Karnataka High Court
Smt. Vanajakshi vs Mr. Vittal Ravalappanavar on 24 March, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.A No. 933 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL APPEAL NO. 933 OF 2023
BETWEEN:
1. SMT. VANAJAKSHI
W/O. VASU POOJARI,
AGED ABOUT 60 YEARS,
PROPRIETOR,
M/S. VIGNESH FINANCE (REGD),
KUNIL CENTRE, HAMPANAKATTA,
REP. BY GPA HOLDER
DHANAPAL,
S/O. NARAYANA K. SALIAN,
AGED ABOUT 51 YEARS,
R/O. CHENNAMMA NIVAS,
CHITRAPU VILLAGE, MULKI,
MANGALURU TALUK,
D.K. DISTRICT-574 103.
Digitally signed ...APPELLANT
by DEVIKA M
Location: HIGH (BY SRI. K. RAVISHANKAR, ADVOCATE)
COURT OF AND:
KARNATAKA
1. MR. VITTAL RAVALAPPANAVAR
S/O. SHIVAPRUTHRAN,
AGED ABOUT 45 YEARS,
R/AT NO.118/1, KARAGINAKOPPA,
MUDAGOD TALUK,
UTTARA KANNADA DISTRICT-581 349.
...RESPONDENT
(RESPONDENT SERVED AND UNREPRESENTED [ABSENT])
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CRL.A No. 933 of 2023
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(4) OF CR.PC PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER OF ACQUITTAL DATED 10.02.2023 PASSED IN
C.C.NO.4178/2019 PASSED BY THE JMFC IV COURT,
MANGALURU D.K. FOR THE OFFENCE PUNISHABLE UNDER
SECTION 138 OF THE NEGOTIABLE INSTURMENTS ACT AND
ALLOW THE COMPLAINT AS PRAYED.
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
the respondent inspite of service of notice, did not chose
to appear.
2. This appeal is filed against the order of acquittal
passed by the Trial Court in C.C.No.4178/2019 vide order
dated 10.02.2023 on file of IV Court Mangalore, D.K for
the offence punishable under Section 138 of N.I Act.
3. The factual matrix of case of complainant while
invoking Section 200 of Cr.P.C for filing complaint for the
offence punishable under Section 138 of N.I Act. It is
contended that complainant company dealing with the
finance transactions. The accused is the borrower of hand
loan from the complainant for the loan amount of
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Rs.2,00,000/- from the complainant on 31.03.2018
undertaking to repay the same with interest within the
stipulated time. The accused also assured the complainant
that he would repay the said loan within the time. After
repeated requests the accused had issued a cheuque
bearing No.000498 dated 10.12.2018 for Rs.2,21,000/-
drawn in favour of the complainant. When the complainant
have presented the said Cheque was dishonored and
returned with an endorsement "Funds Insufficient" on
11.12.2018. The complainant got issued the notice
against the accused and accused having served with the
notice, no reply was given and also not made any
payment. Hence, complainant was filed and Trial Court
taken the cognizance and accused was secured before the
Trial Court and accused did not plead guilty and hence,
complainant was examined as PW1 and got marked Ex.P1
to Ex.P11. The complainant was cross-examined and
thereafter the accused was also examined under Section
313 of Cr.P.C but not lead any evidence before the Trial
Court and Trial Court having considered the material on
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record, comes to the conclusion that no dispute with
regard to the issuance of the Cheque but defense was
taken that Cheque was issued as security, but in
paragraph No.14 made an observation that as admitted by
PW1, no documents are produced by them to prove the
existence of Ex.P1 Cheque amount as on the date of
Cheque. That apart Court may presumes that they had
obtained the document from the accused as security at the
time of lending of loan. Hence, the burden is on the
complainant to prove the existence of Ex.P1 Cheque
amount. The complainant have not whispered anything in
respect of said Ex.P1 amount has not been properly
explained and also given the reasons that the contents of
the documents are in different ink and the same can be
clearly visible to the naked eye and undoubtedly made on
different date and time and relied upon the earlier
judgment of ILR 2014 KAR 6572 in case of
H.Manjunath V/s A.M.Basavaraju wherein it was held
that absence of material partiulars of the transaction in the
complaint-except signature all other entries are in different
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handwriting, different ink and undoubtedly made at
different time-mentioning of merely the date of issuance of
Cheque without any material particular- held, judgment of
acquittal is justified. The counsel referring this observation
would vehemently contend that the Trial Court committed
an error in coming to such a conclusion that Section 20 of
Negotiable Instruments Act is very clear that Cheque was
signed and admittedly, issuance of the same, burden is on
the accused to prove that there was no debt or liability
rebutting the evidence of the complainant and the same
has not been done and committed an error in passing such
an order.
4. Having heard the appellant's counsel and also
records are received and having perused the evidence of
PW1 and cross-examination wherein re-iterated the
contents of the complaint and relied upon the document of
Cheque Ex.P1 and signature and documents have been
placed on record regarding transaction and having
considered the same, the counsel would contend that this
document establishes the transaction between the
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complainant and the accused and the same has been
ignored by the Trial Court. Having considered the grounds
urged in the appeal as well as on perusal of documentary
evidence, the point that would arise for consideration of
this Court are:
1) Whether the Trial Court committed an
error in coming to the conclusion that
Cheque was issued for security and the
same is in different ink and the same
cannot be relied upon and such finding is
erroneous and whether this Court can
exercise appellate jurisdiction?
2) What Order?
5. Having heard the appellant's counsel and also
on perusal of complaint filed before the Trial Court,
specific averment made in the complaint that complainant
is engaged in the business of finance and accused had
approached the complainant and obtained the loan of
Rs.2,00,000/- from the complainant on 31.03.2018
undertaking to repay the same with interest and also
executed on demand promissory note in terms of Ex.P7
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and also on demand issued the subject matter of Cheque
which is marked as Ex.P1. The accused also not disputes
the signature available in the Ex.P1 and notice was also
issued and the same has been served and for having
served the notice, Ex.P5 postal acknowledgment is
produced before the Court.
6. It is also important to note that loan application
is also filed and marked as Ex.P6. The Ex.P7 promissory
note is also dated 31.03.2018 which establishes execution
of Ex.P7 and defense was taken that the Cheque was
issued towards security and when the loan document
discloses that on the date of availing the loan, application
was given by the accused as per Ex.P6 and also the
promissory note executed on the very same day as per
Ex.P7 and also specific case of complainant that on
demand of repayment of amount only the Cheque Ex.P1
was given towards the discharge of liability on 10.12.2018.
The Trial Court having accepted the defense of accused
that the same was issued towards security Cheque which
was given, complainant has to prove the same. When the
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complainant proved the very availment of loan by placing
on record, Ex.P6 and Ex.P7 promissory note and issuance
of Cheque as per Ex.P1 and also the endorsement for
having received the amount of Rs.2,00,000/-, Ex.P8 is also
placed on record. The very approach of the Trial Court is
erroneous in coming to such a conclusion that Cheque
might have been issued toward the security and fails to
consider the documents which have been placed by the
complainant for having transacted with the complainant by
the accused execution of loan application, promissory note
and also receipt of Rs.2,00,000/-, acknowledging the same
from the complainant as well as Cheque was issued and no
doubt when the Ex.P1 signature is in different ink,
contents are in different ink and the same cannot be a
ground to comes to a other conclusion and the judgment
which has been relied upon is of 2014 and no relevance in
view of recent judgment of the Apex Court and Apex Court
held that once the Cheque was issued, authorizing the
holder of the Cheque to fill up the same, the burden is on
the accused to place on record, probable defense, but in
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the case on hand, when 313 statement was recorded by
the Trial Court except stating that he would lead the
defense evidence and denying the entire case of
complainant, no explanation. Apart from that even not led
any defense evidence also and Trial Court committed an
error in when the complainant proved the case that loan
application was given and thereafter executed the
document, even no reply was given when the notice was
given and the same was served on the accused. In the
absence of rebuttal evidence and not rising any probable
case, committed an error in acquitting the accused and
hence, the reasoning given by the Trial Court is erroneous
and it requires interference of this Court. Hence, I answer
the point as 'Negative'.
7. In view of the discussions made above, I pass
the following:
ORDER
i) The Criminal Appeal is allowed.
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ii) The impugned judgment passed by the Trial
Court in C.C.No.4178/2019 vide order dated
10.02.2023 on file of IV Court Mangalore,
D.K is set-aside.
iii) The accused is convicted for the offence
punishable under Section 138 of Negotiable
Instruments Act and directed to pay fine
amount of Rs.3,00,000/-(Rupees Three
Lakhs only) and if appellant fails to pay the
amount within two months from today, he
shall undergo sentence for a period of six
months.
Sd/-
(H.P.SANDESH)
JUDGE
RHS
