31.07.2008 and
in order to repay the said amount borrowed,
respondent/accused has issued a cheque-Ex.P-2 for
Rs.36,558/- dated 13.05.2015. The respondent/accused
has not denied his signature on cheque i.e., Ex.P-2. As the
respondent has not denied the signature on cheque-
Ex.P-2, 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 a rebuttable presumption.
The standard of proof for rebutting the said presumption is
preponderance of probability.
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9. The respondent/accused has taken up the
defence that earlier he has issued a cheque towards
repayment of entire amount borrowed and it was
dishonoured, the complainant filed a criminal case for
offence under Section 138 of N.I. Act and there was a
settlement in the said matter and he has repaid the entire
loan amount and there is no amount due to the
appellant/complainant.
10. PW-1 in his cross-examination has admitted
that in reply-Ex.P-7, the accused has stated that he has
repaid the entire loan amount. PW-1 has also admitted
that case filed in C.C.No.687/2009 against
respondent/accused for dishonour of cheque. Ex.D-1 is
copy of complaint in C.C.No.687/2009, Ex.D-2 is copy of
deposition of PW-1 recorded in C.C.No.687/2009 and
Ex.D-3 is cheque involved in the said C.C.No.687/2009
and its bearing No.667431. PW-1 in his cross-examination
has admitted Ex.D1 to D3. In Ex.D-1, it is stated that
cheque in that case has been issued for payment of entire
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loan amount. In Ex.D-2 also it is stated that cheque has
been issued for payment of entire loan amount.
11. Cheque in the said C.C.No.687/2009, copy of
which is at Ex.D-3 is dated 08.05.2009 and drawn for
Rs.34,340/-. The amount borrowed as stated in Ex.D-1
and D-2 is Rs.30,000/- and date of borrowing is
31.07.2008. The date of borrowing and the loan involved
in the present case and C.C.No.687/2009 are one and the
same. When the respondent/accused has taken up the
specific defence that he has repaid the entire loan amount,
the complainant ought to have produced the statement of
loan amount to show what was amount due by the
respondent/accused. The complainant has not produced
the statement of the loan amount or any documents
pertaining to the said loan availed by the
respondent/accused namely, loan application, promissory
note, agreement etc. Considering the said aspect, the
complainant has failed to establish that a sum of
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Rs.36,558/-(Amount of cheque-Ex.P-2) is due towards the
loan of respondent/accused.
12. The respondent/accused has taken up the
defence that he had issued cheques as the security at the
time of filing of loan application and it has been misused.
On perusal of serial numbers of cheques involved in the
present case and involved in the earlier case
i.e., C.C.No.687/2009, they are in consecutive numbers.
Cheque involved in C.C.No.687/2009 is bearing
No.667431. Cheque involved in the present case is bearing
No.667432. Cheque bearing Sl.No.667431 is dated
08.05.2009 (Copy of which is at Ex.D-2) and cheque-Ex.P2
is bearing No.667432 is dated 13.05.2015. There is a gap
of 6 years between the dates of the said two chques.
Considering all these aspects, the respondent/accused has
rebutted the presumption drawn under Section 139 of N.I.
Act. The cheque which is at Ex.P-2 has been issued for
discharge of debt and respondent/accused is due
Rs.36,558/- towards his loan to the appellant/company in
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order to establish that appellant/company has not
produced any documents. Considering all these aspects,
the learned Magistrate has rightly acquitted the
respondent/accused for offence under Section 138 of N.I.
Act by a reasoned judgement. There are no grounds made
out for allowing the appeal.
13. In the result, the appeal is dismissed.
SD/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
RKM/CT-ASC
