Karnataka High Court
Shri.Muktarahamad S/O Kutbuddin ... vs Shri.Altaf Hayatsab Mulla on 26 March, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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NC: 2025:KHC-D:5607
CRL.A No. 100095 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 26TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO.100095 OF 2016
BETWEEN:
1. SHRI.MUKTARAHAMAD
S/O. KUTBUDDIN KHANAPURI,
SINCE DECEASED BY HIS LRS.
1A. SMT. DILSHAD W/O. MUKTAR KHANPURI,
AGE: 53 YEARS, OCC: HOUSEWIFE,
R/O: KHANAPUR, TQ: KHANAPUR,
DIST: BELAGAVI - 591 302.
1B. SHRI. AJARUDDIN S/O. MUKTAR KHANAPURI,
AGE: 35 YEARS, OCC: VEGETABLE BUSINESS,
R/O: KHANAPUR, TQ: KHANAPUR,
DIST: BELAGAVI - 591 302.
1C. SMT. BIBISAFA W/O. ALLABAKSH BETAGERI,
AGE: 32 YEARS, OCC: HOUSEWIFE,
R/O: KHANAPUR, TQ: KHANAPUR,
Digitally signed by
DIST: BELAGAVI - 591 302.
MOHANKUMAR B
SHELAR
Location: High
Court of 1D. SHRI. ISMAIL S/O. MUKTAR KHANAPURI,
Karnataka,
Dharwad Bench,
Dharwad
AGE: 30 YEARS, OCC: VEGETABLE BUSINESS,
R/O: KHANAPUR, TQ: KHANAPUR,
DIST: BELAGAVI - 591 302.
...APPELLANTS
(BY SRI. B. M. PATIL, ADVOCATE)
AND:
SHRI. ALTAF HAYATSAB MULLA,
AG: MAJOR, OCC: BUSINESS,
R/O: SAYYAD GALLI, KHANAPUR,
DISTRICT: BELAGAVI.
...RESPONDENT
(BY SRI. H. M. DHARIGOND, ADVOCATE)
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NC: 2025:KHC-D:5607
CRL.A No. 100095 of 2016
THIS CRIMINAL APPEAL IS FILED U/SEC. 378(4) OF CR.P.C.,
1973, PRAYING TO SET ASIDE THE JUDGMENT IN C.C.NO. 382/2012
DATED 26/02/2016 PASSED BY THE PRL. CIVIL JUDGE & JMFC,
KHANAPUR, ACQUITTING THE ACCUSED AND PUNISH THE ACCUSED
U/SEC. 138 OF NEGOTIABLE INSTRUMENTS ACT 1881 BY ALLOWING
THE IN THE INTEREST OF JUSTICE AND EQUITY.
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 ORDER
This appeal is filed by appellant/complainant
challenging the judgement of acquittal dated 26.02.2016
passed in C.C.No.382/2012 by the Prl. Civil Judge and
JMFC, Khanapur, 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 the appellant/complainant in brief is
as under:
The appellant/complainant and respondent/accused
are well known to each other, both are residents of
Khanapur City. The complainant was owner of land bearing
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R.S.No.28/1 measuring 4 acres 19 guntas 8 annas,
situated in Mansapur village, Khanapur Taluka. The
complainant intended to sell his 2 acres of land to the
accused. The accused approached the complainant and
showed his willingness to purchase the said land for
consideration of Rs.3,00,000/-. The complainant has
executed a registered sale deed in favour of accused. The
accused had no sufficient amount to pay consideration
amount. The accused paid Rs.2,25,000/- in cash and
Rs.75,000/- through a cheque bearing No.021419 dated
01.08.2008 of Shree Bhagyalaxmi Co-operative Credit
Society Limited, Khanapur. The said cheque was presented
for encashment and it came to be dishonoured with an
endorsement "Funds Insufficient" in the account of the
accused by memo dated 28.10.2008. The complainant got
issued legal notice dated 10.11.2008 calling upon the
respondent/accused to pay the cheque amount within 15
days. The said notice has been served on the
respondent/accused. Inspite of service of notice,
respondent/accused has not paid the cheque amount.
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Therefore, the complainant, filed a private complaint
against the respondent/accused for offence under Section
138 of N.I. Act
3. Learned Magistrate has taken cognizance and
registered case in C.C.No.382/2012 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-5 and also examined another witness as PW-2. The
statement of accused has been recorded under Section
313 of Cr.P.C. The accused in defence has examined
himself as DW-1 and got marked documents as Ex.D-1 to
D-10.
4. The learned Magistrate after hearing the
arguments on both sides, has formulated the points for
consideration and passed the impugned judgement of
acquittal. The said judgement of acquittal has been
challenged by the complainant in this appeal.
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5. Heard learned counsels for appellant and
respondent.
6. Learned counsel for appellant would contend
that under the sale agreement-Ex.P-5, the
respondent/accused has agreed to purchase 2 acres of
land of the complainant for sale consideration of
Rs.3,00,000/- and at the time of executing the sale deed-
Ex.D-1 dated 23.06.2008, sale consideration in part
Rs.2,25,000/- has been paid in cash and cheque dated
01.08.2008 has been issued for Rs.75,000/- in favour of
the complainant. He submits that the said cheque has
been dishonoured. The said cheque is issued as part of
sale consideration for executing sale deed-Ex.D-1. He
submits that sale price for 1 acre of land is Rs.1,50,000/-
and the same can be seen on perusing Ex.D-2-sale
agreement dated 19.06.2008. Without considering these
aspects, the learned Magistrate has erred in acquitting
respondent/accused. With this, he prayed for allowing the
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appeal and convicting the respondent/accused for offence
under Section 138 of N.I. Act.
7. Learned counsel for respondent would contend
that the entire sale consideration of Rs.3,00,000/- as
agreed under sale agreement-Ex.P-5 has been paid as on
the date of sale deed dated 23.06.2008(Ex.D-1). There
was another sale agreement pending executed by
complainant in favour of the accused dated 19.06.2008.
Whereunder, the complainant has agreed to sell his 1 acre
of land for sale consideration of Rs.1,50,000/- and under
which Rs.25,000/- has paid as advance, towards making
payment of another part of sale consideration, cheque-
Ex.P-1 has been issued for Rs.75,000/- and
appellant/complainant did not agreed to execute the sale
deed as agreed under sale agreement-Ex.D-2 and the
cheque was not honoured. The same has been admitted
by PW-1 in his cross-examination. In respect of the said
sale agreement- Ex.D-2, dated 19.06.2008, there was a
suit for specific performance filed by the accused against
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the complainant in O.S.No.52/2009 and another suit is
filed in O.S.No.17/2009 by the complainant against the
accused seeking permanent injunction. Both suits have
been decreed and certified copies of judgements are at
Ex.D-9 and D-10 and Ex.D-5 and Ex.D-6. He contends that
as sale agreement-Ex.D-2 has not been performed, there
is no liability on the part of the respondent/accused for
honour of cheque-Ex.P-1 issued regarding part payment of
sale agreement. Considering the said aspect, learned
Magistrate has rightly acquitted respondent/accused. With
this, he prayed for dismissal of the appeal.
8. Having heard learned counsels, the Court has
perused the impugned judgment and trial Court records.
9. Considering 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?
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10. My answer to the above point is in 'negative'
for the following reasons.
11. The appellant/complainant has agreed to sell
his 2 acres of land in R.S.No.28/1 to the
respondent/accused under the sale agreement-Ex.P-5 for
Rs.3,00,000/-. As per the said sale agreement, sale deed
has been executed on 23.06.2008, certified copy of sale
deed is at Ex.D-1. There is no mention in Ex.D-1-sale deed
that there is a balance amount of sale consideration of
Rs.75,000/- to be paid by the accused to the complainant.
As per complainant, cheque-Ex.P-1 dated 01.08.2008 is
issued for Rs.75,000/- in favour of complainant by
accused. When the sale transaction is concluded by
executing sale deed on 23.06.2008, there is no question of
accused issuing the cheque dated 01.08.2008 for
Rs.75,000/-.
12. There was another sale agreement dated
19.06.2008, copy of which is at Ex.D-2, whereunder,
complainant has agreed to sell his 1 acre of land to the
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respondent/accused for Rs.1,50,000/- and he received
advance of Rs.25,000/-. The said sale agreement is not
performed by the complainant and therefore, the accused
has filed a suit for specific performance in O.S.No.52/2009
and the judgment passed in the said case is at Ex.D-9. It
is the case of the respondent/accused that cheque-Ex.P-1
has been issued pertaining to the sale agreement-Ex.D-2
dated 19.06.2008 for making payment of part of balance
sale consideration of Rs.1,25,000/-. The same has been
admitted by PW-1 in his cross examination, the relevant
portion of said cross-examination is as under:
"£À£Àß ªÀÄvÀÄÛ DgÉÆæAiÀi ªÀÄzÀå £Á£ÀÄ ZÉPÀÄÌ ºÁPÀĪÀ §UÉÎ
ºÁUÀÆ DgÉÆæAiÀi vÀ£ÀUÉ MAzÀÄ JPÀgÉ d«Ä¤£À §UÉÎ RgÉâ ¥ÀvÀæ
§gÉzÀÄPÉÆqÀĪÀ WÀµÀðuÉ £ÀqÉ¢zÀݪÀÅ JAzÀgÉ ¸Àj, DgÉÆæAiÀÄÄ
£À£ÀUÉ RgÉâ ¥ÀvÀæ §gÉzÀÄPÉÆqÀĪÀªÀgÉUÀÆ vÁ£ÀÄ PÉÆlÖ 25 ¸Á«gÀ
gÀÆ. AiÀÄ ZÉPÀÄÌ ªÀiÁ£Àå ªÀiÁqÀĪÀÅ¢®è JAzÀÄ ºÉüÀÄwÛzÀÝgÀÄ ºÁUÀÆ
£Á£ÀÄ DgÉÆæUÉ ªÉÆzÀ®Ä ZÉPÀÄÌ ªÀiÁ£Àå ªÀiÁqÀ¨ÉÃPÀÄ £ÀAvÀgÀ RgÉâ
¥ÀvÀæ §gÉzÀÄPÉÆqÀÄwÛzÉÝ JAzÀÄ ºÉüÀÄwÛzÉÝ. F ªÀÄzÀå £Á£ÀÄ DgÉÆæ
PÉÆlÖ ZÉPÀÄÌ ¨ÁåAQUÉ ºÁPÀÄvÉÛÃ£É JAzÀÄ ºÉý DgÉÆæ vÀ£Àß
SÁvÉAiÀÄè°zÀÝ J¯Áè zÀÄqÀØ£ÀÄß ªÁ¥À¸ÀÄì vÉUÉzÀÄPÉÆArzÁÝgÉAzÀgÉ ¸Àj.
¸ÀzÀj ZÉPÀÄÌ £Á£ÀÄ JgÀqÀÄ JPÀgÉ d«ÄäUÉ ¸ÀA§AzsÀ¥ÀlÖ ºÁUÉ
DgÉÆæAiÀÄÄ £À£ÀUÉ PÉÆnÖzÁÝgÉAzÀÄ ºÉüÀÄwÛzÉÝÃ£É ªÀÄvÀÄÛ DgÉÆæ
¸ÀzÀj ZÉPÀÄÌ RgÉâ PÀgÁgÀÄ ¥ÀvÀæ DzÀ MAzÀÄ JPÀgÉ d«ÄäUÉ
PÉÆnÖzÁÝgÉ JAzÀÄ ºÉüÀÄwÛzÁÝgÉ JAzÀgÉ ¸Àj."
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13. Considering the above said admission given by
PW-1 in his cross examination, it is clear that Ex.P-1-
cheque for Rs.75,000/- issued with regard to the sale
agreement-Ex.D-2 dated 19.06.2008. The performance of
the said sale agreement-Ex.D-2 is subject matter of suit in
O.S.No.52/2009 filed by accused against the complainant.
Considering the same, the appellant/complainant has not
established that cheque-Ex.P-1, has been issued for
making payment of sale consideration pertaining to sale
deed-Ex.D-1 and sale agreement-Ex.P-5. Considering the
said aspect, the learned Magistrate has rightly acquitted
the respondent/accused for offence under Section 138 of
N.I. Act. The appellant has not made out any grounds for
setting aside the impugned judgment of acquittal.
14. In the result, the appeal is dismissed.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
RKM/CT-ASC
